Loading...
HomeMy WebLinkAbout01-6841 CivilC.C., a minor By his parents R.C. and T.C. Petitioners SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-6841 CIVIL CIVIL ACTION - LAW IN RE: PETITIIONERS APPEAL FROM ADJUDICATION OF BOARD BEFORE GUIDO, J. OPINION AND ORDER OF COURT The above juvenile (hereinafter C.C.) was charged with violating South Middleton School District Policy #227 dealing with controlled substances. A disciplinary hearing in connection with the charges was held before a committee of the School Board on October 18, 2001. On November 5, 2001, the full Board adopted the findings and recommendations of the hearing committee. By unanimous vote, C.C. was expelled for the remainder of the 2001-2002 school year and for the entire 2002-2003 school year. C.C. and his parents (hereinafter "Petitioners") have appealed the Board's action. They ask us to reverse the Board's decision to expel him for the following reasons: (1 .) His due process rights were violated in that the Board failed to compel the attendance of certain witnesses at the disciplinary hearing held in connection with the charges. However, he was enrolled in an alternative education program. Furthermore, he may apply for readmission to regular classes in the 2002-2003 school year, if certain conditions are met. NO. 2001-6841 CIVIL (2.) Certain necessary findings of fact were not supported by the record. Scope of Review. Section 754 of the Local Agency Law2 governs our scope of review in the disposition of this appeal. If the record is complete, as it is in the case at bar, we must affirm the Board's decision unless C.C.'s constitutional rights were violated, an error of law was committed, the procedure before the agency was contrary to statute, or necessary findings of fact are not supported by substantial evidence. 2 P.S. § 754(b). Public Advocate v. Philadelphia Gas Commission, 544 Pa. 129, 674 A.2d 1056 (1996). FACTUAL BACKGROUND The hearing in this matter was held pursuant to Section 1318 of the Public School Law of 1949 which provides: Suspension and expulsion of pupils. Every principal or teacher in charge of a public school may temporarily suspend any pupil on account of disobedience or misconduct, and any principal or teacher suspending any pupil shall promptly notify the district superintendent or secretary of the board of school directors. The board may, after a proper hearing, suspend such child for such time as it may determine, or may permanently expel him. Such hearings, suspension, or expulsion may be delegated to a duly authorized committee of the board, or to a duly qualified hearing examiner, who need not be a member of the board, but whose adjudication must be approved by the board. 24 P.S. § 13-1318. The hearing in this case was conducted by a duly authorized committee of the Board. Both C.C. and his parents participated in the hearing and were represented by counsel. : 2 P.S. §754. 2 NO. 2001-6841 CIVIL The only witnesses to testify at the hearing were an assistant principal, C.C., and a psychologist on behalf of C.C. The assistant principal testified as follows: MR. GALLAGHER: On September l0th, 2001, Mr. Mancuso and myself were provided information regarding the presence of pills in an English class at the high school.3 On September 12th, 2001, we began calling the students from that class to the office. We asked the students if they witnessed anybody with pills or heard any information about the pills. While questioning one student, C.C.'s name came up as a student with a bottle of pills.4 ! did call C.C. to the office. When C.C. was questioned, he denied any involvement and stated the bottle of pills that were in question that ! asked him about were, in fact, a bottle of Tic Tacs, although he did not have the bottle of Tic Tacs with him at that time. We continued questioning students. After questioning another student who admitted to us that he did purchase pills from him - - I called C.C. in for more questioning. At that time, C.C. admitted to receiving a bottle of Aderol pills from another student to sell. He admitted to selling pills to a number of students in school on or about September 6th, 2001. He stated students usually paid a dollar for two pills. In addition, he stated he sold about three pain pills to another student for a dollar each. He gave some money back to the student who supplied the Aderol pills. The students who C.C. stated were sold pills were questioned and confirmed they received the pills from C.C.5 3 Notes of Testimony, p. 8. 4 Petitioners' counsel made several hearsay objections to portions of the assistant principal's testimony. These objections were properly overruled since the out of court statements were not offered for the truth of the matter asserted. Rather, as the assistant principal stated, they were offered to explain why C.C. was interviewed and reinterviewed regarding the incident. s Notes of Testimony, pp. 9-10. The hearsay objection to this last statement should have been sustained. Therefore, it cannot be used to support any findings of fact. Zajac v. Altoona Housing Authority, 156 Pa. Commonwealth 209, 626 A.2d 1271, (1993). 3 NO. 2001-6841 CIVIL When called as a witness by his own counsel, C.C. freely admitted his involvement in selling the pills. His testimony included the following: How much did you charge for these pills? It was a dollar for two pills. You received money? Yes. What did you do with the money? Gave it back to You gave it - - now, was the person you received the pills from? Yes. Did you give all the money back to ? Yes. You didn't keep any for yourself?. No. So now I've got to ask this question: why would you take such a risk, assume all the risk and turn all the money back to this other person and not keep any for yourself?. Well, basically ! just did it to try to look cool, like, make myself look - - ! don't know - - more popular. All it does is get me in trouble.6 On cross examination C.C. gave more details of his involvement: First, C.C. how many pills was it that you sold? Around, roughly about 60 to 65 pills. Now, did approach you, or did you approach about it? ! asked about why he was, you know, repeatedly jumping, like, a lot of active stuff, and he told me he had ADHD. And ! asked if he took any medication, and he told me he took Aderol. And ! had questioned him about if he ever decided to sell any, and he agreed with me. And he brought the pills the next day. Was it one conversation? It was - - well, there was one conversation. And then he said he was going to bring it the next day, and he didn't bring it. And then the next day ! asked that he bring it, and he brought it in the next day. Did he give you more - - 6 Notes of Testimony, pp. 27-28. 4 NO. 2001-6841 CIVIL Yes. Well, at the end of the day, I gave him the bottle back, and he refilled it and gave it to me the next day. And it happened for three days, three days. I gave him the empty bottle, and he refilled it for three days.? As to C.C.'s knowledge of what he was selling, the following exchange took place: Now, the person that provided you with the drugs, did he tell you or did they tell you that it was Aderol? Yes.8 DISCUSSION Due Process Violations. The Due Process Clause of the 14th Amendment to the United States Constitution mandates that a student facing expulsion "must be given some kind of notice and afforded some kind of hearing." Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729 (1975). The minimum due process requirements for expulsion proceedings in this Commonwealth are codified in Section 12.8 of the Rules and Regulations of the State Board of Education.9 Petitioners contend that South Middleton's Board violated subsections b(1) (vi) and (vii) of Section 12.8, which provide as follows: Hearings. (b) A formal hearing is required in all expulsion actions. (1) The following due process requirements are to be observed with regard to the formal hearing: (vi) The student has the right to request that any (witnesses against the student) appear in person and answer questions or be cross- examined. (vii) The student has the right to testify and present witnesses on his own behalf. Notes of Testimony, pp. 31-32. Notes of Testimony, p. 38. 22 Pa. Code § 12.8. NO. 2001-6841 CIVIL 22 Pa. Code 12.8 b(1) (vi) and (b)(1) (vii). Petitioners argue that the Board violated Section 12.8 (b)(1)(vi) because those students to whom C.C. had allegedly sold the controlled substances were not called as witnesses. However, those students were not central to the administration's case. They merely provided the background to explain why the investigation proceeded as it did. C.C.'s own admissions to administration officials provided both the basis for the charges and the evidence upon which the adjudication was based. Petitioners have not cited any authority for the proposition that Section 12.8 (b)(1)(vi) requires the District to call every witness to an alleged incident. The logical reading of that section would require the presence of only those witnesses upon whom the District relies to prove the charges. In the instant case, those witnesses were present and were subject to cross examination, l0 Petitioners further argue that the District violated Section 12.8(b)(1)(vii) when it failed to issue subpoenas to compel the attendance of certain students to testify on C.C.'s behalf. While that section gives the student "the right.., to present witnesses on his own behalf" it does not require the Board to compel the attendance of those witnesses. Petitioners have not cited, nor could we find, any authority in support of this proposition.~ Since there is nothing in the record to indicate that the Board prevented C.C. from calling any witnesses on his behalf, we find no violation of his due process rights. ~2 l0 Furthermore, the transcribed record does not contain any objection by petitioners' counsel to the absence of those witnesses. Therefore, the issue has been waived. Lewis v. School District of Philadelphia, 690 A.2d 814 (Pa. Commonwealth 1997). ~ Nor did petitioners cite any authority for the proposition that the Board even had the power to compel the attendance of those witnesses by supoena. ~: The transcribed record is also void of any objection by petitioners' counsel to the absence of his witnesses or his inability to compel their attendance. Therefore, this issue has likewise been waived. Lewis v. School District of Philadelphia, supra. 6 NO. 2001-6841 CIVIL Sufficiency of Evidence to Support Findings of Fact. Petitioners challenge the following findings of fact adopted by the Board: 3. Over a period of three school days beginning on or about September 6, 2001, while at the High School, Student sold 60-65 tablets of a controlled substance, the prescription medication Adderall, to other students at a price of two tablets for $1.00. 4. Over a period of three school days beginning on or about September 6, 2001, while at the High School, Student sold three tablets of an unidentified pain medication to other students at a price of $1.00 each. They argue that those findings of fact cannot stand without scientific evidence as to the nature of the substances sold by C.C. We disagree. We must accept the Board's findings of fact if they are supported by substantial evidence. "Substantial evidence has been described as 'more than a mere scintilla of evidence and that which a reasonable mind might accept as adequate to support a conclusion." Kish v. Annville-Cleona SchoolDist., 165 Pa. Commonwealth 336, 645 A.2d 361,364 (1994). In view of the admissions by C.C., both to the vice principal during the investigation and on the record at the hearing, the conclusion that he sold Aderol and an unidentified pain medication is supported by much more than a "mere scintilla" of evidence. ~3 13 We note that the Superior Court, applying the much more stringent standard of"beyond a reasonable doubt", upheld a defendant's conviction for possession with intent to deliver a controlled substance, even though there is no indication in the record that any controlled substance was admitted into evidence. Commonwealth v. Brown, 701 A.2d 252 (Pa. Super. 1997). The conviction was based primarily upon the testimony of two drug users who stated that defendant directed them to members of his ring, from whom they regularly purchased drugs. They also testified that defendant boasted of making "$15,000 per week from the sale of drugs." Id. at 253. Holding that the evidence was sufficient to sustain the verdict, the Superior Court noted that "The trial court obviously found (the drag users') testimony credible." Id. at 254. 7 NO. 2001-6841 CIVIL For the foregoing reasons, we are satisfied that C.C.'s constitutional rights were not violated. We are further satisfied that the challenged findings of fact are supported in the record by substantial evidence. Therefore, we must affirm the Adjudication and Order of the Board. ORDER OF COURT AND NOW, this 24TM day of JANUARY, 2002, upon consideration of the appeal from the Adjudication and Decision of the Board of School Directors of South Middleton School District dated November 5, 2001, and upon review of the record created and stenographically recorded in connection therewith, the Adjudication and Decision of the Board is AFFIRMED and the Appeal is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Galen R. Waltz, Esquire For the Plaintiff Philip H. Spare, Esquire For the South Middleton School District :sld NO. 2001-6841 CIVIL 9