Kylе Russel PICONE, a minor by and through his natural parents and guardians, Anthony Picone and Kimberly Picone, his wife, Appellants v. BANGOR AREA SCHOOL DISTRICT and Board of School Directors of the Bangor Area School District.
Commonwealth Court of Pennsylvania.
Nov. 15, 2007
Argued Sept. 4, 2007.
DPW also contends that Dempsey ex rel. Dempsey v. Department of Public Welfare, 756 A.2d 90 (Pa.Cmwlth.2000), requires a different result than that reached in James, Mertz and F.K. We disagree. The issue presented in Dempsey was whether the community spouse‘s purchase of an annuity was for less than fair market value and, thus, for the improper purpose of qualifying for MA benefits. Here, the ALJ noted that DPW “conceded the question of fair consideration” and “specifically conceded the community spouse‘s purchase of the annuity was made at fair market value.... Therefore, that issue was not considered in this appeal.” (ALJ‘s adjudication at 16 n. 7.) Dempsey, then, which never addressed whether an income stream from an annuity is an available resource based on a secondary market for such income streams, has no relevance here.
Accordingly, we reverse.
ORDER
AND NOW, this 15th day of November, 2007, the order of the Department of Public Welfare, dated December 19, 2006, is hereby reversed.
Donald F. Spry, II, Bethlehem, for appellees.
BEFORE: LEADBETTER, President Judge, and FRIEDMAN, Judge, and KELLEY, Senior Judge.
OPINION BY Senior Judge KELLEY.
Kyle Russel Picone, a minor by and thrоugh his natural parents and guardians, Anthony Picone and Kimberly Picone, his wife, (Student) appeals from the February 16, 2007, order of the Court of Common
The facts, as found by the School Board, are as follows. On December 13, 2006, shortly after 2:30 p.m., Student was in his automobile in the high school parking lot preparing to drive two other students to the middle school for basketball practice. One of the other students noticed a box of pellets in the car and asked Student about the pellets. Student picked up a soft air pellet gun that was alongside his seat and showed it to the other students. Student decided to demonstrate how it worked. Student noticed his girl friend walking across the parking lot toward his car, pointed the pellet gun at her through an open window and fired the gun. The pellet struck Student‘s girl friend in the thigh. As his girl friend walked past the car, Student apologized to her.
Student‘s girl friend, who was wearing gym shorts, entered the gym lobby upset and with tears in her eyes. When she saw a teacher, she told him that Student shot her in the leg with a BB gun, and she showed the teacher the welt on her thigh. Student later admitted to his basketball coach that he shot his girl friend with a pellet gun. Student cooperated with school representatives, answering their questions, turning over to them the pellet gun and plastic pellets and writing a statement in his own words to explain what occurred.
The principal and assistant principal met with Student and his parents about the pellet gun incident. Again, Student was cooperative, admitting that he fired the pellet gun toward another student. As a result of the incident, Student was suspended from school for ten days, and the school superintendent recommended that Student be expelled for one year.
At the January 8, 2007 expulsion hearing, Student testified that he aimed and shot the pellet gun at his girl friend “maybe as kind of a joke” or “maybe to scare her.” Student agreed with the Director of Safety and Security, the School Police Officer and the superintendent, who all testified that, if a pellet from the soft air pellet gun struck someone in the eye, the pellet could cause serious bodily injury. Student and his father testified that Student had learned his lesson and that they would like Student to remain in school.
Numerous witnesses testified on behalf of Student, including: the basketball coach; the football coach; the assistant football coach; the President of the Football Parents Club; the owner of Bangor Hardware, where Student worked part-time; and a teammate from the basketball team. These witnesses described Student as likeable, with a great personality, and testified that they did not consider Student a danger to the school community.
Student‘s girl friend testified that: (1) there had been no incidents between her and Student prior to the pellet shooting; (2) she did not believe that Student meant to hurt her; and (3) although the pellet stung her, the welt went away quickly. The girl friend‘s father testified that the pellet shooting “wasn‘t a big deal” and that he did not consider his daughter to be in danger around Student.
Student‘s disciplinary record was entered into evidence. About a month prior to the pellet shooting, Student was suspended out of school for making inappropriate sexual comments to a female student, i.e., sexual harassment. In addition, since December of 2003, Student received
At the hearing, the superintendent agreed to modify his recommendation to expel Student for one year by recommending that Student be expelled until the end of the third marking period, with readmission conditioned upon the following: (1) readmission at the discretion of the superintendеnt; (2) completion of fifty hours of community service; (3) participation in weekly individual psychological counseling and submission of a counselor‘s report indicating that Student will be able to conform his behavior to acceptable school standards; (4) maintenance of a C or better average during expulsion; (5) upon readmission, remain free of any disciplinary referrals, no participation in a school sports team, no participation in the prom or senior banquet and participation in graduation ceremonies only if Student satisfies all graduation requirements and all requirements of the expulsion.
In its January 22, 2007 adjudication, the School Board concluded that Student violated Section 1317.2 of the
Student filed an appeal with the trial court. Student alleged that: (1) a toy “air soft” pellet gun that discharges plastic pellets is not a “weapon,” and the shooting of a toy gun at a student does not constitute a terroristic act or threat; (2) the School Board violated the Sunshine Act,
The trial court held a hearing on the Sunshine Act issue. One of the nine School Board members testified as follows. When the School Board members began to deliberate, it became evident that there was not a majority of five in favor of a one-year expulsion. Two members were in favor of the penalty, but two membеrs would not support any expulsion at all because they concluded that the pellet gun was not a weapon. The remaining five members discussed reducing the period of expulsion and imposing conditions for readmission, but they became aware that, under Section 1317.2 of the
After considering the issues raised, the trial court: (1) rejected Student‘s argument that a toy soft air pellet gun that discharges plastic pellets is not a “weapon“;2 (2) concluded that the School Board did not take official action under the Sunshine Act when it held private negotiations with the superintendent, and, even if it did, the School Board cured the violation in public session; and (3) the solicitor did not violate Student‘s due process rights.3 This appeal followed.4
Herein, Student raises the following issues:
- Whether the School Board and trial court erred in concluding that Student‘s toy soft air pellet gun is a “weapon” under Section 1317.2 of the Public School Code;
- Whether the trial court erred in concluding that the School Board did not violate the Sunshine Act and Student‘s due process rights;
- Whether the trial court erred in concluding that the School Board cured any violation of the Sunshine Act and Student‘s due process rights; and
Whether the trial court erred by failing to make a finding of fact as to whether Student proved a violation of the Sunshine Act and Student‘s due process rights.
In support of the first issue raised, Student argues that the School Board‘s characterization of the pellet gun as a weapon that is capable of causing serious bodily injury fails to consider the surrounding facts of this matter. Student points out that there is no definition of “serious bodily injury” in the
Student contends that the School Board‘s interpretation of the definition of a “weapon” found in Section 1317.2 of the
Student argues further that there is no evidence in the present case that the pellet gun was used or intended to be used in a manner capable of causing serious bodily injury or death. Student argues that without this evidence, an item cannot logically be considered a weapon within the context of Section 1317.2 of the
Under
As used in this section, the term “weapon” shall include, but not be limited to, any knife, cutting instrument, cutting tool, nunchaku, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.
In determining whether a pellet gun falls within the foregoing definition,
Here, there is no dispute that pellet guns are capable of inflicting serious injury to an eye.7 Thus, under the Superior Court‘s decision in M.H.M., we may similarly conclude that a pellet gun is a “weapon” within the meaning of
Student‘s arguments that in order to avoid absurd results we must consider the intent with which an item capable of inflicting serious bodily injury is used are not convincing. We agree with the trial court that it would be absurd, impossible to administer, and unreasonable to interpret the School Code in the manner suggested by Student.8 As stated by the trial court:
In reviewing the definition of “weapon” in the School Code, it is clear that the [General Assembly] listed several items that are traditionally considered to be weapons and that can inflict serious bodily harm when used in the manner intended (knife, cutting instrument, cutting tool, nunchaku, firearm, shotgun, and rifle). The [General Assembly] then included the term “capable” in the catch-all language “any other tool, instrument or implement capable of inflicting serious bodily injury,” suggesting the [General Assembly‘s] intent to include not only “other” items designed to inflict serious bodily injury, but also “other” items, that even when used as intended, can inflict serious bоdily injury.
Trial Court Opinion at 8. While Student may have not intended to harm his girl friend when he fired the pellet gun in her direction, as pointed out by the trial court, a pellet gun is intended to shoot plastic pellets at a relatively high velocity and is capable of causing serious bodily injury. Accordingly, we conclude that the School Board did not err in finding that the pellet gun was a weapon under the Public School Code.
In support of the second and third issues raised, Student argues that the School Board violated the Sunshine Act and his due process rights by taking official action in рrivate. Student argues further that such violations were not later cured by the School Board‘s actions.
Pursuant to
Here, five members of the School Board proposed that Student be expelled for less than оne year and that the superintendent be asked to change his recommendation to expel for one year. However, the proposal was made and considered during quasi-judicial deliberations. Thus, we conclude that the School Board did not violate the Sunshine Act in voting on the proposal.
In addition, this Court has repeatedly held that official action taken at a later, open meeting cures a prior violation of the Sunshine Act. Association of Community Organizations for Reform Now (ACORN) v. Southeastern Pennsylvania Transportation Authority (SEPTA), 789 A.2d 811 (Pa.Cmwlth.), petition for allowance of appeal denied, 569 Pa. 695, 803 A.2d 736 (2002). Thus, if the School Board violated the Sunshine Act by deciding in private to ask the superintendent to modify his expulsion recommendation, the School Board cured the violation at the January 8, 2007 hearing and again at its later, open meeting on January 22, 2007.
With respect to Student‘s contention that his due process rights were violated when the School Board privately requested that the superintendent change his expulsion recommendation, it is well settled that due process requires that cross-examination be afforded in administrative agency proceedings. Murphy v. Department of Education, 74 Pa.Cmwlth. 499, 460 A.2d 398 (1983). Those due process rights are violated where an agency considers additional evidence provided in an ex parte communication. Id.
In the present case, we conclude that Student‘s due process rights were not violated. As pointed out by the trial court, there was no evidence presented at the hearing before the School Board or to the trial court that any evidence concerning the grounds or the disposition was submitted ex parte to the School Board. The exchange between the School Board and the superintendent consisted solely of a request that the superintendent change his recommendation on the length and conditions of the expulsion. Thereafter, the issue was addressed at the January 8, 2007 hearing wherein the School Board‘s special counsel publicly asked the superintendent if he would be willing to change his recommendation. The superintendent requested time to confer with the School District‘s solicitor as to the legality of such a change, and after such a conference, the School District‘s solicitor announced that the superintendent was willing to сhange his recommendation. Again, as pointed out by the trial court, when the School Board asked if there were any remaining matters before the record was closed, Student‘s counsel did not raise any objection as to what had occurred at the hearing or what had been set forth by the School Board‘s special counsel during the hearing. By allowing the record to be closed after being advised that the superintendent was changing his recommendation, Student implicitly consented to the changed recommendation and procedure.
Moreover, no final decision was made on the superintendent‘s recommendation at the January 8, 2007 hearing. The final adjudication was prepared for the School Board‘s consideration and voted on and approved at the January 22, 2007 public meeting. Student did not raise any due process issues at the January 22, 2007 public meeting. Therefore, we conclude that the School Board did not violate Student‘s due process rights.
The trial court found that the record contains substantial evidence to show that the School Board did not violate the Sunshine Act or the due process rights of Student. Student argues that the trial court needed to make a finding of fact as to whether Student met his burden of proving such violations. However, it is clear from the trial court‘s finding that the trial court did not believe that Student met his burden of proof.
The trial court‘s order is affirmed.
ORDER
AND NOW, this 15th day of November, 2007, the order of the Court of Common Pleas of Northampton County at C-48-VC-2007-523, dated February 16, 2007, is affirmed.
DISSENTING OPINION BY Judge FRIEDMAN.
I resрectfully dissent. The majority holds that the Bangor Area School District and the Board of School Directors of the Bangor Area School District (School District) properly expelled Kyle Russel Picone (Student), a minor by and through his natural parents and guardians, Anthony Picone and Kimberly Picone, his wife, under
As usеd in this section, the term “weapon” shall include, but not be limited to, any knife, cutting instrument, cutting tool, nunchaku, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.
In this case, the School District expelled Student for possession of a toy soft air pellet gun after Student shot the pellet gun at his girlfriend and a plastic pellet struck her on the thigh. The School District determined that the toy3 pellet gun is
However, virtually anything is capable of inflicting serious bodily injury if not used for its intended purpose. For instance, our supreme court once held that a bedroom slipper is a deadly weapon when used to beat someone over the head. See Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992). Moreover, our superior court has held that a raw egg thrown from the roof of a building at the windshield of a moving vehicle is a dangerous and deadly missile because it could leave the driver with little or no visibility. Commonwealth v. Roman, 714 A.2d 440 (Pa.Super.), appeal denied, 556 Pa. 707, 729 A.2d 1128 (1998). A witness for the School District in this case testified that a water pistol would be a “weapon” because it might contain a liquid other than water that could inflict serious bodily injury.4 (R.R. at 40a.)
If the test for determining whether a student possesses a “weapon” on school property is simply whether the item is capable of inflicting serious bodily injury, then school districts could expel students for possessing innumerable common, everyday objects. I believe that to derive such a test from the statutory definition would lead to absurd results.5
In trying to avoid absurd results, I take a common sense approach. When a student uses an object that is not inherently a weapon to intentionally inflict serious bodily injury to another, the object is a weapon. When a student using an object accidentally or carelessly inflicts serious bodily injury to anоther, the fact that the other person suffered an unintentional, accidental injury does not make the object a weapon. Here, Student did not intend to inflict serious bodily injury on his girlfriend and, in fact, did not do so. If Student had inflicted serious bodily injury on his girlfriend, it would have been entirely unintentional. Although Student was careless in using his toy pellet gun,6 I submit that Student did not use it as a “weapon.”
Student testified that he learned his lesson. (Findings of Fact, No. 21.) However, the lesson to be learned from this case should be learned by all students, not just Student. I understand that it is the legislature‘s duty to define terms in a particular context, but the legislature, in its wisdom, could have done a better job in enacting a school safety law to prevent harm to students. Rather than expelling a student arbitrarily for possessing everything from the baseball bat a student might bring for the pick-up game after school to the knitting needles a student might bring to make a scarf during lunch or study hall, the legislature could have required that school districts hold assemblies to educate children about the prevention of serious bodily injury to others when using potentially dangerous objects.
Moreover, where the law punishes a student by depriving that student of a normal
Accordingly, unlike the majority, I would reverse.