Appeal, No. 400 C.D. 1982 | Pa. Commw. Ct. | Apr 26, 1984
Lead Opinion
Opinion by
Before this Court is an appeal by H. Ronald and Dolores McClellan from a decision and order of the Court of Common Pleas of Lebanon County affirming a decision by the Board of School Directors of the Cornwall-Lebanon School District (Board) to expel their son, Daniel McClellan, from school for a period of twenty-four calendar days. We affirm.
A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or transports, any alcohol, liquor or malt or brewed beverages.
A $50.00 fine and $27.53 in costs levied pursuant to the citation were paid on October 16, 1981. On November 11,1981, the student’s parents were sent notice that an informal hearing was to be held for the purpose of suspending Daniel for ten days for violating Board policy regarding the possession or consumption of alcohol on school property. The specific policy of the Board at issue was:
Students apprehended in possession of, having consumed, trafficking in alcohol or drags or in possession of drug related paraphernalia on school property at any time or as a participant in any school sponsored event or activity will be suspended from school. Students who enter school property after having*78 consumed alcohol or drugs will also be suspended. Furthermore, all students suspended for alcohol or drugs shall be subject to a formal hearing before the Board or a Board appointed hearing officer for the purpose of further suspension or expulsion. Final disposition rests with the Board of Education.
The preliminary hearing was waived and Daniel was suspended from school for a period of ten days. Thereafter, a formal hearing was conducted by an examiner appointed by the Board. Daniel’s parents •testified on his behalf and Mr. Caufman appeared as the sole witness for the Board. Also introduced into evidence was a copy of the citation issued to Daniel. Daniel did not testify. Based on the evidence adduced at this hearing, the examiner submitted a recommendation to the Board which then issued a decision ordering Daniel “expelled” from school from January 4, 1982, through the end of the marking period, January 28, 1982. The McClellans appealed this decision to the court of common pleas which affirmed the expulsion. The appeal to this Court followed.
Where, as here, a complete record was developed before the local agency, a court reviewing the matter on appeal must affirm the local agency unless it is determined that constitutional rights were violated, that an error of law was committed, that the procedure before the agency was contrary to statute or that a necessary finding of fact was unsupported by substantial evidence. Section 754 of the Local Agency Law, 2 Pa. C. S. §754. See McKeesport Area School District Board of Directors v. Collins, 55 Pa. Commw. 548" court="Pa. Commw. Ct." date_filed="1980-12-23" href="https://app.midpage.ai/document/mckeesport-area-school-district-board-of-directors-v-collins-6366943?utm_source=webapp" opinion_id="6366943">55 Pa. Commonwealth Ct. 548, 423 A.2d 1112 (1980).
The first challenge to Daniel’s expulsion which we mil here review, is an assertion that the Board failed to actually find that Daniel was “under the influence of alcohol on school property” as charged in his hear
3. While in the parking lot adjacent to the Cedar Crest High School, Daniel McClellan was found in an intoxicated condition by members of the South Lebanon Township Police Department.
It is emminently clear from the record that the parking lot where the incident at issue occurred was school property. At no point in the hearing’ before the Board’s examiner was there any indication to the contrary and the argument to this Court as to this issue is rejected.
It is next argued that Mr. Caufman, who testified at the Board hearing as to the September 28, 1981, conversation between himself, Daniel and H. Ronald McClellan, should have been prohibited from giving such testimony because the conversation was privileged and confidential pursuant to 22 Pa. Code §12.12 (a). Section 12.12(a) reads, in pertinent part:
Confidential communications.
(a) Information received from a student in confidence by a guidance counselor ... in public or private schools while in the course of that person’s professional duties is privileged information to the extent that it cannot be devulged in any legal proceeding, civil or criminal, without the consent of the student, or if still a minor, the student’s parents.
While Mr. Caufman did indicate that he had worked with Daniel “on any disciplinary actions, counselling, etc.,” nothing in the record suggests that he was acting as a guidance counselor during the meeting with Daniel and his father, that the conversation was confidential, or that he was at that time acting in any role other than that of assistant principal. Accordingly, this challenge to the Board’s decision is also rejected.
Finally, this Court is confronted with the question of whether there was substantial evidence to support the Board’s determination that Daniel was on school
The first of these items we have discussed above and found to have been properly considered. The information received from the police is also clearly supportive of the Board’s determination. With respect to the testimony of Daniel’s parents, while it is corroborative of the finding that he was drinking on the night in question, it fails to support the key finding that he was on school property. The testimony of Mr. Caufman, however, does constitute .additional support for this finding. Mr. Caufman, in response to an inquiry concerning what was said at the September 28, 1981 meeting stated:
On September 28 Mr. McClellan and Daniel came to my office and at that time they were concerned that based on what had happened the weekend prior, what was the school, what action would the school take in regard to the fact that Dan had been on school property and intoxicated. And again, I don’t keep verbatim records. My notes of that conversation are in generalities and that was the gist of the conversation.
While hearsay, and. objected to as such, Mr. Caufman’s testimony encompasses an admission by the par-ty to the conduct in question. Hence it was properly admitted into evidence under the admissions exception to the hearsay rule and it is competent to sustain the
Order
Now, April 26, 1984, the decision and order of the Court of Common Pleas of Lebanon County in the above captioned matter, No. 2968, Year 1981, dated February 11,1982, is hereby affirmed.
The operative rationale behind this principle was expressed, by tihe Supreme Court in Hurtt where it stated:
[W]e recognize a valid existing distinction in eases involving the record of conviction of relatively minor matters such ■as traffic violations, lesser misdemeanors, and matters of like import. Especially in traffic violations, expediency and convenience, rather than guilt, often control the defendant’s “trial technique.” In such cases, it is not obvious that the defendant has taken advantage of his day in court, and it would be unreasonable and unrealistic to say he waived that right as to a matter (civil liability), which was probably not within contemplation at the time of the conviction.
Hurtt, 416 Pa. 493" court="Pa." date_filed="1965-01-14" href="https://app.midpage.ai/document/hurtt-v-stirone-1512707?utm_source=webapp" opinion_id="1512707">416 Pa. at 499, 206 A.2d at 627.
The fact that Daniel’s fine was paid by third parties with the authority to act in his interest, i.e., his parents, also does not affect the admission into the record of evidence regarding the citation. Commonwealth v. James, 6 Pa. Commw. 493" court="Pa. Commw. Ct." date_filed="1972-11-10" href="https://app.midpage.ai/document/commonwealth-v-james-2341421?utm_source=webapp" opinion_id="2341421">6 Pa. Commonwealth Ct. 493, 296 A.2d 530 (1972). The board treated the citation as only a factor in its determination rather than as being dispositive of the question of whether Daniel was intoxicated on school property. That the fine involved was paid by his parents goes to the weight to be afforded the citation as evidence, a question for the Board to resolve, not a reviewing court.
Concurrence Opinion
Dissenting Opinion by
We should reverse the adjudication of the ■Cornwall-Lebanon School Board because: (1) the board erred in admitting evidence of a summary offense arising from the same incident, and (2) the record does not contain substantial evidence to support the necessary finding — that the student had been intoxicated on school property.
As to the first point, the board’s reliance upon the citation for the summary offense of underage drinking and his payment of fine on that charge, the oases have held that evidence of a guilty plea to a summary offense is not admissible in court in a later civil ease arising from the same events.
That reasoning is equally compelling here. Although local •agencies are not bound by the strict rules of evidence,
Finally, the student is correct in submitting that the record does not contain substantial evidence to ■support the necessary findings. The board’s brief contends that the following evidence supports its key finding, that the student was under the influence of alcohol on school property: (1) the information from •the police about the arrest, (2) the testimony of the student’s father, (3) the testimony of the student’s mother, and (4) the meeting of the student, his father and school official Glenn Caufman.
The first of those items, as noted above, the board erroneously admitted. The second and third, given the the broadest interpretation, indicate only that the student was drinking on the night in question.
The exception for party admissions is the only one potentially applicable here. An opponent may always offer the statements of a party against him.
However, the single, general answer by Mr. Gaufman. does not establish that either the student or his father made any specific statement. That reference does not provide sufficient detail to qualify as an admission.
Because the finding that the student was intoxicated on school property was necessary, and because nothing but Mr. Caufman’s vague hearsay statement relates to that finding, the record does not contain substantial evidence to support the board’s finding that Daniel McClellan was under the influence of alcohol on school property.
Accordingly, we should reverse.
Loughner v. Schmelzer, 421 Pa. 283" court="Pa." date_filed="1966-04-19" href="https://app.midpage.ai/document/loughner-v-schmelzer-1918842?utm_source=webapp" opinion_id="1918842">421 Pa. 283, 218 A.2d 768 (1966) (“traffic violations” and “small” or “lesser” misdemeanors inadmissible, specifically wrong-side driving traffic offense) ; Cusatis v. Reichert, 267 Pa. Super. 247" court="Pa. Super. Ct." date_filed="1979-06-22" href="https://app.midpage.ai/document/cusatis-v-reichert-2375905?utm_source=webapp" opinion_id="2375905">267 Pa. Superior Ct. 247, 406 A.2d 787 (1979) (reckless driving traffic offense inadmissible).
2 Pa. C. S. §554.
The relevant testimony of the parents was as follows:
Q: Now, with the exception of the evening of September 20, 1981, have you ever observed your son drinking or with another alcoholic beverage?
Mr. McClellan: No, sir.
Record 30a, 31a.
Q: Have you ever observed Danny in a condition where he had the odor of alcohol or was showing the effects of alcohol or would have given you any indication that he was making use of alcohol, other .than September 20, 1981, whatever this date is, September 25,1981?
*85 Mrs. McClellan: No. Ah, there is somebody around all the time and there has been no evidence oí anything prior to this.
Becord 35a.
Q: Do you feel certain that this was the only time that Danny drank?
Mrs. McClellan: Yes, I feel certain that this was the time. There was no indication as far as behavior or no odor.
Becord 36a.
Burks v. Department of Public Welfare, 48 Pa. Commw. 6" court="Pa. Commw. Ct." date_filed="1979-12-12" href="https://app.midpage.ai/document/burks-v-commonwealth-6365956?utm_source=webapp" opinion_id="6365956">48 Pa. Commonwealth Ct. 6, 408 A.2d 912 (1979) ; Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522" court="Pa. Commw. Ct." date_filed="1976-12-13" href="https://app.midpage.ai/document/walker-v-unemployment-compensation-board-of-review-6363446?utm_source=webapp" opinion_id="6363446">27 Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976).
Beardsley v. Weaver, 402 Pa. 130, 166 A.2d 529 (1961).