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Friday, 25 August 2017 15:15

School Buses and Custody: Know Your Rights

Written by Jamie M. Jamison

With the start of the school year quickly approaching, parents who exercise shared physical custody of their child(ren) and who reside in the same school district can rest assured that the school district must provide free transportation for their child(ren) to and from each parent’s respective residence. 

In Watts v. Manheim Township School District, the Pennsylvania Supreme Court upheld the Commonwealth Court ruling requiring school districts to transport students to and from the residences of each parent if they are separated or divorced and sharing physical custody.  The Pennsylvania Supreme Court was asked to determine whether the Public School Code “mandates that a school district provide free transportation to a student from two different residences where the student’s parents share physical custody of the student and both parents reside within the school district.”

The parties in Watts exercised shared legal and physical custody of their child on an alternating weekly basis pursuant to a Court Order.  Both parties resided within the school district where their child attended school, but along different school district bus routes.  Father’s residence was located approximately 4.5 miles from the school and Mother’s residence was located approximately 5.5 miles from the school. 

The Pennsylvania Supreme Court determined the following: the school district owes a duty of transportation to the student residing within the school district as a “resident pupil”; the student has two residences for enrollment purposes when the parents exercise shared physical custody of the student; the school district’s duty of transportation includes transportation to and from more than one location within the school district when the student has two residences within the school district; and the purpose of having the school district provide free transportation services to the student is to help facilitate school attendance.

Knowing your rights with regard to school bus transportation and custody can alleviate some of the stress and anxiety you may otherwise experience as your child(ren) return to school.

AMM is pleased to announce the addition of Stephanie M. Shortall to the Firm’s Corporate and Estate Planning and Administration practice groups. Ms. Shortall’s practice is focused on advising closely held businesses on the full range of issues faced in today’s legal landscape. She also works with individuals to develop comprehensive estate plans and administer estates of varying sizes and complexity. Stephanie Shortall is active in a number of local civic and charitable organizations.  To learn more about Stephanie, check her attorney profile.

 

Earlier this year, amendments to Pennsylvania’s statutes governing partnerships and limited liability companies (often referred to as unincorporated entities or alternative entities) went into effect. I recently blogged about the “transferable interest” concept adopted by the Act. Today, in Part 2 of this series, I highlight another significant change brought about by Act 170: the clarification of the fiduciary and other duties owed in the context of an unincorporated entity. In general, there are three basic duties:

• Duty of loyalty: generally, a duty to avoid self-dealing, competing and usurping company or partnership opportunities
• Duty of care: a duty to refrain from gross negligence and recklessness
• Duty of good faith and fair dealing: a duty to deal fairly and consistently with the terms of the parties’ agreement and the purpose of the entity

In a general partnership, each partner owes the above duties to each of the other partners and to the entity.

In a limited partnership: (a) the general partner owes each of these duties to the limited partners and to the partnership; and (b) the limited partners owe only a duty of good faith and fair dealing to each other.

In a manager-managed LLC: (a) the manager owes these duties to the members and to the entity; and (b) the members owe a duty of good faith and fair dealing to each other. In a member-managed LLC, the members owe these duties to each other and the company.

Some of these duties may be modified by agreement of the parties. In their operating or partnership agreement, the parties may modify, but not eliminate, the duty of loyalty and the duty of care, as long as the modification is not “manifestly unreasonable.” This standard is not defined and is left to the courts to interpret, but in general the agreement cannot convert the relationship into a strictly arm’s length relationship. The duty of good faith and fair dealing may not be modified or removed, but the owners’ agreement can identify the standards by which this duty will be measured.

Associate
215-230-7500, ext. 153
sshortall@ammlaw.com

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Practice Groups:

Education:

  • J.D., Temple University, James E. Beasley School of Law, 2008
  • B.A., summa cum laude, business administration and computer information systems, Rider University, College of Business Administration, 2005

Bar Admissions:

  • Pennsylvania, New Jersey, U.S. District Court for the Eastern District of Pennsylvania and the District of New Jersey

 

Clarifying its earlier rulings, the Court of Appeals for the Third Circuit (which includes Pennsylvania) has ruled that a single utterance of a racial slur at the workplace could support a claim for harassment.

In this case, two African-American males (plaintiffs) brought suit challenging their firing on the basis that their termination was discriminatory and racially motivated.

The employees specifically alleged that when they arrived at work on various occasions, an anonymous note was written on the sign-in sheets: “don’t be black on the right of way.” They also asserted that while they had more experience working on pipelines than the non-African-American workers, they were only permitted to clean the pipelines rather than work on them. Significantly, a supervisor of these two African-American employees used a severe racial slur to threaten firing if a specific project was not completed to his satisfaction.

The two employees reported this offensive language to a superior and two weeks later they were fired without explanation. After being rehired they were again terminated for “lack of work”.

The suit filed in federal District Court specifically alleged unlawful harassment, discrimination and retaliation. The District Court dismissed the harassment claim, holding that the facts in the complaint did not support a finding that the alleged harassment was “pervasive and regular”. The Court also dismissed the related claims of discrimination and retaliation.

Elizabeth Fineman of Antheil Maslow & MacMinn’s Family Law practice group was profiled in Suburban Life Magazine’s “Women Who Lead” feature.  Ms. Fineman was selected for her outstanding legal career and commitment to community service. In addition to her busy family law practice, Elizabeth is active in the Jewish Federation of Greater Philadelphia, as well as the Anti-Defamation League and Crohn's & Colitis Foundation of America.

Fineman concentrates her practice exclusively on domestic relations matters and handles a variety of issues, including divorce, child support, alimony/spousal support, marital taxation, equitable distribution and child custody matters. She has handled many high-income support cases involving an intricate knowledge of both family law and complex financial issues.   

Antheil Maslow & MacMinn, LLP is pleased to announce the addition of Jamie M. Jamison to the firm’s Family Law practice group.  Ms. Jamison practices exclusively in the area of family law where she handles all phases of the negotiation and litigation of domestic relations cases, including divorce, equitable distribution, child custody, spousal support/alimony, child support, protection from abuse, and prenuptial and postnuptial agreements.

I hear a lot of interesting stories in my line of work:  there are as many interesting employment law problems as there are interesting people, which is to say, a lot.  A recent opinion from the United States Court of Appeals for the Fourth Circuit encapsulates this variety nicely, and serves as a reminder not to disregard unorthodox employee requests.

In EEOC v. Consol Energy, the Equal Employment Opportunity Commission sued Consol Energy on behalf of one of Consol’s employees, Beverly K. Butcher.  Mr. Butcher worked diligently for Consol Energy for 37 years when his employer decided to install a biometric hand scanner to track employee attendance.    Consol required each employee to have his or her hand scanned, and then, upon entering or departing the workplace, required the employee to wave the hand over the scanner.  

Mr. Butcher identifies as a devout evangelical Christian.  While the hand scanner seems like a fairly innocent and efficient way to track employees, Mr. Butcher did not see it that way.  Mr. Butcher’s faith informed his belief in an Antichrist, whose followers are condemned to everlasting punishment.  The followers of the Antichrist are identified by the Mark of the Beast.  Mr. Butcher feared that the use of the hand scanner would result in his receiving the Mark of the Beast.  No one disputed that Mr. Butcher’s belief were sincerely held.  Indeed, Mr. Butcher resigned rather than submit to the new hand scanning rules, after his employer failed to accommodate his request.

The EEOC sued on Mr. Butcher’s behalf, arguing that the failure to accommodate Mr. Butcher’s sincerely held religious belief violated Mr. Butcher’s civil rights.  A federal jury in West Virginia returned a verdict in excess of $550,000 in Mr. Butcher’s favor, finding that Consol had constructively discharged Mr. Butcher in violation of his rights to accommodations for his religious beliefs.   For want of a simple accommodation, Consol Energy risked a verdict in excess of a $550,000, not to mention the related legal fees and expenses.  Interestingly, Consol does not appear to have offered any operational reason for its failure to accommodate: other employees were permitted to clock in by entering their personnel numbers into a keypad, without additional cost or burden to the company.  Indeed, email produced in the case seems to indicate that the employer was scoffing at the religious objection.  

It would have been cheap and easy for Consol to accommodate the request.  The failure to do so appears to be based on a judgment about the validity of the request.  This type of fact pattern presents itself often in many contexts:  religious accommodations, disability accommodations, requests for medical leave.  It is easy, as Consol Energy appears to have done, to disregard requests as “kooky” or “odd.”  This is a mistake.  If the accommodation is not needed, or is overburdensome, or is not based in fact, that will come out in the accommodation process.  The danger lies in not following the process that such a request, however strange, requires.  Certainly, it is well worth the effort in the beginning to avoid the stress and expense of litigation later.

215.230.7500, ext. 117
jjamison@ammlaw.com

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Education

  • Villanova University School of Law, J.D., 2005
  • Villanova University,
    B.A., cum laude, 2002

 

Bar Admissions

  • Pennsylvania
  • U.S. District Court, Eastern District of Pennsylvania
  • U.S. Court of Appeals, Third Circuit 

 

Reprinted with permission from the June 27th edition of the The Legal Intelligencer © 2017 ALM Media Properties, LLC. All rights reserved.Further duplication without permission is prohibited.

Earn out clauses in business acquisitions are notoriously fertile ground for disputes.  Complicated post-closing performance metrics, access to information, modifications to accounting methodologies after closing, tracking and collection of revenue information all present opportunities for buyer and seller to disagree.  The classic struggle of seller’s effort to maximize sale return juxtaposed against buyer’s focus on transforming the operations of the acquired enterprise for long term success necessarily create friction.  Both sides bring their unique perspectives to the interpretation of the exhaustively negotiated purchase agreement with the new benefit of hindsight. 

Certainly, arbitration pursuant to the Commercial Rules of the American Arbitration Association is common in any number of business contracts.  When the parties elect that process, they accept the applicable Rules and agree to adopt the procedures which have been developed by AAA.  In the earn out or deferred consideration context, however, acknowledging the sheer number of potential conflicts surrounding inherent accounting practices, scriveners often  incorporate a unique mechanism for dispute resolution in their  transactional documents.   When the issue is theoretically limited to a calculation, the parties go to great pains to define the applicable accounting terms and may design a system of dispute resolution which does not contemplate many of the applicable provisions of the Commercial Rules or empower any judicial or quasi-judicial third party to control the process. 

Indeed, transactional practitioners have developed language which seeks to avoid the intricacies of AAA arbitration in preference for what should be a predictable accounting calculation based on verified numerical results of operations.  In such cases, parties most commonly agree to submit any dispute related to the earn out to an informal resolution process using mutually agreed upon accountants to serve as “expert consultants and not as arbitrators.” The sole purpose of the accountants’ participation is the review of financial information relating to post closing operations and the calculation of deferred consideration; which calculation would be “final and binding”.