Kish on Behalf of Kish v. Annville-Cleona School Dist., ANNVILLE-CLEONA

• Citation: 165 Pa.Cmwlth. 336,645 A.2d 361
• Decision Date: 23 June 1994
• Docket Number: ANNVILLE-CLEONA
• Parties: , 93 Ed. Law Rep. 819 Lawrence L. KISH and Mildred I. Kish, on Behalf of their minor child, David KISH v.SCHOOL DISTRICT and Board of School Directors of Annville-Cleona School District, Appellants.
• Court: Commonwealth Court of Pennsylvania

Page 361

645 A.2d 361

165 Pa.Cmwlth. 336, 93 Ed. Law Rep. 819

Lawrence L. KISH and Mildred I. Kish, on Behalf of their minor child, David KISH v. ANNVILLE-CLEONA SCHOOL DISTRICT and Board of School

Directors of Annville-Cleona School District, Appellants.

Commonwealth Court of Pennsylvania.

Argued April 11, 1994.

Decided June 23, 1994.

Robert W. Feeman, for appellants.

Gerald J. Brinser, for appellees.

Before SMITH and KELLEY, JJ., and LORD, Senior Judge.

LORD, Senior Judge.

The Annville-Cleona School District (school district), by its board of directors, appeals a Lebanon County Court of Common Pleas order reversing the School District's decision to expel David Kish. The Pennsylvania School Boards Association participates in this appeal as amicus curiae.

David Kish was an eleventh grade student at Annville-Cleona High School in the 1992-1993 academic year. On December 23, 1992 Kish obtained keys to interior and exterior doors of the school and copied them. It was a violation of school district policy to have possession of these keys. On February 10, 1993, a school computer was stolen from the high school. A month later, the stolen computer was recovered from the bedroom closet of another student.

Kish was suspended from school for three days for the unauthorized possession of the keys. He was shortly thereafter suspended for an additional seven days for possession of the school keys and the alleged theft of the school computer.

The school district board held a formal hearing and, after consideration of the evidence presented, voted to adopt the school district administration's recommendation to expel David Kish permanently. ¹

The evidence the school district board considered included the testimony of David Kish, his parents, the student from whose house the computer was recovered, other students, and the investigating officer for the township police.

David's testimony was that he was given the school keys temporarily by a teacher, that he did not return them immediately but had duplicates made, that he gave a key to the other student and that he did not steal the computer.

The other student testified that he also had a duplicate key, which he got from David, that David had driven by his work place the evening the computer was stolen, that David asked him to keep the computer, and that David transferred the computer from his car into the other student's car trunk.

The investigating officer, Officer Sutcliffe, testified that, on information he received that the stolen computer was in the other student's possession, he went to that student's home and found the computer in the student's bedroom closet. The student told Officer Sutcliffe that David Kish had delivered the computer to him and wanted him to keep it. The officer then took the other student to David Kish's house where, in the presence of David's parents, he confronted David with the other student's version of the events. Officer Sutcliffe testified that David denied having anything to do with the stolen computer. He also testified that David said he had found the school keys.

David Kish's parents, on his behalf, appealed the decision to expel to the common pleas court, challenging it on the ground that the presence of the superintendent of schools, the head of the school administration seeking David Kish's permanent expulsion, was prejudicial to the board's deliberation. The Kishes also offered what they contended was after-discovered evidence establishing David Kish's credibility.

The court, on consideration of this challenge, vacated the school district's decision and remanded the matter to take additional testimony on the superintendent's participation as well as on the other evidence offered by the Kishes. Another hearing was held, after which the school district board arrived at the same decision.

The Kishes then appealed this decision to the common pleas court, which, without taking additional evidence, reversed the school district decision and ordered David Kish reinstated to school with full participation in all activities as a student of the district.

The school district now challenges the common pleas court's decision on three grounds, each based on that court's limited scope of review under the Local Agency Law. ² The school district maintains that the court exceeded its scope of review when, without conducting de novo proceedings, it substituted its discretion for that of the school district. The court improperly engaged in the re-weighing of evidence and, in effect, substituted its credibility determinations for those of the school district board. Further, says the school district, the court exceeded its limited review powers by reducing the punishment imposed by the school district board though finding that David Kish had violated school regulation.

The starting point for our inquiry begins at Section 754(b) of the Local Agency Law.

Complete record. In the event 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. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedures of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).

This Court has long held that, under this provision, a court on appeal may not substitute its judgment for that of a local school district, Appeal of Marple Newton School District, 27 Pa.Commonwealth Ct. 588, 367 A.2d 399 (1976), unless a record must be made before that court, in which case, in de novo proceedings, the court is empowered to make its own findings of fact and impose a new penalty. Tomlinson v. Pleasant Valley School District, 84 Pa.Commonwealth Ct. 518, 479 A.2d 1169 (1984). Otherwise, a court is bound to affirm the local agency adjudication unless there has been a violation of constitutional rights, an error of law, a violation of agency procedure, or a lack of substantial evidence to support key findings of fact. Only then is a trial court empowered to enter an order modifying the adjudication of the lower tribunal pursuant to 42 Pa.C.S. § 706.

Here, the trial court held that the following two findings of fact, which are crucial to a conclusion that David Kish stole the computer, were not supported by substantial evidence:

On February 10, 1993, between 6:30 and 7:00 p.m., David Kish came to the store where fellow student Erik Lynagh was working. At the time, David Kish had a computer in his possession which he told Erik Lynagh he had taken from Miss Eschenfelder's room at the High School. He told Eric Lynagh that he had used a master key to enter the classroom.

David Kish asked Erik Lynagh to keep the computer. David Kish put the computer in the trunk of Erik's car, and Erik took it home and put it in his closet. He kept the computer in his bedroom closet at home until March 11, 1993, when a police officer came to his house to recover it.

The school district quarrels with the rationale the common pleas court...