J.K. v. The Hill School

J-A28025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.K., A MINOR, BY B.K., GUARDIAN, IN THE SUPERIOR COURT OF

B.K., R.K. AND A.O., AND HIS PARENTS PENNSYLVANIA

G.O. AND S.O.,

Appellants

v.

THE HILL SCHOOL AND ZACHARY G.

LEHMAN,

Appellees No. 842 EDA 2016

Appeal from the Order Entered March 4, 2016

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2016-03886

BEFORE: PANELLA, SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 20, 2017

Appellants, J.K., a minor, by B.K. Guardian, B.K., R.K. and A.O., and

his parents G.O. and S.O., appeal from the order that granted the request of

Appellees, The Hill School and Zachary G. Lehman, to dissolve a special

injunction.1 We affirm.

The trial court summarized the factual and procedural history of this

case as follows:

I. FACTS

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

An order dissolving an injunction is appealable pursuant to Pennsylvania

Rule of Appellate Procedure 311(a)(4).

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[J.K.] and [A.O.] (“Appellants,” collectively, or “[J.]” or

“[A.],” individually) were senior students at The Hill School

(“Hill”), Appellee, a residential private educational institution in

Pottstown, PA. On February 14, 2016, dorm parent Nathanial

Yinger (“Yinger”) found Appellants and another student,

nonparty “G,” in a closet in the basement of Wendell Dormitory.

Yinger testified that he was taking his trash out when he noticed

somebody entering the closet, an area off-limits to students.

When he opened the door, he smelled marijuana and found

Appellants and G inside, spraying air freshener. [A.] was in

possession of a vaporizer, an apparatus commonly used to

consume marijuana. The vaporizer was loaded with a “very

small amount of marijuana.” Appellants walked away from the

scene while G remained with Yinger.

Appellants reported hearing that G invoked the “I Care”

system on behalf of himself and Appellants. I Care is a system

set forth in the Student Handbook, and is incorporated by

reference in the Re-enrollment Contracts (“Contracts”) signed by

Appellants’ parents. I Care is short for “Immediate Care” and

allows students to “care for each other by seeking the assistance

of an adult in dangerous situations without fear of dismissal or

other disciplinary action.” Under the I Care system, students

may bring him/herself or another student under the influence of

a substance to any adult in the school community without

fearing a disciplinary response. I Care must be student initiated.

A student’s attempt to initiate the I Care system is invalid if “an

adult has already observed, obtained evidence, or is

investigating that a violation has occurred.” Accordingly, the I

Care system may only be invoked “before any adult discovers or

is investigating that a violation has occurred.” Outside of I Care,

Headmaster Zachary Lehman, Appellee, testified that it is Hill’s

policy to immediately dismiss students found in violation of Hill’s

drug policies. As discussed infra, the evidence presented

supports his testimony.

Based on G’s representations, Appellants were under the

impression that they were under the protection of I Care. As a

result, they cooperated with Yinger and the other faculty,

voluntarily handing over contraband from their rooms and

consenting to a urine test. No faculty member ever expressly

stated to the students that they were accepted into the I Care

system. Appellants were instructed to compose written

statements describing the event. Headmaster Lehman

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instructed the deans to conduct a proper and thorough

investigation of the incident. Thereafter, Headmaster Lehman

informed Appellants that they were officially dismissed from the

Hill School. [J.] admitted that he “attempted” to smoke

marijuana, and that the closet smelled of marijuana when Yinger

opened the door. [A.] and [J.] have both used marijuana in the

dormitory on multiple occasions.

II. PROCEDURAL HISTORY

On February 29, 2016, Appellants initiated the above-

captioned matter by filing a Complaint styled as a “Complaint in

Equity” despite the abolishment of a separate action in equity

and recognition of the “consolidated civil action” providing the

vehicle for appropriate relief, be it legal or equitable. On the

same day, Appellants filed a Petition for Special and Preliminary

Injunctive Relief pursuant to Pa.R.C.P. 1531(a). Both filings

requested an injunction ordering Appellees to 1) immediately

reinstate Appellants in the 12th grade at Hill, 2) to refrain from

notifying any prep school or college to which Appellants may

apply or have appl[ied] of the dismissals, 3) to provide the

teacher recommendations [J.] needed to apply to post-graduate

educational programs at other prep schools, and 4) to not

interfere with Appellants’ education or opportunities to further

their educations.

In support of the request for special relief, Appellants

asserted that they had been summarily dismissed from Hill after

they had invoked the protection of the I Care Program.

Appellants impressed upon the Court the severe consequences of

dismissing Appellants just three (3) months before their

graduation with possible ramifications on their pursuit of post-

secondary education.

After reviewing all filings and appreciating the gravity and

alleged arbitrariness of the situation as alleged in the petition for

special relief, this Court issued an order providing temporary

relief and, pursuant to Pa.R.C.P. 1531(d) scheduled a hearing for

March 2, 2016 to determine whether the Court should continue

to exercise jurisdiction over the matter and consider whether the

order granting temporary relief should remain in place in its

original form.1

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1

The March 1, 2016 Scheduling Order (docketed on

March 2, 2016) scheduling arguments makes

reference to the Emergency Petition for Special and

Preliminary Injunctive Relief filed by Plaintiffs on

February 29, 2016. The record reflects that all

parties understood the purpose of the hearing was to

address Defendants’ Emergency Motion to

Reconsider and Dissolve Ex Parte Mandatory

Injunction.

On March 1, 2016, Appellees filed an Emergency Motion to

Reconsider and Dissolve Ex Parte Mandatory Injunction.

Trial Court Opinion, 5/5/16, at 2-4 (internal citations omitted). The trial

court held hearings on March 2, 3, and 4, 2016. On March 4, 2016, the trial

court entered an order dissolving the special injunction dated February 29,

2016. This timely appeal followed. Appellants and the trial court have

complied with Pa.R.A.P. 1925.

Appellants present their issues for our review as follows:

Whether this Court should vacate the Trial Court’s Order

dissolving the Special Injunction . . . because Appellants

demonstrated substantial legal questions and/or that they were

likely to prevail on the merits of their breach of contract claim,

where: (A) the Headmaster’s unilateral dismissal of [J.] and [A.],

based on suspected drug use that did not take place in a

dormitory, violated the Campus Regulations and other portions

of The Hill School Handbook; (B) the School failed to conduct a

“proper investigation” to determine if [J.] and [A.] were guilty

“beyond a reasonable doubt” prior to dismissal, in further

violation of the Campus Regulations; and (C) [J.] and [A.] relied

to their detriment on a request for Immediate Care (a “system”

relating to controlled substance use promulgated by the School

“to allow students to get help for themselves or other students

without the threat of a disciplinary response”) by fully

cooperating with school personnel (providing inculpatory

materials and statements as requested), only to find themselves

expelled with eight weeks of classes remaining, and with a

permanent record of dismissal that removed them from

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consideration by most universities, and eliminated any possibility

that [J.] could attend a post-graduate year at a different college

preparatory school to further develop his skills in soccer before

enrolling at a university.

Appellants’ Brief at 5-6. Appellants argue that the trial court erred in

dissolving the injunction that had been granted in their favor. Appellants’

Brief at 34-37. Essentially, Appellants contend that the trial court

improperly concluded that Appellants failed to demonstrate that they were

likely to prevail on the merits of their breach of contract claim.

Pennsylvania Rule of Civil Procedure 1531 governs injunctions and

provides that:

(a) A court shall issue a preliminary or special injunction

only after written notice and hearing unless it appears to the

satisfaction of the court that immediate and irreparable injury

will be sustained before notice can be given or a hearing held, in

which case the court may issue a preliminary or special

injunction without a hearing or without notice. In determining

whether a preliminary or special injunction should be granted

and whether notice or a hearing should be required, the court

may act on the basis of the averments of the pleadings or

petition and may consider affidavits of parties or third persons or

any other proof which the court may require.

Pa.R.C.P. 1531(a).

The rule further requires the following in the event that the court

grants an ex parte injunction:

(d) An injunction granted without notice to the defendant

shall be deemed dissolved unless a hearing on the continuance

of the injunction is held within five days after the granting of the

injunction or within such other time as the parties may agree or

as the court upon cause shown shall direct.

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Pa.R.C.P. 1531(d). Then, “[a]fter a preliminary hearing, the court shall

make an order dissolving, continuing or modifying the injunction.” Pa.R.C.P.

1531(e).

We have stated that “[a] preliminary injunction’s purpose is to

preserve the status quo and to prevent imminent and irreparable harm that

might occur before the merits of a case can be heard and determined.”

Ambrogi v. Reber, 932 A.2d 969, 976 (Pa. Super. 2007). A petitioner

seeking a preliminary injunction must establish every one of the following

prerequisites; if the petitioner fails to establish any one of them, there is no

need to address the others. Kessler v. Broder, 851 A.2d 944, 947 (Pa.

Super. 2004) (citing Summit Towne Centre, Inc. v. Shoe Show of Rocky

Mt., Inc., 828 A.2d 995 (Pa. 2003)).

First, a party seeking a preliminary injunction must show that an

injunction is necessary to prevent immediate and irreparable

harm that cannot be adequately compensated by damages.

Second, the party must show that greater injury would result

from refusing an injunction than from granting it, and,

concomitantly, that issuance of an injunction will not

substantially harm other interested parties in the proceedings.

Third, the party must show that a preliminary injunction will

properly restore the parties to their status as it existed

immediately prior to the alleged wrongful conduct. Fourth, the

party seeking an injunction must show that the activity it

seeks to restrain is actionable, that its right to relief is

clear, and that the wrong is manifest, or, in other words,

must show that it is likely to prevail on the merits. Fifth,

the party must show that the injunction it seeks is reasonably

suited to abate the offending activity. Sixth and finally, the

party seeking an injunction must show that a preliminary

injunction will not adversely affect the public interest.

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Id. (emphasis added). In addition, we have held “that the relationship

between a private educational institution and an enrolled student is

contractual in nature; therefore, a student can bring a cause of action

against said institution for breach of contract where the institution ignores or

violates portions of the written contract.” Swartley v. Hoffner, 734 A.2d

915, 919 (Pa. Super. 1999).

Further, we are mindful that “an appellate court reviews an order

granting or denying a preliminary injunction for an abuse of discretion.”

SEIU Healthcare Pennsylvania v. Commonwealth, 104 A.3d 495, 501

(Pa. 2014). We do not examine the merits of the lawsuit and instead, must

determine if “there were any apparently reasonable grounds for the action of

the court below.” Id. (citation omitted). “[T]he scope of review in

preliminary injunction matters is plenary.” Warehime v. Warehime, 860

A.2d 41, 46 n.7 (Pa. 2004).

Initially, Appellants assert that their dismissal by the headmaster was

improper because the violation of school rules did not occur in a dormitory.

Appellants’ Brief at 37-42. Appellants claim that the area where they were

discovered with the marijuana was merely an off-limits closet area in the

basement of the building that did not meet the definition of a dormitory. As

such, Appellants believe that a Discipline Committee should have handled

the matter, not the headmaster.

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Our review of the record reflects that the parents of Appellants entered

into contracts on behalf of Appellants. The contracts state:

I agree to the policy of the School which reserves the right to

dismiss any student whose behavior or academic performance is

decreed unsatisfactory. I acknowledge that my child/ward and I

are aware that the School has issued certain rules and

regulations, and that a student is subject to them as they may

be revised from time to time.

Exhibits P-1 and P-3. Furthermore, the Hill Student Handbook, offers the

following, in pertinent part, with regard to “Level 3 Offenses:”

A student who fails to fulfill the basic responsibilities may lose

the privilege of attending The Hill School, either temporarily in

the case of suspension, or permanently in the case of required

withdrawal. The Headmaster, without convening the

Discipline Committee, has the right to require the

immediate withdrawal of any student at any time.

* * *

Substance Use. Students are expected to remain drug and

alcohol free at all times. The use of illegal drugs and/or alcohol

and the misuse of over-the-counter or prescription drugs by

students on or off campus harm both individuals and the

community (refer to Medication Policy, p. 48). It violates

federal, state, and local laws; it adversely affects the individual’s

physical, mental, and emotional development; and it lowers the

expectations of other students by setting a poor example of what

it is to be a student at The Hill. The School is committed to

preventing the use of drugs and alcohol by Hill students,

especially in our dormitories. The School must ensure

that our dormitories are safe havens for all residents.

Every student in school must be assured that his or her

residence will be a safe, wholesome place, free of alcohol

and illegal drugs. Therefore, a student found in

possession of alcohol or illegal drugs, or under their

influence in the dormitory, will be required to withdraw

from the School immediately.

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The Discipline Committee will not review violations of our

alcohol and drug rules in the dormitory. Instead, in such

cases the student will be immediately dismissed,

following a proper investigation (that determines his or

her guilt beyond a reasonable doubt).

The Hill School Handbook at 41 (emphases added).

In addressing this contention by Appellants that their dismissal by the

headmaster was improper because they were not in a dormitory, we observe

that the trial court offered the following cogent analysis:

These “rules and regulations” [in the contracts signed by

Appellants’ parents] refer to those set forth in the Student

Handbook. The Student Handbook endows the headmaster with

the authority to immediately dismiss students without convening

the Discipline Committee. (Exhibit D-1 at 41). This power is

described under the section entitled “Level 3 Offenses,” which

includes substance use rules. (Id.). The “Substance Use”

subsection states, “Therefore, a student found in possession of

alcohol or illegal drugs, or under their influence in the dormitory,

will be required to withdraw from the school immediately.” (Id.).

If a student is caught with drugs in the dormitory, the student

will be “immediately dismissed, following a proper investigation

(that determines his or her guilt beyond a reasonable doubt).”

(Id.). If a student is caught outside the dormitory, the Discipline

Committee “will have discretion to respond appropriately to

violations of these school rules.” (Id.).

Appellants contend that because they were caught with

marijuana in the basement of a dormitory, they were technically

not within a “dormitory” and therefore beyond the reach of this

rule. (N.T. 3/3/16, 12:8-13-7). They argue that the basement

was a common area accessible by female students, while the

dormitories were gender-restricted. Therefore, the basement

was separate and apart from the dormitory and not subject to

the same rules. This argument is without merit. Regardless of

whether the violation took place in the dormitory proper is

irrelevant because the headmaster has plenary authority “to

require the immediate withdrawal of any student at any time.”

(Exhibit D-1 at 41). If the headmaster decides to not dismiss, as

is his right, then the Discipline Committee may take action in

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cases of violations outside the dormitory. In addition, the

Student Handbook sets forth steps that will be “automatically

implemented” in “substance use cases where the Headmaster

decides that a student may remain part of the community.”

(Id.) (emphasis added). The structure of Level 3 Offenses

section of the Student Handbook clearly provides the

headmaster the authority to expel in any substance use case.

Therefore, the Court finds the classification of the basement to

be irrelevant.

Trial Court Opinion 5/5/16, at 8-9.

We are constrained to agree with the trial court that whether the

violation occurred in the basement of the building or in a sleeping room of

the building is of no moment. As the Commonwealth Court, our sister

appellate court, has aptly noted, “A University dormitory is not exclusively

residential; it is an integral part of the overall educational experience.”

Greaton Properties, Inc. v. Lower Merion Township, 796 A.2d 1038,

1044 (Pa. Cmwlth. 2002).2 We discern no error on the part of the trial court

in concluding that the basement area of the building where Appellants were

discovered qualifies as part of the dormitory and that the headmaster, not a

discipline committee, had the right to make a decision regarding dismissal

for violation of the drug policies set forth in the student handbook.

Appellants next contend that they were improperly dismissed because

Appellees failed to conduct a proper investigation. Appellants’ Brief at 42-

____________________________________________

2

“Although decisions of the Commonwealth Court are not binding on this

Court, we may rely on them if we are persuaded by their reasoning.”

NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.

Super. 2012).

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45. Appellants note that dismissal would be preceded by a proper

investigation and a determination of guilt beyond a reasonable doubt.

As the trial court observed:

The spirit of the [Hill School’s anti-drug] policy is clear: students

found in possession of marijuana are liable for immediate

expulsion. See Boehm [v. University of Pennsylvania

School of Veterinary Medicine, 573 A.2d 575,] 579 [Pa.

Super. 1990)] (“The general rule, therefore, has been that

where a private university or college establishes procedures for

the suspension or expulsion of its student, substantial

compliance with those established procedures must be had

before a student can be suspended or expelled.”) (emphasis

added).

Trial Court Opinion, 5/5/16, at 9.

Here, after hearing three days of testimony, the trial court concluded

that Appellants failed to establish that the right to relief is clear and failed to

show that they will likely prevail on the merits. Appellants entered into

contracts with Appellees, and courts have characterized the relationship

between a private school and its students as contractual in nature. See

Boehm, 573 A.2d at 579 (observing that “[a] majority of the courts have

characterized the relationship between a private college and its students as

contractual in nature.”) “Therefore, students who are being disciplined are

entitled only to those procedural safeguards which the school specifically

provides.” Id.

Again, our review of the record reflects that the Student Handbook

offers the following, in pertinent part, with regard to “Level 3 Offenses”:

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A student who fails to fulfill the basic responsibilities may lose

the privilege of attending The Hill School, either temporarily in

the case of suspension, or permanently in the case of required

withdrawal. The Headmaster, without convening the

Discipline Committee, has the right to require the

immediate withdrawal of any student at any time.

Students who are required to withdraw from the School, or

withdraw in the face of disciplinary action, may not return to

campus until a year after their form is graduated.

The following are major School rules; infractions of either the

letter or the spirit of these rules are serious disciplinary matters

and often lead to suspension or dismissal. Students knowingly

in the presence of these rule violations add support by their

presence and may also be held accountable.

Substance Use. Students are expected to remain drug and

alcohol free at all times. The use of illegal drugs and/or alcohol

and the misuse of over-the-counter or prescription drugs by

students on or off campus harm both individuals and the

community (refer to Medication Policy, p. 48). It violates

federal, state, and local laws; it adversely affects the individual’s

physical, mental, and emotional development; and it lowers the

expectations of other students by setting a poor example of what

it is to be a student at The Hill. The School is committed to

preventing the use of drugs and alcohol by Hill students,

especially in our dormitories. The School must ensure that

our dormitories are safe havens for all residents. Every student

in school must be assured that his or her residence will be a

safe, wholesome place, free of alcohol and illegal drugs.

Therefore, a student found in possession of alcohol or

illegal drugs, or under their influence in the dormitory,

will be required to withdraw from the School immediately.

The Discipline Committee will not review violations of our

alcohol and drug rules in the dormitory. Instead, in such

cases the student will be immediately dismissed,

following a proper investigation (that determines his or

her guilt beyond a reasonable doubt).

The Hill School Handbook at 41 (emphases added). The above language

explains that the headmaster may immediately dismiss a student for

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possession or use of illegal drugs following a proper investigation that

determines guilt beyond a reasonable doubt.

The record further reflects that Zachary Lehman, the headmaster at

The Hill School, offered the following testimony regarding the investigation

leading up to his ultimate decision to dismiss Appellants:

I looked at the statements of all three boys. I looked at all the

contraband that had been produced. I talked to both deans,

asked them to relay the entire incident up to that point. And I

talked to the nurse to make sure that she was conducting the

drug test.

N.T., 3/4/16, at 41. In addition, Mr. Lehman testified as follows concerning

the timing of his decision to dismiss Appellants:

Q. When did you make the decision that they be terminated or

dismissed?

A. I made that decision after I spoke with the boys one by one.

Q. So not before?

A. Not before.

Q. You’re certain.

A. I was coming to a conclusion, but I always talk to the boys

before I let them know that they’re going to be dismissed. The

dismissal is my decision.

Id. at 41-42 (emphasis added). Mr. Lehman further reiterated:

Q. Your testimony is, before they were spoken with the decision

had not been made to dismiss them as students; is that right?

A. The only person that can dismiss students in a[n] immediate

dismissal is me.

Q. That is not my question.

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A. I don’t know what other people said to them. I wasn’t in the

room. I didn’t ask [Dean] Allain. I didn’t ask [Dean] Eccleston

whether they had told them about dismissal.

Q. Had you told [Dean] Allain or anyone else that they were

going to be dismissed?

A. I said in all likelihood they would be dismissed because this is

an immediate dismissal situation because it was in the

dormitory. It was very clear, beyond a reasonable doubt,

and a proper investigation had been conducted.

Q. And this was before you spoke with the boys, correct?

A. Correct.

Q. So the decision really had been made before you spoke with

them?

A. No. No.

Id. at 43-44 (emphasis added). Mr. Lehman offered the following

explanation for his decision to dismiss Appellants:

I look at the total of the evidence. But the primary reason that I

terminated them was that they were in possession of, using and

admitted to using marijuana in the dormitory. That’s an

immediate dismissal.

Id. at 59.

Mr. Lehman also offered the following testimony regarding his

discussion with Appellants:

Q. Did you hear them admit to using marijuana in the dormitory

room?

A. Yes.

Q. You heard them say that?

A. Yes.

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Q. Did you hear them say that they used it in the dorm that

day?

A. Yes.

Q. Did you make notes about that?

A. I put it in my report to my attorneys that I mentioned

previously.

Q. And did you ask him or did they make those statements after

you made the decision to terminate them?

A. No.

Q. So their admissions according to you was that they were

smoking that day on the premises. They confessed to you and

you decided to terminate them, is that how it went?

A. No.

Q. Tell me how it went then?

A. I asked my deans to conduct a proper and thorough

investigation. I reviewed all the evidence with the deans,

including their statements, the contraband and their report --

their verbal report on the incident that happened. I was

contemplating all of this. It’s [a] difficult matter to dismiss

students immediately. It’s a very serious matter. I’ve done it

numerous times.

* * *

I make the decision. I try not to make the decision. I do

not like dismissing students. It’s my least favorite part of the

job.

I went in the room and asked them had they been smoking

marijuana and using marijuana in the dorm.

Q. That day?

A. That day.

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Q. Or any other day?

A. That day.

Q. That day. Okay.

A. I continued to ask them had they smoked marijuana in the

past. They admitted to doing that as well, all three of them,

multiple times.

Q. They told you multiple times. That is what they said?

A. Yeah.

Id. at 59-61.

This testimony reveals that the decision to dismiss Appellants was

made by Mr. Lehman, as headmaster of the school, in accord and in

compliance with the provisions of the Student Handbook. As his testimony

establishes, it was Mr. Lehman who made the decision to dismiss the

students following a proper investigation that determined Appellants’ guilt,

i.e., violating the possession and drug use policies of the institution, beyond

a reasonable doubt. This was not a departure from the established

procedure of the institution. In light of this testimony, we are constrained to

agree with the trial court that Appellants, as the party seeking an injunction,

did not show that the activity to be restrained is actionable, that the right to

relief is clear, and that the wrong is manifest, or in other words, shows a

likelihood of prevailing on the merits. Thus, we discern no error on the part

of the trial court.

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Appellants’ final claim is that they cooperated with the investigation

only because they believed that they were immune from dismissal due to the

third student’s attempted invocation of the provisions of I Care. Appellants’

Brief at 46-50. Appellants allege that, under a theory of promissory

estoppel, they cooperated with the investigation on the belief that they were

protected from dismissal by I Care. We conclude that such assertion fails.

The doctrine of promissory estoppel is the law in Pennsylvania.

Thatcher’s Drug Store v. Consolidated Supermarkets, 636 A.2d 156,

160 (Pa. 1994). A party asserting a claim of estoppel has the burden of

establishing all the essential elements. Id.

One of those elements is that enforcement of the promise must

be necessary to avoid injustice. Significantly,

satisfaction of [this] requirement may depend on the

reasonableness of the promisee’s reliance, on its

definite and substantial character in relation to the

remedy sought, on the formality with which the

promise is made, on the extent to which the

evidentiary, cautionary, deterrent and channeling

functions of form are met by the commercial setting

or otherwise, and on the extent to which such other

policies as the enforcement of bargains and the

prevention of unjust enrichment are relevant.

Restatement (Second) Contracts § 90, comment b.

Id. (emphasis added).

Concerning the I Care system, The Hill School Handbook provides the

following:

Getting Help for Yourself or Another (I Care)

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While we believe our policies around drugs and alcohol work to

deter student use and help the School maintain a safer

community, we do know that a percentage of students will

continue to experiment with substance use. Students who do

this endanger their lives and their Hill School careers. With the

ultimate priority of students’ physical well-being in mind we have

created the I Care (Immediate Care) system that will allow

students to get help for themselves or other students without

the threat of a disciplinary response. I Care allows students to

care for each other by seeking the assistance of an adult in

dangerous situations without fear of dismissal or other

disciplinary action.

Basic Principles of I Care

1. A student may bring him/herself or another student under

the influence of a substance, or information concerning risky

behavior related to substance use, to any adult in the

community without fear of a disciplinary response.

2. Must be student initiated.

a. Not valid if an adult has already observed,

obtained evidence, or is investigating that a

violation has occurred. In other words,

students are bringing information to adults that

they do not already have or would not

otherwise become available to adults.

b. Faculty who observe or discover a violation

are expected to follow established disciplinary

procedures.

3. Students who take advantage of this system will be put on a

no-use contract, randomly drug tested, and assessed and

counseled as recommended by the Counseling Office.

4. When a faculty member is following up on an I Care report,

the student in question must cooperate fully and be honest

about their situation. If a student denies being under the

influence or refuses to cooperate with the faculty member, they

will be subject to discipline.

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5. A student who violates his or her no-use contract by either a

positive drug test or another use of the I Care system will be

dismissed.

Specifics

• Students may call or go to any adult (Security, dorm parent or

other faculty member, Health Center) on campus with

information about another student under the influence. A friend

who cares will ideally escort his or her friend to an adult, but

may need to care enough to simply let an adult know about

another student’s current dangerous situation.

• The above must be done before any adult discovers or is

investigating that a violation has occurred.

• We encourage students to care so much about their friend’s

health and Hill career that they act immediately when they know

of or see another student under the influence.

• Once a student takes advantage of the I Care system, he or

she will be taken to the Health Center for proper medical care.

The Hill School Handbook at 42 (underlying in original, bold emphases

added).

Our review of the record reflects that Nathaniel Tuck Yinger, an

employee at The Hill School, testified before the trial court. N.T., 3/4/16, at

9-38. Mr. Yinger explained his involvement in the situation with Appellants

and non-party “G” as follows:

I was taking my trash out. I was going through the basement of

Wendell. And I noticed somebody going into a closet that

students should not have access to. So I went to investigate the

matter. I opened the closet door and found a third party known

as G spraying air freshener. And I detected the scent of

marijuana.

Id. at 12. Mr. Yinger further testified:

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I asked them what was going on. They tried to walk away. I

stood there and insisted that they remain. And only G remained

to be questioned.

Id. at 13. In addition, Mr. Yinger offered the following testimony:

Q. Now, Mr. G, I think we’ll call him, he, when you opened the

door, said I would like to put us all three in I Care, correct?

A. No, not at that moment.

Q. When did he say that?

A. After he had already been questioned and confirmed my

suspicion.

Q. And when did that supposedly happen?

A. So after I insisted that they remain and only [G] stayed, I

questioned him. I told him my suspicion. [G] confirmed my

suspicion and became very upset and distraught and demanded

that they be put in I Care.

Id. at 15-16 (emphasis added). Upon questioning by the trial court, the

following transpired:

THE COURT: You said that student G confirmed your suspicion.

[MR YINGER]: Yes.

* * *

THE COURT: What was your suspicion?

THE WITNESS: My suspicion was that the boys had been

smoking marijuana and G was spraying air freshener to cover

the scent.

THE COURT: Okay.

Id. at 24-25.

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Regarding actually placing the students on I Care, Mr. Yinger testified

as follows:

Q. So after you -- did you tell any of the boys that -- did you

make any reference to I Care when you spoke with any of those

boys in terms of going into I Care?

A. I said I would try. I did not promise them I Care.

Q. You said you were going to try to put them in I Care; is that

correct?

A. Yes.

Q. When did you put it that way, when you said you were going

to try?

A. When G became very upset and distraught and demanded

that I put them in I Care.

Id. at 19 (emphasis added).

This testimony reflects that the request for the protection of I Care

was initiated after Mr. Yinger had observed and began investigating the use

of illegal drugs by the students. Under the provisions of I Care in the

Student Handbook, a student must initiate I Care “before any adult

discovers or is investigating that a violation has occurred.” The Hill

Handbook at 42. (emphasis added). As the handbook explains, I Care is

“[n]ot valid if an adult has already observed, obtained evidence, or is

investigating that a violation has occurred.” Id. (emphases added).

Because Mr. Yinger testified that I Care was requested after he observed

the suspicious behavior and began his questioning of G and his investigation,

the protections of the I Care protocol were not available to Appellants.

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Furthermore, Mr. Yinger testified that he did not promise I Care protection

and that he said he would “try.” Thus, there was no formality to any alleged

promise to initiate I Care protections. In light of this testimony, we must

conclude that Appellants’ contrary claim fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/20/2017

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