School Daze – Parental Responsibilities for Children’s Schooling

School Daze – Parental Responsibilities for Children’s Schooling

With the fall school days approaching, parents need to know their rights and obligations regarding their children’s schooling.

The Pennsylvania Public School Code mandates that all children must either attend school or pursue a course of home study. While most Pennsylvania children begin school well before they are eight years old, Pennsylvania law does not actually compel any education until a child is eight years old. Once parents elect to enroll their child in school or to commence a course of home study, the child is required to attend continuously until he or she graduates or turns 17 years of age. Children ages 14 through 16 can drop out of school only upon meeting fairly complex requirements including administrative approval, work or other education attendance and, in limited cases, farm work. And children who have not graduated from high school are entitled to attend, if they chose, until they are 21 years old.

A mixture of state and local revenues provides the funding for Pennsylvania school districts. Given the differences in tax revenue from one locality to another, school districts range from the very wealthy to the very poor. The differences in the quality of education sometimes can motivate parents to relocate, or to relocate their children in order to have the advantage of a better school district.

The Pennsylvania Supreme Court has recognized that children reside in a school district where their custodial parent actually lives. In the test case that came before the Court, a married mother moved from one county to another in order to live near a private school where her oldest child was enrolled. The mother’s younger child had special needs; the mother sought special education services from the local school district. Because the couple remained married and the father stayed in their marital home, and because the mother’s relocation was focused entirely on being closer to the eldest child’s private school, the local school district decided that the younger child was not a true resident of their school district. Although the mother changed her voter registration and address to the apartment address, she admitted that she only intended to live in the apartment for 7 years and planned to return to the marital home when the eldest child graduated from the private school. She also acknowledged that she returned, with both children, to the marital home every other weekend, and that the children’s father continued to live in the marital home.

The Pennsylvania Supreme Court commenced its analysis stating that if a child relocates from the marital home with one parent to reside in an apartment with another parent, the child is entitled to attend school in the district where the “custodial parent maintains a residence,” which need not be a primary residence or a permanent home. The continued presence of the other parent in the marital home does not establish the marital home as the child’s residence according to the Court. The Court presumed that adults and children can have more than one residence if they regularly stay in more than one home. It is important to note that the Court placed great weight on the fact that the mother and children did not “merely visit” the apartment. Rather, they stayed there during the day and they slept there at night. They received mail and phone calls at the apartment and the children’s clothing, books, and supplies were kept there, as well.

In a similar but different case, the Pennsylvania Commonwealth Court refused to recognize a mother’s apartment as the children’s residence. In that case, the children’s father died and the mother continued to live in the family apartment for several years. After remarrying, the mother and children moved to new home in an adjacent school district and the children changed schools for a few years. Preferring the original school district, the mother returned to the family apartment, and re-enrolled the children in their original school district. She received mail at the apartment, and changed her voter registration and driver’s license to the apartment address, but she only stayed there an average of two nights per week. The other nights, she and the children stayed in their new home and commuted back to the original school district. Under those circumstances the Court found that the apartment was not really the residence of mother. The Court noted that children are entitled to attend school where their parents reside; and that the focus in a dispute about school attendance entitlement should be on the parent’s actual presence in the claimed residence. Because the mother did not sleep in the former family apartment most nights, the Court found that she was “school shopping,” and agreed that the original school district where the apartment was located was not obliged to re-admit the children to attend there.

Finally, in a case that focused on a school district’s obligation to provide bus transportation to children to a private school, the Commonwealth Court found that where children were in equally split custody, living in a “50/50 custodial arrangement,” the children’s father was a “resident” of his school district entitled to have the children bused by his district to their private school. During their custodial periods in their mother’s home, her school district was obliged to provide the busing.

When parents share custody equally, it appears that they have a school choice and can pick their child’s school district. Otherwise, children are considered to reside only in the school district where their custodial parent actually resides.

Cites

See 24 P.S. §13-1326 for definition of compulsory school age (age 8 to 17).

See also 24 P.S. §§13-1301-02, 13-1327, 13-1330 on residence and attendance.

See In re Residence Hearing Before the Bd. Of School Directors, Cumberland Valley, 744 A.2d 1272 (2000)(mother’s residence in apartment qualifies children to attend school).

Cf. Mathias v. Richland School District, 592 A.2d 811 (Pa. Cmwlth. 1991)(child cannot qualify as a resident of two school districts).

See also Paek v. Pen Argyl School District, 923 A.2d 563 (Pa. Cmwlth. 2007)(mother found not to be a resident.)

Wyland v. West Shore School District, 52 A.3d 572 (Pa. Cmwlth. 2012)(equal shared custodial arrangement qualifies both parents as residents for busing services).

Operators of County Nursing Homes Liable for Nursing Home Neglect

Nursing Home Neglect in County Nursing Homes

State and local governments are cloaked with broad immunity from private lawsuits. While many exceptions to state and local governmental immunity exist, they tend to be narrow and technical. Governmental immunity doesn’t protect only government agencies; it also often extends to government officials, employees, and volunteers. But where a County‑owned nursing home is operated by a private corporation, the County’s governmental immunity does not protect the private corporation from suits for its negligence.

The family of an elderly woman who died after having suffered severe neglect in a county nursing home sued the private company that had contracted with the County to run the home. Noting that the private company’s contract with the County gave the private company control of the nursing home and required that the private company “ensure that the facility was properly staffed, equipped, trained and prepared to deliver care to the residents,” the Pennsylvania Commonwealth Court agreed that the private corporation was an independent contractor and was not operating as part of the county government.

In fact, the private company was a for‑profit company that operated nursing homes in several states. Refusing to extend governmental immunity to private individuals or corporations that contract to provide services for government entities, the court found that where a private corporation acts for profit and exercises independent management control, it is liable for its negligence.

Any private company considering a business venture of any kind with a governmental entity or agency must assume that it will not enjoy governmental immunity. Before anyone injured by a governmental activity assumes that immunity applies, he or she should more thoroughly review the actual identity of the parties involved: When independent contractors act on behalf of government, immunity sometimes disappears.

Take Me Out to the Ball Game – Injuries During Baseball

Who is Liable for Injuries During Baseball Games?

Spectators at baseball games assume the risk of a variety of injuries—balls and even bats sometimes hit fans and can cause serious injuries. A Phillies fan who tried to get around the law of assumption of the risk struck out when the Pennsylvania Superior Court threw his case out of court.

The spectator suffered a serious eye and head injury when he was hit by a ball thrown into the stands by a Phillies center fielder. The center fielder intentionally tossed the ball into the stands at the end of an inning, to serve as a souvenir for a lucky fan. Unfortunately, no fan caught the ball, and the injured spectator sued, claiming that while he assumed the risks associated with the play of the game, he did not assume the risk of being hit by a ball intentionally thrown into the stands.

The court disagreed. Because fans routinely arrive early for batting practice in hopes of retrieving an errant baseball as a souvenir and fans routinely clamor to retrieve balls landing in the stands via home runs or foul balls, the court found that many risks occur at baseball games in connection with souvenir balls. The court also observed that both outfielders and infielders are known to toss caught balls to fans at the end of an inning.

Pennsylvania law provides that even first‑time attendees at sporting events are presumed to know all of the customary risks that come from sitting in the stands. Those risks are not confined to events that take place during game play but include just about anything that can and does happen at a sporting event.

Don’t Sell Your Structured Settlement

Don’t Sell Your Structured Settlement

A structured settlement is a completely voluntary agreement between an injured person and the insurance company obligated to pay for the negligent conduct of the person or company that caused the victim’s injuries. In a structured settlement, an injury victim doesn’t receive compensation for his or her injuries in one lump sum. Instead, the victim receives a stream of payments, sometimes over many years, that are designed to meet future medical expenses and basic living needs.

A long‑term structured settlement provides guaranteed long‑term income and can help a victim avoid having to make decisions about how to invest a large personal injury settlement. Long‑term structured settlements also prevent a victim from overspending upon receiving a large settlement. After a federal law granting favorable tax treatment to structured settlements was passed in the 1980s, structured settlements became increasingly popular in personal injury cases.

This fairly sudden popularity spawned an industry that now purchases structured settlements from victims. Because structured settlements don’t give victims all their settlement money up front but instead promise steady income over future years, victims sometimes become impatient and sell their structured settlements.

Search the Internet for “structured settlement,” and you may find more sites for businesses looking to buy structured settlements than sites sharing information about establishing such settlements. Unfortunately, companies buying structured settlements may offer an immediate purchase price payment of as little as 25% or less of the value of the total long‑term payments owed to the injury victim. And such companies sometimes seek out injury victims and offer to purchase their settlements. Once an individual or company has purchased a victim’s structured settlement, the victim loses the right to collect all future payments. All of the future payments become the sole property of the purchaser.

Because selling a structured settlement often operates to the complete economic disadvantage of an injury victim, many States have recently passed new consumer protection laws strictly regulating the sale of structured settlements. Pennsylvania’s consumer protection law, passed in 2000, prohibits the sale of a structured settlement without judicial approval. When a Pennsylvania injury victim considers selling his or her structured settlement, he or she must file a petition with the local court, asking for approval. Most entities that purchase structured settlements offer to provide the lawyer and initially carry the cost of getting the judicial approval.

Sometimes, depending on the exact terms of the structured settlement, the insurance company that is paying the structured settlement must agree to or approve the sale. The petition must include a “disclosure statement” provided by the individual or company seeking to buy the structured settlement. This disclosure statement must add up the dollar value of all the future payments owed to the victim under the existing structured settlement and must compare that value to the exact amount of money that the victim will actually receive for selling the structured settlement.

Judges can and do withhold approval if the sale is not in the best interests of the victim or his or her dependents. And judges don’t even have to schedule a hearing—they have the power to deny the sale if the petition doesn’t recite good factual support for the sale. Any sale of a structured settlement that does not go through the judicial approval process has been declared by Pennsylvania law to be illegal and an unfair trade practice and is thus subject to the substantial penalties of the Unfair Trade Practices and Consumer Protection Act, a separate law.

While it is certainly possible to sell a structured settlement for a fair price, Pennsylvania lawmakers have wisely recognized that all too many such sales sadly undercompensate injury victims. If you are considering buying or selling a structured settlement, be sure you follow the strict requirements of the law and secure judicial approval first.

 

Fraternity Hazing

Fraternity Hazing in Pennsylvania

A University of Pittsburgh student won the right to sue the fraternity’s chapter adviser after the student suffered renal failure, seizures, and hypertension requiring three weeks of hospitalization and kidney dialysis due to injuries caused by protracted “paddling” during his fraternity initiation.

The Pennsylvania Superior Court held that while a national fraternity and its regional officers weren’t liable to the student, the individual assigned by the national fraternity as the chapter adviser was responsible to see that the national fraternity’s policies against hazing were enforced locally. Given the tragic history of death and serious injuries following fraternity initiation, the court found that national fraternities, local chapters, and any individual involved in fraternity administration are all potentially liable to injured students.

Actual Knowledge Required

However, to prevail on a claim against all defendants, an injured student must be able to show actual knowledge or actual failure to act on the part of each defendant. Because the injured student in the case before the court proved that the local adviser had not exercised sufficient supervision and control over the local chapter, the court permitted the student’s claims against the local adviser to go to trial. All claims raised by the student against the national chapter and regional administrators were dismissed because the student could not prove any knowledge or failure to act on the part of those defendants.

Hazing and abusive initiation practices aren’t limited to fraternities—they are encountered by students in sports, at camps, and in high schools. Groups, schools, coaches, administrators, and fraternities not only are legally required to issue policies banning hazing but are also responsible to take affirmative steps to prevent hazing. Individuals and groups found to be aware of hazing can be held legally responsible to those injured by this illegal practice.

School Vaccinations

Get Ready for Fall School Vaccinations

Late in 2011, Pennsylvania passed changes to the laws on mandatory immunizations required for public school children and increased the obligations of school districts to report to state health officials on immunization records for their students. Pennsylvania pediatricians and family doctors are already following the refined state requirements, and information on the mandated immunization schedule can be found on school district websites as well as at the Pennsylvania Department of Health

While enforcement of the State’s immunization requirements has been stepped up, children are still exempt if the parent, guardian, or emancipated child objects in writing to the immunization on a religious ground or on the basis of a strong moral or ethical conviction similar to a religious belief. Exemption is also granted to any child whose medical providers certify in writing that immunization would be detrimental to the child’s health.

Vaccines protect us from a host of diseases that once regularly brought suffering and death to the global population. Polio, diphtheria, pertussis, tetanus, measles, meningitis, and hepatitis are just a few of the many potentially deadly diseases prevented relatively easily by timely vaccination. But for some people, vaccination may bring injury in the form of autoimmune, neurological, gastrointestinal, or developmental disorders. A lively debate now exists on whether permanent, long‑term disabilities may be caused or triggered by vaccines or vaccine additives. Vaccines contain suspending fluids, preservatives, and stabilizers to help the vaccine remain unchanged, and they may include enhancers that help the vaccine improve its work. Common substances found in vaccines include aluminum gels, salts of aluminum, antibiotics, egg protein, formaldehyde, and Thimersol, which contains mercury.

The National Vaccine Injury Compensation Act of 1986 is a federal law enacted to streamline vaccine litigation and to create opportunities for the prompt settlement of vaccine injury claims. Before bringing a civil suit against a vaccine manufacturer, a victim of vaccine injuries must first file a claim in a specially created federal court that judges have come to call “the Vaccine Court.”

The Act provides for “a less‑adversarial, expeditious, and informal” process of resolving vaccine injury claims by creating informal standards of admissibility of evidence; giving parties the opportunity to submit arguments and evidence on the record without requiring routine use of oral testimony, cross‑examinations, or hearings; and establishing limits on pretrial proceedings.

Vaccine claimants who can prove that they suffered some injury from a vaccine are entitled to “no‑fault” compensation in Vaccine Court. A claimant suffering from a “vaccine‑related injury” may recover actual medical and rehabilitative expenses, damages for reduced earning capacity or lost wages, up to $250,000 in damages for pain and suffering or emotional distress, and reasonable attorney’s fees and costs. No punitive damages are permitted, and no jury trials are held. The decisions in Vaccine Court are made by hearing officers called “special masters,” who are federally appointed.

If a claimant accepts compensation awarded by the Vaccine Court, he or she can’t later sue the manufacturer. But the Vaccine Act also gives a claimant the option to reject the Vaccine Court’s award and to take his or her case to state or federal court. Strict and sometimes conflicting statutes of limitations apply in vaccine claims, and it is important for vaccine claimants to meet the filing deadlines in Vaccine Court and also, if they later choose to sue, in state or federal court.

Pennsylvania parents have not been successful in their attempts to litigate vaccine claims in state court without first going to Vaccine Court. One couple’s seven‑year‑old son was diagnosed with disintegrative autism resulting from his ingestion of mercury. The child’s developmental history included his having started to lose his language and motor skills at 18 months of age.

The couple claimed that when the boy was an infant, he was poisoned by mercury contained in Thimersol, a biocide used as a preservative in many vaccines for many years until the late 1990s. Arguing that their suit did not raise vaccine issues but instead focused on a contaminant or adulterant intentionally added to a vaccine, the couple argued that they should be permitted to bring a products liability action without going to Vaccine Court. The Pennsylvania Superior Court disagreed, holding that injuries from Thimersol are vaccine‑related under the meaning of the Act and must be litigated in Vaccine Court.

To find out what chemical additives are in specific vaccines, you can ask your health‑care provider or pharmacist for a copy of the vaccine package insert, which lists all ingredients in the vaccine and discusses any known adverse reactions. To report a health problem that followed vaccination, you or your provider should go to the federal Vaccine Adverse Event Reporting System site.