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HomeMy WebLinkAbout96-4937 CivilIN RE: RESIDENCE HEARING : BEFORE THE BOARD OF SCHOOL : DIRECTORS, CUMBERLAND VALLEY : SCHOOL DISTRICT, T. TOE : THANE and PHYU K. THANE : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-4937 CIVIL TERM IN RE: LOCAL AGENCY APPEAL BEFORE OLER, J. ORDER OF COURT AND NOW, this 2~day of March, 1997, upon consideration of Appellants' Petition for Review and the record certified by the Board of School Directors of the Cumberland Valley School District, and for the reasons stated in the accompanying opinion, the Board's determination that Lynn Thane was not a resident of the Cumberland Valley School District is REVERSED and the case is REMANDED to determine whether Appellants are entitled to reimbursement for Lynn Thane's education at the Pathway School. Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Appellee Vivian B. Narehood, Esq. 41 East Orange Street Lancaster, PA 17602 Attorney for Appellants : rc BY THE COURT, Wesley Oler r., J. ~ IN RE: RESIDENCE HEARING : BEFORE THE BOARD OF SCHOOL : DIRECTORS, CUMBERLAND VALLEY : SCHOOL DISTRICT, T. TOE : THANE and PHYU K. THANE : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-4937 CIVIL TERM IN RE: LOCAL AGENCY APPEAL BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., March 25, 1997. This case is an appeal under the Local Agency Act from an adjudication of the Board of School Directors of the Cumberland Valley School District,~ dated August 8, 1996, determining that Lynn Thane, the child of T. Toe Thane and Phyu K. Thane, was not a resident of the school district. For the reasons stated in this opinion, the Board's determination that Lynn Thane was not a resident of the Cumberland Valley School District will be reversed and the case will be remanded for a determination of whether Appellants are entitled to reimbursement for Lynn Thane's education at the Pathway School. STATEMENT OF FACTS Appellants, Phyu K. Thane and her husband T. Toe Thane (the Thanes), are the parents of two male children, Lynn and Wynn Thane.2 In August of 1995, Lynn was 12 years old and Wynn was 10 ~ See Act of April 28, 1978, P.L. 202, § 5, 2 Pa. C.S.A. 751 et seq. 2 Certified Record, Item #4 (Transcript of Proceedings of Hearing Before the Board of School Directors on June 3, 1996), N.T. 12 (hereinafter N.T. __). NO. 96-4937 CIVIL TERM years old.3 At that time, Wynn had been admitted to a private school, the Harrisburg Academy, as a fifth grade student for the 1995-96 school year.4 The Thanes decided that Wynn needed to live within commuting distance of the school,s Therefore; on August 12, 1995, the Thanes signed a one-year lease for a two-bedroom townhouse located at 4182 Nantucket Drive, Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania.6 Phyu K., Lynn, and Wynn Thane proceeded to move into the townhouse at the end of August, 1995.? Phyu K. Thane moved into the townhouse in order to take care of her son, Wynn, while he attended the Harrisburg Academy.8 Because Phyu K. Thane also provided primary care for her other son, Lynn, he moved into the Mechanicsburg townhouse in order to live with his mother.9 Clothing, books, and other personal items were moved to the townhouse.~° ~ See Certified Record, Item #4, Administration Ex. #4 (Pupil Registration and Assignment Form dated August 9, 1995). 4 N.T. 13-14, 32. ~ Id. N.T. 41-42; Certified Record, Item #4, Thane Ex. #1 (lease). 7 N.T. 12-13, 19. 8 N.T. 13, 55. ~ Id. ~0 N.T. 20. 2 NO. 96-4937 CIVIL TERM Phyu K. Thane enrolled Lynn at the Good Hope Middle School of the Cumberland Valley School District because it was the local school district which serviced students residing in the area where the Mechanicsburg townhouse was located.~ Lynn was accepted at the Good Hope Middle School as a sixth grade special-needs student in August of 1995.~2 An Individualized Educational Program (IEP) was established for Lynn at Good Hope Middle School.~3 Phyu K. Thane obtained a certificate of residency from the Cumberland Valley School District in order to attend Harrisburg Area Community College classes.TM She paid personal taxes to Hampden Township~5 for the 1996 tax year.~6 The Cumberland Valley School District sent correspondence to Phyu K. Thane at the Mechanicsburg townhouse.~7 Phyu K. Thane also received telephone ~ N.T. 15-16. ~2 N.T. 16, 44; Certified Record, Item #4, Administration Ex. #4 (Pupil Registration and Assignment Form dated August 9, 1995). ~3 N.T. 56. ~4 N.T. 16-17; Certified Record, Item #4, Thane Ex. (certificate of residence dated December 11, 1995). #3 ~5 Hampden Township is one of four township areas which are included in the Cumberland Valley School District. Cumberland Valley School District's Brief in Support of Adjudication Dated August 8, 1996, at 3 n.1. ~6 N.T. 18; Certified Record, Item #4, Thane Ex. #4 (tax receipt). ~? N.T. 21; Certified Record, Item #4, Thane (correspondence from Cumberland Valley School District). Ex. #7 NO. 96-4937 CIVIL TERM calls from the Cumberland Valley School District at the Mechanicsburg townhouse on various occasions.18 The school bus for the Good Hope Middle School picked Lynn up at the Mechanicsburg townhouse in the morning and dropped him off at the Mechanicsburg townhouse at the end of the school day.19 Phyu K., Wynn, and Lynn Thane lived at the Mechanicsburg townhouse during the day and slept there at night.2° Approximately two weekends each month Phyu K., Wynn, and Lynn Thane visited a house located at 946 Dewberry Court, Chambersburg Pennsylvania.2~ The house in Chambersburg was owned jointly by the Thanes.22 Before moving to the Mechanicsburg townhouse, Phyu K. Thane had lived at the house in Chambersburg with her husband, T. Toe Thane.23 Phyu K. Thane first moved to the Chambersburg area in 1982.24 When Phyu K. Thane moved to Mechanicsburg in 1995, T. Toe Thane remained at the Chambersburg address.2s T. Toe Thane visited Phyu K., Lynn, and 18 19 2O 21 22 #1 (deed). N.T. 27. N.T. 26. N.T. 19. N.T. 21-22. N.T. 22. N.T. 20. N.T. 20-21, 44-45. N.T. 27-28; Certified Record, Item #4, Administration Ex. 4 NO. 96-4937 CIVIL TERM Wynn Thane at the Mechanicsburg townhouse on some weekends.26 Phyu K., Lynn, and Wynn Thane spent vacations with T. Toe Thane at the Chambersburg house.27 About a month after Lynn started at Good Hope Middle School, he was hospitalized and diagnosed with Tourette's syndrome.28 Upon the advice of a specialist in Tourette's syndrome, Dr. Peter Meyer, the Thanes took Lynn out of Good Hope Middle School and placed him in a residential program at the Pathway School, a private school specializing in the education of children with disorders such as Lynn's.29 This occurred at the end of October, 1995.30 The Thanes, then, requested that the Cumberland Valley School District approve the placement of Lynn at the Pathway School and authorize payment of his tuition.3~ On May 2, 1996, the Cumberland Valley School District informed the Thanes that Lynn was not considered to be a resident of the Cumberland Valley School District and was, therefore, not entitled to any educational benefits from Cumberland Valley, including tuition payments for his N.T. 44-45. N.T. 37. N.T. 59-60. N.T. 42, 60-61, 63. N.T. 58. See N.T. 11, 22-23. 5 NO. 96-4937 CIVIL TERM education at the Pathway School.32 The Thanes appealed this decision by filing a notice of appeal with the Board of School Directors of the Cumberland Valley School District (hereinafter the Board), dated May 10, 1996.TM A hearing was held before the Board on June 3, 1996, to determine whether Lynn Thane was a resident of the Cumberland Valley School District.~4 Under section 1302 of the School Code, a child is considered to be "a resident of the school district in which his parents or the guardian or his person resides.''~s By regulation, "[a] school-age child is entitled to attend the public schools of the child's district of residence."36 A special-needs child is entitled to a free appropriate public education from the school district in which he or she resides.~7 If a public school does not provide an appropriate education, the school district may be ordered to pay for the child's education at a private school.38 32 Certified Record, Item #1 (Copy of Administration decision dated May 2, 1996). 33 Certified Record, Item #2 (Notice of Appeal from Attorney Narehood dated May 10, 1996). Certified Record, Item #1. 3s Act of March 10, 1949, P.L. 30, § 1302, as amended, 24 P.S. 13-1302. 36 22 Pa. Code ~ 11.11. 37 22 Pa. Code § 14.3(d)(4). ~ Florence County School District Four v. Carter, 510 U.S. 7, 114 S. Ct. 361, 126 L. Ed. 2d 290 (1993). NO. 96-4937 CIVIL TERM On August 8, 1996, the Board issued an adjudication determining that Lynn was not a resident of the Cumberland Valley School District.39 In the adjudication, the Board chose to use the concept of "primary residence" in interpreting the meaning of "resident" and "resides" in section 1302 of the School Code.4° The Board defined the term "primary residence" as being "more like domicile" than not.4~ The Board asserted that its interpretation of "resident" and "resides" in the School Code was correct because (1) there is a close association between the terms "residence" and "domicile" in Pennsylvania jurisprudence;42 (2) defining "resident" or "resides" as something less than "domicile" would lead to an absurd and unreasonable result, because it would enable a child to be a resident of two school districts at the same time;43 and (3) a definition which did not include the concept of "domicile" would burden school districts because parents would be able to send their children to school in a district where they did not pay property taxes.44 39 Certified Record, Item #5 (adjudication of the Board of School Directors dated August 8, 1996). See certified Record, Item #5, at 10-11. Certified Record, Item #5, at 10. Certified Record, Item #5, at 10, 14-15. Certified Record, Item #5, at 10, 15-16. Certified Record, Item #5, at 16. 7 NO. 96-4937 CIVIL TERM In defining the terms "resident" and "resides," the Board reasoned that, because a person can have only one "domicile," a person can also have only one "primary residence."4s The Board also concluded that because a "domicile," once established, is presumed to continue to exist until another "domicile" is affirmatively proven, Phyu K. Thane had to affirmatively establish that her "primary residence" in Chambersburg had ended by the establishment of a new "primary residence" in Mechanicsburg before Mechanicsburg could be considered to be the school district of residence under the School Code.46 According to the Board, Phyu K. Thane failed to prove this and, therefore, continued to be a "resident" of Chambersburg and could not be considered a "resident" of the Cumberland Valley School District for purposes of the School Code.47 Consequently, Lynn was also considered a "resident" of Chambersburg and not the Cumberland Valley School District. The Thanes filed a petition for review appealing the adjudication of the Board with this court on September 5, 1996. Appellee was directed to file a certified record, and oral argument was heard on October 15, 1996. Certified Record, Item #5, at 10-11. Certified Record, Item #5, at 11. Certified Record, Item #5, at 17-18. 8 NO. 96-4937 CIVIL TERM SCOPE OF REVIEW In local agency appeals, when a "full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency." Act of April 28, 1978, P.L. 202, §5, 2 Pa. C.S.A. S754(b). The court is to affirm the decision of the local agency unless (1) the constitutional rights of the appellants were violated; (2) an error of law was committed; (3) there were procedural errors; or (4) a finding of fact necessary to support the decision of the local agency was not supported by substantial evidence in the record. Id.; Appeal of McClellan, 82 Pa. Commw. 75, 78, 475 A.2d 867, 869 (1984). A "party may not raise upon appeal any other question not raised before the agency ... unless allowed by the court upon due cause shown." Act of April 28, 1978, P.L. 202, §5, 2 Pa. C.S.A. ~ 753(a). DISCUSSION In Pennsylvania, a child is considered "a resident of the school district in which his parents or the guardian of his person resides." Act of March 10, 1949, P.L. 30, § 1302, as amended, 24 P.S. § 13-1302. The terms "resident" and "resides" are not defined in the School Code. In interpreting the meaning of these terms, a court must keep in mind that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." Act of May 28, NO. 96-4937 CIVIL TERM 1937, P.L. 1019, S 51, 1 Pa. C.S.A. § 1921(a). The intention of the General Assembly may be ascertained by considering factors which include, inter alia, the object to be attained by the statute, former law, and the consequences of a particular interpretation. Id. § 1921(c). Furthermore, in interpreting the meaning of undefined terms in statutes, "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning ... shall be construed according to such particular and appropriate meaning .... " Id. § 1903(a). "The Courts of this Commonwealth have historically recognized the classic definitions of the words domicile and residence." Norman v. Pennsylvania National Ins. Co., Pa. Super. __, , 684 A.2d 189, 191 (1996), quoting Amica Mutual Ins. Co. v. Donegal Mutual Ins. Co., 376 Pa. Super. 109, 115, 545 A.2d 343, 346 (1988). "Domicile [is] that place where [people have their] true, fixed and permanent home and principal establishment, and to which whenever [they are] absent [they have] the intention of returning." Id. "Residence," in contrast, is "a factual place of abode" evidenced by a person's physical presence in a particular place. Id. In enacting the School Code, the legislature chose to use the terms "resident" and "resides," not "primary residence" or "domicile," the terms favored by the Board. The Pennsylvania 10 NO. 96-4937 CIVIL TERM Supreme Court has noted that a certain amount of confusion exists in the use of the terms "domicile" and "residence" because, while a person's "residence" is not necessarily his or her "domicile," a person's "domicile" may also be his or her "residence." In re Lesker, 377 Pa. 411, 416-18, 105 A.2d 376, 379-80 (1954). Adding to this confusion is the fact that, in certain contexts, courts interpret terms such as "legal residence" as "domicile." Id. However, when the word "resident" is used without additional words of refinement such as "permanent" or "legal," it is generally interpreted according to its classic meaning. Norman v. Pennsylvania National Ins. Co., Pa. Super. , , 684 A.2d 189, 191 (1996). The section of the School Code at issue in this case uses the terms "resident" and "resides" without any refinements. There is, therefore, nothing in the School Code which indicates that the terms "resident" and "resides" should be given special meanings beyond their classic definitions. We are constrained to conclude, therefore, that the Board was mistaken in determining that the terms "resident" and "resides" should be interpreted as "primary residence" and having an import in the nature of "domicile." Using the classic definition of "residence" to interpret "resident" and "resides" in the School Code, the court concludes that Phyu K. Thane has been a "resident" of the Cumberland Valley School District for purposes of the School Code since August of 11 NO. 96-4937 CIVIL TERM 1995. Phyu K. Thane's factual place of abode is her leased townhouse located at 4182 Nantucket Drive, Mechanicsburg, Cumberland County, Pennsylvania. She does not just visit the townhouse; she actually lives there; clothes, books, and supplies are kept there; she stays there during the days and sleeps there at night; she receives mail and phone calls there; and she was there whenever Lynn got on the school bus to Good Hope Middle School in the morning and when the school bus dropped him off at the end of the day. All of these facts indicate that Phyu K. Thane physically lives at the Mechanicsburg townhouse and is, therefore, a resident of the Cumberland Valley School District. As "a general rule ... a minor has the same residence and domicile as the parent with whom he lives." Mathias v. Richland School District, 140 Pa. Commw. 298, 301, 592 A.2d 811, 812 (1991), quoting Fossleitner Appeal, 435 Pa. 325, 333-34, 257 A.2d 522, 525- 26 (1969). Since Lynn lived with his mother at the Mechanicsburg townhouse, it follows that Lynn Thane has also been a resident of the Cumberland Valley School District since August of 1995. It is noted that, because Lynn does not physically live with his father, he would not be considered a resident of the school district in which his father resides and would not simultaneously be treated as a resident of more than one school district. These conclusions are further strengthened by the fact that, in interpreting School Code section 1402 of the Act of May 19, 12 NO. 96-4937 CIVIL TERM 1911, P.L. 309, as amended, which is identical to the School Code provision at issue in this case, the Pennsylvania Superior Court determined that the terms "resident" and "resides" should not be understood to mean "domicile." School District of Borough of Ben Avon v. School District of Pittsburgh, 77 Pa. Super. 75, 80 (1921). Noting that the "purpose at the base of our common school laws is to provide all children residing within the Commonwealth with a good common school education," the Court concluded that, because the child is "the paramount object" of the school law, the child's "education, and not the exact apportionment of its cost among various subdivisions of the Commonwealth is its chief concern." Id. at 79. "Hence a child whose parents reside in a district may go to school there, whether or not his parents are legally domiciled there, are entitled to vote there, or are taxed there, and the cost thereof may not be shifted to the district of his parents' domicile." Id. In accordance with this reasoning of the Superior Court, the fact that a school district may not be able to collect a certain tax from the parent of a child attending its schools can not be considered conclusive on the subject of the present litigation. Finally, it is noted that "a court may order reimbursement for parents who unilaterally withdraw their'child from a public school that provides an inappropriate education under IDEA [Individuals with Disabilities Education Act] and put the child in a private 13 NO. 96-4937 CIVIL TERM school that provides an education that is otherwise proper under [the act] .... " Florence County School District Four v. Carter, 510 U.S. 7, , 114 S. Ct. 361, __, 126 L. Ed. 2d 285, 290 (1993). However, it is not clear whether the education provided by the Good Hope Middle School to Lynn Thane was inappropriate under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. Therefore, the matter will be remanded for a determination of whether the Thanes are entitled to reimbursement for Lynn's education at the Pathway School under the Individuals with Disabilities Education Act. In view of our disposition in this case, as well as the fact that "a party may not raise upon appeal any other question not raised before the agency ... unless allowed by the court upon due cause shown,''48 it is not necessary to adjudicate other issues raised by Appellants, not all of which have in any event been briefed.49 It may be observed, however, in regard to Appellants' claims that the Board discriminated against Lynn Thane on the basis of his disability in order to "evade costs which the disability entails,"s° and that Appellants should be awarded unspecified "com- 48 Act of April 28, 1978, P.L. 202, § 5, as amended, 2 Pa. C.S. §753(a). 49 "Issues raised, but not briefed, shall be deemed abandoned." Rule 210-7, adopted November 27, 1985, effective January 1, 1986. s0 Petition for Review, paragraph 29. 14 NO. 96-4937 CIVIL TERM pensatory damages in the form of costs, attorney's fees and compensation for the humiliation to which they were subjected before the Board,"5~ that the record does not support a conclusion that the Board's interpretation of the words "resident" and "resides" in the School Code was dilatory, obdurate, vexatious, arbitrary, or in bad faith. Nor can it be said at this stage of the proceedings that Lynn Thane's rights under the Individuals with Disabilities Education Act, the Rehabilitation Act, 29 U.S.C. §794(a), or the Americans with Disabilities Act, 42 U.S.C. S§ 12101 et seq., were violated. An award of attorney's fees under the Act of July 9, 1976, P.L. 586, § 2, 42 Pa. C.S. ~ 2503 would be similarly inappropriate under these circumstances. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 25th day of March, 1997, upon consideration of Appellants' Petition for Review and the record certified by the Board of School Directors of the Cumberland Valley School District, and for the reasons stated in the accompanying opinion, the Board's determination that Lynn Thane was not a resident of the Cumberland Valley School District is REVERSED and the case is REMANDED to determine whether Appellants are entitled to reimbursement for Lynn Petition for Review, paragraph 40. 15 NO. 96-4937 CIVIL TE~ Thane,s education at the Pathway School. BY THE COURT, Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Appellee Vivian B. Narehood, Esq. 41 East Orange Street Lancaster, PA 17602 Attorney for Appellants : rc · Wesley Oler, Jr., j. 16