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Home My WebLink About00-08799 Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Michael J. Cassidy J.D. Nos. 19530,82164 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 AttomeysfurRespondent SHAWN WESTHAFER and JUANITA and PAUL WESTHAFER, his parents, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Petitioners NO. 2000-8799 v. CIVIL ACTION - EQUITY CUMBERLAND VALLEY SCHOOL DISTRICT, by its Superintendent, ANTHONY J. COLlSTRA, Ed.D., Respondent RESPONDENT CUMBERLAND VALLEY SCHOOL DISTRICT'S BRIEF IN OPPOSITION TO PETITION FOR PRELIMINARY INJUNCTION . ~- , ~ , AND NOW comes Respondent, CUMBERLAND VALLEY SCHOOL DISTRICT, by and through its undersigned attorneys, Johnson, Duffie, Stewart & Weidner, and files this Brief in Opposition to the Petition for a Preliminary Injunction, and in furtherance thereof asserts as follows: I. PROCEDURAL HISTORY On or about November 15, 2000, Cumberland Valley High School Principal Dominic Cavallaro and Athletic Director Ron Audo held a meeting with Petitioner, Shawn Westhafer, and his mother, Juanita Westhafer, durlng which time Petitioner was informed he was being suspended from the high school wrestling team pending an expulsion hearing before the Administrative Review Committee. During said meeting, Cavallaro and Audo informed Petitioner Westhafer that they had conducted a thorough investigation into allegations of indecent and inappropriate behavior committed by Petitioner Westhafer while attending wrestling camp at Lock Haven University in July 2000. Petitioner Westhafer was informed that his actions were in violation of District policy, and as a result he was being suspended from the high school wrestling team pending an expulsion hearing before the Administrative Review Committee. 1 , ~.,' I '.' J", .~~ "-",-],,,,' ,'," .",I~'-,,' ,. C,',_, ",0, .... ~ -"~" _ iIItIiIlUrdiij!\\'(i .. On November 28, 2000, the Cumberland Valley School District Administrative Review Committee, comprised of Assistant Superintendent Harold O. Bricker and Assistant Superintendent Harold L. Pomraning, held a hearing for the purpose of determining whether Petitioner Westhafer should be expelled from participating on the Cumberland Valley High School wrestling team during the 2000-2001 wrestling season. During the hearing, evidence was presented to the Committee with respect to the inappropriate and unacceptable acts committed by Petitioner Westhafer during the Lock Haven University wrestling camp. Petitioner Westhafer was given an opportunity to cross-examine witnesses at the hearing and to present evidence in support of his defense. At the conclusion of the hearing, the Administrative Review Committee determined that Petitipner Westhafer's indecent and inappropriate acts committed during the Lock Haven University wrestling cC!mp were indeed unacceptable and in violation of school district policy, and thus warranted expulsion from the Cumberland Valley High School wrestling feam for the remainder of the 2000- 2001 wrestling season. By letter dated November 29,2000, the. Administrative Review Committee informed Petitioner Westhafer's parents of its decision and of their right to appeal the decision to Dr. Anthony J. Colistra, Superintendent of Schools for the Cumberland Valley School District. Petitioner Westhafer exercised his right to appeal the decision of the Administrative Review Committee to the Superintendent of SchoolS as set forth in Cumberland Valley S.chool District Policy No. 122 (Extracurricular Activities).' At the agreement of all parties, a formal hearing before the Superintendent of Schools was waived. After listening to an audioti;lpe recording ofthe November 28, 2000, hearing before the Administrative Review Committee. the Superintendent of School!) issued a written opinion on December 18. 2000, affirming the decision of the Administrative Re\(iiOlW Committee to expel Petitioner Westhafer from participating in the Cumberland Valley High SchOol wrestling program during the 2000-2001 season. 1 Cumberland Valley School District POliCY No. 122 (Extracurricular Activities) sets forth District policy with respect to participation in extracurricular activities, including participation in interscholastic athletics. Policy No. 122 sets forth the Code of Conduct for all students participating in extracurricular activities. Furthermore, Policy No; 122 establishes the procedure for taking disciplinary action against students who have been accused of violating the Code of Conduct. 2 u~ 1-', ,"',,-- .':""".;,:- "_.,',-,-,,' j, . ',,,~., -. ~'" ';~~j:- On or about December 27,2000, Petitioner Westhafer filed with this Honorable Court his Petition for Equitable Relief in the form of a Preliminary Injunction.2 Petitioner seeks equitable relief in the form of an injunction enjoining the Cumberland Valley School District from expelling Petitioner from the Cumberland Valley High School wrestling team during the remainder of the 2000-2001 wrestling season. Currently before this Court is Petitioner Westhafer's request for a preliminary injunction. 2 Petitioner inappropriately initiaied his action in equity by filing a Petition for Equitable Relief in the form of a Preliminary Injunction. Under Pennsylvania Rules of Civil Procedure, Petitioner should have initiated his cause of action by fHing a Complaint in Equity in accordance with Pa.R.C.P. Nos. 1007 and 1501, in which Petitioner's prayer for relief should have been a reqlJest for a permanent injunction. Petitioner should have filed his Petition seeking a Preliminary Injunction only after having appropriately initiated his cause of action by filing a Complaint in Equity. For the purpose of expediting this process, Respondent Cumberland Valley School District has waived its right to preliminarily object to Petitioner's pleading to thEl extent th<;lt said pleading f<;lils to conform to law or rule of Court. By way of clarification, it should be noted that Petitioner comes to this Court by filing an action in equity as opposed to fHing an appeal of determination of local agency pursuant to the Local Agency L<;lw, 2 Pa.C.S.A. ~751, et seq. This distinction is relevant in that if this were an appeal from a determination from a local agency, this Honorable Court, vested with appellate jurisdiction, would be limited to the record of the proceedings before the School District. In that the decision to expel Petitioner Westhafer from participating in an extracurricular activity does not constitute a determination by a local agency, Petitioner Westhafer appropriately seeks relief by filing an action in equity. As such, this Honorable Court sits without limitation as to the facts and applicable law which may be considered in making a determination in this matter. 3 ." . .-- -, >, -, '<'~' ' am.:!'; II. STATEMENT OF THE FACTS Petitioner Shawn Westhafer is an eighteen (18) year old adult individual who resides with his parents, Juanita and Paul Westhafer, at 302 Charles Road, Mechanicsburg, Cumberland County, Pennsylvania. At all times pertinent to this litigation, Petitioner Westhafer was enrolled as a student in the Cumberland Valley School District. Petitioner Westhafer is currently enrolled as a senior at the Cumberland Valley High School. Petitioner Westhafer participated on the Cumberland Valley High School wrestling team during the 1999-2000 wrestling season. During that Season, Petitioner qualified to wrestle district, regional, and state level competition. Petitioner Westhafer is the only wrestler returning to the 2000-2001 Cumberland Valley High School wrestling team who qualified for state level competition last season. Between July 16-20, 2000, Petitioner Westhafer attended summer wrestling camp at Lock Haven University along with thirty-eight (38) other students from the Cumberland Valley School District. The Cumberland Valley School District student athletes included seventh through twelfth graders. Although students were responsible for any expenses for participation in the summer wrestling camp, the School District, by and through its wrestling coaches, coordinated the voluntary event. Cumberland Valley wrestling coaches promoted the event by distributing promotional materials. Furthermore, a Cumberland Valley School District van was used to transport several students to the wrestling camp. The Cumberland Valley School District student athletes were housed together in a dormitory at the University. Also in attendance at the wrestling camp were Cumberland Valley High School Head Wrestling Coach Roger Barrick and Assistant Coaches Douglas Blacksmith and Michael Langan. Mr. Richard Baublitz, a parent of one of the student athletes, attended the wrestling camp as a chaperone. The four (4) adults stayed with the student athletes in the University dormitory. On Sunday, July 16, and Monday, July 17, 2000, Petitioner Westhafer and another Cumberland Valley High School wrestler entered on numerous occasions the dormitory room occupied by two (2) Cumberland Valley Junior High School wrestlers and a sophomore wrestler. Petitioner Westhafer entered the room naked and proceeded to engage in lewd and egregious behavior, including taking the pillows of the younger students and rubbing the pillows over his pubic area between his legs. Petitioner Westhafer furthermore inappropriately exposed himself on several occasions by removing his towel in the presence of younger students in such a manner that was both offensive and obscene. Furthermore, Petitioner Westhafer plucked a pubic hair from his groin and asked if one of the seventh grade students wanted to floss his teeth with it. The seventh grade student refused to do so, and Petitioner Westhafer apparently flossed his own teeth with the pubic hair. 4 ~. ...'- - ~ ., ,_ ~"" ^ ,_ ._ u, , , - ' ~ [(e';: The Lock Haven University Office for Law Enforcement and Safety conducted an investigation into the several incidents of harassment after being notified by the parents of one of the victims. The investigating officer ultimately issued a separate non-traffic summary citations against Petitioner Westhafer, charging him with criminal harassment and disorderly conduct. On or about October 5, 2000, Petitioner Westhafer entered guilty pleas to the charges. In late July 2000, Cumberland Valley School District Athletic Director Ron Audo learned of the lewd and inappropriate acts comrnitted by Petitioner Westhafer while in attendance at the summer wrestling camp with other members of the Cumberland Valley School District wrestling program. Mr. Audo and Cumberland Valley High School Wrestling Coach Roger Barrick discussed the incidents and initially elected to discipline Petitioner Westhafer by placing him on a probationary status during the 2000-2001 wrestling season. On or about November 6, 2000, Superintendent Colistra was contacted by letter by the parent of a Cumberland Valley School District seventh grader who was victimized by Petitioner Westhafer during summer wrestling camp. In the letter, the parent expressed grave concern over the fact that Petitioner Westhafer had not been formally disciplined by the School District and that he would be allowed to participate on the wrestling team during the 2000-2001 wrestling season. In the letter, the parent expressed grave concern for the safety and well-being of the younger student athletes who were exposed to Petitioner Westhafer's lewd behavior. After notification by the parent of the details surrounding the wrestling camp incident, Superintendent Colistra ordered a formal investigation into the matter in accordance with Cumberland Valley School District Policy No. 122. A true and correct copy of Cumberland Valley School District Policy No. 122 is attached hereto and marked Exhibit "A." Cumberland Valley High School Principal Dominic Cavallaro and Athletic Director Ron Audo conducted a full investigation into the wrestling camp incident. During the course of their investigation, they interviewed in excess of seven (7) Cumberland Valley wrestlers who were in attendance at the Lock Haven University wrestling camp who either were witness to or victims of Petitioner Westhafer's lewd and inappropriate behavior. Principal Cavallaro and Athletic Director Audo concluded that Petitioner Westhafer, by his deviant acts while in attendance at the wrestling camp, was in gross violation of School District policy. Specifically, they determined that Petitioner Westhafer violated Cumberland Valley School District Policy No. 122, Section 5(g), which clearly states that "willful indecent exposure" shall constitute grounds for expulsion from participation in interscholastic athletics. By letter dated November 20, 2000, Principal Cavallaro and Athletic Director Audo informed Petitioner Westhafer that he was being suspended from participating with 5 "'" . ,~,"_.,-,. <~'"" .. ',;' Af'j the Cumberland Valley High School wrestling team pending an expulsion hearing before the Cumberland Valley School District Administrative Review Committee. A hearing was held before the Administrative Review Committee on November 28, 2000, during which time Principal Cavallaro and Athletic Director Audo presented the results of their investigation. Petitioner Westhafer was given the opportunity to cross-examine witnesses and present evidence in support of his own defense. The Administrative Review Committee determined that Petitioner Westhafer had indeed viOlated District Policy and voted to expel Petitioner Westhafer from participating with the Cumberland Valley High School wrestling team during the remainder of the 2000-2001 wrestling season. Upon appeal by Petitioner Westhafer, Superintendent Colistra reviewed the audiotape recordings of the hearing before the AdminIstrative Review Committee. Superintendent Colistra affirmed the decision of the Administrative Review Committee. 6 , -~, L "=" ,--,. '" "" -.- ~ ,ok",;, b ' """""'-i; III. QUESTION PRESENTED 1. Should this Honorable Court grant a preliminary injunction, thereby permitting Petitioner to temporarily return to participation in an extracurricUlar activity where Respondent School District expelled Petitioner student from participating in the extracurricular activity for engaging in lewd and indecent behavior in violation of school district policy? Suggested answer: No. 7 -" . " ' ~~ "'--'<""" '''_'_''__C,' '-".,,.;-j-,'<'-" '''~',o'-~','.'":L,-,,,-j ",', "-"~';..,i".' ",< 'dO" "'"'~'_' ..':;:' IV. ARGUMENT Petitioner Westhafer seeks a preliminary injunction whereby Petitioner would be able to return to participating on the Cumberland Valley High School wrestling team until such time when a full trial on the merits may be held. A preliminary injunction may only be granted when the moving party establishes the following five (5) elements: (1) relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages; (2) greater injury will occur from refusing the injunction than from granting it; (3) the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) the alleged wrong is manifest and the injunction is reasonably suited to abate it; and (5) the moving party's right to relief is clear. McCluskey v. Washington ToWnship and Washington Municipal Authority. 700 A.2d 573 (Pa. Commw. 1997), appeal denied, 719 A.2d 748 (Pa. 1998). Petitioner's request for a preliminary injunction must be denied if Petitioner fails to satisfy anyone of the aforementioned criteria necesSary for the grant of a preliminary injunction. Ucheomumu v. County of Allegheny. 729 A.2d 132, 134 (Pa. Commw. 1999), appeal denied, 740A.2d 1151 (Pa.1999). A. Petitioner's request for a prelimin~ryinjundion must be denied because Cumberland Valley School District has clear authority and I:lroacl cliscYetion to adopt and enforce rules and regulations regarding the conduct and deportmlll1t of its studentS. The Public School Code of 1949, 24 P.S. !l1-101, et seq., grants broad authority to the board of school directors to adopt rules and regulations regarding the conduct and deportment of its students. Specifically, !l510 of the Public School Code states in pertinent part: 8 ,- - -" ~' 0_ ___, ,~ , , c,", ' ,'^,'.,L ',^ ,_ ,~. !._ v. ,_ ,_~, ',' "",~~ "-JlIlroc0:~ The board of school directors in any school district may adopt and enforce such reasonable rules and regulations as it may deem necessary and proper. . . regarding the conduct and deportment of all pupils attending the public schools in the district, during such time as they are under the supervision of the board of school directors and teachers, including the time necessarily spent in coming to and returning from school. 24 P.S. 95-510. By this authority, the Cumberland Valley School District Board of School Directors adopted Policy No. 122, which sets forth school district policy regarding student participation in extracurricular activities. See Exhibit "A." Policy No. 122 includes a Code of Conduct which all students participating in extracurricular activities are expected to honor. The Code of Conduct states: "In the case of alleged infractions of the rules and regulations, the participant may be expelled from practices, participation in the interscholastic competition, or other participation in extra-curricular activities." Cumberland Valley School District was well within its authority to discipline Petitioner Westhafer for violating the Code of Conduct contained in Policy No. 122. Petitioner Westhafer attended the Lock Haven University wrestling camp as a representative of the Cumberland Valley High School wrestling team. Although participation in the wrestling camp was not mandatory, Petitioner Westhafer was among thirty-eight (38) Cumberland Valley School District wrestlers who attended the program. Furthermore, three (3) Cumberland Valley High School wrestling coaches attended the camp. The Cumberland Valley School District wrestling coaches were instrumental in coordinating participation at the Lock Haven University wrestling camp. The coaches distributed applications for attendance at the camp to both high school and junior high school wrestlers. Furthermore, the coaches provided transportation using school district vehicles for a certain number of students attending the camp. The student wrestlers and coaches were provided housing together as a team in the same section of a dormitory on the Lock Haven University campus. Finally, the Cumberland Valley High School wrestling coaches served the dual purpose of both chaperoning the students while in attendance at the wrestling camp and observing their progress during daily workout sessions. The Cumberland Valley School District appropriately decided to expel Petitioner Westhafer from participating on the Cumberland Valley High School wrestling team during the 2000-2001 wrestling season for violation of Policy No. 122. Petitioner Westhafer's actions were clearly in violation of the Code of Conduct set forth in Policy No. 122, specifically, in violation of the prohibition against "willful indecent exposure." The Cumberland Valley School District has a clear interest in regulating the behavior of its students during the course of scholastic and extracurricular activities. This is especially true when students 9 .~ ...~ ~, .',. ,- <,_ _< c _, .~ '" ".,".,"~" '_t",,,~,,' "'~'.,,.'~,' ", , " !lIliiIii:lt1" are representing the school district at off-campus functions. By engaging in such inappropriate behavior, Petitioner Westhafer has brought shame not only to himself, but also to his fellow teammates and the entire school district. Expelling Petitioner Westhafer from participating on the high school wrestling team serves several functions. First, Petitioner Westhafer's expulsion is punitive in nature in that it serves as an appropriate punishment for his egregious violation of the Code of Conduct. Second, and more importantly, Petitioner Westhafer's expulsion serves to protect other wrestlers on the Cumberland Valley School District wrestling team from being further subjected to this lewd and deviant behavior. Cumberland Valley School District has been inundated by inquiries from concerned parents, particularly by the parents of the seventh grade victims, who are concerned that their children could be further harmed if Petitioner Westhafer were permitted to participate on the high school wrestling team. While Cumberland Valley School District recognizes that participation in extracurricular activities is an integral part of the public school education, the school district has a greater duty to protect its students from being exposed to the indecent acts committed by Petitioner Westhafer. It is well settled under Pennsylvania case law that local school boards have broad discretion in determining and enforcing school disciplinary policy: The law is clear that in Pennsylvania, local school boards have broad discretion in determining school disciplinary policies. Hamilton v. Unionville-Chadds Ford School District, 552 Pa. 245,714 A.2d 1012 (1998). Therefore, when one attacks a school board action on matters committed by a law to its discretion, he has a heavy burden, as the courts are not prone to interfere unless it is apparent that the school board's actions are arbitrary, capricious, and prejudicial to the public interests. Commonwealth v. Hall, 309 Pa. Super. 407,455 A.2d 674 (1983). In the absence of a gross abuse of discretion, the courts will not second-guess policies of the school board. Id. Flynn-Scarcella v. Pocono Mountain School District, 745 A.2d 117, 120 (Pa. Commw. 2000). Furthermore, courts have adopted a "wide degree of deference" standard in evaluating actions by school officials. See Beussink v. Woodland R-IV School District, 30 F.Supp. 2d 1175 (E.D. Mo. 1998); Seamons v. Snow, 15 F.Supp. 2d 1150 (D. Utah 1998). See also, Frasca v. AndreWs, 463 F.Supp. 1043 (E.D. N.Y. 1979); Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992). 10 g . , ,- '''-=",'.' - ,--, -"'1--' , ~-"". 0_ 'h ',,_, ",,- , ~='." Cumberland Valley School District's decision to expel Petitioner Westhafer from participating on the high school wrestling team during the 2000-2001 season is neither arbitrary nor capricious. The School District's decision to expel Petitioner Westhafer was done so in accordance with Policy No. 122. The expulsion was necessary not only for the purpose of disciplining Petitioner Westhafer for his inappropriate behavior, but also to ensure the safety of minor students which the School District has a duty to protect. If this Honorable Court were to issue a preliminary injunction, Petitioner Westhafer would undoubtedly be put back into a position where he could commit similar indecent acts. Assuming, arguendo, Petitioner Westhafer has been "injured" by being expelled from participating on the high school wrestling team, clearly greater injury potentially exists if Petitioner Westhafer were permitted to return to the team. Thus, Petitioner Westhafer's request for a preliminary injunction must be denied. Petitioner Westhafer's request for a preliminary injunction must also be denied on the basis that he does not have a clear right to relief. On the contrary, as stated above, Cumberland Valley School District clearly operated within the authority granted to it by the Public School Code, 24 P.S. 91-101, et seq., and in accordance with its own policies adopted pursuant thereto. In that Petitioner Westhafer's right to relief is not clear, his Petition for a Preliminary Injunction must be denied. B. Petitioner's request for a preliminary injunction must be denied where Petitioner does not have a property right in participating in interscholastic athletics. Petitioner Westhafer presumably argues that Cumberland Valley School District violated his right to due process as guaranteed under the Fourteenth Amendment of the United States Constitution when the school district expelled him from participating on the high school wrestling team. Specifically, Petitioner presumably argues that he has a right to participate in interscholastic athletics. Additionally, Petitioner presumably argues that Cumberland Valley School District wrongfully deprived him of certain property interests by expelling him from the wrestling team where there exists the possibility of receiving an athletic scholarship to attend college. It is well-settled under both state and federal case law that such claims of violation of due process are without merit. 11 . __ '., , "',0" ' .< _. r'~, " ,,,.~ "01 "',,~" ll!ilel.i~b~ In Pennsylvania, a student's eligibility to participate in interscholastic athletics does not involve a property right or other Constitutionally protected interest which would entitle him to procedural due process under the Fourteenth Amendment to the United States Constitution. See Adamek v. Pennsylvania Interscholastic Athletic Association, 426 A.2d 1206 (Pa. Commw. 1981) (holding that participation in interscholastic athletics is not a property right which entitles one to procedural due process); Pennsylvania Athletic Association. Inc. v. Greater Johnstown School District, 463 A.2d 1198 (Pa. Commw. 1983). In Brands v. Sheldon Community School, 671 F.Supp. 627 (N.D. Iowa 1987), the U.S. District Court denied plaintiff's request for a preliminary injunction, thereby rejecting plaintiffs procedural due process claim where the student was expelled from participating in interscholastic competition. Plaintiff was a member of his high school wrestling team and was a defending state champion in that sport. Plaintiff was expelled from participating on his high school wrestling team after it was determined that plaintiff violated school policy. Specifically, plaintiff engaged in multiple acts of sexual misconduct with a sixteen (16) year old female student at plaintiff's residence. The court denied plaintiff's request for a preliminary injunction holding, in part, that plaintiffs due process rights were not violated. Id. In Brands, the court noted that in order to consider a claim for violation of due process, the court must first find that the plaintiff had been deprived of liberty or property by the defendant. If not, no procedural protections were "due" to the plaintiff under the United States Constitution. J.d. at 630. "To determine whether due process requirements apply in the first place, we must look not to the "weight" but to the nature of the interest at stake." Smith v. Organization of Foster Families, 431 U.S. 816, 841, 53 L.Ed. 2d 14,97 S.Ct. 2094 (1977); Roth at 571. The critical question is whether the plaintiff has a legitimate claim that he is entitled to participate and not a "mere expectation" that he will be permitted to do so. (Citation omitted.) A clear majority of courts addressing this question and the context of interscholastic or intercollegiate athletics has found that athletes have no legitimate entitlement to participate. (Citations omitted.) In In re: U.S. Ex. ReI. Missouri State High School Activities Association, 682 F.2d 147 (8th Cir. 1982), the 8th Circuit stated that "a student's interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a Constitutionally protected claim of entitlement." Id. at 153 n. 8 (quotation omitted). Brands, at 630-631. In rejecting plaintiff's procedural due process claim, the court adopted the well- established standard that students do not have a property right to participate in interscholastic athletics. As such, the court appropriately rejected plaintiff's claim for violation of due process and denied his request for a preliminary injunction. 12 ""~ ~, ", '"" ",;". ' " , ~'~'-' , >0'", f.._, ' ,",,_'-0' .'"'" '~ '.., _~1 In Dallam v. Cumberland Valley School District, 391 F.Supp. 358 (M.D. Pa. 1975), the U.S. District Court rejected plaintiffs procedural due process claim where plaintiff was prohibited from participating in high school athletics for a period of one (1) year. Plaintiff was a fifteen (15) year old student who transferred from Camp Hill School District to the Cumberland Valley School District. Under PIAA regulations, the plaintiff was ineligible to participate in high school athletics for a period of one (1) year. The plaintiff sought a permanent injunction to enjoin enforcement of the PIAA regulation. The court granted defendant's Motion to Dismiss for lack of subject matter jurisdiction. Id. at 362. In dismissing plaintiff's !l1983 claim against the Cumberland Valley School District, the court stated: It seems to us that the property interest in education created by the state is participation in the entire process. The myriad activities which combine to form that educational process cannot be dissected to create hundreds of separate property rights, each cognizable under the Constitution. Otherwise, removal from a particular class, dismissal from an athletic team, a club, or any extracurricular activity, would each require ultimate satisfaction with procedural due process. ld. at 361. The court concluded that there exists no Constitutionally protected property interest in competing for a place on a high school athletic team. The court stated "to hold otherwise would too greatly strain the concept of property." ld. at 362. Because the plaintiff did not hold a cognizable property interest in participating in interscholastic athletics, the court determined that plaintiff could not maintain a !l1983 cause of action against the Cumberland Valley School District for violating procedural due process. The court thus dismissed the cause of action for lack of subject matter jurisdiction under 42 U.S.C. !l1983. As stated above, it is well established in Pennsylvania that participation in interscholastic athletics does not rise to a property interest. In Adamek v. PIAA, 426 A.2d 1206 (Pa. Commw. 1981), the Commonwealth Court reversed a trial court order enjoining the PIAA from ordering or causing a high school football team to forfeit three (3) football victories for violating PIAA regulations. The Commonwealth Court reaffirmed the well-established rule that participation in interscholastic athletics does not rise to the level of being a property interest. Id. at 1208. The Court further stated that the possibility of an athletic scholarship does not invest a student with a property right. Id. The Commonwealth Court quoted with approval a decision of the U.S. District Court for the Southern District of Ohio: 13 - --~, _~",",~'_"""e" ,~_,,", ~"'",. ',;.,',,'-1",. " . ~~~ l~' Courts which have entertained the question have refused to discern a property interest in interscholastic athletic competition. It is not part of "a student's entitlement to a public education," as delineated in Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975); Albach v. Olde, 531 F.2d 983 (10th Cir. 1976). . Moreover, injury from lost media exposure and lost opportunities for athletic scholarships are "too speculative to establish a property interest as defined in [Roth] Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)[.] Parrish v. National Collegiate Athletic AssoCiation, 506 F.2d 1028 [1034 n. 17] (5th Cir. 1975). ... . .. Adamek, at 1208 (quoting Yellow Springs Exempted Village School District v. Ohio High School Athletic Association, 443 F. Supp. 753 (S.D. Ohio 1978)). In the case at bar, Petitioner Westhafer clearly does not have a property interest in either participating on the Cumberland Valley High School wrestling team or in the possibility that he could earn an athletic scholarship. Thus, Cumberland Valley SchOOl District's deCision to expel Petitioner Westhafer from partiCipating on the high school wrestling team did not deprive Petitioner Westhafer of any judicially- recognized property right. In that Petitioner Westhafer was not deprived of a property right, his potential claim for violation of procedural due process will not stand. As such, Petitioner Westhafer cannot establish the essential elements necessary for the issuance of a preliminary injunction, specifically that his "right to relief is clear." Thus, Petitioner Westhafer's request for a preliminary injunction must be denied. C. Petitioner's request for a prelirfiinaty injUnction must be denied where Petitioner is unable to sustain a cause of action under the Equal. Protection Clause of the Fourteenth Amendment to the United States Constitution. Petitioner Westhafer presumably contends that his equal protection rights as guaranteed under the Fourteenth Amendment to the United States Constitution Were violated. A violation of an individual's equal protection rights occurs when a state action implicates a "suspect" class or a fundamental right. Curtis v. Kline, 666 A.2d 265 (Pa. 1995). The Equal Protection Clause does not obligate the government to treat all persons identically, but merely assures that all similarly situated persons are treated alike. Small v. Horn, 722 A.2d 664, 672 (Pa. 1998). Where the challenged governmental action does not burden "fundamental" or "important" rights, and does not make a suspect classification or a quasi-suspect classification, it does not offend the Equal Protection Clause as long as it is rationally related to a legitimate government interest. Id. (citations omitted). Suspect classes are race and national origin, and for the purposes of state law, alienage. lJ;!. at n. 14 (citations omitted). Quasi-suspect classes are gender and legitimacy. lJ;!. at n. 15 (citations omitted). 14 ~ . " ^ ',,',' ,-',,---, ,^', ....,.~" '; " '~'~rNi&', In J.S. v. Bethlehem Area School District. Northampton County, 1998-CE-7696 (July 23, 1999), the Court of Common Pleas of Northampton County affirmed a school board's expulsion of a student for creating a computer website containing inappropriate comments and threats against a teacher and school administrator. The court rejected petitioner's cl.aim that the school district had violated the student's equal protection rights as guaranteed under the Fourteenth Amendment of the United States Constitution. In evaluating the student's equal protection claim, the court noted: Clearly, action by a school district involves neither a suspect class nor a quasi-suspect class. Therefore, we must consider whether school district's action was rationally related to a legitimate governmental interest. We conclude that school district has a legitimate interest in preserving an appropriate learning environment, free from material disruption and fear of violence. We further conclude that discipline of student was rationally related to that governmental interest. Id. at 17. In the case at bar, Petitioner Westhafer presumably argues that Cumberland Valley School District's decision to expel him from participating on the high school wrestling team was fundamentally unfair and in violation of the Equal Protection Clause. In Brands v. Sheldon Community School, supra, the U.S. District Court rejected plaintiff's equal protection claim. The court stated: The equal protection claim must be rejected because the plaintiff has not alleged that he was treated differently because of his race, ethnicity, gender, or any other suspect classification, and his interests in wrestling or receiving a college scholarship are not among the small set of rights fundamental enough to warrant separate protection under the Equal Protection Clause. Brands, 671 F.Supp. at 630 (citing San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 29-39, 36 L. Ed. 2d 16,93 S. Ct. 1278 (1973)). Petitioner Westhafer clearly does not have a viable claim for violation of the Equal Protection Clause. Petitioner Westhafer is a member of neither a suspect class nor a quasi-suspect class. Furthermore, neither his interest in participating on the high school wrestling team nor the possibility of receiving a college scholarship is considered among the set of rights "fundamental enough to warrant separate protection under the Equal Protection Clause." 15 , ,,' "~, ,v'. -', ,h ~""-"j. ''-1< >,' , '. 'I, , , ~-'-, J_lI"_'-' Cumberland Valley School District has a legitimate governmental interest in regulating the conduct of its students. Petitioner Westhafer engaged in lewd and egregious behaviors while in attendance at the Lock Haven University wrestling camp. His actions were clearly in violation of school district policy prohibiting willful indecent exposure. As such, Cumberland Valley School District took the appropriate steps necessary to expel Petitioner Westhafer from further participation on the high school wrestling team. The school district's decision to expel Petitioner Westhafer is clearly in accordance with school district policy. Cumberland Valley School District has a legitimate interest in disciplining students who have violated school district policy. Furthermore, Cumberland Valley School District has a clear mandate to enSure the safety of its students. Petitioner Westhafer has pled guilty to criminal harassment and disorderly conduct with respect to the Lock Haven University wrestling camp incident. Clearly, Cumberland Valley School District has a legitimate interest in protecting its students from once again being exposed to such indecent behavior. Any potential equal protection claim by Petitioner Westhafer must fail in that Petitioner Westhafer is not a member of a suspect class or a quasi-suspect class. nor is his interest in wrestling or receiving a college scholarship considered a fundamental right. Cumberland Valley School District has a legitimate governmental interest in disciplining its students who violate school district policy and in protecting the safety of others. As such, Petitioner Westhafer's request for a preliminary injunction must be denied to the extent that his right to relief is not clear. 16 .,. ,-,..., "" <"--..;i;,"-.d'-".- " """, ",-- _'" '-, "0 ':L '" --7" ' .. ,~_ ~ .~. .:: '.~, V. CONCLUSIoN Petitioner Westhafer's request for a preliminary injunction must be denied in that he is unable to satisfy the necessary elements required for the granting of a preliminary injunction. Greater injury will occur if a preliminary injunction is issued in that minor students will be exposed to similar risk of harm which Petitioner Westhafer committed during the Lock Haven University wrestling camp. Furthermore, Petitioner Westhafer's right to relief is anything but clear. In Pennsylvania, school districts are authorized under state law to adopt rules and regulations necessary to control the behavior of its students. The Cumberland Valley School District appropriately exercised its authority by disciplining Petitioner Westhafer for violating school policy. Participation in interscholastic athletics is a privilege and not a right. Petitioner Westhafer does not have a property right in participating on the high school wrestling team. Furthermore, Petitioner Westhafer does not have a property right in the potential for future college athletic scholarships. As such, Cumberland Valley School District did not violate his right of due process when it expelled him from participating on the high school wrestling team during the 2000-2001 season. Finally, Petitioner's request for a preliminary injunction must be denied in that Petitioner does not have a cognizable claim under the Equal Protection Clause. Petitioner Westhafer is not a member of a suspect class, and the expulsion did not deprive him of a fundamental right recognized under the Equal Protection Clause. Cumberland Valley School District has a legitimate governmental interest in disciplining its students for violation of school district policy. Furthermore, Cumberland Valley School District's action is necessary to protect the safety and interests of other minor students. Respectfully submitted, JOHNSON, DUFFIE, STEWART 8. WEIDNER By: ~ .:... wi ~. C. Roy dner Attorney 1.0. No. 19530 Michael J. Cassidy Attorney J.D. No. 82164 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Respondent :A \ Dated: January 2, 2001 : 142050 17 -",I!ll~ ~lIIii"_ ~ 1-__ - ~ '~"~~~'~",",-i: No. 122 SECTION: PROGFAMS TITLE: EXTRA-CURRICULAR ACTIVITIES Cumberland Valley School District ADOPTED: June 19, 1997 REVISED: 1. Purpo!le SC 511 2. Definition Ti tle 22 Sec. 5.217 3. Authority SC 511 P.L.98-377 122. EXTRA-CURRICULAR ACTIVITIES The Board believes that the goal!l and objectives of this district are best achieved by a diversity of learning experiences, some of which are more appropri.- ately conducted outsi.de the regular classroom curricu- lar program of the school. Al.l learning experiences offered by the schools of this district - curricular and extra-curricular - should be planned and integrated toward the attain- ment of the district's objectives. For purposes of this policy, "extra-curricular activities" shall be those activities which are spon- sored or approved by the Board but are not offered for credit toward graduation. Such activities shall ordinarily be marked by student participation in the processes of initiation, planning, organizing, and execution and available to all students who voluntari- ly elect to participate, except that where eligibili- ty requirements are necessary or desirable, the Board shall be so informed and must approve the establish- ment of eligibility standards before they may be oper- able. The Board shall make school facilities, supplies and equipment available and assign staff members for the support of a program of extra-curricular activi- ties for students. Such availability and assignment shall be in accordance with the Equal Access Act. Any extra-curricular activity shall be consid- ered to be under the sponsorship of this Board when it has been approved by the Superintendent and report- ed to the Board for their information and review. Page 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 4:2 43 44 1 2 3 4 5 6 7 8 9 10 11 12 4. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 .32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 ~"" ~-f~\ WA'W~'r:j~~~~<" Delegation of Respon- sibility 5. Code of Conduct 122. EXTRA-CURRICULAR ACTIVITIES - Pg. 2 The Board shall maintain the program of extra- curricular activities at no cost to participating stu- dents, except that the Board's responsibility for the provisions of supplies shall carry the same exemp- tions as listed in~he Board's policy on regular school supplies. Students may assume all or part of the costs of travel and attendance at extra-curricular events and trips. The Superintendent shall prepare procedures to implement a co-curricular pro.gram which shall: assess the needs and interests of the students of this district; involve students in the planning of extra-curric-~ ular a.ctivi ties; be responsive to the articulated needs of stu- dents; ensure the provision of competent guidance and supervision of staff; - guard against the exploitation of students; provide for the continuing evaluation of the ex- ., tra-curricular program; and ensure that all extra-curricular activities are open to all students and that all students are fully informed of the extra-curricular opportuni- ties open to them. '_ - n_ __ ~--4-,,_, , _ _ , __, _ _ _, _ __ _ __ __ _ _u '"' ...a~:followin<;!~cond.1Wt~"AAU;"CO...lliit:1.j;o-.1lte~);'Qll!l.9.s ~.! ~~.R\,1.1. .",j9.}J,fiJ2>w~r~c.__~.J.g.e)?L p. ,ax.t.):f'~P<;-tior; in.... int. er-. '; ~lasITc..c=j;).et~.t'lQn. or othe.l;~ part_lC:lpatlQn.,l.n.ex-.,~ ~-"'~ rrTc'U:tia re'", >i.'t;,j,y.ities dur:;ing~1't~ E~H:c:uJ,aLsea- 1.-=., wneI1.._6.uch--.cQnd-uc.t -oceu-r-s,'o-n~or~'off "scho-ol ",--<'t.-f,'~,- ~'- -iiiir Qu.o,gs : ~~ a. The use of violence, force, coerclon, threat, intimidation, or similar conduct in a manner that constitutes a substantial_:1.nterference with school purposes. b. Willfully cau~ing or attempting to cause substan- tial damage to school property, stealing or at- tempting to steal private or school property of Page 2 of 5 1 2 3 4 ~ 5 6 7 8 9 10 11 . 12 13 14 15 16 17 18 19 20 21 22 "1 ;::5 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 _.J 51 52 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~3 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 ~~ ;,,~\ KMIl$'rL.....III.1.SCKOC'L'7{ IDARn .l.ugw.T1o;f~). 122. EXTRA-CURRICULAR ACTIVITIES - Pg. 3 substantial value, or repeated damage or.theft involving private or school property of small value. c. Causing or attempting to cause physical injury to a school employe or to any students. Physi- cal injury caused hy accident, self-defense, or other action undertaken on the reasonable belief it was necessary to protect some other person shall not constitute a violation of this subdivi- sion. d. Threatening or intimidating any student for the purpose of, or with the intent of, obtaining mon- ey or anything of value from each student. e. Knowingly possessing, handling, or transporting any object or material that is ordinarily or gen- erally considered a weapon. . f. Use or possession of smoking tobacco or tobac~o products; possession, use, sale, delivery, or to have consumed any narcotic, dangerous drug, mari- juana or alcoholic beverage; the use of anabolic steroids. g. Continual abusive language, or obscene gestures, or willfull indecent exposure. h. Engaging in any other activity forbidden by the laws of the State of Pennsylvania which actively constitutes a.danger to othe~~tudents or inter- feres with school purposes.. i. All other reaBonable rules or regulations adopt- ed by the coach or supervisor of an activity shall be followed, provided that participants shall be notified of such rules and regulations by written handouts and posting prior to the be- ginning of the season (must be presented to and gone over with the administration before being presented to the participants). '>In.the"casec .o.fc'all.e.g.e<t:i.lJ.fractlons, oL..the ,Q~les aDd r"gulat'ions, the part.icipant'may be expelled .from prac.tices.; . participation in. the fnterscholastic compe- titicmor other.Jlartjcipation. in extra-curricular' ac- tivities_. In thes.e cases, the due process procedures w:tllbe followed: . Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 <hill-t~'~ ~~ ~~:.\ l't:NIlmBMllSCMDU( IOAlDSIoSSlHlIAtlaI9J. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 6. Guidelines 41 42 43 44 45 46 47 48 49 50 51 52 53 "j V"In, 122. EXTRA-CURRICULAR ACTIVITIES - Pg. 4 a. If an alleged infraction occurs, the coach or supervisor shall make an investigation of the alleged conduct or violation and determine if a suspension is necessary. b. If, after the above, a determination is made to suspend the participant, the suspension shall take immediate effect, and the coach or supervi- sor, or administrator shall give notice to the participant, the student's parents or guardian of the action taken. c. Before any expulsion shall take effect, a partic- ipant shall be given written notice of the charg- es. Parents or students or guardians will be afforded the opportunity to be present at the hearing before the high school Administrative Review Committee, and will have the opportunity, if desired, to call witnesses on behalf of the student's defense and to present any relevant evidence. d. If a participant, the parent or guardian are not satisfied with the determination by the high school Administrative Review Committee, a hear- ing may be requested before the Superintendent. The hearing must be requested in writing, which writing must be delivered to the Superintendent or Assistant Superintendent during the Superin- tendent's absence, within five (5) days of re- ceiving notice of expulsion. e. If a hearing is requested, it shall be held with- in ten (10) days of the request and a notice of the time and place of the hearing will be given to the student, and parents or guardians, and the appropriate staff members within five (5) days of receiving the request. All school principals and teachers shall avoid scheduling student activities on Wednesdays after 6:30 p.m. and on Sundays. Requests for exception to this policy shall be presented to the Superintendent at least one (1) week in advance of the event. If the request is to be presented to the Board, the writ- ten request must be presented no less than one (1) week prior to the regularly scheduled Board meeting. Exceptions to this policy may be permitted by the District Superintendent, or by the Board in accor- dance with the following guidelines: Page 4 of 5 ~',;;;:'~_~OolIIli>t<" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ""\ <::5 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 vJ 51 52 53 ,'~''''1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 :3 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 \8 49 50 51 52 53 t~~ ~~~\ """.nVANIA SlDul U.IIDSASSOClmo'ifY-). P.L.98-377 ; " -- 122. EXTRA-CURRICULAR ACTIVITIES - Pg. 5 a. When the School District's league, or when our District, region or state organization scheduled an event which cannot be changed to another day or to an earlier time. b. When availability of facilities preclude schedul- ing on another day or at an earlier time. c. When the event is of significant value in promot- ing an accepted goal of the school district and no other time is appropriate. Equal Access Act The district shall provide secondary students the opportunity for one or more noncurricu1um related student groups to meet on the school premises during noninstructiona1 time for the purpose of conducting a m~eting within the limited open forum on the basis of the religious, political, philosophical, or other con- t~nt of the speech at such meetings. Such meetings must be voluntary, student-initiated, and not spon- sored in any way by the school, its agents or em- ployes. Noninstructional time is the time set aside by the school before actual classroom instruction be- gins or after actual classroom instruction ends. The meetings cannot materially and substantially interfere with the orderly conduct of the educational activities in the school. The Superintendent or his/her designee shall es- tablish the length of sessions, number per week, and other such limitations as felt reasonably necessary. The district retains the authority to maintain order and discipline on school premises to protect the well-being of students and employes and to ensure that the attendance of students at such meetings is on a voluntary basis. Page 5 of 5 ""'W~iI-.<i,-,^; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 ! 53 '"'<, ,~- " ."- ~--:f- .'"'" . '. CERT/F/CA rE OF SERVlCIE AND NOW; this 2nd day of January 2001, the undersigned does hereby certify that she did this date serve a copy of the foregoing BRIEF IN OPPOSITION TO PETITION FOR PRELIMINARY INJUNCTION upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: John M. Glace, Esquire 132-134 Walnut Street Harrisburg, PA 17101-1612 JOHNSON, DUFFIE, STEWART & WEIDNER By: ',S"C,,, C' \ro , \ \. ~ A:-:>.)l1...fJ""" Michelle M. Bross Legal Assistant -.-- ,.t. ;,;"" L ~ .. ~ ~" > - t--.... 01/10/01 WED 11:20 FAX 2406462 CliMB/COUNTY COURTS @JODI ********************* *.* TX REPORT *** ********************* TRANSMISSION OK TX/RX NO CONNECTION TEL CONNECTION ID ST. TIME USAGE T PGS. SENT RESULT 4744 ~~I( 11:17 Wr,;tlut/L 01110 02'48 10 OK SHAWN WESTHAFER & JUANITA & PAUL WESTHAFER, his parents, Petitioners : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CUMBERLAND VALLEY : NO. 2000-8799 EQUITY SCHOOL DISTRICT By its Superintendent, ANTHONY J. COLISTRA, Ed.D., Respondent IN RE; PETITION FOR PRELIMINARY INJUNCTION BEFORE GUlDO, J. AND NOW, this ORnER OF COURT I ~ f'I1 day of1ANUARY, 2001, for the reasons stated in the attached opinion, Petitioner's request for a Preliminary Injunction is DENIED. Edward E. Guido, 1. ; John M. Glace, Esqui:re 132-134 Walnut Street Hanisburg, Pa. 17101-1612 CliMB I COUNTY COURTS Ivl . l~ .. AL'_. 01/10/01 WED 11:09 FAX 2406462 I4J 001 ********************* ... TX REPORT ... ********************* TRANSMISSION OK TX/RX NO CONNECTION TEL CONNECTION ID ST. TIME USAGE T PGS, SENT RESULT 4743 C 9238~ 11: 05 JoJ." ~J,.Cr... 01/10 03'40 10 OK SHAWN WESTHAFER & JUANITA & PAUL WESTHAFER, his parents, Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CUMBERLAND VALLEY : NO. 2000-8799 EQUITY SCHOOL DiSTRICT By its Superintendent" ANTHONY J, COLISTRA, Ed.D" Respondent IN RE: PETITION FOR PRELIMINARY INJUNCTION BEFORE GUIDO. J. AND NOW, this ORDER OF COURT Ie fI1 ,day of JANUARY, 2001, for the reasons stated in the attached opinion, Petitioner's request for a Preliminary Injunction is DENIED, Edward E. Guido, J. John M. Glace, Esquire 13 2-134 Walnut Street Harrisburg, Pa. 17101-1612 " \O~..... _. ~^ ~~~~ , I L. ~'--I . ~ No. 122 SECTION: PROGPAMS TITLE: EXTRA-CURRICULAR ACTIVITIES Cumberland Valley School District ADOPTED: June 19, 1997 REVIl;lED: ~,""""~, 1. Purpose SC 511 2. Definition Title 22 Sec. 5.217 3. Authority SC 511 P.L.98-377 122. EXTRA-CURRICULAR ACTIVITIES The Board believes that the goals and objectives of this district are best achieved by a diversity of learning experiences, some of which are more appropri- ately conducted outside the regular classroom curricu- lar program of the school. Al.l learning experiences offered by the schools of this district - curricular and extra-curricular - should be planned and integrated toward the attain- ment of the district's objectives. For purposes of this policy, "extra-curricular activities" shall be those activities which are spon- sored or approved by the Board but are not offered for credit toward graduation. Such activities shall ordinarily be marked by student participation in the processes of initiation, planning, organizing, and execution and available to all students who voluntari- ly elect to participate, except that where eligibili- ty requirements are necessary or desirable, the Board shall be so informed and must approve the establish- ment of eligibility standards before they may be oper- able. The Board shall make school facilities, supplies and equipment available and assign staff members for the support of a program of extra-curricular activi- ties for students. Such availability and assignment shall be in accordance with the Equal Access Act. Any extra-curricular activity shall be consid- ered to be under the sponsorship of this Board when it has been approved by the Superintendent and report- ed to the Board for their information and review. Page 1 of 5 ~D'lnt I_p \\1Iol fYr 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 "..:....=h;...;,;,i"'-""J~" , 1 2 3 4 5 6 7 8 9 10 11 12 4. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 ~~, ~ ~ ~..... t~~\ Pt:MICSTtYAll1ASCIClIU( .1IA1l1s.uSllClAnDif~). Delegation of Respon- sibility 5. Code of Conduct - ' ~"~~ ~ ..:.., , ~ 122. EXTRA-CURRICULAR ACTIVITIES - Pg. 2 The Board shall maintain the program of extra- curricular activities at no cost to participating stu- dents, except that the Board's responsibility for the provisions of supplies shall carry the same exemp- tions as listed in the Board's policy on regular school supplies. Students may assume all or part of the costs of travel and attendance at extra-curricular events and trips. The Superintendent shall prepare procedures to implement a co-curricular program which shall: assess the needs and interests of the students of this district~ involve students in the planning of extra-curric- ular activities~ be responsive to the articulated needs of stu- dents~ ensure the provision of competent guidance and supervision of staff~ guard against the exploitation of students~ provide for the continuing evaluation of the ex- tra-curricular program; and ensure that all extra-curricular activities are open to all students and that all students are fully informed of the extra-curricular opportuni- ties open to them. The following conduct shall constitute grounds for expulsion from practices, participation in inter- scholastic competition or other participation in ex- tra-curricular activities during that particular sea- son, when such conduct occurs on or off school grounds: ',' a. The use of violence, force, coercion, threat, intimidation, or similar conduct in a manner that constitutes a substantial interference with school purposes. b. Willfully causing or attempting to cause substan- tial damage to school property, stealing or at- tempting to steal private or school property of Page 2 of 5 ~~~Ill<ll~. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~'1 ;:5 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 _..J 51 52 53 >-,'"",""""''' ~'-,.tl''"'''''''''''' , 1 2 3' 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~3 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 45 47 48 49 50 51 52 53 ~~ t~~\ f'ENHmIllHIASCIII!fI17t IIlAlDSAS50ClAnoil'\ ",.i.; ,I .~ - _, 'f- _~~~ ~ O\~. 122. EXTRA-CURRICULAR ACTIVITIES - Pg. 3 substantial value, or repeated damage or theft involving private or school property of small value. c. Causing or attempting to cause physical injury to a school employe or to any students. Phvsi- cal injury caused by accident, self-defense~ or other action undertaken on the reasonable belief it was necessary to protect some other person shall not constitute a violation of this subdivi- sion. . d. Threatening or intimidating any student for the purpose of, or with the intent of, obtaining mon- ey or anything of value from each student. e. Knowingly possessing, handling, or transporting any object or material that is ordinarily or gen- erally considered a weapon. f. Use or possession of smoking tobacco or tobacco products; possession, use, sale, delivery, or to have consumed any narcotic, dangerous drug, mari- juana or alcoholic beverage; the use of anabolic steroids. g. Continual abusive language, or obscene gestures, or willfull indecent exposure. h. Engaging in any other activity forbidden by the laws of the State of Pennsylvania which actively constitutes a danger to other students or inter- feres with school purposes. i. All other reasonable rules or regulations adopt- ed by the coach or supervisor of an activity shall be followed, provided that participants shall be notified of such rules and regulations by written handouts and posting prior to the be- ginning of the season (must be presented to and gone over with the administration before being presented to the participants) . In the case of alleged infractions of the rules and regulations, the participant may be expelled from practices, participation in the interscholastic compe- tition or other participation in extra-curricular ac- tivities. In these cases, the due process procedures will be followed: Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 'ol""'~." ~ I iJ. rt!!4. ~"'~\ r::n~'::~:~~~L ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 6. Guidelines 41 42 43 44 45 46 47 48 49 50 51 52 53 .J"I I . Jll.~ ~ ~ _' I 122. EXTRA-CURRICULAR ACTIVITIES - Pg. 4 a. If an alleged infraction occurs, the coach or supervisor shall make an investigation of the alleged conduct or violation and determine if a suspension is necessary. b. If, after the above, a determination is made to suspend the participant, the suspension shall take immediate effect, and the coach or supervi- sor, or administrator shall give notice to the participant, the student's parents or guardian of the action taken. c. Before any expulsion shall take effect, a partic- ipant shall be given written notice of the charg- es. Parents or students or guardians will be afforded the opportunity to be present at the hearing before the high school Administrative Review Committee, and will have the opportunity, if desired, to call witnesses on behalf of the student's defense and to present any relevant evidence. d. If a participant, the parent or guardian are not satisfied with the determination by the high school Administrative Review Committee, a hear- ing may be requested before the Superintendent. The hearing must be requested in writing, which writing must be delivered to the Superintendent or Assistant Superintendent during the Superin- tendent's absence, within five (5) days of re- ceiving notice of expulsion. e. If a hearing is requested, it shall be held with- in ten (10) days of the request and a notice of the time and place of the hearing will be given to the student, and parents or guardians, and the appropriate staff members within five (5) days of receiving the request. All school principals and teachers shall avoid scheduling student activities on Wednesdays after 6:30 p.m. and on Sundays. Requests for exception to this policy shall be presented to the Superintendent at least one (1) week in advance of the event. If the request is to be presented to the Board, the writ- ten request must be presented no less than one (1) week prior to the regularly scheduled Board meeting. Exceptions to this policy may be permitted by the District Superintendent, or by the Board in accor- dance with the following guidelines: Page 4 of 5 ~~Il,n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~~ ,5 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 .J 51 52 53 c'_~"~"~~ , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 :3 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 '8 49 50 51 52 53 . u. ~ ~~;.\ PENItSYLWlI,lSUODU IOAIDSA!iSllClAllDM1 P.L.98-377 ~: -~~" " ~ - . . 122. EXTRA-CURRICULAR ACTIVITIES - Pg. 5 a. When the School District's league, or when our District, region or state organization scheduled an event which cannot be changed to another day or to an earlier time. b. When availability of facilities preclude schedul- ing on another day or at an earlier time. C. When the event is of significant value in promot- ing an accepted goal of the school district and no other time is appropriate. Equal Access Act The district shall provide secondary students the opportunity for one or more noncurriculum related student groups to meet on the school premises during noninstructional time for the purpose of conducting a meeting within the limited open forum on the basis of the religious, political, philosophical, or other con- tent of the speech at such meetings. Such meetings must be voluntary, student-initiated, and not spon- sored in any way by the school, its agents or em- ployes. Noninstructional time is the time set aside by the school before actual classroom instruction be- gins or after actual classroom instruction ends. The meetings cannot materially and substantially interfere with the orderly conduct of the educational activities in the school. The Superintendent or his/her designee shall es- tablish the length of sessions, number per week, and other such limitations as felt reasonably necessary. The district. retains the authority to maintain order and discipline on school premises to protect the well-being of students and employes and to ensure that the attendance of students at such meetings is on a voluntary basis. Page 5 of 5 'r' II .' .........~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 , 53 , " . . ,~.. , k ~ 't. . "'"", Page 1 Citation/Title 455 A.2d 674, 309 Pa.Super. 407, Com. v. Hall, (Pa.Super. 1983) *674 455 A.2d 674 309 Pa.Super. 407, 9 Ed. Law Rep. 287 Superior Court of Pennsylvania. COMMONWEALTH of Pennsylvania v. John HALL and Sherrie Hall, Appellants. Argued Jan. 27, 1982. Filed Jan. 14, 1983. Parents appealed from judgments of sentence imposed by the Court of Common Pleas, Cumberland County, Criminal Division, No. 824 of 1980, Sheely, J., following convictions on four counts of truancy. The Superior Court, No. 1895 Philadelphia 1981, Wieand, J., held that the school district's "educational trip" policy which limited excused absences for educational trips to one trip per year not to exceed five school days was reasonable and, further, evidence of the educational value of a particular trip was not relevant to the issue of whether the compulsory school attendance law was violated. Affirmed. West Headnotes [1] Schools ~20 345 _n_ 34511 Public Schools 345II(A) Establishment, School Lands and Funds, and Regulation in General 345k20 Regulation and Supervision of Schools and Educational Institutions in General. Local school boards are responsible for administering individual school systems and, to that end, may adopt such reasonable rules and regulations as are necessary and proper for management of school affairs. 24 P.S. ~ 5-510; Const. Art. 3, ~ 14. [2] Schools ~20 345 ---- 34511 Public Schools 345II(A) Establishment, School Lands and Funds, and Regulation in General 345k20 Regulation and Supervision of Schools and Educational Institutions in General. Commonwealth courts are not "super" school boards with superior knowledge concerning administration of public schools or science of pedagogics. 24 P.S. ~ 5-510; Const. Art. 3, ~ 14. Copyright (c) west Group 2000 No claim to original U.S. Govt. works " ", ';,-" . ,~ :., ~ "''''~ 455 A.2d 674, 309 Pa.Super. 407, Com. v. Hall, (Pa.Super. 1983) Page 2 [3] Schools ~160 345 - - h 34511 Public Schools 345II (L) Pupils 345k160 Compulsory Attendance. Within limits of statutory attendance requirement, it is duty of each school district to adopt reasonable rules and regulations requiring daily attendance. 24 P.S. ~~ 13-1327, 13-1333. [4] Schools ~160 345 ---- 34511 Public Schools 345II (L) Pupils 345k160 Compulsory Attendance. School board's policy of allowing excused absences for educational trips, limited to one trip per year not to exceed five school days, was not arbitrary or capricious. 24 P.S. ~~ 13-1327, 13-1333. [5] Schools ~160 345 ---- 34511 Public Schools 345II (L) Pupils 345k160 Compulsory Attendance. Natural, but not inalienable right of parents to custody and control of their children is not in conflict with power of state to require children to attend school. 24 P.S. ~~ 13-1327, 13-1333. [6] Schools ~160 345 h h 34511 Public Schools 345II (L) Pupils 345k160 Compulsory Attendance. In prosecution of parents for violating compulsory school attendance law and policy regulations a~opted by school district, trial court did not err in refusing to allow testimony of two defense witnesses concerning educational value of unexcused "educational trip" in that sole issue was whether parents had violated compulsory attendance law and that issue was quite unaffected by quality of "educational trip." 24 P.S. ~~ 13-1327, 13-1333. *675 [309 pa.Super. 408] Thomas W. Scott, Harrisburg, for appellants. Richard C. Snelbaker, Asst. Dist. Atty., Mechanicsburg, for Commonwealth, appellee. [309 Pa.Super. 409] Before WIEAND, CIRILLO and POPOVICH, JJ. WIEAND, Judge: Copyright (c) West Group 2000 No claim to original U.S. Govt. works - '" -. ,~ ". ~ '.- "". ~J'" ~" , ~~ "!~' . .-~- ~~, 455 A.2d 674, 309 Pa.Super. 407, Com. v. Hall, (Pa.Super. 1983) Page 3 John and Sherrie Hall have appealed from judgments of sentence imposed following convictions on four counts of truancy for violating the Compulsory School Attendance Law. They have appealed in order to challenge the validity of an educational trip policy established by the Cumberland Valley School District. Finding the policy valid, we affirm the judgments of sentence. Appellants are the parents of four school-age children who were enrolled during the 1979-1980 academic year in schools within the Cumberland Valley School District. AS a result of an extended Christmas holiday in the Caribbean and a long weekend trip to New England in February, all four children had accumulated three unexcused absences from school. Accordingly, appellants were notified, pursuant to the Public School Code of 1949, Act of March 10, 1949, P.L. 30, Art. XIII, ~ 1333, as amended, 24 P.S. ~ 13-1333, (FN1) that further unexcused absences would result [309 Pa.Super. 410] in the institution of summary *676 criminal proceedings against them. In March of 1980, in'accordance with the procedure outlined in the Cumberland Valley School District's attendance regulations, (FN2) appellants sought and received permission for their children to be excused from school to accompany them on an "educational trip" to Washington, P.C. The children's absences on this occasion were recorded as excused. Later in March of the same year, appellants again requested permission to remove their children from school for an additional three days, this time for an asserted "educational trip" to Europe. Authorization for these absences was not forthcoming because the District's written policy provided for only "one educational trip per school year, not to exceed five (5) school days." (Emphasis added.) Because their children had previously been excused for a trip to Washington, P.C., the District's policy precluded an additional "educational" absence. Appellants made the trip, nevertheless, and removed their children from school without excuse. As a result, appellants were charged with violating the School Code. Convicted in a summary proceeding, appellants took an appeal to the Court of Common Pleas of Cumberland County. Following trial de novo before the Honorable Ha~old E. Sheeley, appellants were again found guilty. Post verdict motions were denied, appellants were sentenced to pay four fines of $2.00 each, plus costs, and this appeal followed. [1] In order to comply with the mandate of the state constitution to maintain "a thorough and efficient system [309 Pa.Super. 411] of public education," Constitution, Art. Ill, sect. 14, the General Assembly, in the Public School Code, has prescribed only general rules and standards for the conduct of the educational system; and the State Board of Education has been empowered to "adopt broad policies and principles and establish standards governing the educational programs of the Commonwealth." 22 Pa.Code ~ 1.2. However, it is the school districts which are the agencies of the state legislature to administer this constitutional mandate to maintain" 'a thorough and efficient system of public schools.' " Pittsburgh School District v. Allegheny County, 347 Pa. 101, 104, 31 A.2d 707, 708 (1943) citing Wilson, et ux. v. Philadelphia School District, et al., 328 Pa. 225, 231, 195 A. 90, 94 (1937). Local school boards are responsible for administering the individual school systems and, to that end, Copyright (c) West Group 2000 No claim to original U.S. Govt. works .-, ;.-..;h.';, ~ '~i. 455 A.2d 674, 309 Pa.Super. 407, Com. v. Hall, (Pa.Super. 1983) Page 4 may adopt such reasonable rules and regulations as are necessary and proper for the management of school affairs. See: Act of March 10, 1949, P.L. 30, Art. V, ~ 510, 24 P.S. ~ 5-510. [2] "[W]hen one attacks the action of a school board concerning matters committed by law to its discretion, he has a heavy burden as the courts are not prone to disturb a school board's decision. Indeed, they are without jurisdiction to interfere therewith unless it is apparent that the school board's conduct is arbitrary, capricious and to the prejudice of public interest. Lack of wisdom or mistaken judgment is insufficient." Farris v. Swetts, 158 Pa.Super. 645, 648, 46 A.2d 504, 505 (1946). In short, the courts of this Commonwealth are not "super" school boards with superior knowledge concerning the administration of the public schools or the science of pedagogics. McCoy v. Lincoln Intermediate Unit No. 12, *677 38 Pa.Cmwlth. 29, 36, 391 A.2d 1119, 1123 (1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2033, 60 L.Ed.2d 397 (1979). See also: Zebra v. Pittsburgh School District, 449 Pa. 432, 437, 296 A.2d 748, 750 (1972); Christoffel.v. Shaler Area School District, 60 Pa.Cmwlth. 17, 20, 430 A.2d 726, 728 (1981); O'Leary v. Wisecup, 26 Pa.Cmwlth. 538, 364 A.2d 770 (1976) [309 Pa.Super. 412] '" [C]ourts are in no position to exercise control over schools and determine the policy of school administration; the judges ordinarily are not equipped for this immense task.' " Balsbaugh, et al. v. Rowland, 447 Pa. 423, 431, 290 A.2d 85, 90 (1972) citing Wilson, et ux. v. Philadelphia School District, et al., supra 328 Pa. at 236, 195 A. at 97. Therefore, in the absence of a gross abuse of discretion, courts will not second-guess policies of the several boards of school directors. See: Commonwealth ex reI. Hetrick v. Sunbury School District, 335 Pa. 6, 11, 6 A.2d 279, 282 (1939); Hibbs v. Arensberg, 276 Pa. 24, 26, 119 A. 727, 728 (1923). [3] The legislature has recognized in Section 1327 of the School Code, Act of March 10, 1949, P.L. 30, Art. XIII, ~ 1327, 24 P.S. ~ 13-1327, the necessity for requiring compulsory school attendance in order to insure that the children of the Commonwealth are properly educated. The legislature has also provided penalties in cases where those attendance requirements have been violated. Id. at ~ 13-1333. Within the limits of the statutory attendance requirement, it is the duty of each school district to adopt reasonable rules and regulations requiring daily attendance. Gonzalez v. Philadelphia School District, 8 Pa.Cmwlth. 130, 138-139, 301 A.2d 99, 104 (1973). Local school boards have discretionary authority to determine what constitutes a sufficient excuse for absence from school.. See: 79 C.J.S. Schools and School Districts ~~ 463, 466; 68 Am.Jur.2d, Schools, ~~ 227, 228, 230. [4] Pursuant to this authority, the Cumberland Valley School Board adopted attendance regulations requiring students to follow a policy of regular school attendance in order that they might receive full benefits from the educational opportunities offered them. Excuses from school attendance were made available in cases of illness, family emergency, medical appointments, authorized school activities and duly authorized educational trips. Excuses for educational trips, Copyright (c). West Group 2000 No claim to original U. S. Govt. works k -~ -.; :"-'_,,i,,;'/ .'"-, ',> L-t" 455 A.2d 674, 309 Pa,Super. 407, Com. v. Hall, (Pa.Super. 1983) Page 5 as noted earlier, we~e limited to one trip per year not to exceed five school days. Contrary to [J09 Pa.Super. 413] appellants' argument, this policy was not arbitrary or capricious. It represented a sound exercise of that discretion which had been vested in local school boards and was designed to insure continuity in classroom instruction for pupils and teachers alike. Additionally, by establishing clear and explicit standards, the policy relieved individual school administrators, principals or teachers from the burdensome task of evaluating multiple applications for excused absences while nonetheless providing an opportunity for families in the School District to avail themselves of one educational trip per school term. In restricting the number of educational trips, the Cumberland Valley policy does not run afoul of the Public School Code of 1949. The Code, in fact, is silent regarding the permissibility of such absences. Moreover, the District's policy is compatible with the regulations of the State Board of Education which, in permissive language, countenance temporary absences from school attendance for, inter alia, "an educational 'tour... during the school term...." 22 Pa.Code ~ 11.26 (FN3) (emphasis added) . *678. [5] Similarly, it cannot successfully be contended that the Cumberland Valley District's policy violated rights guaranteed to appellants by the Constitutions of Pennsylvania and the United States. The power of the state to require that children attend school is now beyond question. The state is obliged to "aSsur[e] children adequate preparation for the independent and intelligent ~xercise of their privileges and obligations as citizens in a free democracy." commonwealth ex rel. School District of Pittsburgh v. Bey, 166 Pa.Super. 136, 140, 70 A.2d 693, 695 (1950). The natural, but not inalienable, right of parents to the custody [309 Pa.Super. 414] and control of their children is not in conflict with this power of the state, which may, in order to fulfill its duty to educate children, impose reasonable regulations requiring regular school attendance without impinging on constitutional freedoms. [6] Appellants make the further argument that the trial court erred in refusing to allow the testimony of two defense witnesses concerning the educational value of the unexcused trip and the overall effect of the absences on the Hall children and the Cumberland Valley educational program. It is a well established evidentiary principle that in order for evidence to be admissible it must be relevant. The test for relevancy is whether the proffered evidence tends to prove or disprove' a material issue. Commonwealth v. Brown, 489 Pa. 285, 303, 414 A.2d 70, 79 (1980); Commonwealth v. Scott, 480 Pa. 50, 54, 389 A.2d 79, 82 (1978); Commonwealth v. Kichline, 468 Pa. 265, 284, 361 A.2d 282, 292 (1976); Commonwealth v. Davenport, 462 Pa. 543, 555, 342 A.2d 67, 72 (1975); Commonwealth v. Stewart, 461 Pa. 274, 278, 336 A.2d 282, 284 (1975); Commonwealth v. Myers, 439 Pa. 381, 384, 266 A.2d 756, 758 (1970); Commonwealth v. Vukovich, 301 Pa.8uper. 111, ---, 447 A.2d 267, 270 (1982), quoting 29 Am.Jur.2d, Evidence ~ 2521 Commonwealth v. Minton, 288 Pa.Super. 381, 393, 432 A.2d 212, 217-218 (1981); Commonwealth v. Krajci, 283 Pa.Super. 488, 495, 424 Copyright (cl West Group 2000 No claim to original U. S. Govt. works ~ ,-" , . '-', -~'r-" 455 A.2d 674, 309 Pa.Super. 407, Com. v. Hall, (Pa.Super. 1983) Page 6 A.2d 914, 918 (1981). See also: McCormick, Law of Evidence, ~ 185 (2d ed. E. Cleary 1972); 1 Henry, Pennsylvania Evidence, ~ 2 (4th ed. 1953). Instantly, the sole issue was whether appellants had violated Pennsylvania's compulsory attendance law and t4e policy regulations adopted in support thereof by the Cumberland Valley School District. This issue was quite unaffected by the quality of the trip which underlay the absences of their children. Moreover, the Commonwealth did not dispute, indeed it conceded, the educational value of the proposed trip. Under these circumstances, the trial court's refusal to permit the proffered testimony was not error. [309 Pa.Super. 415] Stripped of the emotion which appears to have surrounded this case from the outset, all that remains is appellants' fundamental disagreement with the judgment and decision of the school board. Their assertion of an unconditional right to take their children on multiple educational trips in contravention of school district policy is without foundation in logic or in law. Continuity in a course of study through requirements which reasonably compel regular school attendance is a matter of paramount importance to which the views of individual parents must yield. The orders and judgments of sentence are affirmed. (FN1.) Section 13-1333 of the Public School Code of 1949 provides: "Every parent, guardian, or person in parental relation, having control or charge of any child or children of compulsory school age, who shall fail to comply with the provisions of this act regarding compulsory attendance, shall on summary conviction thereof, be sentenced to pay a fine, for the benefit of the school district in which such offending person resides, not exceeding two dollars ($2) for the first offense, and not exceeding five dollars ($5) for each succeeding offense, together with costs, and, in default of the payment of such fine and costs by the person so offending, shall be sentenced to the county jail for a period not exceeding five (5) days. Any person sentenced to pay any such fine may, at any time within five (5) days thereafter, appeal to the court of quarter sessions of the proper county, upon entering into a recognizance, with one or more proper sureties, in double the amount of penalty and costs.. Before any proceedings are instituted against any parent, guardian, or perspn in parental relation, for failure to comply with the provisions of this act, the district superintendent, attendance officer, or secretary of the board of school directors, shall give the offending person three (3) days' w~itten notice of such violation. If, after such notice has been given, the provisions of this act regarding compulsory attendance are again violated by the persons so notified, at any time during the term of compulsory attendance, such person, so again offending, shall be liable under the provisions of this section without further notice." (FN2.) The attendance regulations provide: 6100.3 Excused ab~ences include the following: Copyright (c) West Group 2000 No claim to original U.S. Govt. works ... , -.,' 'c-,,,,,' c " -':"'-" " "---'LIDiL' 455 A.2d 674, 309 Pa.Super. 407, Com. v. Hall, (Pa.Super. 1983) Page 7 6100.3e Student educational trips 6100.3e1 A student will be permitted to take one educational trip per school year, not to exceed five (5) school days, with his/her parents/guardian and receive an excused absence provided parents/guardian comply with program requirements. When an educational trip is planned which will require a student to be absent from school, an Educational Trip Form should be completed and returned to the office one week prior to the trip. Neglecting to gain prior approval for the educational trip will result in the recording of unexcused daily absences for those days absent. *678 (FN3.) section 11.26 of Title 22 of the Pennsylvania Code, in its entirety, provides: Upon receipt of a written request from the parents of the pupils involved, pupils maybe excused from school attendance to participate in an educational tour or trip provided during the school term at the expense of the parents when such tour or trip is so evaluated by the District Superintendent and pupil participants therein are subject to direction and supervision by an adult personage acceptable to the District Superintendent and to the parents of the pupils concerned. Copyright (c) West Group 2000 No claim to original U.S. Govt. works '.LL "' I, ,~ .ll__ r '!"J(i1f'~-';; SHAWN WESTHAFER and JUANITA and PAUL WESTHAFER, His Parents, Petitioners IN THE COURT of COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA No. 2000 - 8799 v. CUMBERLAND VALLEY SCHOOL DISTRICT, by its Superiqtendent, ANTHONY J. COLISTRA, Ed.D., Respondent ACTION in EQUITY Petitioners' Briefin Support of its Petitioner for Preliminary Injunction L LEGAL ISSUES A. IS INJUNCTIVE RELIEF THE APPROPRIATE REMEDY? Suggested Answer: Yes B. IS THE EXPULSION OF THE PETITIONER FROM THE WRESTLING TEAM A VIOLATION OF ADMINISTRATIVE PROCEDURE AND SPECIFICALLY THE RULES PROMULGATED BY THE CUMBERLAND VALLEY SCHOOL BOARD? Suggested Answer: Yes C. IS THE EXPULSION OF THE PETITIONER FROM THE WRESTLING TEAM FUNDAMENTALLY UNFAIR AND INDIVIDUALLY DlSCRlMINATORY? Suggested Answer: Yes '> .....d l, ~l "i "~'''-'" II. LEGAL ARGUMENTS A INJUNCTIVE RELIEF IS THE APPROPRIATE RELIEF. It is undisputed that a School Board is a local agency Big Spring School District Board of Directors v Hoffinan, 88 Pa, Cmwlth 462,489 A2d 998 (1985). Also it is statutorily required that the School Board shall: "prescribe, adopt and enforce such reasonable rules and regulations as it may deem proper, regarding ,.,athletics 24 Pa. CSA, Section 5-511 (a), current through Act 2000-86 Such is the case instantly wherein The Cumberland Valley School Board promulgated and adopted on June 19, 1997 rules and regulations directed to student extra-curricular activities ( hereinafter "the Rules"), which are attached to the above Petition as Exhibit "A". It is alleged that the Respondent's Superintendent, in his confirmation of an Administrative Review Hearing's decision, failed to follow these "Rules" and that said failure exhausted Petitioner's administrative remedies. It should be noted that School Board was not party to the Superintendent's acts and that no procedural mechanism exists to bring this matter befure the School Board and, consequently, there has been no adjudication by the School Board. Accordingly, the linch-pin issue is Petitioner's allegation that Respondent by its Superintendent, failed to follow its own rules. Since there has been no School Board adjudication, this Honorable Court's scope of review should be de novo, Although the Superintendent's confirmation of Petitioner's expulsion lacks the imprimatur of a School Board adjudication, his acts must still be sustained by substantial evidence as if the result of such adjudication. see Flynn-Scarcella v Pocono Mountain School District, Pa. Cmwlth, -----> 745 A2d 117 at 121 (2000), The Petition before this Honorable Court requests an injunction of the expulsion of Petitioner from the wrestling team in order to allow him to compete to allow him the chance to excel as he has previously, to expose himself athletically for possible post high school scholarship, and to be able to be availed the same extra-curricular opportunity as other students enrolled within the Respondent school district Such requests have no 2. . ~,' " . adequate remedy at law and require, if justifiable, the special relief envisioned by Pa. RC.P. 1531. B. THE EXPULSION OF THE PETITIONER FROM THE WRESTLING TEAM IS A VIOLATION OF ADMINISTRATIVE PROCEDURE AND SPECIFICALLY THE RULES PROMULGATED BY THE CUMBERLAND VALLEY SCHOOL BOARD. Rules are Rules. The Cumberland Valley School Board adopted its "Rules" relative to "Extra-curricular Activities" pursuant to the School Code statutory directive at 24 Pa. CSA, Section 5-511. (School Athletics, Publications, and Organizations. The Board; plainly and, succinctly defined "Extra-Curricular Activities" as: Section 2. Definition For purposes of this policy[ the "Rules"], "extra-curricular activities" shall be those activities which are sponsored or approved by the Board [ emphasis added] but are not offered for credit toward graduation. Further the "Rilles" again defined plainly and succinctly what Board sponsorship or approval as: Section 3. Authority Any extra-curricular activity shall be considered to be under the sponsorship ofthis Board when it has been approved by the Superintendent AND reported to the Board for their approval and review [ emphasis again added including to the conjunctive] Rilles adopted pursuant to an agency's legislative rule-making power are products of the exercise the legislative powers of that agency and valid and binding on the court as a statute if the promulgation is within the agency's power, reasonable and issued pursuant to proper procedure. Housing Authority of the County of Chester v Pa State Civil Service Com'n, 556 Pa. 621, 692 A2d 1122 (1999). The Administrative Review Committee expelled Petitioner from the wrestling team by "extending" { its word} the purview of the above very exact definition. That definition prefaces all further rules relative to Cumberland Valley extracurricular activities. Dr. Colistra's December 18, 2000 does not specifically describe how he turned a voluntary and individual summer wrestling camp into an extra-curricillar activity, but Dr. Colistra states the District "helped organize the activity, provided transportation and had adults on 3. .'... ' ~ "",\-' site to watch the young people", presumptively investing by these few vague actions the constructive imprimatur of School Board approval. The touchstone of whether an agency, in this case the School Board, has promulgated a binding regulation that establishes a binding norm is the court must consider: (1) the section's plain language; (2) the manner in which it has been implemented; and (3) whether the section restricts the agency's discretion R M v Pennsylvania Housing Finance Agency of the Commonwealth, _ Pa. Cmwlth---, 740 Ad 302 (1999). It is patently clear that the "Rules" were adopted as a binding regulation to have the effect of law with very plain language, not as a flexible policy statement as it has been applied instantly. Rules are Rules Courts are not always bound by an agency's interpretation of its own regulations and can be set aside a flawed or improper interpretation. See Pennsylvania State Police, Bureau ofLiq.uor Control Enforcement v American Serbian Club of Pittsburgh , _ Pa Cmwlth _, 750 A2d 405 (2000) , wherein the Commonwealth Court affirmed the Allegheny trial court's that there was not substantial evidence to prove violation of agency regulation proscribing a private club's sale of alcohol to a non-member during a dinner dance.. The Commonwealth Court, in the above Serbian Club case, specifically affirmed the trial court's strict construction of the Bureau of Liquor Enforcement's regulations and the trial court's vacation of the agency's enforcement of its rule.. Ru1es are Ru1es. Also the Appellate Courts have viewed with great circumspection regulations that are vague so that they fail to provide adequate notice to reasonable persons as to what is prohibited or, conversely, if the regulations enforcement can be arbitrary and discriminatory in the absence of explicit guidelines. In Watkins v State Board of DentistI)' , _ Pa. Cmwlth ---' 740 A2d 760 ( 1999), the Commonwealth Court vacated a dentist's license suspension for failure to provide "appropriate monitoring equipment" {the language of the regulation} for anesthesia. Judge Pelligrini held that only if the regulation contains reasonable standards to guide prospective conduct does the regulation satisfy the requirements of due process. In the case sub judice, the Superintendent, after receiving a complaint over three (3) months after the summer incident, imposed a sanction pursuant to the "Ru1es", substituting this punishment for that already imposed by the athletic department. The language of Dr. Colistra's December 18, 2000 Opinion must be examined carefully at this point as it relates to his process of applying the "Ru1es" to the incident. Dr. Colistra's application is very very general. By reading his opinion, one wou1d think that Cumberland Valley High School ran the summer camp, rather than Lock Haven University. One would think that Cumberland Valley High School, by its "help" was a substantial factor in the existence of the summer camp. One wou1d think that no wrestler from Cumberland valley could and did attend the summer camp without aid of 4. 'lli . .,-'- ~'" Cumberland Valley transport. No local agency rule or regulation can be metamorphasized, several months after the fact and outside of the plain language of that rule, merely by good intentions. Ru1es are Rules. The process by which rules and regulations are promulgated provides an important safeguard against unwise or improper exercise of discretionary administrative power. WilliAms v Board MProhation and Parole. _ Pa Cmwlth ---' 757 A2d 436 ( 2000). In Williams, the Parole Board didn't present "good cause" for extending a parolee's revocation hearing over the 120 day regulation time period and argued that since he was a repeat offender its use of discretion was justified. The Commonwealth Court rejected peremptorily this argument and almost repeated in its decision the aphorism that this brief continues to reprise "Rules are Rules", The Cumberland Valley School Board, by its legislative power and pursuant to the Commonwealth School Code promu1gated an extra-curricular code of conduct ( the "Ru1es"). The Board specifically and plainly defined what activities is encompassed in its regulation of extra-curricular activities and required for those activities to be approved by the Board and subject to the Board's review. Attendance at the a voluntary summer wrestling camp was never approved by the Board. Camper/ wrestlers may have peripheral contact with Cumberland Valley High School activities; but the actual attendance at the camp never was extra-curricular activity subject to sanction by the School Board's regulation. Further, that individual activity can not lawfully be converted by re-interpretation ofthe "Rules". By Respondent's own defining preface, the Ru1e is the Rule; not the flexible policy interpretation of a concerned Superintendent. C. THE EXPULSION OF THE PETITIONER FROM THE WRESTLING TEAM IS FUNDAMENTALLY UNFAIR AND INDIVIDUALLY DISCRIMINATORY It is admitted that Petitioner, and any such similarly situated student athlete and bis parents, don't have a property right in the participation in an interscholastic athletic program, even with the possibility ofa college scholarship. Adamek v PTAA, 57 Pa. Cmwth 261,426 A2d 1206 ( 1981); Dallam v Cumberland Valley School District, 391 F.Supp. 358 (M.D. Pa., 1975). However participation in an interscholastic sport must be viewed as more than a mere means to an end. The great majority of student athlete's organized sports participation ends with their high school graduation. However the life memories. life lessons and camaraderie continue thereafter immutably. It is admitted by all parties th~t Petitioner is an excellent wrestler. However, he also is an eighteen (18) year 5. -~" . - '';':Me, old young man who has learned the dedication of individual sacrifice and the value of team participation. He has maintained excellent grades, not without some of the individual strengths he has learned from his wrestling experience. These equities must be weighed against the SuperiI1tendent's acts ex propio motu. School student athletes do have rights under the Pennsylvania and federal constitutions. Recently, the Pennsylvania Conunonwealth Court in Theodore v Delaware Valley School Diotrict, _ Pa Cmwlth _, 761 A2d 652 (2000) ruled that only students, not their parents, had standing to seek injunctive relief against mandatory urine testing as a condition of participation in extracurricular activities and parking on school grounds, While this case with such major implications was remained and remains open, Judge Pelligrini's opinion is instructive in that addresses extra-curricular activity participants as a class. The Delaware Valley School District has couched their challenged urinalysis regulation as a medical, rather than criminal issue and mandated a medical ( i.e. drug-free) clearance as a pre-condition to extra-curricular participation. The Delaware Valley School Board's rationale was that extra-curricular participation was voluntary. However, Judge Pelligrini disagreed with such reasoning and found that the participation in extra-curricular activities does not lessen a student's constitutional interest, Theodore at 660. Conversely, as it relates to a school district's ability to expand the definition of "extra-curricular", the Appellate Courts have sided with participant. In Pease v Millcreek Township School District, 412 Pa. 378, 195 A2d 104 ( 1963), the school district required George Pease, a teacher, to supervise the bowling club. Within Mr. Pease's contract was the requirement to supervise extra-curricular activities; but he didn't want to spend his off-time in the town bowling alley, refused this supervisory assignment and he was fired. His discharge was upheld by the Erie County Court ( with Judge Laub dissenting). The discharge was r~versed by the Supreme Court, after an examination of the facts. The bowling club did not compete either interscholastically or intramurally, the bowlers paid for their own gllffil:lS and exp@nses, no school property was used, Mr. Pease was not require to instruct, and attendance was not monitored. Interestingly, the formation of the bowling club had rec.eiveq the School Board's approval.. The SUpreme Court very delicately ~d that the School Board had acted "with restraint alia in the utmost good faith" in firing Mr. Pease, however that discharge was still wrong and Mr. Pease's reinstatement WllS ordered with back pay and costs Pease, at 108-109. The above facts lUlpear very similar to those at bar. The activity ( wrestling camp attendance) was volu'ltlliy, during the sumrow months, paid entirely by Petitioner and the other campers, transport of all parties was not provided by the School District although a 6, ..l~ '"~, ~-, ,j ~,- j~ . ~' -,~ ~1~'.1 school vehicle was used by a coach, no coach or adult was paid by the School District, the School District did not handle any money for the tuition of summer campers, the School District's insurance policies did not cover the activities, but those policies of the camp, medical clearance had to be provided by the individual and the camp was over 90 miles away. Judge Laub, revered in this county for his extensive and incalculable contributions to Dickinson School of Law specifically and Pennsylvania jurisprudence generally, immediately recognized that a School District can't, by its own fiat, change a duck into a goose. Another, basic equity of the case at bar can not be overlooked. The intervention of the parents of one of the purported victims. It was not the wrestling coach nor the athletic director who deemed the incident punishable by the expulsion of the Petitioner. The Superintendent was contacted about the incident, two (2) months after its incurrence. His escalation of sanction and application of the "Rules' occurred at these parents request and contrary to the athletic department's earlier reaction. Additionally, Petitioner was allowed to believe he was on the wrestling team until the first week in November, 2000 and after he had been assured that he could wrestle on several occasions. While Petitioner's acts of July 20, 2000 can not be excused, the Respondent's administrators vacillation and application, albeit improperly, after the fact to justifY assuaging outraged parents really makes a second victim. It will be demonstrated in the fact finding hearing that these "outraged" parents appear to have their own agenda. Finally, the imposition of sanction by the Superintendent against the Petitioner can not be considered in a vacuum. Respondent School District has allowed and continues to allow students who have been convicted of not only summary offense, but misdemeanors to participate in extra-cunicular activities. Petitioner's October 5, 2000 guilty pleas to the two (2) non-traffic summary citations, issued in late September, 2000 should not be considered a bar to his participation in extra-curricular activities. More, interestingly and illustrative of the unequal and individually discriminatory application of the "Rules" by the Respondent, another. wrestler/camper who participated in the July 20, 2000 incident and was !:harged with a misdemeanor was suspended from the team and is now wrestling. Therefore, if criminal gradation of the incident by the local law enforcement authorities is any indication, the sanctions issued pursuant to the "Rules" by the Respondent is contradictory and clearly fundamentally unfair to Petitioner. 7. ~ -~ , ~.l " " ,,,,,,j -," ~~ '.-. ,-="_,1",: ill CONCLUSION For the above reasons, the Petition for Equitable Relief in the form of an iqiunction should be granted Respectfully submitted: The Law Office of John M. Glace M. lace, Esquire 13 l1-Jnut Street . urg, PA 17101-1612 (717) 238-5515 Telefax (717) 238-6929 Supreme Ct ID: 23933 Counsel for Petitioners 8. .,.:,' CERTIFICATE OF SERVICE I HEREBY CERTIFY that this 3rd day of January, 20011 have served a true and correct copy of the foregoing Brief in Support of Petitioner's Request for Equitable Relief, by hand delivery, upon: C. Roy Weidner, Jr., Esquire Johnson, Duffie, Stewart, & Weidner 301 Market Street Lemoyne, P A 17043 LAW OFFICES of JOHN M. GLACE Gl ce, Esquire I - alnut Street sur, PA. 17101-1612 (717) 238-5515 Identification No. 23933 Counsel for Petitioner BOYLE v. PIAA Cite as 676 A.2d 695 (Pa.Cmwlth. 1996) a violation of the Act or of the ,fegulations issued pursuant to the ,appear in the record. Glagola v. :1"'-', . 's Cornpensatwn Appeal Board, 59 'ith. 80, 428 A.2d 1016 (1981). Be- , 'e record indicates that Employer, in y modifying benefits, has violated " the imposition of a penalty may be nate. However, we agree with Em- S contention that even if a violation of , t has occurred and is apparent on the ; the imposition of a penalty is not d. Rather, the imposition of a penal- "at the discretion of the WCJ. Ortiz v. n's Cornprmsatwn Appeal Board ir rex Mills, Inc.), 102 Pa.Cmwlth. 493, 8' A,2d 1305 (1986). Ai; to the question of ether penalties are appropriate in the In- t matter, we remand back to the WCJ to 'e into consideration whether in light of , '; conduct of the Claimant, penalties are ppropriate.9 Accordingly, the decision of the Board is ,"'ersed as to any calculation of benefits at a rate of less than $229.77 per week imposed prior to the April 18, 1994 decision of the WCJ and remanded for consideration as to 'ithether penalties should be imposed. ORDER AND NOW, this 21st, day of March, 1996, the order of the Workmen's Compensation Appeal Board, No A94-1291, dated August 9, 1995, is reversed as to any calculation of i! Claimant's benefits at less than a rate of ,! $229.77 per week prior to the April 18, 1994 decision of the WCJ, and remanded for con- sideration as to whether penalties should be applied. Jurisdiction relinquished, Ir i~ w o ~KEYNUMBERSYSTEM T " ;~ 9. On April 9. 1993, tqe Employer received the examination report prepared by the Claimant's treating physician, Dr. Job Menges. In that re. , port, ?ated November 11, 1992, Dr. Menges un. equivocally stated that the Claimant's continuing condition was not attributable to his work-relat. ed condition, but rather. to a pre-existing condi- tion. Employer con~ends that had it had access to such report prior to its request for supersede- as, that request would have been granted. Be- Pa. 695 Bradley S. BOYLE, a minor by Jerome BOYLE, his Parent and Natural Guardian, v. PENNSYL VANIA INTERSCHOLASTIC ATHLETIC ASSOCIATION, INC., Appellant. Commonwealth Court of Pennsylvania. Argued Feb. 9, 1996. Decided March 22, 1996. Reargument Denied May 21, 1996. High school student sought preliminary injunction preventing Pennsylvania Inter- scholastic Athletic Association (PIAA) from prohibiting him from playing interscholastic basketball. The Common Pleas Court, No. 2169 of 1995, G.D., Fayette County, Solomon, J., granted preliminary injunction. PIAA appealed, The Commonwealth Court, No. 3441 C.D. 1995, Doyle, J., held that: (1) high school student's eligibility to play interscho- lastic basketball does not involve property right or other constitutionally protected in- terest which would entitle him to procedural due process under Fourteenth Amendment, and (2) reasonable grounds supported trial court's finding, in support of preliminary in- junction, that Pennsylvania Interscholastic Athletic Association (PlAA) arbitrarily and capriciously discriminated against high school student in violation of equal protection clause by denying him eligibility to play in- terscholastic basketball, Affrrmed. Friedman, J., concurred in result only, cause Claimant's counsel had access to that re- port for five months prior to its disclosure, and because it is a violation of the Professional Rules of Responsibility for counsel to withhold such a report. Employer argues that Claimant's penalty petition should be dismissed. On remand, the WCJ should consider the conduct of the parties in its determination of whether or not a penalty is appropriate. 696 Pa. 676 ATLANTIC REPORTER, 2d SERIES 1. Injunction <'>>138.18 Unlike party seeking permanent injunc- tion, party seeking preliminary injunction is not required to establish his or her claim absolutely. 2. Appeal and Error <'>>863 Commonwealth Court's scope of review in cases involving granting of preliminary injunction is very narrow. 3. Appeal and Error =863 In reviewing cases involving granting of preliminary injunction, Commonwealth Court does not review full merits of controversy, but rather determines, based on record, whether there were any reasonable grounds which would justify trial court's decision. 4. Appeal and Error <'>>863 In reviewing cases involving granting of preliminary injunction, only if it is plain that no grounds exist to support decree or that rule of law relied upon was palpably errone- ous or misapplied will Commonwealth Court interfere with decision of trial judge. 5. Constitutional Law =277(1) High school student's eligibility to play interscholastic basketball did not involve property right or other constitutionally pro- tected interest which would entitle him to procedural due process under Fourteenth Amendment. U.S.C.A. Const.Amend. 14. 6. Schools <'>>183 Power of judiciary to interfere with Pennsylvania Interscholastic Athletic Associ- ation (PIM) is strictly limited and general rule is against principal of judicial interven- tion in this area. 7. Civil Rights <'>>268 Reasonable grounds supported trial court's finding in support of preliminary in- junction, that Pennsylvania Interscholastic Athletic Association (PIM) arbitrarily and capriciously discriminated against high school student in violation of eqnal protection clause by denying him eligibility to play in- terscholastic basketball where student re- quested transfer t<> another school after coach assaulted his father in argument about student and PIM, who was unable to con- elude that transfer was for athletic purpose, nevertheless found him ineligible to play bas- ketball. U.S.C.A. Const.Amend. 14. 8. Constitutional Law eo>250.5 Equal protection challenge to rules and regulations of Pennsylvania Interscholastic Athletic Association (PIM) must be re- viewed under rational basis standard, since high school student seekiug eligibility to play interscholastic basketball was not member of suspect class and fundamental right was not involved. U.S.C.A. Const.Amend. 14. DOYLE, Judge. William M. Young, Jr., for appellant. Nicholas E. Timperio, Jr., for appellee. Before DOYLE and FRIEDMAN, JJ., and MIRARCHI, Senior Judge. '8.: The Pennsylvania Interscholastic Athletic .' Association, Inc. (PIM) appeals from an or.' ..1, del' of the Court of Common Pleas of Fayet ' County, which entered a preliminary inj1D!~ tion enjoining PIM from prohibiting Br~ ley S. Boyle from competing in inter.choj tic basketball at Geibel Catholic High Sch (Geibel) during the 1995-1996 school y The relevant facts are as follows. Boy a junior at Geibel, having transferr~d tIi after completing the lOth grade at F., High School (Frazier). Prior to trRUSt. ^ to Geibel, he participated in inter,!'bo basketball at Frazier, under the ausp! PIM, during both the 1993-1994 rold.' 1995 school years. ,a Prior to both his freshman and sop years of high school, Boyle express1~ piness at having to continue to atten er and applied to attend Geibel:. However, due to his family's financ ^ ty to afford the tuition at Geibel unable to make the transfer at r On December 17, 1994, Bradle father, Jerome Boyle, was invoJ altercation at a local tavern Wlt "Woody" Salisbury, the head foot at Frazier and a teacher in th School District. Salisbury and J e initially only exchanged harsh ~Iri t ,. ,:. f Cite as 674 A.2d 695 (Pa.Cmwlth. (996) :Jjut Salisbury then threw a beer the upcoming academic year under the PIAA ~erbme Boyle, hitting him in the Transfer Rule. cl>i1sing a laceration under his left ,,' a1 charges were subsequently '" st Salisbury based on these ac- 'a;' li' BOYLE v. PIAA ugh Salisbury took a sabbatical leave . Spring semester of the 1994-1995 i~ifr, he was scheduled to return for 1996 school year. Boyle testified ';., incident made him feel uncomforta- I nding Frazier, particularly since the < t basketball coach was a good friend . bury and was present when his fatber 'assaulted. Although Boyle testified that lJury had not actually bothered him e the incident with his father, he did \ify that Salisbury had harassed him prior \hat time. In addition, Boyle stated that ; bury's son was a member of his class at a'zier and that attending school with him :e Boyle feel uncomfortable. Further- ore, Jerome Boyle testified that the alter- 'Uon between Salisbury and himself began "eckuse of a disagreement concerning his son radley Boyle.' As a result of a financial settlement be- tween Jerome Boyle and Salisbury stemming from the tavern incident, Boyle was financial- ly able to transfer to Geibel for his junior year at the beginning of the 1995-1996 school . year. On July 5, 1995, the principal of Geibel ,snbmitted a "Member School Form for a decision on Athletic Eligibility," requesting a . decision by the District Committee of PIAA ' ," District VII regarding Boyie's eligibility for 1. Although Bradley Boyl!= has transferred to Gei- bel, his brother continues to be a student at Frazier. The PIAA attempts to use this fact to discredit the need for Boyle to transfer schools and to question his motives in doing so. Howev~ er, the two brothers' situations are different in at least three important respects. First, Boyle's brother is not involved in the basketball program at Frazier and therefore does not have to play under the assistant basketball coach, a friend of Salisbury. Second, there is no evidence that any of. Salisbury's children are classmates of Boyle's brother. Third, the incident involving Salisbury and Boyle's father involved an argument con~ cerning Boyle, not his brother. Thus, what might have been an intolerable situation for Boyle could have been at least tolerable to his brother. Furthermore, Jerome Boyle stated be- fore the trial court that his family would like to send both children to Geibel but was financially unable to do so. Pa. 697 The PIAA Transfer Rule is found in Arti- cle VI, Section 2 of PIAA's By-Laws, and provides in pertinent part as follows: Except as otherwise provided in this section, a student who is not eligible under a section of this Article shall be ineligible to participate in each sport in which he participated within a period of one year immediately preceding the date of trans- fer. (Reproduced Record (RR.) at 105..) Al- though Boyle conceded that he was not eligi- ble under any of the specifically enumerated exceptions to the Transfer Rule, he alleged that the unique circumstances of his case warranted a fmding of eligibility under Arti- cle VI, Section 15 of the By-Laws, a residu- ary "catch all" provision which provides that in UExceptional Cases" the District Commit- tee may confer eligibility where the transfer is not covered by any other specific provision under Article VI. Based solely on Boyle's school records and a letter from his parents, the District Com- mittee found that Boyle was ineligible to play basketball in the 1995-1996 academic year.' In response to this decision, Boyle requested a hearing before the District Committee. On September 13, 1995, the District Committee held a hearing at which it again found that Boyle was iueligible to participate in basket- ball under the Transfer Rule.' 2. Although it found that Boyle was ineligible for basketball. the District Committee did find him eligible to play baseball since he had not played that sport in the past year. 3. The District Committee found that Boyle was ineligible under Article VI, Sections Z and 6 of PIAA's By-Laws. Section 6 is the general rule governing eligibility for students transferring be. tween public and private schools. Since Boyle did not meet the criteria allowing for immediate eligibility under Section 6, he could have been found to be eligible only if it was determined that he fell within the "Exceptional Cases" exception of Section 15. Although the District Committee determined that he did not fall within tbat provi~ sion, implicit in its determination was the fact that his transfer was not the result of recruiting or in any way done for an athletic purpose. If this were not the case, the District Committee 698 Pa. 676 ATLANTIC REPORTER, 2d SERIES Boyle appealed this decision to PIAA's Board of Control. In addition to the testimo- ny of Boyle, Boyle's parents, the principal of Geibel, and the athletic director of Geibel, the Board of Control considered a crime report of the North Belle Vernon Police De- partment relating to the incident between Boyle's father and Frazier's football coach, a letter from the Victim/Witness Coordinator for Westmoreland County, and letters from the principals of both Geibel and Frazier. By a letter dated October 27, 1995, the Board of Control affirmed the decision of the Dis- trict Committee. The Board of Control based its decision in large part on a letter from Dr. Richard Mar- tin, the Principal of Frazier, as well as guide- lines which it had established (Section 15 Guidelines) to help District Committees in- terpret and implement the Exceptional Cases exception (Article VI, Section 15) to the Transfer Rule, These guidelines provide that a transferring student may be declared eligible in the following three circumstances: 1. Involuntary transfers, such as where a student is expelled from school and must therefore necessarily transfer to another school. 2. Where a student attending a school at which he must pay tuition (either public or private) transfers to another school be- cause of financial inability to continue to pay the tuition. 3. Where the principal of the sending school and the principal of the receiving school inform the District Committee in writing. or orally at a hearing, that each believes that the transfer was not a result of recruiting and WQ$ not in whole or in pari for any athletic purpose. (Emphasis added.) (PIAA's Exhibit G; RR at 143a.) However, the three examples listed above do not con- would have been obliged to find him ineligible for all sports, not just basketball, under Article VI, Section 11 of PlAA'g By-Laws, which bans participation in all sports for one year if the transfer was "in whole or in part for any athletic purpose." 4. As additional reasons for denying Boyle eligi- bility, the Board of Control stated that it was persuaded by the fact that Boyle's brother con- tinued to attend Frazier despite the incident be. stitute the sole reasons which may justify granting an. exception under Article VI, Sec- tion 15 of PIAA's By-Laws. The guidelines expressly state that the above "list is not intended to be exhaustive, Or to limit the District Committee's use of Section 15 in other situations in which the cause of trans- fer is not covered by the specific provisions of the transfer rule." (PlAA's Exhibit G' R.R at 143a.) , Dr. Martin, the principal at Frazier, in his letter stated in relevant part: First, I cannot say one way or another whether recruiting was involved. There are rumors to that effect; however, neither I nor my athletic staff are in a position to . offer any proof one way or another. Offi. 1 cially, Frazier High School does not for- I. if mally raise the issue of recruiting. it. , Second, as to the athletic intent and, purpose. I must report that my athletic department is not willing to say that this transfer was without athletic intent It is our understanding that previous at-" forts to enroll [Boyle] at Geibel included discussions of hasketball. Third, as principal, I assure you and ~a PlAA Board of Control, just as I 01 [Boyle's] family at the District VII h: lng, that [Boyle] was not, and woul(~ ever he, subjected to any kind of ' ment or other inappropriate trea~ here at Frazier High School. , (Dr. Edward Martin's letter, 10/5/95; R~" 139a.) (Emphasis added.) Based o~ letter, the Board of Control concluded' Boyle had failed to establish that he;SIi be declared eligible under the third ex~ to the Transfer Rule listed in the See" Guidelines, since Dr. Martin was un ,':,. . unequivocally state that Boyle's trans7' not the result of recruiting and was; an athletic purpose.' While the B ,. tween Boyle's father and Salisbury, all the fact that there was only one minor.e between Boyle and Salisbury after the. the bar, relating solely to the questl,; Boyle was not participating in the ; weight program. Regarding the fl, Boyle and his father testified to seve why Boyle's brother continued to atte Among these were financial hards.ll~ fact that Boyle's brother did not ha~f! lH ;.;i iii t BOYLE v. PIAA Cite as 676 A.2d 695 (Pa.Cmwlth. 1996l Icy ii, ~;. {did not conclude that Boyle had in eiI recruited or that he transferred to ,:for an atWetic purpose, it denied him '~n 15 exception because of Dr. Mar- ~bility or unwillingness to state that had transferred for a non-athletic pur- l Ii November 14, 1995, Boyle filed a com- "t and a petition seeking injunctive relief . e Court of Common Pleas of Fayette ~ty in wbich he sought to prevent PIM m denying him eligibility under the Trans- :Rule contained in Article VI of its By- ,~s. On November 28, 1995, a preliminary 'unction hearing was held at which the trial udge heard testimony and received docu- 'ents into evidence substantiating the facts 'summarized above. By an order dated -~~ember 30, 1995, the court of common pi:;as granted Boyle's request for a prelimi- ~&ry injunction against PlAA. On December '( 1995, PIM appealed that decision to our C<Jurt.' '. Initially, before addressing the merits of , PIAA's appeal, we must stress that the pres- ,"ent case involves the granting of a prelimi- ,:nary, as opposed to a permanent injunction. , The prerequisites to obtaining a preliminary . injunction were set forth by our Supreme '" Court in Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 181, 207 A.2d 768, 770-71 (1965), as follows: [F]irst, that it is necessary to prevent im- mediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refus- ing [to grant the preliminary injunction] than by granting it; and third, that it properly restores the parties to their ste- tus as it existed immediately prior to the with Salisbury or other members of Frazier's Athletic Department, since he did not participate in the athletic program at Frazier. See supra note 1. We must also point out thot the Board of Control's second reason conflicts with the unre. butted testimony of Boyle before the court of common pleas in which he stated that there had been no contact between SalisbuTv and himself after the incident. (Notes of Testi~ony (N.T,) at 23; RR at 3] a.) Regardless of which version is correct, it is fully understandable that Boyle and Salisbury would have little or no contact with each other, since Salisbury has been on sabbati-, cal leave almost the entire time since the inc.t- den!. Pa. 699 , alleged wrongful conduct. Even more es- sential, however, is the determination that the activity sought to be restrained is ac- tionable, and that the injunction issued is reasonably suited to abate such activity. And unless tbe plaintiffs right is clear and the wrong is manifest, a preliminary in- junction will not generally be awarded. (Citations omitted.) [1-4] Nevertheless, unlike a party seek- ing a permanent injunction, a party "seeking a preliminary injunction is not required to establisb bis or bel' claim absolutely." Penn- sylvania Interscholastic Athletic Associa- tion, Inc. v. Geisinger, 81 Pa.Cmwlth. 421, 474 A.2d 62, 65 (1984); see also Fischer v. Department of Public Welfare, 497 Pa. 267, 439 A2d 1172 (1982). Accordingly, our scope of review in cases involving the granting of a preliminary injunction is very narrow. Geis- inger. We do not review the full merits of the controversy, but rather determine, based on the record, whether there were any rea- sonable grounds wbicb would justify the trial court's decision. Iii. "Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the [trial judge]." Id. 474 A2d at 65. Having set forth the standard under which we must review the present case, we will now address the various legal arguments raised by PlAA on appeal. PlAA presents the following issues for our review: (1) whether Boyle stated a cause of action against PlAA in his complaint; (2) whether Boyle demon- strated that he had a good prospect of estab- lishing that he would ultimately prevail j' r 5. Apparently, the Board of Control concurred with the District Committee's belief that Article VI, Section 11 of PIAA's By-Laws, which bans participation in aU sports for one )'ear where the transfer is the result of recruiting or for an athletic purpose. did not apply to Boyle's case. See supra note 3. 6. On December 14, ]995, PIAA filed an appllca- tion for expedited considermion of its appeal which was granted by an order of this Court dated December 18, 1993. 700 Pa. 676 ATLANTIC REPORTER, 2d SERIES against PIAA under the standard enunciated by the Pennsylvania Supreme Court in Har- risburg School District v. Pennsylvania In- terscholastic Athletic Association, 453 Pa. 495, 309 A.2d 353 (1973); (3) whether Boyle has a property right which entitles him to participate in interscholastic athletics; (4) whether Boyle was denied procedural due process under the Fourteenth Amendment to the United States Constitution; (5) whether Boyle was capriciously or arbitrarily discrim- inated against by PIAA; and (6) whether Boyle was denied his rights under the free exercise clause of the First Amendment by PIAA. [5] PIAA's principal argument is that Boyle does not have a judicially recognized cause of action against it, because his ellgibil- ity to play interscholastic basketball does not involve a property right or other constitu- tionally protected interest which would enti- tle him to procedural due process under the Fourteenth Amendment to the Uuited States Constitution. See Adamek v. Pennsylvania Interscholastic Athletic Association, Inc., 57 Pa.Cmwlth. 261, 426 A.2d 1206 (1981) (hold- ing that participation in interscholastic ath. letics is not a property right which entitles one to procedural due process); Pennsylva- nia Interscholastic Athletic Associatirm, Inc. v. Greater Johnstawn School District, 76 Pa. Cmwlth. 65, 463 A.2d 1198 (1983). [6J Furthermore, PIAA notes that in Harrisburg School District, the Pennsylvania Supreme Court strictly limited the power of the judiciary to interfere with decisions made by PIAA as follows: Notwithstanding our determination that the activities of the PIAA constitute state action, there are compelling reasons why judicial interference in this context would be inappropriate. . . . We believe that the general rule with respect to high school athletic associations, insofar as it has been enunciated, is one of judicial nan- interference unless the action complained of is fraudule:nt, an invasion of property or pecuniary rights, or capricious or arbi- trary diserimination. Harrisburg School District, 453 Pa. at 502- 503, 309 A.2d at 357 (emphasis added). Re- lying on the above quoted language from Harrisburg School District, as well as this Court's decision in Adamek, PIAA argues that not Dilly is Boyle precluded from prevail_ ing under a due process argument, but that he would be entitled to ultimately prevail only if he could establish tbat PIAA discrimi_ nated against him in a capricious or arbitrary manner. PIAA maintains that Boyle has completely failed to establish any likelihood of establishing that it has acted either arbi- trarily or capriciously in the present case. . The trial court, however, found otherwise, and we agree. PlAA is correct in its contention that Boyle does not have a property interest in playing interscholastic sports and that under Harrisburg School District, our power to . interfere with decisions rendered by PIAA is ' strictly limited. However, we believe that ~. this is one of those rare cases in which ': judicial intervention is warranted. We 'note, that while such action is contrary to the' general rule against judicial intervention, it is not unprecedented. For example, in Penn- sylvania Interscholastic Athletic Assrcill' tirm, Inc. v. Geisinger, 81 Pa.Cmwlth.: 421, 474 A.2d 62 (1984), we upheld a preli~ari injunction against PIAA, which enj9ined PIAA from prohibiting the petitioning! sl!! dents from participating in interscholilS.ij sports, where the Board of Control ha~ ~ nied a request for an exemption from p~ . requirement that students not attend /nO than eight semesters of high school, buH failed to make a thorough investigatio/'i contravention of PlAA's own By-Laws!. reaching that decision, In that case. j. recognizing the heavy burden which m~~ met under Harrisburg School District , del' for the courts to overturn a d rendered by PIAA, we emphasized th, ' that a party seeking a preliminary inj , does not have to prove his or her case lute]y. We then concluded that althou , ultimate resolution of the case, after ' hearing on the merits, might be dUD there existed sufficient and reas grounds for the trial court to grant a P nary injunction. In its brief PIAA suggests that G . , 'It was wrongly decided, since its resu trary to the principle of non-interfer fortl Schr inge 8m perl gue. Sch perl caSt real c]w gui fro' tri/ she BOYLE v. PIAA Cileas676 A.2d 695 (Pa.Cmwlth. 1996) "the Supreme Court in Harrisburg District PIAA cOlltends that Geis- uilproperly limits the application of " rg School District to cases involving ""ent injunctions. PlAA further ar- that the Supreme Court in Harrisburg .: District did not limit its holding to 'ent injunctions and in fact cited to "involving preliminary injunctions in . g its decision, PIM thereby con- es that this Court erred when it distin- ed the facts and the issue in Geisinger 'those found in Harrisburg School Dis- 3~, and that our decision in Geisinger uId noW be reversed. ! e strongly disagree with PlAA's charac- "'- tion of our decision ill Geisinger. Al- 6ugh it is true that we distinguished Geis- 'er from Harrisburg School District on the ounds that the former case involved a pre- , . ary injunction and the latter case did ot, we neither ignored nor violated the stan- ards established in Harrisburg School Dis- , . when deciding Geisinger. Harrisburg !,$chool District is the benchmark for cases i1nvolving PIAA and establishes a clear legal ;standard for determining whether a valid 'cause of action exists in such cases. N ever- 'theless, and regardless of the subject matter, "Harrisburg School District does not eviscer- ate the long established principles which gov- ern our review of decisions granting prelimi- nary injunctions. Instead, the standards enunciated in Harrisburg School District must be applied in conjunction with tbose principles governing the granting of prelimi- nary injunctions. Therefor@, rather than di- savowing Harrisburg Sclwol District, our de- cision in Geisinger merely recognized that in the context of a preliminary injunction pro- ceeding, a party never has the same burden of proof as in a permanent injunction pro- ceeding. If we were to adopt PIAA's position and werturn Geisinger, it is hard to determine shat differences would still exist between a >arty's burden in a prelirrlinary injunction 1l~aring and a permanent injunction hearing :1 matters involving the PIM. In fact, un- j,," PIAA's interpretation of Harrisburg 'chool District, Boyle would in effect be "quired to fully establish his case at the Pa. 701 preliminary injunction stage. Such a major change in the law was clearly not contemplat- ed by the Supreme Court in Harrisburg School District and is directly contrary to the principles set forth in Albee Hames, Fischer, and numerous other preliminary injunction cases. [7] Furthermore, although seemingly ac- knowledging the fact that the courts retain some power to review decisions made by PlAA, PIM's view of the judiciary's scope of review of its actions is so narrow that it is hard to imagine a situation in which PIAA would agree that judicial intervention was actually appropriate. In the present case, a coach at Boyle's school assaulted Boyle's fa- ther in an altercation which allegedly began over a disagreement concerning Boyle. Boyle subsequently transferred to Geibel for the next school year. Although unable to conclude that Boyle had transferred for an athletic purpose, it nonetheless found him inellgible to play basketball in the upcoming school year. Under PlAA's Section 15 Guidelines, a student athlete may be declared eligible if the principals from both schools involved in the transfer state that they do not believe the transfer was the result of recruit- ing or for an athletic purpose. However. since Boyle's former principal at Frazier was unable or unwilling to make such an asser- tion, PIAA refused him eligibility. In reach- ing this decisiou, PlAA discounted the signif- icance of the incident between Boyle's father and Frazier's football coach. Also, while stressing the unwillingness of Frazier's prin- cipal to attest to the non-athletic purpose of the transfer, PlAA seemingly ignored the provision in its own Section 15 Guidelines which provide that the enumerated reasons to grant au exemption listed therein are only examples and do not constitute the sole grounds for conferring eligibility under Sec- tion 15. Finally, PlAA implicitly found that Boyle's transfer was not the result of recruiting or otherwise for an athletic purpose. Since the avowed purpose of Article VI of PIAA's By- Laws is to prevent recruiting and transfers done for an athletic purpose, PIAA's require. ment that Boyle additionally obtain a m'itten statement from his former principal attestin,i! ,:~ ,,~ I 702 Pa. 676 ATLANTIC REPORTER, 2d SERIES to this same fact would appear to constitute a redundant as well as an arbitrary obstacle to obtaining eligibility. We find it difficult to imagine a more compelling case for allowing eligibility under the Section 15 exception of Article VI than the one presently before us. If PIAA were correct in its contention that judicial intervention is unwarranted in this case, we are uncertain under what circum- stances PIAA believes intervention would be appropriate. [S] Since Boyle does not have a property interest in playing interscholastic basketball, he clearly is not entitled to the protections of procedural due process. However, as PIAA itself concedes, Boyle is entitled to protection under the equal protection clause of the Fourteenth Amendment. In the present case, PIAA's rules and regulations must be reviewed under the "rational basis" standard, since Boyle is not the member of a suspect class nor is a fundamental right involved. See Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981). Under this standard, there is a presumption that PIAA's rules and regu- lations are valid. See United States Steel Corp. v. Workmen's Compensaiion Appeal Board (Mehalovich), 72 Pa.Cmwlth. 481, 457 A.2d 155 (1983). Furthermore, PIAA's rules and regulations, both on their face as well as in their application, "must be sustained [un- der the equal protection clause] unless [they are] patently arbitrary and bear[ ] no rational relationship to a legitimate governmental in- terest." fd. 457 A.2d at 157. Despite Boyle's heavy burden, we cannot conclude that the trial judge erred by finding that PIAA's By-Laws were inconsistent with their avowed purpose and that PIAA's action against Boyle was arbitrary and capricious. h, discussed above, the purpose of Article VI of PIAA's By-Laws is to prevent transfers which are the result of recruiting or for any athletic purpose. Yet, PIAA's By-Laws per- mit a student to be declared ineligible even when it has been establi~hed that the student transferred for some other reason. Further- more, under the Section 15 Guidelines relied upon by PIAA, if a student's former principal will not state that the student did not trans- fer for athletic reasons, a student may be denied eligibility even where the other evi- dence clearly establishes that the transfer was for non-athletic reasons. In the present case, Frazier's principal had no personal knowledge of any violations by Boyle, but instead relied on "rumors" from unnamed sources in the athletic department suggest- ing that recruiting might have been involVed. Although principles of due process do not strictly apply, any rule which permits deci- sions to be made based purely on rumors (palpably hearsay) is not only inherently un- fair but arbitrary as well. Transferring Stu- dents such as Boyle are placed in an untena~ ble position. since no matter how thoroughly they establish that they transferred for a non-athletic purpose, PIAA may still deny them eligibility based on the arbitrary and, unsubstantiated opinions of others when even .' their former principals have found no such'; , .;f purpose. :q' In th~ present case, we cannot overlook'..f, the fact that the principal of Frazier based' his opinion largely on information obtained from unnamed members of the school's ath: letic department. Although we do not kno' the exact source of this information, it is hard to believe that Frazier's football co ..' the individuai accused of assaulting Boyle: father, did not directly participate in, or least indirectly influence, the opinion of, zier's "athletic department." The inc~ between Boyle's father and the foo. coach, of course, also supports Boyle's~ . tion that he transferred for a non-a purpose. Unfortunately, from a public, tions standpoint, if nothing else. it is.',: interest of Frazier to downplay and, the significance of the assault of thef~ a student by one of its employees. !. underscores the apparent conflict: ': ' the interests of Frazier's principal t'-' as well as the prejudicial effect ,. PIAA's reliance on the principal's I in the present matter. Furthermo, the principal's assessment of the his opinion which PIAA's Sectio~ . lines called for, not the assessmen~ ion of its atWetic department, on~ members had assaulted the Jat\'. subject student in a bar room I;>!j Based on the reasons enurn.e j ,. we cannot agree with PIAA's ar HIRSCH v. COM., DEPT. OF TRANSP. Cite as 676 A.2d 103 (Pa.Cmwlth. 1996) iiJ:'t of common pleas erred in finding tests to determine alcohol level. The Com- 'Ie had a valid cause of action against monwealth Court, No. 1209 C.D. 1995, Doyle, - that PIAA had "arhitrarily and J., held that motorist's confusion about right 'sly discriminated against [Boyle]." to counsel when requested to submit to , urt Opinion at 9.) Accordingly, hav- chemical testing precluded suspension of op- dressed all of the material questions erating privilege. by pIAA in its appeal, we afflrnt the . 'n of the court of common pleas grant- ,oyle a preliminary injunction.' ORDER OW, March 22, 1996, the order of the " of Common Pleas of Fayette County in "above-captioned matter is hereby af- ed. w o ~KEYNUMBERSYSTEM T Frank E. HIRSCH v. COMMONWEALTH of Pennsylvania, DE. PARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant. Commonwealth Court of Pennsylvania. Submitted on Briefs Dec. 29, 1995. Decided March 27, 1996. Reargument Denied May 21, 1996, "l The Department of Transportation, Bu- reau of Driver Licensing appealed from or- der of the Court of Common Pleas, Alleghe- ny County, No. SA. 3333 of 1994, Doyle, J" which sustained motorist's statutory appeal of I-year suspension of drivers' license, im- posed for refusing to take chemical blood l:~ I"~ 7. We again note that PIAA is correct in its argu- ment that Boyle does not have a property interest in playing interscholastic sports and that he, therefore, was not denied procedural due pro. cess. How;:ver, this argument is irrelevant to our disposition, since the court of common pleas ... Pa. 703 Mflrnted. Silvestri, J., Senior Judge, dissented. 1. Automobiles >$=>421 When motorist is requested to submit to chemical testing and then asks to consult with someone, the law requires that motorist be informed that driving privileges will be suspended for one year if chemical testing is refused and that Mir-anda rights do not apply to chemical testing. 2. Automobiles >$=>144.1(1.20) Trial court's finding that motorist was confused about right to counsel when police officer requested motorist to submit to chem- ical blood testing to determine alcohol level precluded suspension of motorist's operating privilege based on reported refusal to submit to chemical testing, even though, after mo- torist requested to speak to attorney, officer provided legally sufficient 0 'Connell warning. U.S.C.A. Const.Amend. 6; 75 Pa.C.S.A 9 1547(b). Timothy P. Wile, Assistant Counsel In- Charge, for Appellant. Christine M. Selden, for Appellee. Before DOYLE and FRIEDMAN, JJ., and SILVESTRI, Senior Judge. DOYLE, Judge, The Department of Transportation, Bu- reau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Allegheny County which sustained Frank E. properly ruled in favor of Boyle on equal protec- tion grounds. We also find it unnecessary to address the question of whether Boyle's free ex- ercise rights under the First Amendment WE-re violated when he was denied full participation in all of Geibel's scholastic programs. ~~ - ,;;.-< ~ ' '~"';T'i$') Page 1 Citation/Title 123 A. 304, 278 Pa. 300, McKinley v. Mutual Life Ins. Co. of New York, (Pa. 1924) *304 123 A. 304 278 Pa. 300 McKINLEY. v. MUTUAL LIFE INS. CO. OF NEW YORK. Supreme Court of Pennsylvania. Jan. 7, 1924. Action by Janet Boyd McKinley against the Mutual Life Insurance Company of New York. From an order denying defendant's prayer for an order requiring plaintiff and another claimant of the fund sought to be recovered to interplead, it appeals. Reversed. Interpleader k 11 Denial of interpleader on theory that plaintiff was entitled to fund sought to be recovered unwarranted. Where an insurance company, when sued for money due on a policy, admitted liability, .offered to pay the money into court, and sought an order requiring plaintiff and another claimant of the same fund to interplead, ~he court was unwarranted in determining the merits of the respective claims, after the filing of an answer by the second claimant, and denying the interpleader on the theory that plaintiff was entitled to the fund sought to be recovered. [278 Pa. 301] Appeal from Court of Common Pleas, Somerset County; John A. Berkey, President Judge. Argued before MOsCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. W. L. G. Gibson (of Reed, Smith, Shaw & McClay), of Pittsburgh, Francis J. Kooser and Ernest O. Kooser, both of Somerset, for appellant. George W. Legge, Jr., and T. L. Richards, both of Cumberland, Md., and Charles H. Ealy (of Uhl & Ealy) , of Somerset, for appellee. WALLING, J. In 1918 the Mutual Life Insurance Company of New York, defendant, insured the life of Archie J. Taylor of Somerset county for $5,000, the policy naming 'his executors, administrators or assigns' as the beneficiary. In 1921 Mr. Taylor Copyright (c) West Group 1999 No claim to original U.S. Govt. works , , , ~ , <' ' -'J',~!;i"",,^ Page 2 123 A. 304, 278 Pa. 300, McKinley v. Mutual Life Ins. Co. of New York, (Pa. 1924) exercised the right reserved to him in the policy of changing the beneficiary to 'the insured's creditor, Janet Boyd McKinley, if living, if not, to the insured's estate'; reserving to himself the right [278 Pa. 302] to revoke such designation. The insured died in October, 1922, without making any further change of beneficiary, but leaving a last will in which his wife, Jessie Taylor, was named as executrix. Janet Boyd McKinley, as designated beneficiary, and Jessie Taylor, as executrix, each presented to the defendant an apparently bona fide claim to the $5,000 insurance. Janet Boyd McKinley brought this suit to enforce her claim, and the executrix threatened to do likewise. Thereupon defendant duly presented its petition to the court below, setting forth, inter alia, the rival claims, that it was a mere stakeholder without interest in the subject-matter of the suit, and admitted its liability for the whole of the plaintiff's claim, offering to pay the money into court, or to dispose of it as the court might direct, and prayed for an order on the claimants to interplead. In response to a rule to show cause, each claimant filed an answer containing averments in support of her claim, and the trial court in an exhaustive opinion reached the conclusion that on the pleadings plaintiff was entitled to the fund, and thereupon discharged the rule for an interpleader; from which order the defendant brought this appeal. As to the merits of the respective claims it is not necessary to express an opinion, for, as a matter of practice, it was error to decide that question in this preliminary proceeding. The case is ruled by Schmidt & Son Brewing Co. v. Pittsburgh Life & Trust Co., 256 Pa. 363, 100 Atl. 959, 960, where Mr. Justice Mestrezat, speaking for the court, says: 'The proceeding was instituted under section 4 of the act of March 11, 1836 (P. L. 76), which'provides, inter alia, as follows: 'The defendant in any action which shall be brought in the said court for the recovery of money, * * * which shall have come lawfully to his hands or possession, may, at any time after the declaration filed, and before plea pleaded, by a suggestion to be filed of record, disclaim all interest in the subject-matter of such action, and offer to bring the same into court, * * * and if he shall also allege, under oath or affirmation, [278 Pa. 303] that the right thereto is claimed by, or supposed to belong to some person not party to the action (naming him or them) who has sued or is expected to sue for the same, * * * the said court may, thereupon, order the plaintiff to interplead with such third person.' It will be observed that the defendant's suggestion or petition avers every jurisdictional fact required by the act of 1836, and they are not denied by the rival claimants to the fund in controversy. * * * We are not now concerned, as the learned counsel for the appellee argues, with the merits of the controversy. That question will be determined on the trial of the interpleader. The single question at issue now is the right of the defendant, under the facts disclosed by the pleadings, to have an *305. interpleader to ascertain the right claimant to the fund. It is true that the act of 1836 is not mandatory, but it is equally certain that the court must exercise a judicial and not an arbitra~y discretion when it determines the right to the Copyright (e) West Group 1999 No claim to original U.S. Govt. works ,~~. . . "-,~ - J ~ ~..;,.,;.--" Page 3 123 A. 304, 278 Pa. 300, McKinley v. Mutual Life Ins. Co. of New York, (Pa. 1924) interpleader. If the suggestion sets forth facts sufficient to bring the case within the provisions of the statute, the relief prayed for should be granted. ' To like effect is Barnes v. Bamberger, 196 Pa. 123, 127, where it is held that---- 'The defendants having brought themselves within the letter and spirit of the act of March 11, 1836, and disclaimed all interest in the subject-matter of the action, the court should, without delay or hesitation, have granted the interpleader prayed for.' The same rule applies on an application for a sheriff's interpleader. Delivering the opinion of the court in Book v. Sharpe, 189 Pa. 44, 47, 41 Atl. 998, 999, Mr. Justice Mitchell says: 'An interpleader is for the protection of the stakeholder, and the only requisite to entitle him to such protection is that he shall be in danger of attack from two quarters without fault of his own. A sheriff is liable to a suit by plaintiff in an execution if he refuses to levy, and it should turn out that the goodS were subject to the execution. On the other hand he is exposed to suit by the owner if he does levy on goods not so subject. [278 Pa. 304] The interpleader act was intended to protect him in this dilemma, and the court is not to inquire into the merits of the respective claims further than to see that they are not merely colorable or frivolous or collusive, but may be the bases of bona fide suits. If they may be, the interpleader must be granted, even though the court be of opinion that the claims cannot finally prevail. That matter is to be determined on the trial of the issue, not on the preliminary steps for protection of the sheriff. It is from the trouble, hazard, and expense of suit that he is to be protected, not merely from a certain or even probable verdict against him.' The intent of the statutes is to protect a defendant, who is a mere stakeholder, from the risk of a double liability, and also from the expense of litigation. That in' the opinion of the court he might ultimately escape the former is no ground for refusing the interpleader. It is not questioned that defendant brought itself within the terms of the statute, and the relief prayed for should have been' granted. Counsel for both' sides treated the act of 1836 as here applicable, and for the purpose of this case we have so considered it, although, aside from the statute, the issue prayed for should have been awarded under the common law. The order dischaiging the rule for an interpleader was an abuse of judicial discretion, and is reversed with a procedendo. Copyright (c) West Group 1999 NO claim to original U.S. Govt. works 7 ,- CUMBERLAND VALLEY SCHOOL DISTRICT SHAWN WESTHAFER HEARING At 8:15 a,m. on November 28,2000, an administrative hearing was held in the Boardroom of the Cumberland Valley Administration Building. The Board appointed Assistant Superintendent, Harold O. Bricker, and Assistant Superintendent, Harold L. Pomraning, as members ofthe Administrative Review Committee. The hearing ',;;25 held to determine if Mr. Shawn Westhafer, a student at Cumberland Valley High School, violated District Policy. It was alleged that Mr. Westhafer harassed a fellow student by indecently exposing himself and perfomling other acts of an egregious nature. Background During the week ofJuly 16-20,2000, thirty-nine (39) students from the Cumberland Valley School District participated in a summer wrestling canlp at Lock Haven University. The student athletes included seventh through tvvelfth graders. The students were responsible for any expenses for participation. A school van was used to transport two or three students. The students were housed in a dormitory at the University. The adults in attendance were Mr. Roger Barrick, head wrestling coach; Mr. Douglas Blacksmith and Mr. Michael Langan, assistant coaches; and Mr. Richard Baublitz, a parent. The four adults stayed with the wrestlers in the d0n11itory. Incident On Sunday afternoon and evening, July 16, and on Monday, July 17, 2000, Mr. Westhafer and Mr. Brian Eslinger entered the dormitory room numerous times of two junior high wrestlers, Robby Morrison and Ray S<:hreffler; and sophomore wrestler, Bill Sierer. They entered the room naked and proceeded to engage in egregious behavior, namely, taking the pillows of younger students and rubbing them over their pubic area and between their legs. ...,].....,.1 . j , :~~ , Mr. Westhafer ran around with only a towel asking, "Who wants to see me naked?" Then he removed the towel to expose himself. Mr. Westhafer plucked a pubic hair and asked Robby Morrison ifhe wanted to floss his teeth with it. When Robbie refused, Mr. Westhafer proceeded to floss his teeth with the pubic hair. The above incident was confim1ed by Mr. Ronald Audo, athletic director, Mr. Dominic Cavallaro, high school principal, by interviewing the students involved and confirmed by Mr. Westhafer at the hearing. When asked by Mr. Bricker at the hearing ifthe allegations occurred as described, he responded, "Mostly, yes." Results of Hearing After taking testimony, Mr. Bricker and Mr. Pomraning expelled Mr. Westhafer from the wrestling team and advised him of the appeal process to the Superintendent of Schools. Appeal Mr. Westhafer is appealing the decision to expel him from the wrestling team on the following points: 1. The Cumberland Valley School District has no jurisdiction in this matter. 2. The summer wrestling program is not sandioned, authorized, or approved by the Cumberland Valley School District; and participation is a private matter. 3: Expulsion from the wrestling team could have lasting effects on Mr. Westhafer ifhe is denied the opportunity to participate and be considered for possible scholarship money to attend college. 4. The actions of Mr. Westhafer are not serious violations, have not risen to the level of harassment or disorderly conduct, and are simply hijinks. . " ~~J...J. :40~,,_, , Decision It was established through admission ofMr. Westhafer and confirmed by witnesses to the incident that Mr. Westhafer did indecently expose himself and performed other egregious acts. What happened is not in dispute. In fact, Mr. Westhafer pled guilty to a citation of Harassment and Disorderly Conduct in the legal jurisdiction encompassing Lock Haven University. What is in dispute is whether the behavior is unacceptable. Mr. Westhafer would have us believe that his actions were boorish, boyish behaviors. It was suggested during testimony that wrestling is a masculine sport and that perhaps the older athletes need to instill a certain attitude in young participants. This argument is rejected. Athletes are not a special category of school citizens that can display unbridled behavior, and the thought that younger athletes need to develop certain unacceptable attitudes is beyond reason. Mr. Westhafer has attempted to trivialize his actions as not being indecent exposure, harassment, or disorderly conduct, but simply hijinks. This argument is also rejected. Mr. Westhafer has attempted to minimize his behavior. Mr. Westhafer does not appear to be cognizant of the serious nature of his behavior but seems to take a "boys will be boys" attitude. This is not acceptable. Mr. Westhafer contends the Cumberland Valley School District lacks jurisdiction since this activity was not approved or sanctioned by the Board of School Directors. The circumstances surrounding our participation gives us more than passing interest. The District helps organize this program by making information available to interested parties, by coordinating arrangements, by providing volunteer adults to accompany the participants, and by providing transportation with a school vehicle. The wrestlers register as Cumberland Valley Wrestlers--they stay together; and the accompanying adults are expected to watch over the young people. <!", ~""","",'" ~ _~i!Iit.f'"" , Mr. Westhafer charges/that only after a complaint was lodged by parents did we expand this volunteer program into an extra-curricular activity. It is true that notification by a parent, Mr. Morrison, prompted the superintendent to direct the athletic director to investigate the alleged incident. It is the result of that investigation that has brought about the action against Mr. Westhafer. The Cumberland Valley School District exercises due diligence to protect the health, safety, welfare, and morality ofthe student body. The District would be negligent ifit did not conduct a full investigation and take appropriate action. Conclusion Mr. Westhafer, through his own admission, engaged in unacceptable, egregious behavior that resulted in being cited by the local police in Clinton County for harassment and disorderly conduct. The School District, acting in due diligence, investigated the allegations. The District helped organize the activity, provided transportation, and had adults on site to watch after the young people. The action taken by the District is neither capricious nor inappropriate. Therefore, I am upholding the recommendation of the Administrative Review Committee to expel Mr. Shawn Westhafer from the wrestling team. Submitted December 18,2000 r. " ! . .' ,'''1.:.. [ 'I' I ",. . . r,' L .,U vv vi---- \..(-'V'-\.J,-<!t-"1 .. ' " Anthony J. Colistra, Superintendent J;>iiJ""~~' ~ -- , - ~--~. . '~1,' . , CERTIFTCA TE OF SERVICE I HEREBY CERTIFY that this 27th day of December, 2000 I have served a true and correct copy of the foregoing Petition for Equitable Relief in the form of a Preliminary Injunction, by hand delivery, upon: Jerry R. Duffie, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 Solicitor, Cumberland Valley School District LAW OFFICES of JOHN M. GLACE Counsel for Petitioner ........"... '"'1' ~........., ~~ "" . _- I . .. . -. _.. , I --- " .. . . .., ~""--, -~:::1"':"':..~""'~';' 1 U: tlI-' t:t776"ia'll"l-.-F'+o/'+____-- ,', I ,...... _ M~ . . coR eo <.0 . 0'l1 ~. ...J - 'i :!! ~ 61 "" Ii:: E . U ..\1.. .... ~ C 2: W .... ... Q ~ t ~ ~ ~ I " 'j, -. ; :H ;f, "- _.'.I~ . f ~ J >'0. . I " L 'LI , . , . SHAWN WESTHAFER and JUANITA and PAUL WESTHAFER, His Parents, Petitioners IN THE COURT of COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. No.cXCW- ~797 CUMBERLAND VALLEY SCHOOL DISTRICT by its Superintendent, ANTHONY J.. COLISTRA , Ed.D., Respondent ACTION in EQUITY Order AND NOW this ,,'" of l)"-et> .Q,4, ,2000, after due consideration of the attached Petition for Preliminary Injunction, it is hereby ORDERED and DECREED that GHlHllerlllf.d '.'.dkJ !!.;j.wl S;,l.;vl;, ;......~d;~l()~ elljal.._A .L... the 'WRtiw188 8Jff)tibivu vf ;;}'UWII "~.)tllui~, livJ.1J flaB y..h ti!ip81i8R iR tR2' nT'JlJtliA!l Ff1J81'atn iR8hiSl1if, [..JI pUJ.L~\,IlpC1l1UlJ III a11 pIaCUCeS aud h1Lt:;lj)",l.vl~~t:_ miUln A hearing relative to this Petition is scheduled for the .J r:J of::r ~ . 1 - ~, 200 L, at 1;).:00 "~o'c1ock in Courtroom number r of the Cumberland County Courthouse. BY THE COURT: f!. . ~. ~'Ol' Distribution: "RKS John M. Glace, Esquire 132-134 Walnut Street, Harrisburg, PA 17101-1612 Jerry R. Duffie, Esquire, 301 Market Street, Lemoyne, PA 17043 Cumberland County Court Administrator " ,..- ~~ ~ t'a-II,_=C.. ~ r .. .~ , . . , <1~_,_ ~,,,,,~~,,,,,,,.n . . --~~=, .'^'" '''~~ -~ .'~ '"~_ n"-,,"c"' " .. ::.\1 CI~' 'OTl~RV I", f' I Jq p;.'.j 2:52 JiJ Jrj~ 2... \ '. .,., ("""UN"N1 C'\J"'!'~"HI ""j.: u j I 'I ) 'Ivit..;",",,\.,.ll"'- "-' PEI\INSVLW~\lIi\ ... .. 5."",,!1lJ!~".~~1iF-'~~, L!jiI~",""=,'"__""'P!'.fm'~~''!'€,':''''f4i'o/'<:,".,,,~,,,,~-,,,g;\<;;,,,,;y,',~''5'1f-::P_\"'ifi'!?"';'f";;;i-;~~'Wf,g~"f:!!!:iF.8;'f"!!\i*"';!)til.~.\]Wt~ ~ ,,--,,= """w ~_ ;;il ,~ .0' , ~,,"" 'li;il~"""",,u,k 'f , r ' , SHAWN WESTHAFER and JUANITA and PAUL WESTHAFER, His Parents, Petitioners IN THE COURT of COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. J(J:X) - g-l?~ CUMBERLAND VALLEY SCHOOL DISTRICT by its Superintendent, ANTHONY J. COLISTRA, Ed.D., Respondent ACTION in EQUITY Petition for Equitable Relief in the form of a Preliminary Injunction AND NOW, this of ,200 comes Shawn Westhafer and his parents, Juanita and Paul Westhafer, parties in interest, by and through their counsel, John M. Glace, Esquire and respectfully presents this Petition for Preliminary Injunction and, in support thereof, avers the following: I. Petitioner SHAWN WESTHAFER is an eighteen (DOB 11/30/82) old year individual. He resides with his parents JUANITA and PAUL WESTHAFER ,Co-Petitioners herein at 302 Charles Road (Hampden Township), Mechanicsburg. Cumberland County, Pennsylvania. As a full time high school student, Petitioner SHAWN WESTHAFER is the dependent of the Co-Petitioners. 2. Respondent CUMBERLAND VALLEY SCHOOL DISTRICT, by its superintendent, Anthony 1. Colistra. Ed,D., exists and provides public education as a school district, compliant with all statutes and regulations of the Commonwealth of Pennsylvania, and is located at 6746 Carlisle Pike (Silver Spring Township) Mechanicsburg, Cumberland County, Pennsylvania. 3. Petitioner SHAWN WESTHAFER is a full time student at Respondent School District and resides within its student catclunent area. He is fully eligible to participate in extracurricular activities within the Respondent School District, but for the herein described sanction, and is physically able to participate in extra-curricular activities, specifically the interscholastic wrestling program which is provided for student 'b " ~~~ I ~ , ~-I ._, I" ,I , ,~~",-~ . , Mr. Westhafer ran around with only a towel asking, "Who wants to see me naked?" Then he removed the towel to expose himself, Mr. Westhafer plucked a pubic hair and asked Robby Morrison ifhe wanted to floss his teeth with it. When Robbie refused, Mr. Westhafer proceeded to floss his teeth with the pubic hair. The above incident was confirmed by Mr. Ronald Audo, athletic director, Mr. Dominic Cavallaro, high school principal, by interviewing the students involved and confirmed by Mr. Westhafer at the hearing. When asked by Mr. Bricker at the hearing ifthe allegations occurred as described, he responded, "Mostly, yes." Results of Hearing After taking testimony, Mr. Bricker and Mr. Pomraning expelled Mr. Westhafer from the wrestling team and advised him of the appeal process to the Superintendent of Schools. Appeal Mr. Westhafer is appealing the decision to expel him from the wrestling team on the following points: I. The Cumberland Valley School District has no jurisdiction in this matter. 2. The summer wrestiing program is not sanctioned, authorized, or approved by the Cumberland Valley School District; and participation is a private matter. 3. Expulsion from the wrestling team could have lasting effects on Mr. Westhafer ifhe is denied the opportunity to participate and be considered for possible scholarship money to attend college. 4. The actions ofMr. Westhafer are not serious violations, have not risen to the level of harassment or disorderly conduct, and are simply hijinks. """""" """,,;-. ~ , . .;~ ! ,. - ,""~""'<,~, 1'1 .... participation and authorized for interscholastic competition by the Respondent School District's School Board. 4. Petitioner SHAWN WESTHAFER has participated in the interscholastic wrestling program of Respondent school district throughout his enrollment in that school district. During the 1999-2000 wrestling season, Petitioner SHAWN WESTHAFER excelled as a wrestler within this wrestling program to such an extent that he qualified to wrestle at district. regional and state competition. At the beginning of the 2000-2001 interscholastic wrestling season, Petitioner SHAWN WESTHAFER was ranked third within his 135 pound weight class for entire area by the Harrisburg Patriot-News. It is admitted by all parties that Petitioner is an excellent wrestler and that he has received and that his wrestling coach, Roger Barrick, have received numerous inquiries relative to his continuation of wrestling in college with the possibility of a grant of a partial or full athletic scholarship. 5. Because their limited financial wherewithal, Petitioner and his Co-Petitioner parents need any available financial assistance to enable Petitioner to matriculate and attend college or any post high school educational institute. Because of Petitioner's prior demonstrated wrestling abilities and the number of actual, good faith inquiries from collegiate wrestling programs concerning Petitioner, there is a legitimate and articulatable reasonable expectation that Petitioner may receive some financial assistance for his further education as a direct and sole result of his participation in the Respondent's wrestling program. 6. During summers, certain wrestlers who are students at Cumberland Valley High School or one of its Middle Schools elect to voluntarily attend a summer wrestling camp at Lock Haven University in Lock Haven, Clinton County, Pennsylvania, all campers attending subject to the following circumstances: a. No part of the tuition is paid by Cumberland Valley School District: and b. Attendance at this summer camp is completely voluntary and is neither requirement nor a prerequisite to participation for the Cumberland Valley wrestling team; and c. Cumberland Valley's interscholastic sports program is proscribed by PIAA regulation from considering a student's attendance at this summer camp as a team rather than individual activity; and - -'; .J - " ,,",I, ~ ~~"""""~,,",i<li.j,_, , .. . d. No required prerequisites of attendance at the summer camp (e.g. provision of physicals, provision of equipment) were, in part or in whole, supplied by Respondent School District: and e. During the July 2000 session of this wrestling camp, the Cumberland Valley School Board was not approached to review or approve of any wrestler's attendance. f Attendance at the summer wrestling camp by students from Respondent School District had occurred for at least five (5) years and, at no occasion was any camper or group of campers conferred with authority to attend by any official of the Respondent School District. g. It is admitted by all parties that the minutes of the last three (3) years of all Cumberland Valley School Board meetings( since the most recently adopted Regulatory Code) do not refer in any way to this summer wrestling camp and that no person from the Cumberland Valley athletic department has ever approached the school board to seek permission to allow student wrestlers to attend this camp or to seek incorporation of this activity within the authorized parameters by the School Board of an extra-curricular activity. 7. Respondent CUMBERLAND VALLEY SCHOOL DISTRICT adopted by and through its School Board a Regulatory Code which includes, in pertinent part at Section 122. [Extra-Curricular Activities, entitled thusly within Code], Section 3 [Authority, entitled thusly within Code] the definition and requirement of the Authority of said Respondent to sponsor and approve of divers "Extra-Curricular Activities", citing the Pennsylvania School Code (p.L. 98-377) at Section 511. That specific section of the Regulatory Code states as follows: The Board shall make school facilities, supplies and equipment available and assign staff members for support of a program of extra-curricular activities for students. Such availability and assignment shall be in accordance to the Equal Access Act. Any extra-circular activity shall be considered to be under the sponsorship of this Board when it has been approved by the Superintendent and reported to the Board for their information and review {emphasis added} -"--, ~, L '"',~ai' , .. . Said Regulatory Code is attached hereto as Exhibit "A" and made part hereof 8. During the third week of July, 2000, Petitioner SHAWN WESTHAFER and approximately 38 other wrestler from Cumberland Valley High School or its Middle Schools attended the aforedescribed wrestling camp at Lock Haven University with three (3) coaches and a wrestling parent. 9. On July 20,2000, Petitioner and one other Cumberland Valley wrestler accosted another Cumberland Valley wrestler named Robert Morrison. Robert Morrison's older brother Terry Jack Morrison had, on several earlier occasions during the camp week, physically confronted Petitioner; one such incident requiring intervention by one of the Cumberland Valley coaches. The nature of Petitioner's confrontation as well as the other wrestler's, included walking nude into the room of Robert Morrison and the plucking ofa Petitioner's pubic hair. That same night Petitioner again was physically attacked by Terry Jack Morrison. 10. On or about July 27, 2000, Petitioner was informed by Roger Barrick, head wrestling coach, that he had discussed this incident with Ronald Audo, the Respondent's athletic director and that this matter was to considered "in-house", that is, any and all punishment including any probationary review would be within the athletic department. Petitioner was told directly by Coach Barrick that he must "toe the line". 11. Terry Jack Morrison, described above, wrestled the same weight class as Petitioner during the 1999-2000 interscholastic wrestling season. It has been admitted by all parties during the administrative due process review of this matter, that the parents of both Terry Jack Morrison and Robert Morrison are intrusive into control of the wrestling program and that further, after the above July 20, 2000 incident those parents did, among things, the following: a. contacted the police department and demanded criminal charges be filed against Petitioner and the other student wrestler involved and, after the local police asserted their pprosecutorial discretion not to file criminal charges, pressed for the filing of charges through the Clinton County District Attorney's office. Charges were subsequently brought against Petitioner for the summary offenses of harassment and disorderly conduct. He has pled guilty and paid fines. Misdemeanor charges of indecent assault were brought against the other student wrestler; and ~ ,~ ~ - , .. . b. contacted Coach Barrick several times and demanded that petitioner be thrown off the wrestling team as well as approaching Ronald Audo at several fall athletic events and demanding that Petitioner be thrown off the wrestling team; and c. wrote, in mid-September a letter to Anthony J. Colistra, Ed.D., Superintendent of Cumberland Valley School District demanding that Petitioner SHAWN WESTHAFER be expelled from the wrestling team. 12. Upon knowledge and belief and premised on testimony elicited at both Petitioner's and the other student wrestler's Administrative Review Hearings, Superintendent Colistra did not have knowledge of the July 20, 2000 incident prior to the Morrison letter because the Athletic Department, prior to this notification, had handled the matter as "in-house and that no person authorized to sanction Petitioner had deemed it necessary to expel him from the wrestling program. 13. On or about October 30, 2000 Petitioner SHAWN WESTHAFER and his Co-Petitioner parents executed all necessary paperwork to permit Shawn to participate in the 2000-2001 interscholastic wrestling season. None of Petitioners had been informed of either the multiple above described contacts with Athletic Department or School District Administration by the Morrisons. 14. Prior to the October 30, 2000 registration, SHAWN WESUIAFER had received non-traffic summary citations from the Lock Haven police. Upon contact with issuing police officer, Patrol Officer Fye, she indicated that she had been instructed to issue such citations by her Chief through direction from the District Attorney's office. Shawn subsequently entered guilty pleas before District Justice Joseph L. Sanders (Magistrate District 25-3-01) to Harassment(Summary) docketed at NT-0000875-00 and Disorderly Conduct(Summary) docketed at NT-0000876-00. on October 5, 2000 and, at that time, Petitioner tendered all fines and costs. 15. Co-Petitioner parents were informed by Shawn when he returned from school on November 1, 2000 that he was to be expelled from the wrestling team because of the July 27, 2000 incident and the Morrison family's continuing complaints. Juanita Westhafer, that night, personally contacted Coach Barrick and was told that the school solicitor had been contacted, but that he knew nothing else. 16. Co-Petitioner Juanita Westhafer, a member of the wrestling team parents group, was contacted on November 2, 2000 by Coach Barrick and she was told that after a " ~ -~i'/ , . L '.J "'"'" ~' "-'- '" '1'-. , , nother discussion with the Athletic Director, it was again determined that Shawn could wrestle for 2000-2001 season. 17. On November 10, 2000, Shawn contacted his mother at work and stated that he had been suspended from the wrestling team by the high school principal, Dominic 1. Cavallaro purportedly because Terry Jack Morrison was uncomfortable with Shawn in the wrestling room. 18. Co-Petitioner parents received at their residence a letter from Respondent dated November 16, 2000, signed by Dominic 1. Cavallaro, the high school principal and Ron Audo, the School District athletic director which expelled Shawn from the wrestling program. A true and correct copy of this letter is attached hereto as Exhibit "B" and made part hereof Upon exertion of Petitioner's right for an Administrative Review Hearing, the above gentlemen, by their letter dated November 20, 2000 attached hereto as Exhibit "C" and made part hereof, this expulsion was converted to a suspension subject to a hearing, which was scheduled on November 28, 2000. 19. Petitioners appeared at the above described November 28,2000 Administrative Review Hearing represented by undersigned counsel. After testimony, tape-recorded of record by Respondent and within its control, undersigned counsel strongly argued that the July 20, incident did not occur during an authorized school extra-curricular activity and, further, that no evidence to the contrary was presented. Undersigned counsel specifically asked both the coach and athletic director if the July, 2000 Lock Haven wrestling camp could be considered an activity of the Respondent. Their response, inter alia, provided that PIAA regulation proscribes such summer activity of a wrestling team, that all campers attended of their own accord and at their own expense without the imprimatur of Cumberland Valley through its School Board and that the only attribution to the Respondent could be the use of Cumberland Valley shirts that were purchased by the campers at their own expense or the rooming of various Cumberland valley campers in a group, which was arranged only through request to the camp administration. 20. Notwithstanding the above argument and evidence, the Administrative Review Committee, by its November 29, 2000 Notification, attached hereto as Exhibit "D" and made part hereof, expelled Petitioner from the wrestling team and specifically finding that: ~---,-------:--- ""~ ~o -'.,- - ~ '" '"";" , , , ..... The Lock Haven Wrestling Camp was an extension ( emphasis added) of the Cumberland Valley Wrestling Program and thus covered by the District's Extra-Curricular Policy [ attached hereto as Exhibit "A"]. 21. Petitioners immediately requested that this decision be reviewed by Anthony J. Colistra, Ed.D., Respondent's Superintendent, the final administrative due process appeal as provided by Respondent Regulatory Code and Extracurricular Policy. 22. On December 18, 2000, Dr. Colistra issued his Opinion, sustaining the expulsion of Petitioner Shawn Westhafer. That Opinion is attached hereto as Exhibit "E" and made part hereof said Opinion is the conclusion of the administrative review process provided by the Respondent and, as such, Petitioner's have exhausted their administrative remedies and the above Cause of Action is ripe for consideration by This Honorable Court. 23. Dr. Colistra's Opinion finds, notwithstanding the absence of any School Board approval and review, as specifically stated in Exhibit "A". that, by the inference of Dr. Colistra, the participation of individuals in the wrestling camp was a school activity. This inference is based ~on the following: a. by helping making information ( i.e. permitting dissemination) available concerning the wrestling camp; and b. by "Co-ordinating arrangements"; and c. by providing volunteer adults to accompany the participants; and d. by providing transportation with a school vehicle.; and e and by staying together with adult supervision. See Page 3 of Colistra December 12, 2000 Opinion. ~~~.J " ~" ""J "' ^"" ~ 1/ " ~~,' 24. It is contended that the above purported justification of jurisdiction is at best pretextual and an "after -the-fact" attempted justification. Notwithstanding the Respondents' patent failure to comport with its own Regulatory Code and Extracurricular Policy, its admitted "extension" by circumstantial inference of the purview of extra-curricular activity and its overt contradictory explanations that the wrestling camp is a voluntary non-school related activity for PIAA review purposes, but can be "extended" into an extra-curricular activity after continued parental complaint for purposes of wrestling team expulsion. The above stated reasons of Dr. Colistra are not germane, not relevant and ingenuous as follows seriatim: a. If dissemination of out-of- school activities information confers the mantle of approval extra-curricular activity without School Board approval and review, all school districts would need investigators just to confrrm that the advertised activity was a true depiction of its actual activity, was not a constitutionally proscribed activity ( e.g. religious proselyzing) or statutory restrained (e.g. planned parenthood) or a activity that is an anathema to society (e.g. Neo-Nazis or Satanism). Printed brochures and applications are just that and do not have to be a truthful recitation of the actual activity. To argue that "only" wrestling camp brochures should be considered as authorization by Respondent is myopic and individually discriminatory of the Petitioner and absurd; and b. "Co-ordinating arrangements' is at best vague statement and added as filler for Dr. Colistra's thesis that the wrestling camp can be considered an extra-curricular activity notwithstanding its failure to conform to Respondent's definition and prerequisites of extra-curricular activity.. However, the evidence adduced at both hearings indicated that all primary arrangements for camp attendance were the sole responsibility of the applicant wrestler. At best, this reference to "co-ordination" could be the talk at school between students as to who was planning to attend; and c. It was never adduced at either Administrative Review Hearing that the Respondent school provided any adult to accompany the campers. Their attendance was each adult's individual financial responsibility and to allow them to "network" with other interscholastic wrestling coaches as to coaching techniques l!11d procedures and to benefit themselves from the offered programs. They are restricted by the PIAA from coaching their own team outside of the established wrestling season. In regard to their attendance as chaperons, no such evidence has been presented. ~~~ ..j ,~~ J ~ - 'I1:IDrifc' / Additionally at the other wrestler's Administrative Review Hearing, it was established that the July 20,2000 incident was witnessed by one of the assistant coaches. That assistant coach who did not contact Coach Barrick that night and did not contact the police; and d. None of the parties to the incident of July 27,2000 used a vehicle owned by Respondent for transportation to the camp It is believed the school vehicle was made available to one of the coaches. Additionally, the use of school transportation, in and of itself, does confer authorization of camp attendance as an extra-curricular activity. There are very specific statutes which require a school district to provide transportation to non-enrolled students, The provision of transportation by any Pennsylvania School District is statutorily required for the benefit of its residents and the mere provision transportation does not confer authority over the transportee for purposes of imposition of an extra-curricular activity Code of Conduct; and e. The choice of room arrangements was purely the choice of the camper. The above described incidents were observed by some of the voluntary adults in attendance. There was no immediate sanction at that time the incidents were either forgotten (the attacks ofT. 1. Morrison) or handled ''in house", until months later after the intervention of the Morrison parents by writing a letter to Dr. Colistra or pressuring first the Lock Haven Police then the Clinton County District attorney's office. 25. Dr. Colistra's December 18,2000 Opinion (Exhibit "E"), at page 4, and information admitted by Ron Audo, the athletic director and Head Coach Roger Barrick at the November 28, 2000 Administrative Review Hearing, both concur that the Morrison parents "prompted" the escalation of review and punishment of Petitioner. Coach Barrick, stated, without equivocation, that the Morrison parents are intrusive into his program and he provided an example that did not involve Petitioner, wherein Mr. Morrison called him and complained that appropriate punishment was not meted to another ( unrelated to this matter) wrestler, who used an illegal hold against his son in practice. Coach Barrick stated that the Morrisons wanted Petitioner expelled from the wrestling program at a time when their son and Petitioner SHAWN WESTHAFER were direct competitors to wrestle at a designated weight class. The coach agreed that he felt that the continued pressure exerted by the Morrisons to expel Petitioner was, in his opinion, a contrived agenda to advance their son. "" . I ~ "",I . - ~ . ~Wjl.dilill.LI;.~&, 26. The other wrestler involved in the summer incident does not wrestle in TJ. Morrison's weight class. He was charged with misdemeanor Indecent Assault, not merely the summary offenses that were lodged against Petitioner. The Administrative Review recommendation allowed that individual to return to wrestling team after a suspension period. 27. The Respondent's expulsion from the interscholastic wrestling program of Petitioner SHAWN WESTHAFER for his purported violation a rule imposed upon extra-curricular participants is arbitrary, unfairly applied and capricious. The Respondent's notification of November 29, 2000 wherein it was stated that participation in a summer wrestling camp is by extension an extra-curricular activity patently does not conform to Respondent's written definition of an extra-curricular activity. Additionally, Dr. Colistra's December 18,2000 conformation of the November 29,2000 expulsion is pretextual. It is clear that Dr. Colistra desires what is best for the students of Cumberland Valley School District. However, he can not legally extend, by his own good wishes, the Respondent's authority. Dr. Colistra's action are also arbitrary, unlawful and capricious. 28. The Petitioners have a legitimate interest in the continuation of SHAWN WESTHAFER participation in the interscholastic wrestling program of the Respondent and that interest outweighs the acts and omissions of the Respondent. 29. The acts of the Respondent, as described above, are unreasonable, fundamentally unfair and have injured and continue to injure the Petitioners. No matter their reason in their metamorphosis of attendance at a voluntary, summer camp into a school extra-curricular activity subject to a school Code of Conduct, that act is improper, unlawful, and, as hereabove described, individually discriminatory against the Petitioners and, as such, subject to equitable relief. WHEREFORE, Petitioners respectfully request the following immediate relief: 1. The immediate issuance of a Preliminary Injunction of the continued expulsion of SHAWN WESTHAFER by Respondents of his participation in Respondent's interscholastic wrestling program including his participation in any and all practices, matches or tournaments, and any other wrestling program activity. ...,1 . H_' " - ~ - .- -> - 'Moo 2. The issuance of a Perm!lJ1ent Injunction of any punishment by Respondent against SHAWN WESTHAFER for the activities and events of July 20, 2000; said activities and events to not be deemed extra-curricular pursuant to applicable code and regulation of the Respondent. 3. Award of attorney's fees to Petitioners 4. Such other relief as may deemed just and appropriate. Respectfully submitted, THE LAW OFFICES of JOHN M. GLACE I e, Esquire 4 aInut street H burg, PA 17101-1612 .(717)238-5515 Te1efax{717) 238-6929 Supreme Court ill: 23933 Counsel for Petitioners -- Jl:,jj . VERIFICATION k The Undersigned hereby verifies that the facts averred in the foregoing Petition for Equitable Relief in the form of a Preliminary Injunction are true and correct to the best of her knowledge, information, and belief This verification is made subject to the penalties of 18 Pa. C.S.A., Section 4904 relating to unsworn falsification to authorities. /'7 )" , < />,.., ...:JJ/., ,,~ "~ {... '--" Date I i '- / // f , I "--" , , . I. .... / /.--~,(/,L.. IA__/:rZ.:_7:.,:t /:-~'"L./' Juanita Westhafer ,j ,.""'~ ri'<';";"""'-'f""Y " ~_' . J'j " -~~,~ \ VERIFICATION The Undersigned hereby verifies that the facts averred in the foregoing Petition for Equitable Relief in the form of a Preliminary Injunction are true and correct to the best of his knowledge, information, and belief. This verification is made subject to the penalties of 18 Pa. C.S.A., Section 4904 relating to unsworn falsification to authorities. /d-2:)-C'() Date .--7, A/.;:~ ;./ tV.)"vt ------ Paul Westhafer '^ ~,~ ~ v~_ ,~.~ ,'I " VERIFICATION The Undersigned hereby verifies that the facts averred in the foregoing Petition for Equitable Relief in the form of a Preliminary Injunction are true and correct to the best of his knowledge, information, and belief This verification is made subject to the penalties of 18 Pa. C.S.A., Section 4904 relating to unsworn falsification to authorities. .,Ji../W] C /lJ~ Shawn Westhafer I:;;', ::: ?)..r,lrj c;; Date "..-. ',,~ ~'.1';.,-: ".-~ Nav-27-00 IB: IS L~/~~/LCUU U~.L~ . , ...'1 I I.&. !-, tU'-"LU . P.02 '-.....l,... u.... 1.1""..." "'" No, 122 SECTION: PROGPAMS TITLE: EXTRA-CURRtC:t1t.AR ACTIVITIES Cumberland Valley School District 1. Purpose SC 511 2. De fj,ni t ion Title 22 See. 5, 217 J. Authority SC 511 P.L.9S-377 ADOPTED: 3un. 19, 1997 REVI.SED: 122. EXTRA-CURRICULAR ACTIVITI~S The Board believes that the goals andob)ectives of this d1strict are best achieved by a diveTsi~y of learning eXperiences, some of ~h:i.ch are ~ore appropri- ately conducted outside the regular classroom curricu- lar program of the school. All learning experiences offered by the schoolS of this district - curricular and extra-curricular - should be planned and integrated toward the attain- ment of the distri~t's objectives. For purposes of this policy, "elCtra.-curricular activi'~es. shall be those activities which are spon- sored~ approved by the Board but are not offered for credit tovard graduation. Such activities shall ordinarily be marked by student participation in ~he processes of initiation, planning, organizing, and execution and available to all students who voluntari- ly elect to participate, except that w~ere eligibili- ty requirements are necessary or u....irable, t.he HOi!l.J:d shall be so informed and must approve the establish- ment of eligibility standards before ~hey may be oper- able. the Board shall make school facilities. supplies and equipment available and assign staif memhers for tbe support of a program of extra-curri~ular activi- ties for students, Such availability and assiqnment accordance~ w1tn l:u.t:: ~"J(1_1 ~""rA~6 Act. '. - Any ext.ra-curricular activity shllll be consid' ered to be und.~ the sponsorship ~~i$ Bo.~~_~~en ...t has been approved by the Su~erint...n.dent an.a__J;.~.E.ort:- dlto the Board ~nr ~hAir inform~tion and.x~y~~ .....- _./" ,-,-,----' ....------- Pa']e 1 of. S "'-_~iIO 1 2 3 4 5 8 7 8 . 10 11 12 13 14 15 16 17 " 19 20 21 22 23 24 25 26 27 28 21 30 31 32 33 34 35 38 37 38 31 40 41 42 43 44 Nov-27-00 la:l~ tLl.1';':'/.(OVtJ U:.J.J.:"'1 1 Z 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Z1 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 S2 53 ~." ... ~Dele9"lltion U~f Re"P<>n- sibility 5. Code of Conduct ~ I. I ,~---. ~,. Ii ,-,ItJ-' /.!.v P.03 "'~x. \:I": VVor'" or- 122. EXTRA-CURRICULAR ACTIVITIES - Pg. 2 The Board shall ~aintAin the program of extra- curricular activities at no cost to participating stu- denta, except that thp. Bnnrd's responsibility for the provisions of supplies shall carry the SaMe ex~p- tions as listed in the Board's policy on regular school supplies, students may assume all or part of the costs of travel and attendance at extra-curricular events and tr1ps. Tne Superintendent shall prepare procedures to implement a co-curricular program which shall: assess ~he needs and interests o~ the students of this districtl involve students in the planning ot extra-curric- ular activities: be reaponsi.ve to the articulated needs of stu- dents; .en-s~re tne-p-i6VlSion. of competent guidance and supervision of staff; guard against the exploitation of stud~ntsl proviae for the contlnu1ng evaluation of the ex~ tra-curricular program; and ensure that all extra-curricular activities are open to all students and that all Atudents are fully informed of tbe extra-curricular opportuni- ties open to them. The fOllowinq conduct shall constitute grounds for expulsion from practices, participation in inter- scholastic competition or other participation in ex- tra-curricular activities during that par-ticul..r sea- son, when such conduct occurs on or off school eOunds, a, The use of violence, foree, coercion, threat, intimidation, or similar conduct in a manner that constitutes a substantial interference with school purposes. b. Willfully causing or attempting to cause su~stan- tial damage to achool property, stealing Or 4t- temptinq to steal private or school p~operty of page 2 of 5 ~ ~ 1 .._''''''~.J.'i',~ . 1 2 3 4 5 6 1 8 9 1 1 1 \ I 1 1 1 1 1 2 2 2 " - 2 Z Z 2 2 3 3 3 3 3 3 3 3 3 3 4 4 -4 4 4 4 4 4 " 5 5 5 ~- Nav 27-00 ~B:~9 ._' __, _VuV 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~3 ..!4 25 26 27 28 29 JO 31 32 33 14 15 36 37 38 39 40 41 42 43 44 45 46 41 48 ~9 SO 51 52 53 . .d.,1 I ~,' . t 11'I- 1nlifi~llll,l!;i!I&Mh~,: P..04 ~At;il:. U4 ''OJ . '_\I .L'.L'.:l'" ~... t22. EXTRA-CURRICULAR ACTIVITI~S - Pq. 3 s~bstantial value, or repeated damage or theft inVOlving private or school prope%ty of small value. e. Causing or attempting to cause physical injury to a sehool employe or to any students. Physi- cal injury caused by aeeident, self-defense, or other aetion undertaken on the reasonable belief it was necessary to protect SOme other person shall not constitute a violation of this subdivi- sion. d. Threatening or int~idating any student for the purpose of, or with the intent of, obtaining mon- ey or anything of value from each student. e. ~novingly possessing, handling, or transporting any Object or material that is ordinarily or gen- erally considered a weapon. f. Use or possession of smOking tobacco or tobacco products~ POssession, ~.e, sale, delivery, or to have consumed any naccot1c, dAnqerou8 4ru9. ~ari- juana or alcoholie beverage I the use of anabolie steroids. ~ Continual abUsive language, or obsCene gestures, ~ ~ ~llfull indecent e~po.ure. ~ h. Engag1nq in any other activity forbidden by the laws of the State of Pennsylvania which actively constitutes a danqer to other students or inter- feces with school purposes. i. All other reasonable rules or regulations ~dopt- ed by the coach 01 supervisor of an activity shall he followed, prOVided that par~icipant6 shall be notified of such rules and regulations hy written handouts and posting pciar to tbe be- 9inning of the season (must be presented to and gone over with the administration before beinq presented to the participantsl. In the case of alleged infractionS of the rules and r~qulations, ~he participant may he expelled from practices, participation in the interscholastic compe- ti~ion or other participation in extra..curricular 8C- . ~ivities. In these cases, the due process procedures will be followed; " Page 3 of 5 1 Z 3 4 5 6 7 8 9 10 11 12 13 14 15 1Ii 17 18 19 20 21 22 Z3 24 2S 26 27 28 U 30 31 JZ 33 34 JI . 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 S3 <~ "- .~ . u ""I~ 1"-"Il,llll:.liIJ~ia!.JlIlIm;;I'!'--' - ~u. , , Cumberland Valley High School' 6746 Carlisle Pike. Mechanicsburg. PA · 17055-1796 Phone (717) 766-0217 or (717) 249-6996 FAX (717) 766-2295 November 16, 2000 Mr. and Mrs. Paul Westhafer 302 Charles Road Mechanicsburg, Pennsylvania 17050 Dear Mr. and Mrs. Westhafer: After a thorough investigation into a discipline matter regarding your son, Shawn, it was found that he was in violation of our athletic policy. Specifically, he violated Number 122, Section 6g, page 3, of the Cumberland Valley School Board policy, which prohibits the following: "... willful indecent exposure." This violation occurred at wrestling camp at Lock Haven University. You are hereby advised that Shawn is being expelled from the Cumberland Valley Wrestling team for the remainder of the 2000 -2001 season. As parents, you have the opportunity, if desired, to appeal this decision to the Assistant Superintendent at the District Office. If you request an appeal, please make these arrangements with Mr. Harold O. Bricker, Assistant Superintendent, Cumberland Valley School District, 6746 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. At this hearing, you may call any witnesses to testify on Shawn's behalf. If you have any further questions, please call us at 506-3446. Sincerely, N . Nt.."_ >.r (<,-,",",.JI.J.J.,~ Mr. Dominic J. Cavallaro Principal r~J2eL 14 ~ Mr. Ron Audo Athletic Director ~" I , ~,- . '" ,I _ ~..: I 1~ . .t,; \ _~r-;"~ -t~~~ \V,_. ".....::=.-.,_,,- _ I".' ~/.4.'>_ '<::::::~~-,/ //,.s:~~~/ "Z jo).j?;;0"c.r$:/ '~--.!.:--- CUMBERLAND VALLEY SCHOOL DISTRICT / 6746 Carlisle Pike, Mechanicsburg, PA 17055 Phone (717) 697-8261 November 20, 2000 Mrs. Juanita K. Westhafer 302 Charles Road Mechanicsburg, P A 17050 Dear Mrs. Westhafer: This letter serves as a darification of our letter dated Nov~mb(;f 16, 2000, with rCSpt;ct LV dis~ipiinary action taken against your son for violation ofCumberIand Valley School Board Policy No. 122. Please be advised that after further review ofthe procedures set forth in Policy No. 122, your son is currently suspended from participating with the Cumberland Valley wrestling team pending an expulsion hearing. As stated in our letter dated November 16, 2000, your son is being suspended pending an expulsion hearing for violation of Policy No. ] 22, which prohibits "willful indecent exposure." This violation occurred at wrestling camp at Lock Haven University. After conducting a thorough investigation into the alleged incident, it is our opinion that your son's actions were indeed in violation of school policy. As such, we are suspending your son from further participation with the wrestling team pending an expulsion hearing with the Administrative Review Committee. Under Policy No. ] 22, the Administrative Review Committee is tasked with determining whether a student should be expelled from participating in an extracurricular activity. The Administrative Review Committee will conduct a hearing during which time parents or students will be afforded the opp0l1unity to call witnesses on behalf of the student's defense and to present any relevant evidence. The Administrative Review Committee consists of Assistant Superintendent Bricker and Assistant Superintendent Pomraning. The Administrative Review Committee will be conducting a hearing into the expulsion of your son from the Cumberland Valley wrestling team on November 28, 2000, at 8:15 a.m. in the Board room of the administrative office. We apologize for any confusion this letter may cause. If you have any questions, please do not hesitate to call us a (71 7) 506-3446. Sincerely, ~l.-:-.}, (a.-~&<- Dominic J. Cavallaro, Principal f?M ,J({ 4- UU-(;Lu Ronald Audo, Athletic Director ~I ~ ~ ~~ ~I ~ - j I~~ ~ -. ~ - ~ , '".- . , . . . CUMBERLAND VALLEY SCHOOL DISTRict 6746 Carlisle Pike, Mechanicsburg, PA 17055 Phone (717) 697-8261 November 29,2000 Mr. and Mrs. Paul Westhafer Mr. ShllWll Westbafer 302 Charles Road Mechanicsburg, P A 17050 Dear Mr. and Mrs. Westhafer: The purpose of this letter is to inform you of the decision made by the Administrative Review Committee at the hearing on November 28, 2000. After a thorough review of all the testimony presented, the Committee has decided to expel your son, Shawn Westhafer, from the wrestling team for the remainder of the 2000-01 season. This decision was based on the following: 1. Shawn admitted to the allegations of indecent exposure. 2. The Lock Haven Wrestling Camp was an extension ofthe Cumberland Valley Wrestling Program and thus is covered by the District's Extra-Curricular Policy. You have the right to appeal. If you desire to appeal, contact Dr. Anthony J. Colistra, Superintendent of Schools, directly. Sincerely, :~~CO~i_ tJd(j Bricker Assistant Superintendent for Secondary Education 1~/t.fJ~ Harold L. Pomraning Assistant Superintendent for Elementary Education cc: Dr. Anthony 1. CoJistra, Superintendent v'c_ ~ - & l v." '"<"'~,- .-!IlIJ. . ~. . CUMBERLAND VALLEY SCHOOL DISTRICT SHAWN WESTHAFER HEARING At 8:15 a.m. on November 28,2000, an administrative hearing was held in the Boardroom of the Cumberland Valley Administration Building. The Board appointed Assistant Superintendent, Harold O. Bricker, and Assistant Superintendent, Harold L. Pomraning, as members ofthe Administrative Review Committee. The hearing was held to determine if Mr. Shawn Westhafer, a student at Cumberland Valley High School, violated District Policy. It was alleged that Mr. Westhafer harassed a fellow student by indecently exposing himself and performing other acts of an egregious nature. Background During the week of July 16-20, 2000, thirty-nine (39) students from the Cumberland Valley School District participated in a summer wrestling camp at Lock Haven University. The student athletes included seventh through twelfth graders. The students were responsible for any expenses for participation. A school van was used to transport two or three students. The students were housed in a dormitory at the University. The adults in attendance were Mr. Roger Barrick, head wrestling coach; Mr. Douglas Blacksmith and Mr. Michael Langan, assistant coaches; and Mr. Richard Baublitz, a parent. The four adults stayed with the wrestlers in the dormitory. Incident On Sunday afternoon and evening, July 16, and on Monday, July 17,2000, Mr. Westhafer and Mr. Brian Eslinger entered the dormitory room numerous times of two junior high wrestlers, Robby Morrison and Ray Schreffler; and sophomore wrestler, Bill Sierer. They entered the room naked and proceeded to engage in egregious behavior, namely, taking the pillows of younger students and rubbing them over their pubic area and between their legs. .i:.. LAW OFHCES JOHNSON, DUFFIE, STEWART & WEIDNER A Professional Corporation 301 MARKET STREET P. O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WEBSITE:__www.jdsw.com HORACE A. JOHNSON OF COUNSEL -;;' " IEM Y R. DUFFIE RICHARD W. STEWART C. R.OY WEIDNER. lR~ EDMUND G. MYERS DAVID W. DELUCE RALPH H. WRIGHT. IR. DAV[D r. LANZ/\ MARK C. DUFFlE KElR..STE.N WALSH DAVm50N MICHAEL L CASSIDY TELEPHONE 717.761.454Q FACSIMILE 717-761-3015 E~MAIL mail@jdsw.com WRITER'S EXT. NO. 19 E-:MAIL .crw@jdsw.com December 28, 2000 Curtis R. Long, Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Shawn Westhafer, et al. v. Cumberland Valley School District No. 2000-8799 Dear Mr. Long: Enclosed for filing are the original and one copy of Praecipe to Enter Appearance in regard to the above referenced matter. Please file the original of record, time-stamp the copy and return same to the undersigned via the preaddressed, preposted envelope enclosed for your convenience. Thank you for your consideration in this matter. Very truly yours, J~OHN:O'::~~T & "",D"",,- ."~ -. ~- ~."..... . Weidn . CRW:sr:142008 Enclosures cc: Honorable Kevin A. Hess Cumberland County Court Administrator John M. Glace, Esquire ,~" ~ ~~='~~ :JiJ'~ "-, .d _; .I '"^' ~'l~'"- , .. I JohnjQn, Duffie, Stewart & Weidner FriJ: C. Roy Weidner, Jr. I.D. No. 19530 By: Michael J. Cassidy J.D. No. 82164 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Respondent SHAWN WESTHAFER and JUANITA and PAUL WESTHAFER, his parents, Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-8799 ACTION IN EQUITY v. CUMBERLAND VALLEY SCHOOL DISTRICT by its Superintendent, ANTHONY J. COLlSTRA, Ed.D., Respondent APPEARANCE AND NOW, this 28th day of December, 2000, enter the appearance of C. ROY WEIDNER, JR., J.D. 19530 and MICHAEL J. CASSIDY, I.D. 82164 on behalf of Respondent in the above captioned suit. By: : 142006 ,"~""" ~ '"'~ ~".-. . ..~ ~ L ~.,.. i---~_:,_, ,/ ~." \ CERTIFICA TE OF SERVICE AND NOW; this 28th day of December, 2000. the undersigned does hereby certify that she did this date serve a copy of the foregoing appearance upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne. Pennsylvania, addressed as follows: Honorable Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Cumberland County Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 John M. Glace, Esquire 132-134 Walnut Street Harrisburg, PA 17101-1612 JOHNSON, DUFFIE, STEWART & WEIDNER By:c..../~u;t1~d r?.JI, A Step anie L. Rehrer ..- ,"""'lI~",!lIjI,"",-\i:lIl " , ~ " ~~c ---.-- ~-. ,,",I 1_ ,~ .---'"~~-~ "'~.~~~;,,- ..- ~, ... Johnsolll, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. J.D. No. 19530 By: Michael J. Cassidy J.D. No. 82164 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761 -4540 Attorneys for Respondent SHAWN WESTHAFER and JUANITA and PAUL WESTHAFER, his parents, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Petitioners NO. 2000-8799 ACTION IN EQUITY v. CUMBERLAND VALLEY SCHOOL DISTRICT by its Superintendent, ANTHONY J. . COLlSTRA, Ed.D., Respondent APPEARANCE AND NOW, this 28th day of December, 2000, enter the appearance of C. ROY WEIDNER, JR., I.D. 19530 and MICHAEL J. CASSIDY, I.D. 82164 on behalf of Respondent in the above captioned suit. By: :142006 -,"""'"'.....-- ~'=Im>JIl_La:i o. ~.~ ~- ('I~.-~'-="""""~''-'l@~,;,'- CERTIFICA TE OF SERVICE AND NOW, this 28th day of December, 2000, the .undersigned does hereby certify that she did this date serve a copy of the foregoing appearance upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Honorable Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Cumberland County Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 John M. Glace, Esquire 132-134 Walnut Street Harrisburg, PA 17101-1612 JOHNSON, DUFFIE, STEWART & WEIDNER BYC-~ d'({,J... Step anie L. Rehrer ...-. ii~~~","1Ml~<iJ*;;:;j.fl'\:-,i'!!iI"';1'[,~4;,.i"i1';jj'::o."","'\i~,,;.b';J"4j,'''JiMj';;i\ii$U~~jfj]!IIl ><l-~'l '''''~1lfU.- ., "" (") 0 C C:.i S '-::'.j v ,-'-" )"Tl m [?-. <"-; z: ~"~ L. ;-...) ,. v:~ ,J:) -, L; r.:; '-:::: c~; -- j z e, -::',-:: ):: c N ~; --..I ;-~ :..n ,,~ -I ~o , -< <J'> -< - ~ '~"'''' :",_., .,. 1 I , ~. -~ " ;'--"~ifi- SHAWN WESTHAFER & JUANITA & PAUL WESTHAFER, his parents, Petitioners : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CUMBERLAND VALLEY : NO. 2000-8799 EQUITY SCHOOL DISTRICT By its Superintendent, ANTHONY J. COLISTRA, Ed.D" Respondent IN RE: PETITION FOR PRELIMINARY INJUNCTION BEFORE GUIDO. J. AND NOW, this ORDER OF COURT I () fit day of JANUARY, 2001, for the reasons stated in the attached opinion, Petitioner's request for a Preliminary Injunction is DENIED. John M. Glace, Esquire 132-134 Walnut Street Harrisburg, Pa. 17101-1612 Edward E. Guido, 1. t.~ {YfaJJ 01-10-01 'R Xs C. Roy Weidner, Jr., Esquire P.O. Box 109 301 Market Street Lemoyne, Pa. 17043 :sld , r- L ~~" -,. ." .. .. ~ " :,''-'Jf.\~\1 "':'j',1 II' \ < ~ ~ '\ :'_~ \ 'I ~ f) b ;,,'-\ J U I'll ,,1. .. ,. \~N {"'i'\I\"\, "'.J".~' '-" ' I D\~\, \;\\:".\11 \1!\NV.. I t....,\i ,,-, i \..-" .. _g~~'l~":l?~f''''"'''\lJ!!t'!1''~'''~~~''l10j;il!~'''1l__ .....:J. C ". !ili!!l~~])l:_!I\1~~f>l~ _t' ..> -~ -, "", L":' SHAWN WESTHAFER &mANITA &PAUL WESTHAFER, his parents, . Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA V. CUMBERLAND VALLEY : NO. 2000-8799 EQUITY TERM SCHOOL DISTRICT By its Superintendent, ANTHONY J. COLISTRA, Ed.D., Respondent IN RE: PETITION FOR PRELIMINARY INJUNCTION BEFORE GUIDO. J. OPINION AND ORDER OF COURT Shawn Westhafer (hereinafter "petitioner") has filed this equity action seeking to enjoin the Cumberland Valley School District (hereinafter "District") from preventing his participation in the interscholastic wrestling program for the 2000-2001 season.! Before us is petitioner's request for a preliminary injunction seeking his immediate reinstatement on the wrestling team pending the final outcome of this litigation. A hearing was held on January 3, 2001. The parties have filed briefs in support oftheir respective positions and the matter is now ready for disposition. FACTUAL BACKGROUND Petitioner is an 18 year old senior at Cumberland Valley High School. He is an accomplished wrestler who qualified to wrestle at the state championship level last year. I Although the action was commenced by petitioner and his parents, we will refer to Shawn as the petitioner for ease of reference. - <'.' ";_:O"-~~ ~ -,' NO. 2000-8799 EQUITY He has been ranked as one of the best wrestlers in the area at his weight. He is hopeful of attending college on a wrestling scholarship. In June of 1997, respondent adopted Cumberland Valley School District Policy No. 122 which governs student participation in extracurricular activities, including interscholastic athletic events.2 Section 5 of the Policy contains a code of conduct. It also contains a procedure for the imposition of sanctions for violations of that code. In July of2000, petitioner attended a three day wrestling camp at Lock Haven University. Thirty-nine other members of the District's wrestling team also attended that camp. Pursuant to PIAA rules, the District could not require its wrestlers to attend, nor could it pay their way or allow them to wear team uniforms while at the camp. Therefore, each attendee was there on a voluntary basis and paid for his own tuition, room and board. While attendance at the camp was voluntary, we are satisfied that all of those who attended from the District did so as part of its wrestling team. The camp was promoted to the members of the team by the District's coaches. The head wrestling coach and two of his assistants attended, as did a parent helper? The District rented a van to transport some of its wrestlers.4 Others were given rides with the head coach in his private vehicle, or made their own travel arrangements. All members of the team stayed in the same dorm along with the District's coaches and the parent helper. The coaches and the parent helper took an active role in coaching the team members, as well as making sure they got to training sessions and meets on time. 2 Joint Exhibit #1. 3 They all paid their own expenses as required by PIAA regulations. 4 The van was paid for out of the travel portion of the District's athletic budget. 2 - " .,; -~ ';[. J _ "' ~" """ " ,-, ';': 'J;'~ , -'"-'" ""~ NO. 2000-8799 EQUITY While at the camp, petitioner repeatedly hazed a younger (and much smaller) wrestler. The hazing could best be described as obscene and disgusting. It continued well after petitioner knew that it was deeply disturbing to the young wrestler. In fact, it did not stop until the young wrestler's big brother, who like petitioner is a senior wrestler, came to his aid. Even then, it took two physical confrontations, the second involving fisticuffs, to get petitioner to layoff. Petitioner's conduct crossed the line from obnoxious bullying into the realm of crilIl,inality.5 The second physical confrontation between petitioner and the victim's big brother was witnessed, and broken up, by the parent helper. This resulted in a cursory investigation by the wrestling coach, with no disciplinary action being taken. The young wrestler's parents were not willing to let petitioner's conduct stand without consequence. They reported the matter to the police and to Dr. Anthony Colistra, the District Superintendent. Following the procedures established in District Policy No. 122, Dr. Colistra caused a thorough investigation to be conducted. Administrative reviews and hearings were held, resulting in petitioner's expulsion from the wrestling team for the 2000-2001 season. Petitioner appealed to Dr. Colistra, who sustained the expulsion.6 This suit followed. 5 He pled guilty to the summary offenses of harassment and disorderly conduct as a result of his conduct toward the young wrestler. 6 For purposes of this preliminary injunction proceeding, petitioner has agreed that the District complied with the administrative procedures set forth in the Policy. Further, the parties have agreed that petitioner has exhausted all administrative remedies. 3 ". "-," -, ~ ~ ;" ~ ..;;. ",-- "~, ~ ,-- - i~2: NO. 2000-8799 EQUITY DISCUSSION We start our discussion with a matter of procedure. Petitioner commenced this action by filing a "Petition for Equitable Relief in the Form of a Preliminary Injunction". Pursuant to Pa. Rules of Civil Procedure 1007 and 150 I, the appropriate procedure for commencing this action would have been to file a complaint in equity asking for a permanent injunction. The complaint should have been accompanied with, or followed by, a petition for a preliminary injunction in accordance with Pa. R.C.P. 1531. We note that the District has agreed to overlook this procedural error in order to expedite this matter. The standard we must apply in determining whether to grant a preliminary injunction has been clearly set forth by our appellate courts. As the Commonwealth Court has stated: [A] court may grant a preliminary injunction only where the moving party establishes the following elements: (1) that relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages; (2) that greater injury will occur from refusing the injunction than from granting it; (3) that the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) that the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and (5) that the plaintiffs right to relief is clear. . . . Lewis v. City of Harrisburg, 158 Pa. Comm. 318, 631 A.2d 807, 810 (1993). Further- more, our courts have long recognized that the grant of a preliminary injunction is a "harsh and extraordinary remedy". League of Women Voters of Pennsylvania v. Commonwealth, 683 A.2d 685, 688. (Pa. Comm. 1996). Therefore, "it is to be granted only when and if each criteria has been fully and completely established." !d. (emphasis 4 -"-, ~~" L" . ,I _'1._ ,~" _J.. , - ~.;' NO. 2000-8799 EQUITY in original). Since we are neither persuaded that petitioner's expulsion from the wrestling team is manifestly wrong, nor that his right to reinstatement is clear, we must deny his request for a preliminary injunction. The Public School Code of 1949, 24 P.S. ~ 1-101 et seq., grants the board of school directors broad authority to adopt rules and regulations regarding the conduct of its students. Specifically, pursuant to Section 510 (24 P.S. ~ 5-510) it "is empowered. . . to adopt and enforce such rules and regulations as it deems necessary and proper regarding. . . the conduct and deportment of its pupils." Flynn-Scarcella v. Pocono Mountain School District, 745 A.2d 117, 119 (Pa. Comm. 2000). Furthermore, it may adopt reasonable rules and regulations regarding extra curricular activities and may provide for the "suspension, dismissal, or other reasonable penalty" in the case of a student who violates those rules or regulations. 24 P.S. ~ 5-511. Local school boards have broad discretion in the adoption of such disciplinary policies and the courts should not interfere unless the school board's actions are "arbitrary capricious and prejudicial to the public interest." Flynn-Scarcella, supra., 745 A.2d at 120. Pursuant to that broad grant of authority, the Cumberland Valley School Board adopted Policy No. 122 which provides in part: 5. Code of Conduct. The following conduct shall constitute grounds for expulsion from practices, participation in interscholastic competition or other participation in extra-curricular activities during that particular season, when such conduct occurs on or off school grounds: a. The use of violence, force, coercion, threat, intimidation, or similar conduct in a manner that constitutes a substantial interference with school purposes. 5 ;l; ,~-~ - , <--< ,. , _ 'J'~,_~ NO. 2000-8799 EQUITY g. Continual abusive language, or obscene gestures, or willful indecent exposure. h. Engaging in any other activity forbidden by the laws of the State of Pennsylvania which actively constitutes a danger to other students or interferes with school purposes. Certainly, the petitioner's conduct could be deemed to have been a violation of anyone ofthe above cited subsections.7 Petitioner does not deny that his conduct was in violation of the Policy. His main attacks on the propriety of his expulsion are based upon an overly technical reading of the Policy. First, he argues that the wrestling camp cannot be deemed to have been an extra- curricular activity within the meaning of the policy because it was never approved by the school board.8 Therefore, he contends that his conduct at the camp cannot be grounds for expulsion fronl the wrestling program. There are several problems with this argument. In the first instance, the Policy specifically provides that it must be adhered to whether the student is "on or off school grounds." Furthermore, nothing in the code of conduct would indicate that it applies only while the student is engaged in a school, or school sponsored extra-curricular, activity. To accept such an interpretation would lead to untenable results. For instance, the 7 Dr. Colistra relied solely on snbparagraph g in upholding the expulsion. However, both parties agree that, since there has been no school board adjudication, we are not being asked to assume appellate jurisdiction pursuant to the Local Agency Law, 2 Pa. C.S.A. 751, et seq. Rather, we are being asked to exercise original jurisdiction as a Court of equity. See Flynn-Scarcella v. Pocono Mountain School District, supra. As such, we are not limited in our scope of review. 8 Section 2 of the Policy provides in relevant part: For purposes of this policy, "extra-curricular activities" shall be those activities, which are sponsored or approved by the Board but are not offered for credit toward graduation. Section 3 goes on to provide that: Any extra-curricular activity shall be considered to be under the sponsorship of this Board when it has been approved by the Superintendent and reported to the Board for their information and review. The evidence indicates that the wrestling camp was never submitted to the school board for their information and review. 6 ,'__ ~ . a , , ~-'- ,j,.,-,-~- NO. 2000-8799 EQUITY District would not be able to sanction an athlete with steroids in his system9 unless it could prove that he used them at school or during a board approved extra-curricular activity . In any event, we are satisfied that the wrestling camp was properly determined by Dr. Colistra to be an extension of the District's wrestling program. Weare not persuaded that the camp had to be approved by the school board any more than each individual practice session or exhibition meet would need to be approved by the board. The extra- curricular activity for purposes of Policy No. 122 is not the wrestling camp but the wrestling program itself. As set forth in our findings of fact, there was more than sufficient nexus between the camp and the program to support the finding that the former was part and parcel ofthe latter. Petitioner's next argument is that the literal language ofthe Policy does not allow for his suspension during the 2000-2001 season. He points to the language of Section 5 which provides. The following conduct shall constitute grounds for expulsion from practices, participation in interscholastic competition or other participation in extra-curricular activities during that particular season, when such conduct occurs on or off sqhool grounds: ( emphasis added). Since the offensive conduct occurred in July, during the off season, he contends that he cannot be expelled for the current season. We disagree.lO Clearly, the camp was in preparation for the 2000-2001 wrestling season and his suspension for "that particular season" is appropriate. 9 Section 5(1) prohibits use of anabolic steroids. 10 The comma separating the phrases "during the particular season" and "when such conduct occurs" makes it clear that the latter phrase does not refer to the time of the conduct. Rather it refers to the location of the conduct, i.e. "on or off school property." 7 ~~" " "", , --I"'> , ~ ,,",'-~, NO. 2000-8799 EQUITY Petitioner finally argues that his expulsion is "fundamentally unfair and individually discriminatory."ll Fairness is not the standard to be applied in cases such as this. We are not to substitute our judgment for that of the School District. As the Commonwealth Court recently stated in reversing a trial court's decision to overturn a school suspension: Clearly, the trial court did not conclude that the School District's actions were arbitrary, capricious, or prejudicial to the public interest but rather, that when Tyler was held accountable for his actions, the results were unfair. Thus, we conclude that the trial court erred in substituting its judgment for that of the School District. Flynn-Scarcella v. Pocono Mountain School District, supra, 745 A.2d at 121. In the instant case, we cannot say that Doctor Colistra acted arbitrarily, capriciously, or against the public interest. Furthermore, the petitioner has not presented any evidence that he has been individually discriminated against. While the Equal Protection Clause of the Fourteenth Amendment guarantees that like persons in like circumstances will be treated equally, it does not require that they be treated identically. Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995). Although petitioner has shown that another wrestler who participated in the hazing received a lesser punishment, Dr. Colistra explained that there were sufficient differences in the conduct engaged in by the two students to justify the difference in treatment. Therefore, we are satisfied that nothing presented by petitioner rises to the level of a cognizable 14th Amendment claim. See J.S. v. Bethlehem School District, 757 A.2d 412 (Pa. Comm. 2000). 11 Petitioner's Brief in Support of Petition for Preliminary InjW1ction, p. 5. 8 ""'. '1-' '~. .~""< NO. 2000-8799 EQUITY For the reasons set forth above, we will deny petitioner's request for a preliminary injunction. ORDER OF COURT AND NOW, this lOTI! day of JANUARY, 2001, for the reasons stated in the attached opinion, Petitioner's request for a Preliminary Injunction is DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, 1. John M. Glace, Esquire 132-134 Walnut Street Harrisburg, Pa 17101-1612 C. Roy Weidner, Jr., Esquire P.O. Box 109 301 Market Street Lemoyne, Pa. 17043 :sld 9 ., "I.: , " . , . ~~~ "41"< 'CO ::0 SHAWN WESTHAFER & JUANITA & PAUL WESTHAFER, his parents, Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. 00-8799 EQUITY CUMBERLAND VALLEY SCHOOL DISTRICT by its Superintendent, ANTHONY J. COLISTRA, Ed.D., Respondent IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on January 3, 2001, in Courtroom Number Five. APPEARANCES: John M. Glace, Esquire 132-134 Walnut Street Harrisburg, PA 17101-1612 For the Petitioners C. Roy Weidner, Jr., Esquire P.O. Box 109 301 Market Street Lemoyne, PA 17043 For the Respondent ,h",...ck_ . "Jr~ "' -., ~......... '"_ .~;,i. o o INDEX TO WITNESSES FOR THE PETITIONER DIRECT CROSS REDIRECT RECROSS Richard Baublitz 7 13 Roger Barrick 16 Ronald Audo 28 REBUTTAL Shawn Westhafer 89 94 95 Roger Barrick, recalled 96 FOR THE RESPONDENT Ronald Audo 36 37 Robby Morrison 40 46 Brendan Hardy 56 59 Timothy John Morrison 63 67 Dr. Anthony Colistra 71 78 2 -" I c INDEX TO EXHIBITS FOR THE RESPONDENT MARKED Ex. No. 1 - Dr. Colistra's decision 71 JOINT EXHIBITS Ex. No. 1 - Code of Conduct Ex. No. 2 - Citations 3 . 6 7 ,_. eM"'- ""- 'l'&!' ADMITTED 71 6 7 o o 1 2 THE COURT: Good afternoon. MR. WEIDNER: Good afternoon, Your Honor. 3 THE COURT: This is the time and place set 4 for the hearing on the request for a preliminary injunction 5 filed by the Westhafers against Cumberland Valley School 6 District. Are you ready to proceed, Mr. Glace? 7 8 MR. GLACE: That's correct, Your Honor. THE COURT: Mr. Weidner, are you ready to 9 proceed? 10 11 12 MR. WEIDNER: Yes, Your Honor. THE COURT: Okay. MR. GLACE: Your Honor, pursuant to the 13 advisement of the Court, and with the gracious cooperation 14 of Mr. Weidner, we've reached several stipulations to 15 expedite the issues. 16 THE COURT: Good. 17 MR. GLACE: Those stipulations being, 18 firstly, that Shawn Westhafer, the student, last season was 19 an excellent wrestler, actually advancing to the State 20 Championship rounds, and that this season prior to the 21 wrestling season he was ranked within Central Pennsylvania 22 in the Patriot -- by the Patriot News writer Ron Frisco. 23 Secondly, that attendance at the summer 24 wrestling camp in Lock Haven University in Clinton County 25 by wrestlers of Cumberland Valley has occurred for at least 4 1 five years. 2 reason being 3 4 stipulation? 5 ""~I , '~-- - . -~"" -"'-,,-,,, o .. That's important for two reasons. The first THE COURT: Is this part of the MR. WEIDNER: I was going to say, we're 6 getting into argument. 7 THE COURT: Okay. Just give me the 8 stipulation. We'll have argument later. 9 10 years. 11 12 MR. GLACE: They've attended for five THE COURT: Okay. MR. GLACE: Thirdly, that on June 19th, 13 1997, a code of conduct for extra-curricular activities, 14 which is attached to my petition as Exhibit A, and in Mr. 15 Weidner's brief as his Exhibit A, was passed by the board. 16 THE COURT: Can we mark that as Hearing 17 18 19 20 21 22 Glace? 23 Exhibit Number 1 and admit that today then? MR. WEIDNER: I have a copy. THE COURT: Do you have an extra copy? MR. WEIDNER: Yes. THE COURT: Do you agree to that, Mr. 24 stipulation. 25 MR. GLACE: We agree. That's the THE COURT: Hearing Exhibit 1 is admitted. 5 i ' .~.1 , . ,_"'_u ,,> -~'"-".t~ o o 1 Make that Joint Exhibit Number 1. 2 (Whereupon, Joint Exhibit No. 1 was marked 3 for identification and admitted into evidence.) 4 MR. GLACE: The next stipulation being that 5 at no time did Dr. Co1istra or anyone else approach the 6 Cumberland Valley School Board for approval or a 7 sponsorship of the attendance of Cumberland Valley 8 Wrestlers to the Lock Haven University Summer Wrestling 9 Camp. 10 11 THE COURT: Okay. MR. GLACE: The fourth stipulation is 12 administrative remedies have been exhausted, and there is 13 no remedy of law. 14 15 THE COURT: Okay. MR. GLACE: The fifth stipulation being that 16 Cumberland Valley School District from time to time, and in 17 various circumstances, has allowed students to participate 18 in extra-curricular activities that are either on juvenile 19 probation or adult parole or probation. 20 And the last stipulation being, and I 21 believe Mr. Weidner has a copy of it, that two nontraffic 22 citations were issued to Shawn Westhafer for incidents that 23 occurred on July -- it looks like the 16th here, is what 24 the dates are. They were issued by the Lock Haven 25 University Police Department on September 25th, and he 6 --"- _I I "_-1"-.-' ,> "_ ffl ." -J_<,>"~,, ,~-- '-:;:-it',', o o 1 subsequently pled guilty by paying the fine to the District 2 Justice on October 5th. Those citations will speak for 3 themselves. 4 THE COURT: Can we mark them as Joint 5 Exhibit Number 2? 6 7 MR. GLACE: Yes, we may. MR. WEIDNER: Yes. 8 (Whereupon, Joint Exhibit No. 2 was marked 9 for identification.) 10 THE COURT: And that is admitted. 11 (Whereupon, Joint Exhibit No.2 was 12 admitted.) 13 MR. GLACE: And it's my understanding that's 14 the extent of our joint stipulation. Is that correct, Mr. 15 Weidner? 16 MR. WEIDNER: Correct, Your Honor. 17 THE COURT: Okay. Then we will proceed 18 with testimony. 19 MR. GLACE: My first witness would be Mr. 20 Richard Baublitz. 21 Whereupon, 22 RICHARD BAUBLITZ 23 having been duly sworn, testified as follows: 24 DIRECT EXAMINATION 25 BY MR. GLACE: 7 " .~" " iiiI:L;;. o o 1 Q Could you state your full name and address 2 for the record, please? 3 A It's Richard Baublitz, 217 North Locust 4 5 Point Road. Q It's in Mechanicsburg, Pennsylvania. Are you appearing here as a result of 6 Petitioner's subpoena? 7 8 A Q Yes. Are you employed by the Cumberland Valley 9 School District? 10 11 A Q No. Did you have an occasion in the third week 12 of July of this year to attend a wrestling camp at Lock 13 Haven University? 14 15 16 program? 17 18 19 20 21 22 23 camp? 24 A Q Yes. Do you have a son who participates in that A Q A Q A Q Yes. What grade is your son in? Ninth. Is he currently wrestling in varsity? Yes. How did he find out about this wrestling A We got a brochure in the well, my son had 25 gone in the past. So we got a brochure in the mail. 8 .---. 10 .~~ ..1 , " ~ , .' ~-~ ,-, I. o o 1 2 3 4 5 6 7 8 Q A Q So it was mailed directly to your house? Yes. Did you get any information from Cumberland Valley at all? A No. Who paid the tuition? I did. Q A Q Were you asked to sign a medical waiver or 9 have a medical examination of your son? A My wife filled out the form. So I'm 11 assuming she did that. 12 Q Did the school provide any medical 13 examination of your son to make sure he was healthy enough 14 to attend? 15 16 17 18 19 20 21 22 23 24 25 A Q No. Did the school provide any insurance or offer you any insurance that you could buy for possible injury of your son if he attended? A No. Q How did he get there? How did your son get there? A I drove. Q Did Cumberland Valley give you any money for gas? A No. 9 "~.~ ~~ ~~ 1 2 3 .-L'_. .~' , <'. ~~O - '-. h .. -/" d_,;","",_:,: <'- o o Q A Q Now, were any other parents in attendance? No. If I understand, there were to assistant 4 coaches and one coach from Cumberland Valley; is that 5 correct? 6 7 8 this? 9 10 11 12 13 basically. A Q Yes. Did you have to take vacation time to do A Q A Yes. What sort of supervision did you provide? Well, I just helped coach the teams, We made sure the kids got to well, there We just made was a two hour technique in the morning. 14 sure that they got up and got going to technique and made 15 sure they showed up when we had our scheduled matches. 16 Q All right. Did the camp provide counselors 17 and people to supervise as well? 18 A Yes. 19 Q If you were not there, would your students 20 -- or would your son and other campers have been able to 21 handle it themselves? 22 A Yes. There was a guy from -- I think there 23 was a guy assigned to every floor from the camp. 24 Q All right. So the camp provided 25 supervision? 10 ...~~~ '~ 1 2 ,to. I. ,". ." <,-'. ';~'",~ ~"=. o o A Q Yes. And your supervision, while it was extra, 3 was not necessary? 4 5 witness now. 6 7 8 BY MR. GLACE: 9 10 11 MR. WEIDNER: Objection. He's leading the THE COURT: Sustained. MR. GLACE: All right. Q Let's talk about an incident that occurred looking at the citations, it says July 17th. I've also heard it occurred July 20th -- all right, July 17th. Do 12 you recall that evening? 13 A I don't know which -- I don't know what you 14 mean exactly. 15 Q All right. This would have been -- are you 16 familiar with this case wherein Shawn Westhafer is expelled 17 for participating in certain incidents that occurred July 18 17th? 19 20 21 22 23 A Q A Q A Yes. Do you recall that evening? Yes. What exactly did you see? Well, I was in my room, and I heard some 24 arguing going on. It was always a little loud, but it 25 just sounded -- it was getting a little out of hand. So I 11 " -- 0'.'_' ~ o . 1 just went out, and there was a bunch of kids in the 2 hallway, and Morrison was telling Westhafer to stay out of 3 his brother's room, and they were sort of heated. So I 4 told everybody to go back to their rooms, and then it 5 6 7 8 turned into a wrestling match. T.J. grabbed Shawn. It was in the hallway. T.J. being T.J. Morrison? Q A Yes. Grabbed -- like a takedown, and 9 Westhafer had him in what we call like a cement job. He 10 had his head trapped, and T.J. started hitting him in the 11 ribs. And then at that point -- and this all happened very 12 fast. I ran down and got in between them. They both 13 released right away, and at that point the other coaches 14 came down the hallway. 15 Q All right. So you were the first person on 16 the scene who was an adult who had some kind of relation to 17 the campers who came from the Cumberland Valley School 18 District? 19 20 That is correct. Was there any discipline -- did you explain A Q 21 this to the coaches, what you saw? 22 A Yes. 23 Q Was there any discipline meted out that 24 night or throughout the rest of the camp for what might 25 have occurred that night? 12 I' -1~"~-""-".~ ''1.; " ... .- -,. -~, - '"'"- n c o 1 2 3 4 5 6 7 8 A I know Coach Barrick talked to the boys. I wasn't involved in that though. Q Were the police called? That I don't know. A I don't think so, but I don't know. Baublitz. MR. GLACE: Thank you very much, Mr. Cross. THE COURT: Mr. Weidner. 9 CROSS EXAMINATION 10 BY MR. WEIDNER: 11 Q Mr. Baublitz, there were three other coaches 12 from the Cumberland Valley Wrestling Team with you at the 13 camp; is that correct? 14 15 16 17 Langan. 18 19 20 21 A Q A That's correct. And they were the head coach? Coach Barrick, Coach Blacksmith, and Coach Q Okay. Did they observe the boys wrestling? A No. I don't know how much they could see because they were coming back, and they were -- Q No, no, I don't mean the incident you have 22 described. When they were wrestling? 23 A Oh, yeah, yeah. 24 Q So they were up there watching their 25 wrestlers wrestle; is that correct? 13 ,,,,,,,=,"" -- "c... .' , . ,~ c . 1 A Oh, yeah, yeah. 2 Q All right. Okay. And then when you had 3 this incident we heard you talk about where T.J. and Mr. 4 Westhafer got into a wrestling I won't call it a match, 5 but were wrestling outside one of the rooms, what room was 6 that? Was it T.J. 's younger brother's room? 7 Actually, yeah. Well, Shawn's room was on A 8 this side, and Robbie's room was on -- I mean they were 9 right across from each other, and that's where they were. 10 Q Do you know what precipitated this wrestling 11 match or event with T.J. and Westhafer? 12 A At the time, no. 13 Q Have you since learned? 14 A I've heard so many different things I don't 15 know what no, I don't know. 16 Q But the coaches -- were all three of the 17 coaches there at the time? 18 19 20 21 22 23 24 25 A The time when they were - - Q Wrestling? A No. Q Did all three of them ultimately come down to the scene after you broke it up? A Q A Yes. Did they all discuss this incident with you? Yes. 14 o o 1 Q And do you know -- I believe you said that 2 Coach Barrick then spoke with the boys afterwards? 3 A That's correct. 4 Q Did you go to these coaches yourself after 5 you broke the fight up? Did you go up and get the coaches? 6 A No, they were coming back. They went for a 7 run, and they just happened to get back, and they were -- 8 they were at the other end of the hallway. It's a long 9 dorm, and when they came up, they could see that there was 10 something -- or something was happening. So they got 11 there seconds after I broke it up. 12 Q Okay. But they came down to see what was 13 going on and take care of any problems? 14 15 A That's correct. MR. WEIDNER: That's all of the questions I 16 have, Your Honor. 17 18 19 THE COURT: MR. GLACE: THE COURT: Any redirect? No redirect, Your Honor. Thank you, sir. You may step 20 down. Next witness. 21 MR. GLACE: Mr. Baublitz, you're excused, 22 unless Mr. Weidner would like to keep you here, and you can 23 return to work if you want. 24 25 MR. WEIDNER: No. MR. GLACE: Coach Barrick. 15 1;;,--;-, o 1 2 ~-. - ":~ o . Whereupon, ROGER BARRICK 3 having been duly sworn, tesitifed as follows: 4 DIRECT EXAMINATION 5 BY MR. GLACE: 6 7 please? 8 Q will you state your name for the record, A Roger Barrick. 9 Q And you are the head wrestling coach at 10 Cumberland Valley, as well as a teacher in that system? 11 12 13 A Yes. Coach, I asked Mr. Weidner to assure that Q you were here today. I didn't subpoena you; is that 14 correct? 15 16 A Q Correct. All right. Secondly, I haven't talked to 17 you since the conclusion of the Administrative Review 18 Hearing on November 28th; is that correct? 19 20 A Q Correct. Coach, how long have you been a wrestling 21 coach at Cumberland Valley? 22 A This will be my eighth year. 23 Q During those eight years have, to the best 24 of your knowledge, wrestlers from Cumberland Valley 25 attended the Lock Haven University Summer Wrestling Camp? 16 1 A Q camp first? A Q you? A Q 2 3 4 5 6 I I -- o o This would be the seventh year. The seventh year. Who found out about this I don't understand. In other words, do they send information to 9 Cumberland Valley attend? 10 11 A Yes. Q Atually, this summer camp is similar to 12 maybe the Penn State Football Summer Camp where Lock Haven 13 does tender scholarship offers to certain wrestlers; is 14 that correct, that attend the camp in the summer? 15 16 yes. A I don't know if they -- they look at kids, 17 Q I saw that there was a Lebanon County 18 wrestler I believe his name was Collins that received 19 a scholarship, and there's a wrestler from Camp Hill, 20 Goodling, who's received a scholarship. Well, at least 21 Collins from Lebanon County? 22 A I'm aware of that. 23 Q All right. When you attend the camp, does 24 Cumberland Valley pay for your attendance? 25 A No. 17 ,~--L. _ "~ 1 2 as it were? 3 4 ,I :,;-, ~' "' ",". 'r_. _,"~~ii ~ ~. o o Q In other words, you paid your own tuition, A Q Yes. Now, you're a coach, and Couch Langan and 5 Coach Blacksmith are coaches. Mr. Baublitz is heavily 6 involved in the wrestling program as a parent. Is there a 7 special program up there for coaches? 8 A No, not special, I wouldn't say. I mean I 9 don't know what you mean by that, by special. 10 Q By special, in other words, is there 11 coaching clinics? THE COURT: During MR. GLACE: the camp. THE COURT: the wrestling camp. THE WITNESS: No. 12 13 14 15 16 BY MR. GLACE: 17 Q Would it be a fair statement to say that you 18 meet other wrestling coaches up there, and you learn maybe 19 other drill techniques, and -- 20 21 22 23 24 25 A Q A Q A Q Yes. And network? Yes. I don't like that verb, but -- Yes. So, in other words, it's instructive for you 18 ~~.- -~ - ~- ~- ~- "'--j!!d o o 1 to attend paying out of your own pocket? 2 3 4 5 6 A Very much so, yes. Q Speaking of which, how did you get to the camp the third week in July? Did you drive your own vehicle or did the school give you a vehicle? 7 A I drove my own vehicle. Q In fact, didn't you drive Shawn Westhafer? 8 He rode up with you; is that correct? 9 10 11 vehicle? 12 13 A Q Well, I can't recall. Do you take many wrestlers up in your A Q No. All right. You heard my questions about 14 medical insurance, and -- I mean medical clearance and 15 insurance. Did the camp require, you know, some sort of 16 waiver of a medical release, and did it require insurance? 17 18 19 20 myself? 21 A Q A No. All right. Unless -- what do you mean? For me? For Q On the application. You're familiar with 22 the application? 23 24 A Right. THE COURT: I think the question was for 25 the wrestlers. 19 . .J! 1 2 report, yes. 3 BY MR. GLACE: , <' :.' ~ . ~, ,,, '. ,~ '"., -.. - ~ o o THE WITNESS: The wrestlers had a medical I did not. 4 Q So, in other words, the camp knew that they 5 were getting either healthy wrestlers or wrestlers who had 6 officially waived any liability. 7 A Right. 8 Q And further, the camp is self insured. 9 Cumberland Valley didn't provide any insurance at all? Doug Blacksmith or Mike Langan. Doug Blacksmith rode with me. 10 11 12 was used? 13 14 15 16 17 A Q No. How about -- I understand one school vehicle A Q A Yes. Who drove that? One of my assistant coaches. It was either I'm not sure. I think So I think it was Coach 18 Langan. 19 Q To the best of your knowledge, how did he 20 get a school vehicle? 21 A The school -- it would have been -- actually 22 it would have been a rented van that the school had rented 23 for us to transport bodies or whatever. 24 Q In other words, the school rents the van, 25 and the students or the campers that are transported don't 20 ,.r.;'"" ,.- ""~,! o o 1 have to pay back the rental? 2 A Right. 3 Q Would you concur with Mr. Baublitz's 4 scenario of what happened on the night of July 17th, that 5 you were returning from a run, and that he was the first on 6 the scene? 7 A Yes. He was the first on the scene. The 8 other two coaches and I were out for a run, and when we 9 came back we were at the other end of the hallway, and we 10 could just see that there was a commotion and Mr. Baublitz 11 was out in the hallway. 12 Q All right. Without describing what may 13 have happened that you didn't see, did you punish anybody 14 as a coach? 15 A No, I did not. 16 Q Did you investigate what happened and rule 17 out, you know, some danger to any of your Cumberland Valley 18 campers? 19 A I didn't investigate thoroughly, no. When 20 we're at camps like that there is always scuffles that 21 break out constantly. We had almost 40 kids there, and 22 there's always kids goofing around and scuffles amongst 23 them, and it wasn't 24 Q You bring up two interesting issues. You 25 said there were 40 people from Cumberland Valley attending. 21 -- "' c o 1 How many people were in the program? 2 A Between counting junior high and senior 3 high, probably between 70 or 80. 4 Q So half the -- and the 40 is junior high and 5 senior high, right? 6 7 A Q Yes. So about fifty percent of the program 8 attended? 9 A Approximately. 10 Q If you didn't attend the camp, would you 11 would you be penalized, in your mind, to participate as a 12 varsity wrestler? 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q No. In other words, to attend the camp wasn't an extra boost, requirement. It was supplemental? A Q Yeah, right. Now, this occurred on the 17th. They came home on the 20th, more or less. Were the police involved at all or did you talk to the police at all or to either -- any of your coaches about what had happened? A No. Q When's the first time you learned that the police were involved, if you learned? A Yeah, I have no idea when I would have heard the police were involved. It probably had to be 22 - 1 September. 2 '.'1 <_',i - ,:~- "-', ;':;"'"-iJ - o 0".. .. Sometime in early September. Q All right. It's my understanding, and I 3 believe you testified at the November 28th hearing, that 4 subsequent to the camp, especially once school commenced in 5 early September, you were contacted by the Morrison family 6 several times and instructed -- not instructed, but were 7 told various things, punishments they wished; is that 8 correct? 9 10 11 asking for. 12 A Yes. Q In your own words, tell me what they were A I don't know if I can recall exactly what 13 they were saying. They more or less felt that Shawn 14 Westhafer shouldn't be allowed on the team because of his 15 behavior. 16 Q There was another wrestler who was involved 17 in this, Brian Eslinger; is that correct? 18 19 A Correct. Q Did they say Brian Eslinger shouldn't be 20 allowed on the team? 21 22 A Yes, it was both of them. Q All right. Brian Eslinger's back on the 23 team; is that correct? 24 25 A Yes. Q And he was charged with indecent assault; is 23 "h' .'" - .1 ~!;~ o . 1 that correct? 2 A I'm not sure what the charges were. 3 Q All right. At the beginning of this 4 season, if Shawn were to wrestle, and if T.J. Morrison 5 would have wrestled, based on last year's weight were they 6 in the same wrestling weight division? 7 8 They could have been. A Q All right. So they are competitors for a 9 varsity wrestling spot, if Shawn were on the team? 10 A They could be. 11 Q How many times were you contacted by the 12 Morrisons relative to the events that occurred at the camp? 13 A Approximately four or five times. 14 Q All right. Have you been contacted by the 15 Morrisons about issues other than Shawn Westhafer about how 16 you run your wrestling program? 17 A I believe so. 18 Q For instance, I believe at the November 28th 19 hearing we talked about they actually called you up and 20 complained that there as an illegal hold in practice 21 against one of their sons? 22 A Yes. 23 Q I use this word, but you confirmed it at the 24 November 28th hearing, that th~ Morrison -- at least Mr. 25 Morrison, by calling about various issues, is really 24 ~,~ ~ -If o CD 1 intrusive of the way you run the program. You concur with 2 that characterization? 3 4 A Q Yes. All right. What we have averred in the 5 petition is October 30th, was I guess the physical for 6 wrestlers? 7 8 9 to wrestle? 10 A Q Yes. Shawn attended and was deemed physically fit A Yes. 11 Q On November 1st he reported to wrestling, 12 and was told that there were some issues about the incident 13 in the summer? 14 15 16 17 18 19 20 A Q A Q A Q A What was the date? I'm not sure. The first day of wrestling practice? Oh, the first day. November 1st? It wouldn't have been November 1st. At preconditioning? Conditioning would have been the 6th. 21 Q All right. Mrs. Westhafer is also a party 22 to the suit as an active member in I guess the Wrestling 23 Parents Association. Are you aware of that? 24 25 A Q Yes. Did she talk to you on November 1st and ask 25 ," -,~~ ~. 0.'. , """., ::',g o 0....... . 1 if Shawn were going to be able to wrestle this season? 2 A I'm not sure if the date was right, but she 3 did contact me, yes. 4 Q Did you talk to Athletic Director Audo and 5 confirm that he -- at the beginning of the season, around 6 November 1st and 2nd, that he was eligible to wrestle -- he 7 was not -- he was going to be allowed to wrestle? 8 A I had contacted -- or we had discussed that 9 matter for that conditioning week, which began November 6, 10 and at that point he was allowed to participate. 11 Q All right. And one final question then, 12 and I believe this was Mr. Audo's words, that the 13 punishment that was being meted out by the team was in 14 house. Do you recall that? 15 A I don't recall that, no. 16 Q But was Shawn being punished, if at all, 17 within the athletic department rather than by the 18 administration before November 2nd? 19 A No. 20 THE COURT: Before when? 21 MR. GLACE: November 2nd. 22 BY MR. GLACE: 23 Q When did you find out the Morrisons had 24 written a letter to Dr. Colistra? 25 A I don't know. 26 ~ . , . ~ ~ o o 1 Q Before or after the commencement of 2 wrestling season? 3 4 Before wrestling season. A Q All right. So these discussions with 5 Athletic Director Audo would have occurred after you knew 6 that the Morrisons had also written a letter to the 7 Superintendent? 8 A I don't know. I had so many discussions 9 with Mr. Audo. I don't know what would have been, you 10 know, the time of them. I don't remember. 11 Q All right. We have made certain 12 stipulations that Shawn is a fine wrestler, that he 13 advanced into the State Wrestling Tournament last year, and 14 that he was ranked preseason this year. Based on his 15 wrestling last year, did you receive inquiries from 16 colleges about Shawn's wrestling and maybe his grades? 17 A I have had a couple coaches ask me how his 18 grades were. 19 20 21 Q A And you're talking college coaches, right? Yes. MR. GLACE: Thank you. No further 22 questions. 23 24 25 THE COURT: Cross. MR. WEIDNER: No questions, Your Honor. THE COURT: Thank you, sir. You may step 27 .,J I - o . 1 down. Next witness. 2 MR. GLACE: I would like to call Athletic 3 Director Audo for a few brief questions. Just for 4 procedural sake, I would like to declare him a hostile 5 witness only because, one, he is a part of the 6 administration, but what that means is I can ask you 7 leading questions. 8 THE WITNESS: Okay. 9 Whereupon, 10 RONALD AUDO 11 having been duly sworn, testified as follows: 12 DIRECT EXAMINATION 13 BY MR. GLACE: 14 15 16 Q A Q State your name for the record, please. Ronald Audo. And you are the Athletic Director of 17 Cumberland Valley? 18 A Yes. 19 Q And you did attend the November 28th 20 Administrative Hearing? 21 A Yes. 22 Q And the questions I have to ask you about, 23 it's my understanding that subsequent to my filing of the 24 Petition for Preliminary Injunction you asked for some 25 clarifications from the PIAA about interscholastic 28 ",~'L ~ ,'-'.~""~, +~ o . 1 eligibility and participation in summer programs; is that 2 correct? 3 4 A Q Correct. And it's my understanding that what occurred 5 -- and let me give you the scenario. Forty wrestlers from 6 Cumberland Valley went up, paying their own tuition. They 7 were accompanied by three coaches paying their own tuition, S and one parent paying their own tuition, and that is 9 permissible under PlAA regulation; is that correct? 10 11 A Q That's correct. However, if they had attended, and somehow 12 called themselves Cumberland Valley Wrestling Team Summer 13 Program, and gone up as a group, as a team, would that have 14 been a violation of PlAA regulation? 15 16 17 A Q A No. Why not? Because they can attend anything they want 18 as a team, there are plenty of team camps, as long as they 19 do not wear team uniforms, and it is not mandatory. 20 Q All right. Now, their attendance was not 21 mandatory. You would concur with Coach Barrick? 22 A That's correct. 23 Q However, such camps -- and I don't know 24 where they might be, where you can attend as a team, wasn't 25 the issue -- I mean wasn't the situation at Lock Haven; is 29 ~~~ . ~,.. '. .~ o . 1 that correct? They attended as individuals rather than as 2 a team? 3 A No. We felt they attended as a team. 4 They went as a group. Even though the parents paid 5 individually, that happens to all of our team camps; 6 basketball, cheerleading, field hockey, they all attend as 7 team camps. 8 Q Well, first off, you said we felt. Who do 9 you mean we felt? 10 11 12 A Q A Well, I felt. Urn-hum. I felt. And my administrators, my 13 supervisors concurred with that. 14 Q Now, when you say you attend as a team, that 15 kind of at least attaches the concept of extra-curricular 16 activity. To the best of your knowledge, did attendance 17 at this camp ever -- was it ever decided to be brought 18 before the school board? 19 A It wasn't deemed necessary. It's an 20 extension of the season. As long as I am made aware of 21 what's going on, and all the coaches keep me informed of 22 the camps they are attending, the board gives me that 23 supervisory right to, you know, manage the athletics, and 24 all the camps. I've been there 8 years as the athletic 25 director and have never had to go to the board for approval 30 ~.< ~~~ ~ , , ~ .# ,." ", ,~ ^J'( o o 1 of camps. 2 Q Well, in this case you say the board gives 3 you the authority? 4 5 A Q Correct. How? 6 A By approving the overall sports in general, 7 and then by hiring me and saying that you are the 8 supervisor of those activities. 9 Q All right. And, again, I'm asking for a 10 document or something you can point to that says that if 11 the team decided to go to a wrestling camp in Alaska, for 12 instance, it's still a team sport? 13 A And I would probably tell them no because 14 that's not prudent to go that far when there are many camps 15 to go to. So yes, it would fall under my jurisdiction. 16 Q Well, when you tell them it's not prudent, 17 that's advice, isn't it? 18 A Sure. 19 Q All right. What controls did you, before 20 they went to this camp, invest? 21 A Well, I talked to Roger, Coach Barrick, and 22 he had asked me about a van, and gave me the weeks that he 23 was going, and I rented a van for them to go. He gave me 24 his dates of when they would be there so if parents would 25 call and ask me information about such things I would have 31 'i .J ~". ~,~ I, ,c ,iU o . 1 an idea of when our teams are going to camp. 2 Q The question I had is what control did you 3 have? What supervisory control? 4 A Well, as far as telling them no, they can't, 5 or yes, they can, or who can and who can't, basically not a whole lot because, again, it's voluntary. 6 7 8 9 They go on their own. I can't say he can't go and he can't go. Q All right. So it's absolutely voluntary. The controls that you have are advisory. Would you agree 10 to that? 11 12 A Q Yes. For instance, if one wrestler went and wore 13 a t-shirt that was totally derogatory, something completely 14 outrageous, I don't even want to make anything up, you 15 would have no control to tell him to take it off, you're 16 misrepresenting the school? 17 A I think I would tell them that. Now, would 18 he agree to that? I don't know. But I think I could tell 19 him that in good conscious because he is representing 20 Cumberland Valley. 21 Q All right. You can advise him, but you 22 couldn't make him? 23 A I can do that now. I can't make anybody. 24 All I can do is ask them. 25 THE COURT: Before we go any further in 32 ._~ ~'.~~ --~ I '~ ,h' - J o . 1 this vein, as I read the policies, does it make any 2 difference whether or not this is considered an 3 extra-curricular activity? 4 MR. GLACE: Absolutely. 5 THE COURT: And why is that? 6 MR. GLACE: Your Honor, if I may, their 7 brief even points it out. I refer to Sections 2 and 3 8 about the definition and the authority. Further into it, 9 I believe on page 4, there is a specific prohibited or 10 prescribed behavior to occur within an extra-curricular 11 activity. 12 THE COURT: Well, I'm looking at Exhibit 1, 13 and that's what we're dealing with, and I'm presuming that 14 the sanctions here were imposed because of a violation of 15 Section 5 of Exhibit 1. 16 17 MR. GLACE: THE COURT: Exactly. And that doesn't say that those 18 have to occur as part of an extra-curricular activity. 19 They can occur on school premises, off school premises. 20 Isn't that correct? 21 MR. WEIDNER: That's correct. That's our 22 position, Your Honor. 23 THE COURT: So I don't see how it makes a 24 difference whether this is or is not an extra-curricular 25 activity. 33 [,., - ....,..-=~..._~ ~ ~. ., co'.;_.," ;--'~1 o . 1 2 3 MR. GLACE: Well, first thing is it's all Section 122. It is under extra-curricular activities. THE COURT: Correct, but the conduct 4 doesn't have to occur. In other words, you wouldn't 5 destroy school property as part of an extra-curricular 6 activity. You wouldn't necessarily be possessing 7 marijuana or a controlled substance as part of an 8 extra-curricular activity. You wouldn't necessarily be 9 engaging in other activities forbidden by the laws in the 10 State of Pennsylvania in an extra-curricular activity. 11 MR. GLACE: The issue here is if during the 12 summer the potential participant in an extra-curricular 13 activity possessed marijuana, can he be then during the 14 school year excluded by this code, and we're simply saying, 15 is the fact that you are a participant in a student 16 activity and we do have this most recent case here, and 17 I think it's going to come down to the J.S. v. Bethleham 18 and the Theodore v. Delaware Vallev cases, is there's 19 certain things you can't intrude upon. That's the case 20 where basically they say you've got to take a urinalysis to 21 participate in an extra-curricular activity. 22 23 THE COURT: Okay. Mr. Weidner. MR. WEIDNER: Our position is, Your Honor, 24 that this code of conduct applies not just to approved 25 extra-curricular activities, but conduct generally, and 34 : ,~ ~~ , . ~ <'-~"~i o 0.' .. 1 entitles the district in this situation to suspend and/or 2 expel a participant as a result of such conduct. As far as 3 this case with the urinalysis, that deals with a legal 4 right, 5 THE COURT: Sure. 6 MR. WEIDNER: The fifth amendment. It's 7 irrelevant. 8 THE COURT: Okay. Mr. Glace, I'll allow a 9 couple more questions in that regard. 10 MR. GLACE: I'm through. Thank you very 11 much, Judge, and, in fact, we would reserve the right to 12 recall rebuttal witnesses, but we're through with our case 13 in chief. 14 THE COURT: Okay. Thank you. Cross. 15 MR. WEIDNER: Since he's resting, I was 16 going to call him anyhow. So I will just ask some 17 questions. Now you may regard them as cross or direct as 18 you deem appropriate. 19 THE COURT: Well, it may make a difference. 20 MR. WEIDNER: I'm well aware of the 21 difference. I'll call him as my witness in chief. 22 THE COURT: You're proceeding with your case 23 then? 24 MR. WEIDNER: Yes. 25 THE COURT: Go ahead. 35 ~- . 1 2 3 4 5 6 7 8 BY MR. WEIDNER: - eo: 1- _,:-i'_ ~, , o . DIRECT EXAMINATION Q Mr. Audo, do you know whether or not any of the district personnel helped disseminate information for this camp at Lock Haven? fact. A Yes, they did. I don't know that for a I believe they did, yes. 13 camp? 14 17 there? Q Okay. Was anything done by district 9 personnel to coordinate arrangements for the wrestlers 10 attendance at the camp? 11 12 A Q Yes. I rented a van, things like that. How were the coaches lined up to attend the A Coach Barrick talked to his assistants. He 15 lined them up, our head coach. 16 18 19 Q Okay. And you did, in fact, have a van up A Q Yes. And I understand that was a van that was 20 rented by the district? 21 22 23 24 A Q A Q Correct. And the kids didn't have to pay back? No. Okay. When the kids or the wrestlers were 25 at the camp, did they stay in a particular block? 36 w,_. 1 <~~(: o o A They stayed in a block, that I was told. 2 You know, I wasn't there, but I was told they did stay in a 3 block of rooms on a dorm wing. 4 Q Now, is my understanding correct that you do 5 not go to the board for approval of any camps? 6 7 A Q That's correct. That's within your purview as A.D., to 8 approve camp attendance; is that correct? 9 10 11 12 A Correct. MR. WEIDNER: That's all I have, Your Honor. THE COURT: Any cross? MR. GLACE: Just about the van. 13 CROSS EXAMINATION 14 BY MR. GLACE: 15 Q We've heard testimony from at least two or 16 three different witnesses they provided their own 17 transportation. Why would the school rent a van to go? 18 A It gives the coaches a vehicle up there if 19 they need to transport kids in an emergency, and things 20 like that, because a lot of the parents drop students off, 21 and now they would be stranded there. So it does give our 22 coach some viable transportation if he needs it for 23 whatever purpose, to bring a kid back, to do whatever we 24 need to do. 25 Q And just to clarify, was this, you know, a 37 t""''''''J . ~ I ~" . t~} II!I!I\ v . 1 rental van just for that week or was that a school vehicle? 2 A No. It is a rental van for that week. 3 Q All right. So the insurance was purchased 4 as part of the rental? 5 A Yes. 6 MR. GLACE: No further questions. 7 THE COURT: Any redirect, Mr. Weidner? 8 MR. WEIDNER: No, Your Honor. 9 THE COURT: Thank you, sir. You may step 10 down. Next witness, Mr. Weidner. 11 MR. WEIDNER: I'm going to call Robby 12 Morrison. 13 MR. GLACE: Your Honor, offer of proof in 14 this case. 15 MR. WEIDNER: Do you want to approach? 16 THE COURT: Well, if we do it on the record 17 you can do it from there. 18 MR. WEIDNER: Okay. Mr. Morrison was 19 identified in the petition as being the subject of Mr. 20 Westhafer's assaultive behavior. This is not an 21 administrative agency hearing where we have a record of 22 what went on before the district. We believe that his 23 testimony as to the incidents that took place and the 24 discipline action are relevant and necessary for the Court 25 to hear. 38 ~ ~~ ;.' .-. ~- - ~.-~- o (I 1 MR. GLACE: The issue here is the authority 2 and the jurisdiction to punish, not what occurred. We 3 already know what occurred because we have the guilty pleas 4 in front of you. By reciting it again, all it is is 5 possibly inflammatory. You already have a recitation of 6 it in Dr. Colistra's opinion. 7 THE COURT: Are you prepared to agree that 8 what occurred amounted to sufficient grounds for expulsion 9 from the program if it is otherwise proper? So you're 10 attacking the legal authority of the board. Are you 11 prepared to admit -- stipulate to the conduct of -- 12 13 14 15 him? MR. GLACE: No. THE COURT: Okay. MR. WEIDNER: May I be permitted to call 16 THE COURT: Do we have any questions with 17 regard to the competency of this witness? 18 MR. GLACE: No. 19 THE COURT: Okay. So we don't have to go 20 into that. How old is this young man? How old are you? 21 22 23 Glace? 24 25 MR. MORRISON: Thirteen. THE COURT: Are you okay with that, Mr. MR. GLACE: Yes. Certainly, Your Honor. 39 7 know what that means? 8 9 10 11 12 13 14 15 16 17 18 19 - 20 '..;l." ~, ,~,'-. -_~-i";~~;: c . 1 2 Whereupon, ROBERT W. MORRISON 3 having been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. WEIDNER: 6 Rob, you've been put under oath. Do you Q A That I've got to tell the truth. Q Okay. Would you give us your full name? A Robert W. Morrison. Q Okay. And you're going to have to make sure you're up near that mike because you've got a soft voice. Okay? A All right. Q Where do you go to school, Robby? A Eagleview. Q And is that a school in the Cumberland Valley School District? A Yes. Q Are you a participant in Cumberland Valley's 21 Wrestling Program? 22 A Yes. 23 Q And did you go to the camp at Lock Haven 24 University last summer with the Cumberland Valley 25 wrestlers? 40 ~_hoo~ c_ 1 2 , <I ^ -.,.- .ill' . ~ - o . A I went with the Hardys. Q I don't mean how you got there. You went 3 up to the camp at Lock Haven? 4 5 A Yes. Q You've heard the testimony about the camp 6 today by the other witnesses? 7 8 9 10 11 12 13 14 A Yes. Q Okay. Are you familiar with Mr. Westhafer? A Yes. Q Is he seated in the courtroom today? A Yes. Q And could you point him out to the Judge? A Right there. MR. WEIDNER: Let the record reflect he's 15 seated with Mr. Glace. 16 BY MR. WEIDNER: 17 Q Where were you rooming in relationship to 18 Mr. Westhafer's room at Lock Haven? 19 A I would be usually, most of the time, unless 20 if I went out and got something, I would be in my dorm. 21 Q Okay. Where was your dorm room located as 22 it relates to Mr. Westhafer's? 23 24 A Directly across from each other. Q Okay. The first day you were up there, did 25 Mr. Westhafer come into your room at all? 41 - .-. ..1 . ~, . ,~ . -,. '<~; o . 1 2 3 4 5 A No. Q Okay. How about the second day? A Yeah. That's when it all started. Q Would you tell Judge Guido what happened? A After the afternoon session that we had, 6 they came in I guess after a shower. 7 8 9 10 11 12 THE COURT: Who's they? THE WITNESS: Shawn Westhafer. THE COURT: And who else? You said they. THE WITNESS: And Brian Eslinger. THE COURT: Okay. THE WITNESS: And he came in, and like he 13 started -- you know, he started dancing around, you know, 14 and like we had some other wrestlers in there because they 15 were -- my other friend that was in my dorm, he brought 16 his, (inaudible), and TV, and sort of attracted attention. 17 MR. GLACE: I can't hear him. You're 18 going to have to slow down a little and speak a little more 19 distinct. It's my fault. I have a bad ear. 20 21 speak slowly. 22 THE COURT: Speak into the microphone and THE WITNESS: All right. And there were 23 some other wrestlers there too also, and he came in with 24 Brian, and they were both naked, and they'd be like 25 standing there, you know. He would go, hey, look, guys, 42 ~d....; I ,. -- L_ 1.- ~._" ,< - <.;;,.,:,-, -."--- o o 1 and everyone would turn around, you know, and they would 2 get a little joke going and stuff like, oh, that's sick, 3 and stuff like that. 4 BY MR. WEIDNER: 5 Q When they said, hey, look, did you know what 6 they wanted you to look at? 7 8 A Q Okay. What happened? Continue with what No, not at the time. 9 happened. 10 A And that continued after I warned them about 11 like five times about -- like I yelled at them to get out 12 and stuff. At the end of -- like at the end of it, that's 13 when we had to go to another session, and that was like 14 after that there, and once I came back it sort of -- we got 15 back to where we left off, you know. Everyone came in, we 16 played games and stuff, and he came in naked, and I started 17 screaming at him again. 18 19 Q A Now who's he? Is this Mr. Westhafer? Yeah, that's Shawn, and he came in, and he 20 got on my bed naked and started humping it, and I started 21 screaming and yelling at him to get out, and eventually 22 like he did go out, but that was because that's when my 23 brother came in because he saw the commotion that was going 24 down down there, and he came in. 25 Q Now, what do you mean by humping your bed? 43 o . 1 A Like he was -- he jumped on it like naked, 2 and he just started humping it. 3 Q Any particular part of his body? 4 5 6 7 8 in? A It was his genitals. Q Okay. He left then when your brother came A Q Urn-hum. Did he come back at all that day? 9 A Yeah. Right after that he came back in, 10 and he pulled off a pubic hair and asked me to floss with 11 it. 12 13 14 15 16 17 18 19 20 21 22 23 24 Q A Q A This is Mr. Westhafer? Yeah. And what did you tell him? I told him no, that I wouldn't, and I like yelled at him again, and my brother came back down because he heard me yell, and he saw him again, and my brother, again, got him out of my dorm room. Q After you refused to floss with the pubic hair as requested by Mr. Westhafer, what did he do with the pubic hair? A He put it in his hand and blew it at me, and that's when my brother came in. Q Did he do anything with -- did he floss 25 himself with the pubic hair? 44 5 you to floss with it, was he clothed or naked? 6 7 8 9 10 11 12 13 14 ;""",",~~-- ""~~-~ 15 ""j , '~ , ^ .- '''''r; c . 1 2 3 4 A Q A Q Yes, he did. This was Mr. Westhafer? Yeah. When he pulled this pubic hair out and told A He was naked. Q Okay. Was that the last time he came into your room that day? A Yeah. Q Okay. A I think that was like - - that was it. Q At any time when he was in the room that first day, did he rub your pillows with anything? A No. Q Okay. Did he come into your room the next 16 day and do anything? 17 18 brother. 19 20 21 22 23 24 25 A No, because on the third day I was with my Q Okay. How about the second -- so all these events you've talked about occurred on one day? A Yes. Q And you say after that day you were with your brother? A Yes. Q And how did that come about? 45 ~~ ~=- 1 , ~"'j ~, - . , '" - ~."' ""Sfui o o A Well, my brother came back down and he told 2 me that it's best if I went up in his dorm with another kid 3 that was in there with him to just be with him so I was 4 safer with him for the rest of the camp. 5 Q Okay. Did you stay with your brother for 6 the rest of the time you were at camp? 7 8 9 Westhafer? 10 11 12 13 A Yes. Q Today do you have any concerns about Mr. A Can you rephrase it? Q Pardon? A Could you rephrase it? Q Does what he did to you at the camp bother 14 you at all today? 15 A Sort of. If like kids will bother me about 16 it at school or something. It sort of like gets on my 17 nerves. 18 19 20 Q Are you afraid of Mr. Westhafer? A Yeah. MR. WEIDNER: Cross-examine. 21 CROSS EXAMINATION 22 BY MR. GLACE: 23 24 school. Q Let's talk about bothering you about it at The kids that bother you about it at school are 25 bothering you because Shawn is off the team; is that right? 46 o e. .' 1 A No. It's more likely because they sort of 2 think that he's great and he's real cool and stuff, and 3 they apparently don't know him enough, but, no, that's not 4 the reason. The reason is to get on my nerves so that I 5 get all mad at it, and they think it's really a joke. 6 Q In other words -- well, the subject that 7 they're getting on your nerves about is Shawn's punishment 8 and that Shawn was a good wrestler; is that correct? 9 A No. 10 Q What do they get on your case about then? 11 A They're just mad because he's sort of like 12 personally I think he like tries to get them into it so 13 14 Q So you think he's sicking people against 15 you? 16 A Yeah. 17 Q I see you're 13, and you and your brother 18 have been involved in the wrestling program for a number of 19 years; is this correct? 20 23 A Yes. Q How many years did you attend the camp? A This was my first year. Q Okay. Were you told by any other wrestlers what the camp might be like? 21 22 24 25 A My brother sort of described it. 47 ~ - -~ 1 2 1-" ~"~ . . ~:--~. o . Q A Anybody else other than your brother? Not really. 3 Q All right. Again, how many years have you 4 been wrestling in the program? 5 6 7 A Q Roughly about five or six. All right. So you come to the high school or the middle school. You work out. You shower. You 8 go home; is that correct? 9 10 A Q Yes. The shower arrangements, do you shower in an 11 individual stall? 12 13 14 that correct? 15 16 A Q No, they're just open. So you've seen naked wrestlers before; is A Q Yeah. Now, wrestling is involved with close body 17 contact, isn't it? 18 A Yeah. 19 Q So you're used to close body contact with a 20 lot of muscle being used to be a part of this program, 21 right? 22 23 24 25 A Q A Q Yes. It makes you sweat a lot, right? Yeah. How is it that you're -- are you offended by 48 -~ '- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 "-1-, ~-I .~ o . wrestlers in the shower? A No. Q Were you offended by Brian Eslinger? A Yeah, when he first came in and just started running around naked thinking it's all funny and great. Q That happened the first two days of camp; is that correct? A Yes. Q A Q A Q A Q After that everything calmed down, right? The third day, yeah. In fact, who brought all of the video games? _ Raymond Schreffler. Was he a roommate of yours? Yes. Wasn't Shawn in your room then playing video games the last couple days? A He never played any games. He just came in for a little joke, thinking it's all great and funny. Q And he came in the room after the second day then, right? A Q No, because I was up in my brother's room. All right. What did you tell to the 23 coaches when it happened? 24 25 A Q I told them what happened. You told them what happened? 49 ;;10 ~ ~~= 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I 1_ -" 0''''-' \t co . A Yeah. And what did they do? I'm not real sure about that. You told them right away? Yes, whenever they were in the hallway. When did you talk to the police? Q A Q A Q A Q A Q A Q A Q A Q A I'm not sure. Would it have been September? I can't recall. After school started? I think, yeah. Neither Brian nor Shawn touched you? Brian did touch me. Brian did? Yes. How did he touch you? He got behind me, and I was fixing up my bed 18 after Shawn got done humping it. He grabbed me from 19 behind. He grabbed my head, and he forced me to look at 20 Shawn's 21 22 Q A He was naked when he grabbed you? Yes. 23 Q In fact, you went up to Clinton County and 24 you testified at a hearing up there. Have you done that 25 yet? 50 . 1 2 3 4 5 6 'il , ' , o . A Q A No. Are you going to? I don't know. Q But there's charges brought against Brian for touching you, right? A I'm not sure. 7 Q All right. 8 THE COURT: You say he forced you to look 9 at Shawn's. At Shawn's what? THE WITNESS: Genitals. 10 11 BY MR. GLACE: 12 13 14 15 16 17 Shawn when Brian pulled you around to look at him? 18 A Not necessarily. 19 20 21 22 23 24 25 Q How far away was Shawn when this happened? A About a yard and a half. Q As close as you are to the judge? A Yeah. Q Okay. So you couldn't reach out and touch Q Now, you used some slang here. juking, and you were screaming that's sick. you were saying? A Yeah, pretty much. I was yelling at them to get out, and that it was sick, and Q Do you think they were teasing you? They were Is that what A No. 51 ", ;~' _J ",-,~-"",-', ""Jlli> I " '~" ' ""-, . ".b o . 1 2 What do you think they were doing? Just I'm not sure. I don't know. Q A I've 3 never tried that stuff before so. I never had it done to 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 conduct at the camp by Westhafer. 25 THE COURT: That lead to these charges? me before. Q Did you hear that it happened to other people up at the camp? A I heard people talking about it, and even people came to testify about it. Q Okay. Shawn and your brother don't get along together, do they? A Well-- Q Before camp? A They never really knew each other at all, but I can't really say. I'm not my brother so ... Q Okay. That's a good answer. MR. GLACE: Thanks a lot, Robby. THE COURT: Anything else, Mr. Weidner? MR. WEIDNER: Nothing, Your Honor. THE COURT: Thank you, sir. You may step down. Next witness. MR. WEIDNER: Brendan Hardy. MR. GLACE: Again, offer of proof. MR. WEIDNER: It's the same offer. This is 52 -- , ~ .~;~~ c . 1 MR. WEIDNER: All this course of conduct led 2 to these charges and the expulsion. Not the criminal 3 charges, as far as I know, but this whole investigation and 4 the school districts decision to expel stemmed from Mr. 5 Westhafer's conduct at the camp as it relates to the 6 Morrison boy and the Hardy boy. 7 MR. GLACE: If it please the Court then, I 8 understand that there is some transcripts of the Brian Eslinger hearing. Do you have those available? 9 10 11 MR. WEIDNER: I have what a secretary typed. MR. GLACE: Exactly. If I can take a look 12 at that, peruse that as he's testifying. 13 THE COURT: Well, we're probably going to 14 be taking a recess at 1:30 for another matter. So go 15 ahead. You can call him. I'm not clear as to what my 16 function is here. I know I'm supposed to give great 17 deference to the actions of the school officials. 18 Are you saying, Mr. Weidner and Mr. Glace, 19 that I'm supposed to make a de novo hearing here, and I 20 should determine then what the appropriate sanctions should 21 be or am I to hear what the school officials heard and 22 determine whether or not they abused their discretion? 23 MR. WEIDNER: Well, it's probably the 24 latter, but what you are to do with it is within the 25 framework of the law on temporary injunctions consider what 53 -~-j =~-~ '- _ ~ <l~ , ~ ,-. "j'e: o . 1 they heard, and then about the only thing you could find is 2 whether they violated rights or abused their discretion in 3 some fashion. 4 5 THE COURT: Okay. MR. WEIDNER: And in doing that you arrive 6 at the decision within the five point framework we've 7 cited. 8 THE COURT: Right. I understand the five 9 point framework. 10 MR. WEIDNER: And part of your thing, as I 11 understand the five point framework, is to balance things 12 as to what went on here versus the remedies sought, and 13 what these people have to deal with if he's returned to the 14 program, but it is -- it's the abusive discretion standard. 15 I think that's pretty clear in the law. 16 THE COURT: Okay. So you're putting on 17 what the school officials heard, and that's what I'm 18 hearing, and based upon that 19 MR. WEIDNER: You're hearing that because 20 you have to make that decision. 21 THE COURT: To determine whether or not 22 they abused their discretion. Do you agree with that, Mr. 23 Glace? 24 MR. GLACE: Not really. First off, this 25 isn't a school board determination. So there isn't a local 54 , L-. _0 ,_" .,.!~~ A.... V . 1 agency adjudication. It is our allegation that what is 2 done is an improper it was not unauthorized, and it was 3 not within this jurisdiction. 4 THE COURT: Well, but it is according to 5 Exhibit 1. The school board adopted Exhibit 1. 6 MR. GLACE: Again, we can argue that then 7 too, as is apparently -- obviously, Cumberland Valley wants 8 to throw an umbrella over the world while somebody 9 participates extra-curricularly. 10 Secondly, we've already now heard there's 11 some fundamental unfairness from the kid that is more 12 seriously charged. They deemed him to be suspendable 13 rather than expellable, subject to expulsion. 14 THE COURT: Well, I haven't heard all of 15 the facts in that regard. 16 MR. GLACE: But there are some -- 17 THE COURT: -- argument in that regard. I 18 just wanted to know what my standard is here. 19 MR. WEIDNER: Well, your standard is really 20 the Scarella case that we cite in our brief. 21 MR. GLACE: We both cite that case. 22 MR. WEIDNER: And that's where a court had 23 to consider an injunction -- a temporary injunction, and 24 they used the broad discretion standard for the school 25 board, and the arbitrary capricious and prejudical to the 55 ""~~ .1 .-- - ,-, >-. -, "';;'" l~-';;: o . 1 public's interest. 2 THE COURT: All right. I'll hear the 3 witness. Call the witness. 4 Whereupon, 5 BRENDAN HARDY 6 having been duly sworn, testified as follows: 7 DIRECT EXAMINATION 8 BY MR. WEIDNER: 9 10 11 12 13 14 15 16 17 18 oath? 19 20 21 22 Q A Q A Q A Q A Q Would you state your full name? Brendan Hardy. And how old are you, Brendan? I'm thirteen. And do you go to school? Yeah. Where do you go? Eagleview. Do you understand that you just took an A Q A Q Yes. Do you know what it means? To tell the truth. Okay. Do you participate in Cumberland 23 Valley's Wrestling Program? 24 25 A Q Yes. Did you participate in the wrestling program 56 1 last summer? 2 3 ~ " . ,,-. ~:.'~ ~ -', --.'. :" -' 'j c . A Q Yes. Did you go to the camp at Lock Haven that 4 we've been hearing about? 5 6 A Q Yes. And who did you room with there? Did you 7 room with Robby Morrison? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A Q A Q A Q A Q A Q A Q No. You were in a separate room? Yeah. At the camp did you know Mr. Westhafer? No, I didn't know him. Do you see Mr. Westhafer here today? Yeah. And where is he? Right there. Seated back with counsel? Yeah. Okay. When you were at the camp at Lock Haven, did Mr. Westhafer do anything to you? A Q A Yes, he did. And would you tell Judge Guido what he did? I don't know which day it was, but I lost a 24 match, and I was kind of sad and stuff. So I was sitting 25 on the window ledge, and he came in with just a towel on, 57 :' " .~ , - -~ ; i IL I ~ " "~ < ~ .111" ~:;; o . 1 and he grabbed me by the arm and threw me into -- he didn't 2 throw me into the closet, but pushed me into the closet, 3 and then took the towel off and threw it out of the closet, 4 and while he was throwing me in the closet he said time for 5 6 Mr. Pee Pee. Q Did he touch you at all with any part of his 7 body aside from your arm? 8 9 A Q No. Did he have his genitals exposed to you when 10 he pushed you into the closet? Do you know what I mean by 11 his genitals? 12 13 14 15 16 17 18 19 20 21 it. 22 23 24 25 closet? A Q A Q A Q A Q A Yeah. Okay. He didn't have anything on. And he said time for Mr. Pee Pee? Yes, he did. And then what happened? He shut the door to the closet. With him in it? Yes, with me and him in it. How did you get out of the closet? I couldn't get out of it until he got out of Q A Q And did he ultimately get out of it? Not really. He waited a while. Okay. But at some point he got out of the 58 ~. - I . J ~ o . 1 2 3 4 5 6 A Yes. Q What was your reaction when this was going on? A I was scared and frightened. I didn't know what he was going to do. Okay. After he got out of the closet, what Q 7 did you do? 8 A I went back. I told him to get out of the 9 room, and I went back and laid on the bed. 10 Q Okay. Aside from that episode, did you 11 have any other problems with Mr. Westhafer? 12 A No. It wasn't just with me, directly to 13 me. He was walking around our rooms naked and stuff. 14 MR. WEIDNER: Cross-examine. 15 CROSS EXAMINATION 16 BY MR. GLACE: 17 Q You say he walked around the room naked. 18 What room? 19 20 A Q He was in a lot of them. He was in mine. Was this a boy's dorm, girls dorm, or coed, 21 where you were staying? 22 A What do you mean? 23 Q In other words, were there any girls where 24 you were staying? 25 A No, not that I know of. 59 -~"~ .~ . ~ ~ '" 1 2 3 4 5 6 Anything? 7 8 9 Shawn's room? 10 A don't know. Q A their room. Q 11 12 13 14 " " ~ -, " < ; '. >~ - "'~ o . Q Did other people walk around naked? A No, just Brian and Shawn. Q Brian and Shawn? A Yeah. Q Was Brian -- what did Brian do to you? A No. Q Where was your room in relationship to I really don't know. It was about -- I How about in relation to Robby's room? It was on the same side. It was close to 16 whole way through, haven't you? 17 A Well, we just got to be friends like a year 18 or two years ago. 19 Q Your dads are pretty good friends too with 20 each other, right? 21 A Yeah. 22 Q Did you sign a statement that Mr. Morrison 23 prepared? In other words, he typed something up, and you 24 signed your name to it? 25 A I don't know. 60 ~-~~l ""'."..~" ~.-- 1 2 3 4 5 6 7 8 9 10 11 12 13 ~~ ,,,,-; '':1 .' '" _,~, ,i-- - -~; '. -- ,.--",,;. o . Q Did you sign anything that anybody prepared? A I don't know. Q So if something existed with your name on it, you wouldn't remember that? A Q I don't recall signing anything. Okay. Did you talk to the coaches when you were up there about this? A Yes. Q Which ones? A Coach Langan. Q After you lost the match - - well, who did you lose the match to? Another camper? A Well, I lost twice. I lost to Brian 14 Williams and Shawn Fisher. 15 Q Are they Cumberland Valley wrestlers or 16 other wrestlers? 17 18 19 20 A Q A Q They are Cumberland Valley wrestlers. Did that make you mad? Yeah. When you were sitting there and sad, were 21 you almost crying? 22 23 A Q A little bit. And Shawn took your mind off of your 24 sadness? 25 A No. 61 ,-IIi'_ ._"'~. 10 11 12 13 14 15 16 17 18 19 20 7 A Q A Q clown? A Q A closet. Q A Q A Q video games? A Q A -I, ,. I .' .~_ -I " . , ~ " < "'d!il'i~ 8 9 e . No. All right. What room was this closet in? My dorm room closet or me and my roommate's How many roommates did you have? I had -- it was me and two other people. Did you have video games there? Yes. Later on that week, did Shawn play your I don't know. Did he come in your room again? I wasn't in my room a lot. I was in other 21 peoples visiting them a lot too. 22 23 24 25 Q A Robby's room? Not really Robby's room. MR. GLACE: No further questions. THE COURT: Any redirect? 62 - ~, ,.-i ',I . ~' .~~- ~'"' "-~,i, o . 1 2 3 MR. WEIDNER: No redirect. THE COURT: Thank you, sir. down. I've got ten minutes. You may step 4 Whereupon, 5 TIMOTHY JOHN MORRISON 6 having been duly sworn, testified as follows: 7 DIRECT EXAMINATION 8 BY MR. WEIDNER: 9 10 record? 11 12 13 14 Q T.J., will you state your full name for the A Q A Q Timothy John Morrison. And you're Robby Morrison's brother? Yes. And you're also a wrestler for Cumberland 15 Valley School District? 16 17 18 19 20 this summer? A Q Yes. Did you attend the Lock Haven Wrestling Camp A Q Yeah. And where did you room in relationship to 21 your brother's room? 22 A Up the hall. Way up the hall probably 23 fifteen rooms up. 24 25 Q A You're familiar with Mr. Westhafer? Yeah. 63 -,,, - ,- l'"~ ,-, -.h''''~ o . 1 Q What's your current wrestling weight? 2 A One-forty right now. 3 Q One-forty. Okay. At the camp at Lock 4 Haven, did you observe any of Mr. Westhafer's conduct as it 5 relates to your brother? 6 7 A Q Yeah. Would you tell Judge Guido what you 8 observed? 9 A Yeah. The second day when I walked down 10 there, he was in the room the first time, and he was just 11 walking around, prancing around the room showing the kids 12 his genitals, and I told him to get out, and I told him 13 several times, and he wouldn't leave. So then I pushed 14 him out of the room, and I told them to lock the door, and 15 then I left and walked back up the hall. 16 And then the second time when I came back 17 down he was telling Rob to floss with his pubic hair, and 18 then when I told him to get out we got into an argument in 19 the hall, and I turned around and told Robby to get his 20 stuff together, and he grabbed me and tried to throw me on 21 the ground, and I turned around and tackled him, and then I 22 started hitting him in the side. That's when Baublitz 23 came down and broke it up. 24 Q All right. Now, the first time you were at 25 your brother's room and Mr. Westhafer was there, you say he 64 . ~- '"'-: ---- ,_._-, " ~","'. -'jw..i o . 1 was parading around the room? A Q A Q A Q A Look at me. 12 MR. GLACE: Objection. 13 BY MR. WEIDNER: 14 Q Well, did you observe anything that 15 indicated 16 THE COURT: Objection overruled. Go ahead. 17 BY MR. WEIDNER: 18 Q Did you observe anything to indicate to you 19 that the kids were disturbed by what they were seeing? 20 A Yeah, they were yelling at him and telling 21 him to get out. 22 Q Okay. The second time you were down, you 23 were there when he had the pubic hair? 24 A Yeah. 25 Q Did you actually see that? 65 1 2 3 4 5 6 ._~" but n L " ~_ i _.C,"L -,- !i: "' o . A I mean I wasn't like right up close to him, Q A Q A But you were in the room? Yeah, I was there. And what did he do that you saw? He told him to floss with it, and Rob tried 7 to get away from him as best that he could in the little 8 room, and he kept trying to make him floss with it, and 9 then he did it himself and blew it at Rob, and then that's 10 whenever everything got out of hand. 11 12 Westhafer? 13 14 15 16 Q You say he did it himself meaning what? A Q A Q He flossed with it himself. With his pubic hair? Yeah. Okay. And then did you ultimately take 17 Robby to your room to stay? 18 19 20 21 22 23 A Q Yeah. Did he stay there the rest of the time you boys were at camp? A Yeah. Q A Why did you take him to your room? Because it was safe for him to be there. I 24 didn't want him anywhere near Shawn. 25 MR. WEIDNER: Cross-examine. 66 ~-, l-' ~ '-- I -_ ",'oij_'; .~~~" o . 1 2 BY MR. GLACE: CROSS EXAMINATION 3 4 5 6 7 8 9 to 125. 10 Q All right. Do you agree with your head 11 coach's assessment that you basically are competitors for 12 two or three of the weight designations? Q What weight did you wrestle last year? One-nineteen. A Q Did you wrestle 135 at all? A Yeah, at districts. Q What weight did Shawn wrestle last year? A He was up at 135, 140, and then he came down 13 14 15 16 We could have been. How many years have you been to this camp? Three. Any hazing going on up there? Older A Q A Q 17 wrestlers to the younger wrestlers? 18 A Not really, just initiation stuff. 19 Q Tell me about initiation stuff. 20 Just like toothpaste in your hair, shaving A 21 cream stuff. 22 In other words, older wrestlers to younger Q 23 wrestlers? 24 25 Older to younger. Nothing like this. Would you characterize your temper as A Q 67 , , "-1 - . "J J _;__r- " _: -j ~- " - " ~~ o .' ~, 1 average or do you think you have a little bit of a temper? 2 3 A It's average. Q In other words, we've heard two separate 4 occasions where you've been in kind of fights in the hall. 5 I'm not talking about the provocation, but the one time 6 when Shawn was walking naked and the second flossing time 7 where Mr. Baublitz was there. Will you agree that both of 8 those times that you were involved in a fight with Shawn? 9 10 him one time. 11 12 A I only got into a physical fist fight with Q The other time was just a wrestling match? A I pushed him out of the room, and the one 13 time in the hall when he wouldn't leave, I got into a fist 14 fight with him. 15 Q Now, if I understand correctly, you were in 16 the room the second time when this flossing business 17 happened? 18 19 A Yes. Q Do you agree with your brother that Brian 20 Eslinger was in there as well? 21 22 23 24 A Yeah. Q And that he held your brother? A He wasn't holding my brother. Q Were you here when your brother testified 25 that Eslinger held him? 68 b'~ ~.~~-' 1 . . c;, ;:;fl ~ """'-~ '-.' o O. -,~ . A Whenever he held him to look at Westhafer's 2 genitals, I did not see that. 3 Q All right. But Eslinger was there, and 4 then he actually held your brother and had physical contact 5 with him? 6 7 8 BY MR. GLACE: 9 MR. WEIDNER: He said he didn't see it. THE WITNESS: I didn't see it. Q All right. Did you ever see Shawn come in 10 contact with your brother? 11 12 13 14 15 it occurred? 16 A Physically? Q Physically, touching, wrestling in the hall? A No. Q Did you talk to the coaches about this after A Yes. It wasn't right after it occurred. 17 It was towards the end of the week he came into our room. 18 19 20 21 Q Coach Barrick? A Yeah. Q What did he say? A He asked us what happened, and we just 22 started telling him our story, and he wrote it all down. 23 24 25 exactly. Q All right. When did you contact the police? A My dad contacted them. I don't know when 69 ~~~'" 6 7 8 9 10 11 12 13 14 .-j [,. .<. "')':1\ ~ -" o . 1 2 After school started? It may have been before. Q A 3 Q All right. Now you testified at a hearing 4 against Brian Eslinger in Clinton County? 5 A Not in Clinton County. Q A Have you been subpoenaed to a hearing? No. MR. GLACE: All right. Thank you. No further questions. THE COURT: Anything else? MR. WEIDNER: Not of this witness, Your Honor. THE COURT: Okay. Now is a good time for a break. I've got an argument in number 1. As soon as 15 that's over I'll be back. 16 (Whereupon, a recess was taken at 1:26 p.m.) 17 AFTER RECESS 18 THE COURT: Okay. Mr. Weidner, next 19 witness. 20 MR. WEIDNER: I call Dr. Colistra. 21 Whereupon, 22 DR. ANTHONY COLISTRA 23 having been duly sworn, testified as follows: 24 MR. WEIDNER: And I ask that Mr. Glace agree 25 that Dr. Colistra's decision comprising Exhibit E to his 70 ., _"b ""I I, -'-" ,,~ ,'," ''':.''-.. o . 1 petition be considered part of the record and an exhibit here today. 2 3 MR. GLACE: Absolutely. No problem with 4 the statement that that is the final administrative 5 decision, and that's why we're in court. 6 7 MR. WEIDNER: That's fine. THE COURT: Then we'll mark that as 8 Respondent Exhibit Number 1. 9 10 MR. WEIDNER: Thank you, Your Honor. THE COURT: And that is admitted. 11 (Whereupon, Respondent's Exhibit NO.1 was 12 marked for identification and admitted into evidence.) 13 DIRECT EXAMINATION 14 BY MR. WEIDNER: 15 Q Dr. Colistra, would you state your full name 16 for the record? 17 A Anthony J. Colistra, C-o-l-i-s-t-r-a. 18 Q And you are the superintendent of the 19 Cumberland Valley school District; is that correct? 20 A That's correct. 21 Q And you are the author of the decision that 22 we have agreed would be marked Respondent's Exhibit 1 23 today; is that correct? 24 25 A Q That's correct. Dr. Colistra, would you relate to Judge 71 ,;1 i:_ '., L~ ~ ~.-'i~~";,) c o 1 Guido how you first came to learn of the incidents in 2 question at the Lock Haven Wrestling Camp and the school 3 district's attendees? 4 A I was contacted by Mr. and Mr. Morrison, I 5 don't remember exactly the date, to make me aware of an 6 incident that happened up at Lock Haven Wrestling Camp. 7 Q Okay. And what was the incident as they 8 related to you? 9 A As was described this morning in court by 10 various witnesses. 11 12 Q A The incident with the pubic hair? Yes. 13 Q And what action did you take upon learning 14 of that information? 15 A Well, when I learned of it, I immediately t6 went to the athletic director and asked him if he was aware 17 of the incident that took place up at Lock Haven, and while 18 he had a passing knowledge of it, and was working with the 19 wrestling coach to look at it as an inside matter, I said I 20 think you better conduct a full investigation. It appears 21 to me that the incident was much more than hazing up there. 22 Look into the incident and find out what happened. 23 Q Can you approximate for Judge Guido when you 24 first learned of the incident from the Morrisons, as best 25 you can recall? 72 ~:---I- 'Jh ~.,-- o . 1 A As best that I can recall, it was sometime 2 in the latter part of August, I believe. 3 Q Okay. And how soon thereafter did you 4 contact Mr. Audo? 5 6 7 A Did I contact Mr. Audo? Yes. Right after I was contacted by Mr. and Mrs. Q A 8 Morrison, I went to Ron's office and asked him to do a full 9 investigation. 10 Q And did he, in fact, do a full 11 investigation? 12 A Yes. I had a lot of questions, and I asked 13 him, and I asked for a write-up from Roger of what happened 14 up there, what the incident was as we knew it, and to try 15 to get that information to me. 16 Q Okay. After you got that information, what 17 was your next step? 18 A Well, I asked for verification, that they 19 would talk to youngsters that were there and try to verify 20 that this is what happened, to the extent of what happened, 21 to make a determination of exactly what events did take 22 place. 23 Q And did they ultimately present you with a 24 report of accounts of what transpired? 25 A Yes. 73 -~~~~ ~ .1 _I . -- ~t; o o 1 Q Was there an administrative review procedure 2 that was implemented as a result of these reports? 3 A Yes, there was. 4 Q And could you describe briefly for Judge 5 Guido what that procedure was? 6 A Well, the first thing that happened was Mr. 7 Cavallaro, the high school principal, and Mr. Audo 8 investigated and made a determination that there was 9 sufficient evidence to minimally suspend Shawn from the 10 wrestling team. As they got into interviewing more young 11 people and finding out what happened, they then conducted a 12 hearing, and at that time I believe the hearing came to the 13 conclusion that he would be expelled from the wrestling 14 team, and Mr. and Mrs. Westhafer were advised of their 15 rights of appeal. 16 They then appealed to an administrative 17 hearing comprised of Mr. Bricker, the Assistant 18 Superintendent for Secondary Education, and Mr. Harold 19 pomraning, the Assistant Superintendent for Elementary 20 Education, to hear the evidence presented on the events 21 that took place at Lock Haven University. 22 Q Now, that was an Administrative Review 23 Committee; is that correct? 24 25 A That is correct. And that is an Administrative Review Q 74 "- . "l " "'<c- c o 1 Committee described in Joint Exhibit 1, the Cumberland 2 Valley school District policy for extra-curricular 3 activities, number 122? 4 A That is correct. 5 Q And who appointed the Administrative Review 6 Committee? 7 A The Administrative Review Committee was 8 appointed by the board through resolution to hear the 9 evidence of what happened at Lock Haven University. 10 11 12 Q A Q And by board you mean the school board? The school board, that's correct. Okay. And did the Administrative Review 13 Committee undertake it's assignment to have a hearing on 14 these allegations? 15 16 A Q They did. And do you know what the result of that 17 hearing was as it related to Mr. Westhafer? 18 A The report I got from the Administrative 19 Committee was that they were notifying Mr. Westhafer that 20 he would be expelled from the wrestling team for his 21 behavior up at Lock Haven, and I believe in the letter that 22 was s~nt they were advised of their due process rights to 23 appeal to the Superintendent of the Schools for a review of 24 their decision. 25 Q And did you ultimately conduct a review of 75 1 2 3 4 6 7 8 9 10 11 ,. ,'; '-M' . U! o . that decision? A I did by listening to the tapes and reading the evidence that was presented to the review committee. THE COURT: And do I understand that that 5 was agreed to by both sides? MR. WEIDNER: Yes. THE COURT: Is that correct? MR. GLACE: Yes. THE COURT: Because the procedure calls for an independent hearing in front of the superintendent. MR. WEIDNER: Mr. Glace has put in his 12 pleading that it was agreed upon that that would be the 13 resolution. 14 MR. GLACE: That's correct. We discussed 15 various mechanisms of depositions and everything else, and 16 we felt all of the issues were presented in the combination 17 of both the hearings. 18 19 20 21 22 23 THE COURT: Okay. BY MR. WEIDNER: Q And did you, in fact, listen to the tapes as agreed upon? A Q Yes. And did you review anything else as part of 24 the decision process? 25 A Well, I had copies of letters from Mr. and 76 ,"'-"- _ z ~~'. o . 1 Mrs. Hardy and from Mr. and Mrs. Morrison. 2 Q And you ultimately issued the decision then, 3 which is Respondent's Exhibit 1 here today, affirming the 4 eXpulsion from the wrestling team? 5 A Yes, I upheld the decision of the review 6 committee to expel Shawn from the wrestling team. 7 Q And why did you agree to that expulsion? 8 A Well, as I reviewed the material, I listened 9 to the evidence on the tape and to the testimony, what I 10 was considering was, first of all, there wasn't a 11 contestment of any kind that the incidents took place. 12 They were agreed upon that these things did take place. I 13 felt that the behavior was egregious enough that an 14 appropriate discipline needed to take place. 15 Q And was there any particular interest you 16 were protecting at that time in rendering your decision? 17 A Well, as a Superintendent of the Schools, I 18 have a responsibility to protect the health, safety, 19 welfare, and morality of the school district, and I believe 20 that I need to be due diligent in making sure that those 21 things happen, and that the people who work for the school 22 district or are in some kind of relationship with the 23 school district do the same thing. 24 For instance, I would have been very upset, 25 as Mr. Baublitz testified today, if he had not stepped in 77 ~..'-, ' - L. ,'",'-- " - 'W o 1 to stop the scuffle that was taking place in the hallway 2 because I think we need to be due diligent when we have 3 young people under our care and under our supervision to 4 make sure that those things are being done. So I feel the 5 responsibility to be due diligent in terms of making sure 6 that rules, regulations, policies of the school board are 7 followed. 8 Q There was talk about a Mr. Eslinger, 9 another wrestler who was disciplined for some of the acts 10 at Lock Haven that we've heard about. Did he ever bring 11 his case before you through this Administrative Review 12 process? 13 A No, that was never appealed to my level. 14 MR. WEIDNER: Cross-examine. 15 CROSS EXAMINATION 16 BY MR. GLACE: 17 Q Brief questions then, Doctor. Late August, 18 early September you first became aware of this from a 19 letter -- at least from the Morrisons, maybe from the 20 Morrisons and the Hardys? 21 A That's correct. 22 Q In my pleadings we indicate that Shawn was 23 allowed to take his physical exam on October 30th, and 24 November 1st and November 2nd he was told by the Athletic 25 Department he could participate. However, on or about 78 -- .- .lLil.d>, I - " . - ~<' ~lilt'l:tir',1 o . 1 November 10th he was suspended and ultimately expelled. 2 Do you agree with that chronology? 3 A From my understanding, yes. 4 Q All right. Now, just to fill in a couple 5 blanks here because your opinion says -- reaches a finding 6 that the school does have jurisdiction over this matter, 7 and that there are several circumstances that at least show 8 that you are related to what happened, and the school 9 business is related to what happened in Lock Haven 10 University. 11 The first being -- and this would be on, if 12 your opinion were paginated, the bottom of page 4, the last 13 paragraph. The district helps organize this program by 14 making information available to interested parties. Did 15 you hear testimony today from at least Mr. Baublitz, and 16 possibly Coach Barrick, that they got the information in 17 the mail? 18 19 A Q Yes. How does the school district make 20 information available? 21 A I see all the time hanging in the hallways, 22 and I believe there's a bulletin board outside the 23 wrestling room, that lists different clinics, different 24 tournaments, information, just general information that 25 these clinics are available, these tournaments are 79 - , I ~ - ~ -'~i c . 1 available. If you want to go to them, get an application 2 from Mr. Audo or contact the coach or whoever. 3 So it's just a general kind of general 4 information. There's not a planned, organized program for 5 mailing the information to each of the kids on the 6 wrestling team or anything like that. 7 Q All right. Specifically, Lock Haven Summer 8 Camp, are you guessing or do you have specific knowledge 9 that it was advertised on that board? 10 A I am guessing. I don't have specific 11 knowledge. 12 Q By coordinating arrangements, that's the 13 second situation that you described, how did the Cumberland 14 Valley School District coordinate arrangements for 15 attendance at this camp for individuals who payed their own 16 tuition? 17 A Well, if I remember correctly the testimony 18 -- I'm not sure if it was at the administrative hearing or 19 this morning from Mr. Audo, that the university likes to 20 have all of the information forwarded to them at one time 21 while some individual parents will mail checks and the 22 application forms individually, he does collect and send a 23 check for the registrants that go through his office. So 24 that would be a way of coordinating this. 25 We rent vans from Cumberland Valley 80 ~~~ ~,,- -, -",>". ,oj _~_ ~'~'_~.)~ld;,~ o . 1 Motorists, which is right next to the school district 2 because our school vans are used for summer activities and 3 school activities so that we try to rent vans, and we 4 rented the van at our expense to take them to transport 5 equipment, to make available to them in the event of an 6 emergency, and I believe, it was my understanding, that 7 there may have been a few youngsters that were also 8 transported because either their parents could not take 9 them or they were not able to arrange for a ride through a 10 car pool with another family. 11 Q Doctor, let me interrupt you just for a 12 second because you're actually talking about the fourth of 13 the four circumstances you describe about providing 14 transportation. If the school rents the van to go up, 15 what line item does it come from? You know, where does 16 the money come from? 17 A It comes under transportation out of the 18 Athletic Department. 19 20 Q All right. You also said the last thing was you provided volunteer adults to accompany. What 21 we've heard now is there was only one adult present. So 22 23 24 how did you provide that? us when he testified? What did Mr. Baublitz not tell A I'm not sure I understand that answer. It 25 was my understanding that Coach Barrick, Coach Langan, and 81 ~ . ~ ,-I .-,' , --I - . . ~ .- 'Ol~, o . 1 Coach Blacksmith, accompanied the kids, and Mr. Baublitz as 2 a parent also accompanied the kids up to camp. So I'm not 3 sure where I'm not sure if that even answers the 4 question. 5 Q In other words, it becomes a Cumberland 6 Valley activity if a Cumberland Valley parent is there? 7 A No, I wouldn't -- I wouldn't generalize that 8 it would become a Cumberland Valley activity if a 9 Cumberland Valley parent is there. I would generalize 10 that it becomes a Cumberland Valley activity when the 11 enrollees are Cumberland Valley students, that the school 12 has worked with the parents and the kids in helping to 13 arrange, if not making the arrangements, have transported 14 them, and the coach and assistant coaches are there also, 15 both to observe and to be present. 16 Q All right. One final question then. I 17 know you possibly had a chance to review my pleadings where 18 I talk about the definition provided by Act Number 122. 19 A Yes. 20 Q All right. And I also talked about the 21 authority, and we have stipulated that although it says 22 that you are to go to approach the board and seek their 23 approval so that they can review and approve activities, 24 you specifically did not do that for the wrestling team's 25 attendance at this camp; is that correct? 82 _I. ; 1 I, ," -....~"~!$$/)<Ml-""""l.Jf' i-' o o 1 2 That is correct. A Q All right. And then it is the contention, 3 and we've had some arguments, that this code of conduct is 4 applicable, and probably applicable 90 miles away during 5 the summer season, and I ask you on Section 5 to just read 6 the prefix there, and put it into the record. 7 THE COURT: It's already in the record. 8 MR. GLACE: All right. 9 THE COURT: What question do you have with 10 regard to that? 11 MR. GLACE: All right. I've highlighted, 12 and let me just do this, basically, participation in 13 interestscholastic competition for the code of conduct to 14 apply or for other participation -- 15 16 THE COURT: Where are you reading from? MR. GLACE: This is Section 5, 17 extra-curricular activities. 18 BY MR. GLACE: 19 Q During that particular season, specifically, 20 Doctor, and in your finding with Shawn, is what season are 21 we talking about in July that you applied the 22 extra-curricular code of conduct for an extra-curricular 23 activity or for any activity for the season? What season 24 are we talking about that happened in July? 25 A The activities that the youngsters 83 ~~ '- :,1' '~~~[~ ,,--', -, I L ~ ~ . . 1 participate in the summer, be it wrestling camp, field 2 hockey camp, ch~erleading camp, tennis camp, there's a 3 number of camps that young people go to, both boys and 4 girls. I'm interpreting as an extension of the 5 extra-curricular activity and an extension of that program. 6 7 Q A All right. Just as I would consider summer school an 8 extension of going to school. 9 Q Well, summer schools happens -- it's not 10 extra-curricular, it happens on school grounds; is that 11 correct? 12 13 14 15 A Q A Q That's correct. Now one last question here. Sure. And this is addressed in the briefs, but do 16 you consider when you make that extension and turn a winter 17 season into a July -- also a July season, you're exercising 18 discretion and flexibility? 19 A I'm not exactly sure what you mean by that. 20 If your question is am I assuming authority over those 21 programs in the summer, my response of that would be that I 22 have an obligation to maintain the good discipline of our 23 students when they're participating in programs, be it on 24 school property or off school property, be it during the 25 school year or through participating in the summer 84 ~ ~- - .1 j -.~ -- -'-oM> ..~~: e o 1 activities, which is an extension of our programs. 2 Q All right. Let's just draw it to the issue 3 before the Court. This is only regarding Shawn Westhafer 4 and only regarding your December 18th opinion. 5 A Urn-hum. 6 Q Especially incorporating what are his number 7 122, the I call it the rules in my brief, but paragraphs 8 2, the definition 3, the authority, and 5, code of conduct 9 where it relates during the season, did you exercise 10 discretion and flexibility to turn a July wrestling camp, 11 90 miles away, into something under your purview? 12 13 A Yes. MR. GLACE: All right. No further 14 questions. 15 16 BY THE COURT: MR. WEIDNER: No redirect. 17 18 Q A I have a question, sir. Yes. This Mr. Eslinger. 19 Q The other young man. Do you know what, if 20 any, discipline he has received? 21 A Yeah. As I read the report from that 22 committee, Mr. Eslinger was suspended from the wrestling 23 team for 30 days, and was allowed to come back to 24 participate on Monday, December 18th. 25 Q Do you know why these two gentlemen were 85 - ~ ~ ---I - "'" c fit 1 treated differently? 2 A In discussions with the Assistant 3 Superintendents that conducted the hearings, it was 4 determined that ,the degree of involvement and the degree of 5 egregiousness of Mr. Eslinger did not rise to the level of 6 Mr. Westhafer's behavior. 7 THE COURT: Okay. Any follow-up on those 8 two questions I just asked? 9 10 11 BY MR. GLACE: 12 Q MR. WEIDNER: No, Your Honor. THE COURT: Mr. Glace? Are you aware of the criminal charges 13 brought against Mr. Eslinger? 14 15 16 17 to object. 18 19 20 21 A Q Yes. And what are the nature of them? MR. WEIDNER: Well, Your Honor, I'm going THE COURT: MR. GLACE: THE COURT: Sustained. All right. Anything else? Thank you, Doctor. You may step down. Any other witnesses, Mr. 22 Weidner? 23 MR. WEIDNER: No further witnesses. I have 24 some judicial admissions in the petition I would like to 25 make a part of the record. 86 H: .,j '. -'.'fb . o 1 THE COURT: Okay. 2 MR. GLACE: Your Honor, prior to that I do 3 have -- 1 am going to call Shawn, and then I have another 4 brief rebuttal witness. 5 6 rebuttal? THE COURT: Shawn's going to be on 7 MR. GLACE: No. Both of them are, again, 8 in rebuttal because this is a fact finding hearing, I think 9 one way or the other. And my question will be 10 THE COURT: Let him finish his case first, 11 and then you may call your rebuttal. 12 MR. GLACE: All right. 13 MR. WEIDNER: In regard to paragraph 9 of 14 the Petition for Equitable Relief filed by Mr. Westhafer, I 15 note for the record and ask that it be considered a 16 judicial admission that it states 9, on July 20, 2000, 17 petition~r and one other Cumberland Valley wrestler 18 accosted another Cumberland Valley wrestler named Robert 19 Morrison, 20 That paragraph further reads, the nature of 21 petition~r's confrontation, as well as the other wrestlers, 22 included walking nude into the room of Robert Morrison, and 23 the plucking of petitioner's pubic hair. 24 It goes on in paragraph 10, and I request 25 that this be considered a judicial admission. Ten, on or 87 - ~ :~:, ! .~ ~-" llM,~~;;, o o 1 about July 27, 2000, petitioner was informed by Roger 2 Barrick, head wrestling coach, that he had discussed this 3 incident with Ronald Audo, and the respondent's athletic 4 director, and this matter was to be considered in house. 5 That is any and all punishment, including 6 any probationary review, would be within the Athletic 7 Department. Petitioner was told directly by Coach Barrick 8 that he must toe the line. 9 Again, on paragraph 14 I ask that this be 10 considered a judicial admission and part of the record. 11 Shawn subsequently entered guilty pleas before District 12 Justice Joseph L. Sanders (Magistrate District 25-3-01) to 13 harassment (summary), docketed at NT-0000875-00, and 14 disorderly conduct (summary), docketed at NT0000876-00 on 15 October 5, 2000, and at that time petitioner tendered all 16 fines and costs. 17 Further, I ask that the record consider the 18 following judicial or contain the following judicial 19 admission. In paragraph 27, it is clear that Dr. Colistra 20 desires what is best for the students of the Cumberland 21 Valley School District. 22 With that, we close the Respondent's case. 23 THE COURT: Any objection to those judicial 24 admissions, Mr. Glace? 25 MR. GLACE: Certainly not, Your Honor. 88 ~L' :..,1 ~~ 'L,;:; o o I' r~ Ii n " , 1 THE COURT: All right. Then you may call 2 your rebuttal witnesses, sir. 3 MR. GLACE: Shawn Westhafer. II I I' I': ," 4 Whereupon, Ii Ii Ii I, 1:1 I 5 SHAWN WESTHAFER 6 having been duly sworn, testified as follows: 7 DIRECT EXAMINATION i ~ Ii , I') Ii I' " " " r ~ 11 "i i ~ 8 BY MR. GLACE: 9 Q Shawn, you're the petitioner in this action 10 in equity. We filed a motion for a temporary restraining 11 order. We've also then filed a brief. Have you reviewed 12 both of those briefs and these documents? 13 A Yes, I have. 14 Q Have you been present throughout this 15 hearing today? 16 A I have been present, yes. 17 Q Okay. So we can get to the chase right 18 now. How many years did you attend this wrestling camp, 19 including last summer? 20 A That was my fourth season there. 21 Q Okay. Who did you room with? 22 A I roomed with Brian Eslinger and Matt 23 Pavlick. 24 Q Are they both Cumberland Valley wrestlers? 25 A Yes, they are. 89 ~ I i, ,_" ",'I- .~.. o o 1 Q Were any non-Cumberland Valley wrestlers 2 within the immediate area of your rooms? 3 A There were two non-Cumberland Valley 4 wrestlers staying with us as a team. One from Middletown 5 staying down the hall, T.J. Morrison, and one from Camp 6 Hill staying in the same room as Brendan Hardy. 7 Throughout the course of your attendance at Q 8 this camp and describe in your own words if there's been 9 any hazing or anything that goes on? 10 A As I understand hazing, yes. 11 Tell me what your understanding of hazing Q 12 is. 13 Older students -- or older wrestlers, older A 14 athletes, would sort of pick on the younger, but the good 15 athl~tes that happen to be younger that have potential in 16 order to toughen them up. 17 when you were a young wrestler at the camp, Q 18 did you get picked on? 19 No, I didn't have any potential. A 20 What were some of the hazing that you have Q 21 seen occur at this camp in earlier camp sessions? 22 Well, as T.J. stated earlier, things such as A 23 toothpaste, shaving cream, squirting people with water, 24 urinating on people. 25 That's happened in earlier sessions? Q 90 ,~ - ^~-".,b~, ,;; " " j'! '-i " !,: " " !'I ;;i , j-1 "! ..........'.... " " . "-'j o o 1 A Yes. ,-I " 'I 2 Q We have pled, and by judicial admission, the 6 floss routine. At your November 28th Administrative , ".J 1 , " , , ii ! i "I I I 3 process that just occurred, admitted that you entered Robby 4 Morrisons room on at least two occasions; once naked, and 5 once where you plucked a pubic hair and went through that 7 Review Hearing when you were confronted with that, you said 8 it was mostly true. Do you concur with that today? 9 A Yes, I do. 10 Q Why were you picking on -- first off, who 11 accompanied you? Was it just you and Brian Eslinger? 12 A Yeah, I'm sure there were other people in 13 the room, but I couldn't name anybody, but yes, it was just 14 me and him that were taunting. 15 Q Where were the showers in respect to the 16 rooms? 17 A Down the hall and to the left. We were at 18 the very end hall -- or end rooms of the hall. 19 Q So your room was closer to the showers? 20 A No. They were equal distance. 21 Q All right. This is July, and you're 22 wrestling. Was it pretty hot up there? 23 A It was extremely hot. 24 Q How many sessions would you wrestle? 25 A We wrestled -- we had breakfast in the 91 " , - ',- ~, .' " o 1 morning, then a two hour technique session, and then we 4 Q How do you replenish your fluids? i ! i ! , i i [ I I 2 would have lunch, two match sessions, dinner, two more 3 match sessions, and then we would sleep. 5 A Lots of water and taking showers a lot. !, 1" " 1.1 f- ,:. l:, [ i," " 6 Q Was that standard or was that just your 7 personal practice? 8 A The standard wrestler took about three to ! c I , ~-, I , 9 five showers a day. ;' , , 12 Q Wrestlers don't eat very much, do they? A There they do. Q How do you get along with T.J. Morrison? A Sometimes we got along, but not very often. Q The first time you were naked in his :'! 10 11 13 14 15 brother's room, what happened? 16 A Nothing really. I believe I left on my own 17 free will. I think I entered the room maybe three times, 18 and the second time was when T.J. chewed me out. The third 19 time was the pubic hair incident. 20 Q Okay. And how many of those incidents 21 resulted in fights, fisticuffs? 22 A I wouldn't even call T.J. striking me a 23 fight. It was more of like -- it was just a small 24 altercation. 25 Q All right. Were you here when Brendan 92 '-- , I , . o 1 Hardy testified? 2 3 4 5 6 7 8 9 10 11 12 13 14 15 like that? A Yes, I was. Q Did you do any of that? A No, I did not. Q When's the first time you heard anything A When I went to sign up for wrestling this year at the physicals, he was standing next to another wrestler, and the other wrestler asked, hey, Brendan, isn't that the kid that did that to you in the closet, and I was totally dazzled, you know, I didn't know what was going on, and he's like no, it wasn't. That was the first time I've I know I didn't do it. ever heard of it. I've never heard of any other wrestler doing that to him. 16 ther~? 17 18 19 Q Did you have any contact with Brendan up A Physically or? Q Do you remember him from the camp? A Yes, I do. I remember he was a good 20 wrestler, and between me and Robby, we were the only ones 21 that treated him any good because he as a new wrestler at 22 this school. 23 Q All right. When you say Robby, you mean 24 Robby Morrison, the 9th grader? 25 A Yes. 93 ~-- '" " -~';." :r !:1 ,:1 i" ., !II ':i :ii ;'1 1\1 !:~ 11 !;i ., iii iii If 1 Ii \:1 i,~ !:j I', ", ri ,I' hi !i U "~I ii,j 1:1 i~i II ,I If I 'j ii! '"' i;, fi Ii :1 I' , ,I' t:! i;j .- -~ , " , ~~ o o " ~.::!,i-:i I,:i I :i ::1 , :,1 I " ::1 , , 1 Q Why did you direct your hazing at Robby? 2 A He was right across the hall. It was 7 MR. GLACE: All right. Cross. I , "I ! ::1 'i " i:1 " 'i i , ':! ;1 , I'i ,Ii i'l i !:I I 3 convenient. 4 Q Do you think he was tough enough to take it? 5 A Yes, he kicked me in the face once, and I 6 didn't hit him back because I knew I deserved it. 8 CROSS EXAMINATION 9 BY MR. WEIDNER: Ii 10 Q Mr. Westhafer, you have agreed that you pled 11 guilty to these summary offenses in Clinton County; is that .1 I 12 correct? 13 A That is correct. 14 Q And do you know what the nature of the 15 off~nse says in each of these citations? 16 A Do you mean the harassment and disorderly 17 conduct part? 18 Q What they talk about you did. 19 A Yes. One was walking around naked and 20 exposing myself for no legitimate reason. The other one 21 was plucking a hair from my pubic region and flossing with 22 it for no legitimate reason. 23 Q I'm sorry for interrupting you. One says 24 -- the citation P1968836-2 says above-said defendant, 25 meaning you, did repeatedly expose himself to another which 94 -'l , '" ) ~ - ~,-, ' . , - J, ".i "iil~i\h.< CD o 1 served no legitimate purpose. Do you recall that? 2 A Yes, I do. 3 Q And you agree that you did that? 4 A Yes. 5 Q And the other citation, P1968837, I think 6 it's dash 3, says above-said defendant, meaning you, did 7 make an obscene gesture by showing his genitals to another, 8 which served no purpose? 9 A Yes. 10 Q And you agreed you did that? 11 A Yes. 12 MR. WEIDNER: No further questions. " ;; i; 13 THE COURT: Any cross, Mr. Glace? Any 14 redirect, I'm sorry. 15 MR. GLACE: Redirect, just one thing. 16 REDIRECT EXAMINATION 17 BY MR. GLACE: 18 Q I want you to look at the corner of each of 19 th~se. Who's the named victim? 20 A Robert Morrison and Robert Morrison, both. 21 MR. GLACE: No further questions. 22 THE COURT: Any recross? 23 MR. WEIDNER: No recross, Your Honor. 24 THE COURT: Thank you, sir. You may step 25 down. Next witness, Mr. Glace. 95 1 , . -:i' ._'~ r""~ ,',:: c . \11 MR. GLACE: I would like to briefly recall 2 Head Coach Barrick. 3 (Whereupon, Roger Barrick was recalled.) 4 DIRECT EXAMINATION 5 BY MR. GLACE: 6 7 8 Q Coach, 'I remind you you're s till under oath. A Yes. Q Brief questions regarding Brendan Hardy. 9 When did you first learn about the incident that he 10 described about the closet and Mr. Pee Pee? 11 A Probably through discussions with Mr. Audo. 12 I don't know what the dates would have been. 13 14 15 Q How about the month? A September. Q Were you present when he testified that he 16 told, during the Camp week, Coach Langan, your Assistant 17 Coach? When Brendan testified today, that after the 18 incident he told almost immediately? 19 20 21 22 23 24 25 A Yes, I was here, yes. Q You were here? A Yes. Q Do you recall that? A Yes. Q Did Coach Langan mention anything to you? A No, he did not. 96 "' 1 2 3 4 5 6 7 8 . , e"il """i1:;1-~,," -I, . Cl) o Q Was Coach Langan even at the camp that day? A I'm not sure because Coach Langan left one evening. One day he wasn't there. I'm not sure which day it was now. Everything kind of runs together back in July. Let me think for a second. We had a coaches meeting Wednesday. told us. It depends on what day he would have Q Let me ask you this, if you would have heard 9 that during that week, would you have addressed it 10 immediately? 11 12 A Q Yes, I would have. All right. And if it would have been told 13 to your assistant coach, would he have told you 14 immediately? 15 A Yes, he would have. 16 Q If you had heard that, would you have 17 contacted both Mr. Audo, and possibly even Dr. Colistra, 18 immediately? 19 20 21 22 23 A Yes. Q But you never heard anything about this until September? A No. MR. GLACE: Thank you. No further 24 questions. 25 THE COURT: Cross. 97 1IiO'~"'-'--- - ~~. I, ' ,;;;,1-,1 . .,i '8"l" ~~';'''' c o 1 2 MR. WEIDNER: THE COURT: No questions, Your Honor. Thank you, sir. You may step 3 down. 4 MR. GLACE: We would respectfully rest, Your 5 Honor. 6 7 8 THE COURT: MR. WEIDNER: Any surrebuttal? No surrebuttal, Your Honor. THE COURT: Okay. So the record is closed. 9 Would you pass up the remaining exhibits? Do you have 10 Respondent Exhibit 1, Mr. Weidner? 11 MR. WEIDNER: It's attached to the petition. I don't have an extra copy. 12 13 14 THE COURT: Okay. We'll make a copy and mark that. I would like to have some argument. 15 (Whereupon, the testimony concluded, 16 argument was held, and the Court took the matter under 17 advisement.) 18 19 20 21 22 23 24 25 98 ",.~,l - "'- I ;~, . , .",,'," ~"'"""~, t> o CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. ~e /J rP~ Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. a/IJ-/ () ( Date Edward E. Guido, J. Ninth Judicial District 99 "- ~'r"~- l~_iI!QtWl~itfq_~if5tB._"'''''''~Ii-'rr ~, ~ " ~'" "1- '~(ilC']~1iIl~--'"~ ~l' ,.~ " ",' '~" C) C" lJ~~ rn,.,. 2" tJ!;" r:C; ,~ .~:-.-.. _. ;;--( . ~C;' C: ;z- ::< U1 (,,;, , '" ..,,'", ", ,::,:: '..::) -"-J ....1 t'Tl 'OJ c....., !.:.~ .,j~~~"; ('i:Lf i:jP ,'i -'~ :0 ""< ~,). .::;:,: <;:l