de novo review may consist of a school board’s record and additional testimony
How later courts described this case
- de novo review may consist of a school board’s record and additional testimony
- on de novo review, the trial court may accept the agency record plus new evidence
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
G.W., a minor by his parent :
and guardian, H.W. :
:
v. :
:
Avonworth School District, : No. 1199 C.D. 2022
Appellant : Submitted: May 8, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY
JUDGE COVEY FILED: June 2, 2023
Avonworth School District (School District) appeals from the
Allegheny County Common Pleas Court’s (trial court) October 3, 2022 order
sustaining the appeal by G.W. (Student), a minor, by his parent and guardian, H.W.
(Father), and reversing the School District Board of Directors’ (Board) adjudication
that Student was not a School District resident. Essentially, the School District
presents four issues for this Court’s review: (1) whether the School District or
Student had the burden of proving Student’s non-residency; (2) whether the trial
court erred by reopening the record; (3) whether substantial evidence supported the
Board’s adjudication; and (4) whether the trial court erred by reversing the Board’s
adjudication without conducting a hearing.1 After review, this Court affirms.
Father enrolled Student in the School District in 2016. During the
2021-2022 school year, Student attended the technical school at A.W. Beattie Career
Center (Career Center) in the mornings, and participated in the School District’s
1
This Court has consolidated and renumbered the School District’s issues for ease of
discussion. See School District’s Br. at 5.
classes by cyber school in the afternoons.2 Father and Student’s mother, J.W.
(Mother), are separated. Father resides at 8228 Ohio River Boulevard, Apartment
46, Emsworth, Pennsylvania, which is in the School District. Mother resides at 101
Marie Avenue, Avalon, Pennsylvania, which residence is jointly owned by Father
and Mother, and located in the Northgate School District. Father and Mother have
a verbal agreement regarding their custody of Student and his sister. See Original
Record, Mother’s 7/19/2022 Notes of Testimony (N.T.) at 24.
In the fall of 2021, the School District received a tip from a community
member that Student did not reside within the School District’s boundaries. As part
of its investigation into Student’s residency status, the School District hired CSI
Investigation Risk Management (CSI) to conduct surveillance. CSI’s surveillance
consisted of observing Mother’s address in the early morning hours of Friday,
October 15, Monday, October 18, Thursday, October 21, Wednesday, October 27,
Friday, October 29, Thursday, November 4, and Wednesday, November 10, 2021.
See Reproduced Record (R.R.) at 109a-113a. According to CSI, on each of those
occasions, Student exited Mother’s residence between 7:14 a.m. and 7:21 a.m. and
entered a black sport utility vehicle operated by a female and registered to Mother.
See id.; see also N.T. at 20. CSI investigator John Oldham (Investigator) admitted
that he did not determine whether there was a street or alley behind Mother’s
residence, whether there was an entrance/exit door on the other side of Mother’s
house, or whether anyone entered or exited from another side of Mother’s house.
See R.R. at 33a, 43a-44a. Investigator did not conduct surveillance in the afternoon
to determine whether Student returned to Mother’s residence. See R.R. at 38a.
Investigator added that he was not asked to conduct surveillance at Father’s
residence. See R.R. at 35a.
2
At that time, Student was a junior in high school. See Reproduced Record at 15a.
2
On November 11, 2021, the School District sent a notice to Father
informing him that it had determined that Student had been living with Mother in
the Northgate School District and, thus, Student was not a School District resident
entitled to a free public education therein (Notice). See R.R. at 103a-104a. The
Notice further informed Father of his right to a Board hearing. Father requested a
Board hearing, which was conducted before a Hearing Officer on February 8, 2022.
See R.R. at 4a-89a, 106a.
At the hearing, the School District presented Investigator’s testimony
regarding CSI’s surveillance, and the Career Center’s attendance records showing
that Student attended school each of the days Investigator observed him exiting
Mother’s residence. See R.R. at 19a-46a, 48a-50a. The School District also
presented the testimony of Superintendent Jeff Hadley, Ph.D. (Dr. Hadley), who
recalled that he met with Father and Mother on January 6, 2022, and he “hear[d]
[Mother] make the statement that [Student] has been staying with her at Marie
Avenue.” R.R. at 50a. Dr. Hadley did not ask Mother to clarify her statement. See
R.R. at 52a.
Student presented Father’s testimony. Father did not dispute Dr.
Hadley’s recollection of Mother’s statement, and even added that Student “splits
time between [Father’s] residence and [] [M]other’s residence . . . .” R.R. at 71a.
When asked: “Does [Student] stay with you at your apartment in Emsworth?” Father
responded: “Sometimes, yes.” R.R. at 71a. Father described that Student has his
own room at each residence. See R.R. at 72a. Father added that when Student stays
with him, he drops Student off at the rear of Mother’s residence between 5:30 a.m.
and 6:00 a.m. and picks up his tools/materials before continuing to work at G&J
3
Waterproofing a block away.3, 4
See R.R. at 68a-69a. After reviewing the
surveillance video, Father declared: “[I]t is possible one or two of these [dates,
Student] stayed at [] [M]other’s, but the majority of the time [wa]s because he [wa]s
coming through the back” of Mother’s residence. R.R. at 78a; see also R.R. at 80a.
On February 14, 2022, the Board held that the School District had met
its burden of proving that Student lived with Mother and, thus, was not a School
District resident, and Father failed to prove otherwise. See R.R. at 133a-140a.
Accordingly, the Board held that the School District was not obligated to provide
Student a free public education.
On March 14, 2022, Student appealed to the trial court. On April 4,
2022, the parties jointly stipulated that Student would continue to attend school in
the School District pending resolution of the appeal. See R.R. at 152a-154a. On
May 6, 2022, the trial court conducted a conference. On May 27, 2022, the trial
court ordered that the parties may depose Mother and thereafter file briefs, which
they did.5
On October 3, 2022, the trial court sustained Student’s appeal, stating,
in pertinent part:
1. No surveillance was conducted on any back or side
entrance to Mother’s residence, no surveillance was done
of Mother’s residence at any time during the school day or
after school, and no surveillance at all was done at Father’s
residence[.]
3
Over the School District’s objection, the trial court gave Student’s counsel latitude to
allow Father’s brief explanation that, based on a school counselor’s recommendation regarding
Student’s past self-destructive behavior, Father and Mother make it a point not to leave Student
alone. See R.R. at 62a, 64a-65a, 72a-73a.
4
Father presented two additional pieces of evidence that the Board declined to admit into
the record because one was irrelevant and the other was not authenticated and could not be cross-
examined.
5
Student conducted Mother’s deposition on July 19, 2022, over the School District’s
objection.
4
2. Dr. Hadley testified that Mother told him that [Student]
was “staying” with her, but had no details about what
“staying” meant with regard to how much time [Student]
was spending at [] [M]other’s house[.]
3. The [H]earing [O]fficer determined that the School
District had the burden of proof in this case . . . , which
was not disputed by the [S]chool [D]istrict[.]
4. Therefore, [the trial court] find[s] that the School
District did not offer substantial evidence that [Student]
lives more than 50% of the time with [] [M]other[.]
Trial Ct. 10/3/2022 Order at 1 (R.R. at 246a-247a).
The School District appealed to this Court.6 On October 31, 2022, the
trial court ordered the School District to file a concise statement of the errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
(Rule) 1925(b), which the School District did. On December 19, 2022, the trial court
filed its opinion pursuant to Rule 1925(a) (1925(a) Opinion).
6
A school board is a local agency and its “final decision . . . is an
adjudication subject to review by this Court pursuant to Section 754
of the [Local] Agency Law, 2 Pa. C.S. § 754.” Monaghan v. Bd. of
Sch. Dir[s.] of Reading Sch. Dist., . . . 618 A.2d 1239, 1241 ([Pa.
Cmwlth.] 1992) (footnote omitted). Here, [the trial court] did not
take any additional evidence and, therefore, we apply the well-
settled principle []:
[W]here a local agency develops a complete record and
[the trial court] takes no additional evidence, our scope of
review is limited to whether the local agency’s adjudication
violated appellant’s constitutional rights, committed [an]
error of law or violated provisions of the local agency law,
or made findings of fact necessary to support its
adjudication which were not supported by substantial
evidence.
Id.
Whitacker-Reid v. Pottsgrove Sch. Dist., Bd. of Sch. Dirs., 160 A.3d 905, 912 n.13 (Pa. Cmwlth.
2017).
5
Initially, Section 1302(a) of the Public School Code of 1949 (School
Code),7 which sets forth the residency requirements for free attendance at public
schools, declares, in relevant part: “A child shall be considered a resident of the
school district in which his parents or the guardian of his person resides.” 24 P.S. §
13-1302(a).
“Residence” for the purpose of Section 1302(a) [of the
School Code] is “a factual place of abode evidenced by a
person’s physical presence in a particular place,” but it
does not have to be the person’s principle residence or
domicile. [In re Residence Hearing Before Bd. of Sch.
Dirs.,] Cumberland Valley [Sch. Dist.], 744 A.2d [1272,]
1274-75 [(Pa. 2000)]. The purpose of Section 1302(a) [of
the School Code] is to prevent “school shopping.” Paek
[v. Pen Argyl Area Sch. Dist.], 923 A.2d [563,] 567 [(Pa.
Cmwlth. 2007)][.]
Whitacker-Reid v. Pottsgrove Sch. Dist., Bd. of Sch. Dirs., 160 A.3d 905, 916 (Pa.
Cmwlth. 2017).
Section 11.11(a)(1) of the Pennsylvania Department of Education’s
(Department) Regulations instructs, in pertinent part:
When the parents reside in different school districts due to
separation, divorce or other reason, the child may attend
school in the district of residence of the parent with whom
the child lives for a majority of the time, unless a court
order or court approved custody agreement specifies
otherwise. If the parents have joint custody and time is
evenly divided, the parents may choose which of the two
school districts the child will enroll for the school year.[8]
22 Pa. Code § 11.11(a)(1).
The School District argues that the trial court erred by first concluding
that the School District had the initial burden of proving Student’s non-resident
7
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 - 27-2702.
8
Student in this case did not argue that Father and Mother “have joint custody and the time
is evenly divided[.]” 22 Pa. Code § 11.11(a)(1).
6
status, then declaring in its 1925(a) Opinion that Student had the burden of proving
his non-residency.9
Although the Whitacker-Reid Court observed that “[t]he precedent in
these matters is not clear on which party bears the burden of proof[,]” id. at 917 n.18,
the issue was waived in that case. This Court observes that Section 11.11(b) of the
Department’s Regulations requires parents and guardians to supply proof of a
student’s residency at enrollment. See 22 Pa. Code § 11.11(b) (“The school district
. . . has no obligation to enroll a child until the parent, guardian or other person . . .
making the application has supplied proof of the child’s age, residence, and
immunizations as required by law.”). Moreover, this Court has ruled that “‘[t]he
sole purpose [of a residency hearing is] to ensure that sufficient evidence exist[s] to
substantiate [a school district’s] determination that [the parents] were not residents’
of the school district.” Whitacker-Reid, 160 A.3d at 916 (quoting Cumberland
Valley, Behm v. Wilmington Area Sch. Dist., 966 A.2d 60, 66 (Pa. Cmwlth. 2010)
(emphasis added)).
Further, in H.R. v. Shaler Area School District (Pa. Cmwlth. No. 1008
C.D. 2020, filed Jan. 5, 2022),10 this Court concluded:
9
Student retorts that the School District waived this argument. However, it appears that
the School District’s challenge is that the trial court declared in its October 3, 2022 order that the
School District had the burden of proof at the residency hearing, but then held in its December 21,
2022 1925(a) Opinion that Student had the burden. Because the School District could not have
made that argument before the trial court issued its 1925(a) Opinion, the School District did not
waive the argument by not raising it earlier. Further, this Court observes that, in the October 3,
2022 order, the trial court made a finding that the Hearing Officer placed the burden on the School
District at the residency hearing, rather than a ruling that the School District had the burden.
Thereafter, in its 1925(a) Opinion, the trial court concluded that Student had the initial burden of
proving residency at enrollment, leaving the School District with the burden at the residency
hearing. Thus, the trial court’s October 3, 2022 order and 1925(a) Opinion were consistent.
10
Unreported decisions of this Court, while not binding, may be cited for their persuasive
value. Section 414(a) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa.
Code § 69.414(a). H.R. is cited herein for its persuasive value.
7
In a Section 1302(a) [of the School Code] case, the parent
has the initial burden of proof, which may be satisfied by
the presentation of evidence sufficient to satisfy the
enrollment requirements for a child in the [school] district.
Whitacker-Reid, 160 A.3d at 917. Then, the burden shifts
to the school district. Id. Specifically, the school district
must substantiate its determination that the parent or
guardian does not reside in the school district. Id.
H.R., slip op. at 12. Accordingly, the trial court properly held that a parent or
guardian’s initial burden of proof is satisfied when a school district accepts a
student’s enrollment application and, thereafter, the school district has the burden of
proving that the student does not reside therein. See 22 Pa. Code § 11.11(b); see
also Trial Ct. 1925(a) Op. at 5-6.
Here, the parties stipulated that Father enrolled Student in 2016 using
Father’s address, which is in the School District. See R.R. at 60a-61a, 74a. The
School District could have declined to enroll Student if his residency was unclear at
that time. See 22 Pa. Code § 11.11(b). When the School District thereafter
challenged Student’s residency, the School District had the burden to show that
Student was no longer a School District resident. See H.R. Accordingly, the Hearing
Officer properly concluded at the February 8, 2022 Board hearing that “the [School
District] ha[d] the burden” to show that Student was no longer a School District
resident. R.R. at 82a.
The School District next asserts that the trial court erred by reopening
the record. Section 754 of the Local Agency Law declares:
(a) Incomplete record.--In the event a full and complete
record of the proceedings before the local agency was not
made,[11] the court may hear the appeal de novo, or may
11
This Court has described:
Situations in which a record has been deemed incomplete include
such instances where the record fails to contain a transcript of the
proceedings before the local agency, [see] McLaughlin v. C[tr.]
8
remand the proceedings to the agency for the purpose of
making a full and complete record or for further
disposition in accordance with the order of the court.
(b) Complete record.--In the event a full and complete
record of the proceedings before the local agency was
made,[12] 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 [of the Local
Agency Law] (relating to practice and procedure 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 [Section 706
of the Judicial Code,] 42 Pa.C.S. § 706 (relating to
disposition of appeals).
2 Pa.C.S. § 754 (italic text emphasis added).
This Court has defined a “full and complete record” as “a
complete and accurate record of the testimony taken so
that the appellant is given a base upon which he may
appeal and, also, that the appellate court is given a
sufficient record upon which to rule on the questions
C[nty.] Hous[.] Auth[.], . . . 616 A.2d 1073 ([Pa Cmwlth.] 1992), or
where a party refuses to provide relevant and necessary
documentation to the local agency, [see] Sch[.] Dist[.] of the City of
Erie v. Hamot Med[.] C[tr.], . . . 602 A.2d 407 ([Pa. Cmwlth.] 1992).
However, “[t]he record before the local agency is not considered
incomplete based solely on [a party’s] failure to present evidence
available at the hearing.” [Ret. Bd. of Allegheny Cnty. v.] Colville,
852 A.2d [445,] 451 [(Pa. Cmwlth. 2004)]. Indeed, in Colville, we
stated that “[t]he trial court has no authority under [S]ection 754(b)
of the Local Agency Law to remand a matter to the local agency to
give the appellant another opportunity to prove what he or she
should have proved in the first place.” Id. (citations omitted).
Kuziak v. Borough of Danville, 125 A.3d 470, 475-76 (Pa. Cmwlth. 2015) (footnote omitted).
12
The School District objected to Mother’s deposition on the basis that the Board’s record
was complete under the Local Agency Law. See Original Record, Confidential Record Ex. B,
Mother’s July 19, 2022 N.T. at 6.
9
presented.” In re Thompson, 896 A.2d 659, 668 (Pa.
Cmwlth. 2005)[.]
Ray v. Civ. Serv. Comm’n of Borough of Darby, 131 A.3d 1012, 1019 (Pa. Cmwlth.
2016). “The adequacy of the local agency’s record is a matter committed to the
discretion of the trial court.” Kuziak v. Borough of Danville, 125 A.3d 470, 476 n.3
(Pa. Cmwlth. 2015).
Here, the trial court explained:
A record may be reopened where the evidence has been
omitted by “accident, inadvertence, or even because of
mistake as to its necessity,” “it is desirable that further
testimony be taken in the interest of a more accurate
adjudication,” and “an honest purpose would be justly
served without unfair disadvantage.” In re J.E.F., [409
A.2d 1165, 1167] (Pa. 1979), internal citations omitted.
The decision to reopen the record is “peculiarly within the
sound discretion of the trial court. . . .” Id. at [1166]. In
this case[,] the parties made a mistake as to the necessity
of [M]other’s testimony because they could not have
predicted the weight that the fact[-]finder would give to
her out[-]of[-]court statement. [The trial court] believed
that deposition testimony from Mother would help [it] to
make a more accurate adjudication because Mother’s
statements regarding how much [Student] stayed at her
house is a central question. The honest purpose of giving
a more clear picture of the time [Student] spends with each
parent is served by this testimony. There is no unfair
disadvantage as both parties were able to question Mother
at the deposition. Therefore, the addition of Mother’s
testimony to the record meets the necessary factors and
[the trial court] committed no error.
Trial Ct. 1925(a) Op. at 2-3. Although the trial court’s reasoning is well taken, the
J.E.F. case upon which the trial court relied involved a trial court reopening its own
record, not that of the fact-finding local agency and, thus, is inapposite.
In addition, the 1925(a) Opinion reflects that the trial court reviewed
this matter pursuant to Section 754(b) of the Local Agency Law. See Trial Ct.
10
1925(a) Op. at 3. Unlike Section 754(a) of the Local Agency Law,13 under Section
754(b) of the Local Agency Law, reopening the Board’s record to accept new
evidence after the Board rendered its decision was not among the actions the trial
court could take. See 2 Pa.C.S. § 754(b). Therefore, the trial court should not have
permitted the parties to take Mother’s deposition. Notwithstanding, despite the trial
court’s anticipation that Mother’s testimony “would help [the trial court] to make a
more accurate adjudication[,]” neither the trial court’s October 3, 2022 order[,] nor
its 1925(a) Opinion reference Mother’s deposition testimony, or reflect that the trial
court actually relied on Mother’s testimony in making its ruling.14 Trial Ct. 1925(a)
Op. at 3. Thus, any error the trial court committed by authorizing the deposition was
harmless.
The School District also contends that the trial court erred by
concluding that the Board’s adjudication was not supported by substantial
evidence.15 Specifically, the School District argues that the trial court erred by
13
Had the trial court determined the Board’s record was incomplete without Mother’s
testimony, and reviewed the matter under Section 754(a) of the Local Agency Law, it could
possibly have conducted a de novo review of the Board’s record supplemented with Mother’s
deposition. See W. Chester Area Sch. Dist. v. Collegium Charter Sch., 812 A.2d 1172 (Pa. 2002)
(de novo review may consist of a school board’s record and additional testimony); see also
Goodfellas, Inc. v. Pa. Liquor Control Bd., 921 A.2d 559 (Pa. Cmwlth. 2007) (on de novo review,
the trial court may accept the agency record plus new evidence).
14
Even if the trial court considered Mother’s deposition testimony, such error was still
harmless. Harmless error exists where the error did not prejudice a party or it was merely
cumulative of other substantially similar evidence. See Commonwealth v. Yockey, 158 A.3d 1246
(Pa. Super. 2017). Notably, the School District did not argue that it was prejudiced by Mother’s
deposition testimony. Moreover, the School District attended Mother’s deposition and cross-
examined her. N.T. at 14-30. Thereafter, the School District incorporated Mother’s testimony
into its trial court appeal brief. See R.R. at 205a (“The [School] District hereby incorporates the
complete [r]ecord of the [Board] and [t]ranscript of [Mother’s] deposition testimony by reference
as if fully stated herein.”). Finally, Mother’s testimony was cumulative of the record evidence
before the Board. See N.T. at 10.
15
Student presents a myriad of claims that the School District waived its evidentiary
arguments on appeal. This Court does not find that to be the case.
11
failing to recognize that the Board’s findings of fact were conclusive on appeal, and
by concluding that substantial evidence did not support the Board’s adjudication.
The School District is correct that
[where, as here,] a complete record was made before the
[Board], it is that body and not the trial court which is the
ultimate fact[-]finder in these proceedings, and has the
prerogative to determine the weight to be given to the
evidence. Its findings are conclusive and may not be
disturbed on appeal.
SSEN, Inc. v. Borough Council of Borough of Eddystone, 810 A.2d 200, 207 (Pa.
Cmwlth. 2002) (citation omitted). Notwithstanding, this Court has explained:
Although the “abuse of discretion” scope of review is not
expressly provided for in . . . [Section 754(b) of] the Local
Agency Law, it is included in the requirement that the
agency decision be “in accordance with law.” To be “in
accordance with law,” an agency’s decision must not
represent a manifest and flagrant abuse of discretion or a
purely arbitrary execution of its duties or functions. . . .
In re Rainmaker Capital of Chestnuthill, LLC, 23 A.3d 1117, 1122-23 (Pa. Cmwlth.
2011) (quoting Leckey v. Lower Southampton Twp. Zoning Hearing Bd., 864 A.2d
593, 596 n.4. (Pa. Cmwlth. 2004)).
Further,
the issues [before the trial court] [we]re whether there
[wa]s substantial evidence to support the Board’s findings
and conclusion that [Student] did not reside within the
[School] District as required by Section 1302(a) [of the
School Code,] and whether that evidence substantiates the
Board’s determination that [Student] does not reside in the
[School] District. Substantial evidence is “evidence that a
reasonable mind might accept as sufficient to support a
conclusion.” Spencer v. City of Reading Charter Bd., 97
A.3d 834, 842 (Pa. Cmwlth. 2014). “[A]ppellate review
must focus on whether there is rational support in the
record, when reviewed as a whole, for the agency action.”
Republic Steel Corp. v. Workmen’s Comp. Appeal Bd.
12
(Shinsky), . . . 421 A.2d 1060, 1063 ([Pa.] 1980). “When
performing a substantial evidence analysis, the [trial] court
must view the evidence in the light most favorable to the
party that prevailed before the fact[-]finder.” Bonatesta v.
N. Cambria Sch. Dist., 48 A.3d 552, 558 (Pa. Cmwlth.
2012). It is for the [] [B]oard, not the court, to assess the
credibility of the witnesses. Hickey v. Bd. of Sch. Dir. of
Penn Manor Sch. Dist., . . . 328 A.2d 549, 551 ([Pa.
Cmwlth.] 1974). “However, a court will ‘overturn a
credibility determination if it is arbitrary and capricious or
so fundamentally dependent on a misapprehension of
material facts, or so otherwise flawed, as to render it
irrational.’” Bonatesta, 48 A.3d at 558 (quoting Agostino
v. Twp. of Collier, 968 A.2d 258, 263-64 (Pa. Cmwlth.
2009)).
Whitacker-Reid, 160 A.3d at 916. Moreover, improperly admitted evidence is not
substantial evidence that can support a factual finding. See Hauck v. Unemployment
Comp. Bd. of Rev., 271 A.3d 961 (Pa. Cmwlth. 2022).
Here, the Board based its conclusion that Student did not live in the
School District on Dr. Hadley’s recitation of Mother’s out-of-court statement and
CSI’s surveillance results. See Board Op. at 2-5 (R.R. at 135a-138a). Despite that
the School District had the burden of proof, it did not call Mother or the community
member who brought the question of Student’s residency status to the School
District’s attention to testify at the hearing. Rather, based on Dr. Hadley’s claim that
he heard Mother say that Student “ha[d] been staying with [Mother] at Marie
Avenue[,]” R.R. at 50a, the Board found: “During th[e] [January 6, 2022] meeting
[with Dr. Hadley,] Mother stated that Student was residing with her.” Board Op. at
3 (R.R. at 136a). The Board also declared: “Most significant from [Dr.] Hadley’s
testimony is a conversation he had with Father and Mother, wherein Mother stated
that Student lived with her. Clearly, a parent’s statement as to the location of the
residence is deserving of substantial weight by th[e] Board.” Board Op. at 5 (R.R.
at 138a).
13
This Court has articulated:
Although local agencies, such as [the Board], are not
bound by technical rules of evidence, Section 554 of the
Local Agency Law, 2 Pa.C.S. § 554, this does not mean
that these local proceedings are evidentiary free-fire
zones. . . . [T]here are fundamental rules of law to which
an agency must adhere to ensure fairness to all parties.
Ray, 131 A.3d at 1024. In particular, “[h]earsay, defined as a declarant’s out-of-
court statement or assertion offered into evidence to prove the truth of the matter
asserted, is generally inadmissible unless an exception applies.” Worley v. Cnty. of
Del., 178 A.3d 213, 230 (Pa. Cmwlth. 2017); see also Pennsylvania Rule of
Evidence 802, Pa.R.E. 802. This Court has declared: “[T]he hearsay rule is not a
mere technical rule of evidence, but a fundamental rule of law which ought to be
followed by agencies when facts crucial to the issue are sought to be placed on the
record . . . .” Ray, 131 A.3d at 1024 (quoting A.Y. v. Dep’t of Pub. Welfare,
Allegheny Cnty. Child. & Youth Servs., 641 A.2d 1148, 1151 (Pa. 1994)).
[This Court] ha[s] consistently applied the following
standard, referred to as the Walker Rule, to determine
whether hearsay evidence is admissible at administrative
proceedings:
(1) Hearsay evidence, [p]roperly objected to,
is not competent evidence to support a
finding of [an agency][;]
(2) Hearsay evidence, [a]dmitted without
objection, will be given its natural
probative effect and may support a finding
of [an agency], [i]f it is corroborated by
any competent evidence in the record, but
a finding of fact based [s]oley [sic] on
hearsay will not stand.[16]
16
Although “[a] finding of fact based solely on hearsay evidence does not constitute
reversible error if the finding is unnecessary to support the adjudication[,]” Ray, 131 A.3d at 1022,
where, as in this case, the factual finding necessary to support the local agency’s adjudication must
14
Rox Coal Co. v. Workers’ Comp. Appeal Bd.
(Snizaski), . . . 807 A.2d 906, 915 ([Pa.] 2002) (citing
Walker v. Unemployment Comp. Bd. of Rev[.], . . . 367
A.2d 366, 370 ([Pa. Cmwlth.] 1976)).
Lancaster Cnty. Child. & Youth Servs. Agency v. Dep’t of Hum. Servs., 235 A.3d
402, 411 (Pa. Cmwlth. 2020) (emphasis added). Thus, “hearsay evidence, even if
admissible and not objected to, does not alone constitute substantial evidence.” A.P.
v. Dep’t of Pub. Welfare, 696 A.2d 912, 915 (Pa. Cmwlth. 1997). Accordingly, for
the Board to admit and rely on Mother’s alleged statement in this case, the statement
had to be supported by corroborating record evidence. The Board’s observation that
Student “did not attempt to discredit [Dr. Hadley’s testimony] or show that
[Mother’s statement] was never made[,]” Board Op. at 5 (R.R. at 138a), was not
corroborating evidence, particularly when Student did not have the burden of proof.
Arguably, under the right circumstances, the School District’s
surveillance evidence could possibly corroborate Dr. Hadley’s hearsay statement.
However, even viewing the surveillance evidence in a light most favorable to the
School District, as this Court must, see Whitacker-Reid, such evidence merely
established that Student was at Mother’s residence in the mornings on the seven
dates in October and November 2021, and Mother drove him to school on those
dates. Father testified about why that occurred. The Board weighed Father’s
testimony against the surveillance evidence, as it was permitted to do, and found in
the School District’s favor. Yet, in weighing the evidence, the Board again
improperly placed the burden of proof on Student. Specifically, the Board concluded
that Student “failed to establish that [he] resided at the Emsworth address[,]” because
he did not produce witnesses, mail or photographs to confirm that Student had his
own room and lived with Father. Board Op. at 5 (R.R. at 138a). The Board also
be corroborated by other record evidence. See Bell Beverage v. Unemployment Comp. Bd. of Rev.,
49 A.3d 49 (Pa. Cmwlth. 2012).
15
stated: “[T]he crux of [Student’s] evidence consisted of [Father’s] explanation as to
why Student was found to be at [Mother’s] address” on the surveillance dates, rather
than proof that there was a rear entrance to Mother’s home and Father transported
Student there in the mornings to pick up his work tools. Id.
In addition, the Board declared:
Father attempted to discredit CSI’s surveillance because
its employees failed to capture the rear entrance of
[Mother’s] residence . . . . The Board rejects this attempt,
as Father’s own testimony indicated that there were
security cameras at the rear entrance. Yet, no footage was
offered[,] by Father[,] of Student regularly entering the
residence between 5:30 a.m. and 6:00 a.m. when [Father]
allegedly arrived there to gather his tools.
Id. As stated above, Student did not have the burden to supply such evidence, and
this Court holds that the School District’s surveillance evidence alone is not
“evidence that a reasonable mind might accept as sufficient to support a
conclusion[,]” Whitacker-Reid, 160 A.3d at 916 (quoting Spencer, 97 A.3d at 842),
that Student lived “for a majority of the time,” 22 Pa. Code § 11.11(a)(1), with
Mother.
Lastly, this Board [found] it unrealistic that Student wakes
up approximately two hours before he departs for the . . .
Career Center just to be transported by Father from the
Emsworth address to the Avalon address, where he would
need to remain for over one hour, before leaving,
especially when [School] District-provided transportation
is available at the Emsworth address.
Board Op. at 5. Certainly, the Board’s finding that Father dropping Student off at
Mother’s house in the mornings before school is “unrealistic” is not based on any
record evidence, let alone substantial evidence.17 Id.
17
This ruling is particularly so in the face of Father’s testimony that he and Mother have
been advised not to leave Student alone, and Student would be alone at Father’s residence before
school if Father did not bring him to Mother’s home. See R.R. at 72a-73a.
16
There must be substantial evidence in the record to support
the Board’s findings of fact and its conclusion that
[Student] is not a resident of the [School] District. Many
of the Board’s findings are either not supported by
substantial evidence or are based on evidence that simply
suggests or speculates that there could be a residency
concern or issue. . . .[18] Where a school district excludes
children from attendance at its schools based upon the
parent(s) non-residency, which also may potentially result
in, among other things, criminal charges and having to
repay the school district for the education the children
have received, substantial evidence of that non-residency
is required in order “to substantiate [a school district’s]
determination that [a [student] is] . . . not [a] resident[ ]”
of the school district. Behm, 996 A.2d at 66. Because the
[School] District did not present such evidence, it did not
substantiate its determination regarding [Student’s] non-
residency.
Whitacker-Reid, 160 A.3d at 921 (footnote, quotation marks and internal citation
omitted).
Under the circumstances, this Court holds that the Board giving more
weight to the School District’s surveillance evidence than Student’s evidence was
“arbitrary and capricious or so fundamentally dependent on a misapprehension of
material facts, or so otherwise flawed,” Whitacker-Reid, 160 A.3d at 916 (quoting
Bonatesta, 48 A.3d at 558), and that it was not substantial evidence upon which the
Board could base its conclusion. By extension, the surveillance evidence could not
corroborate Dr. Hadley’s hearsay statement. Accordingly, the trial court properly
concluded that substantial evidence did not support the Board’s adjudication.
Finally, the School District argues that the trial court erred by reversing
the Board’s adjudication without conducting a hearing, which was contrary to the
Local Agency Law. As stated above, the trial court reviewed this matter pursuant to
18
The Board here appears to have conflated the terms “staying with,” R.R. at 50a, as
“residing with.” Board Op. at 3 (R.R. at 136a). Certainly, the phrase staying with could also mean
visiting for a few days/weeks or for a few hours in the mornings.
17
Section 754(b) of the Local Agency Law. This Court acknowledges that Section
754(b) of the Local Agency Law references the trial court hearing an appeal.
However, the law is well settled:
Pursuant to Section 754(b) [of the Judicial Code], a
reviewing [trial] court may properly reverse where it
determines that constitutional rights were violated, an
error of law was committed, the procedure before the
agency was contrary to statute, or the necessary findings
of fact were not supported by substantial evidence.
[See] SSEN; Sparacino v. Zoning B[d.] of Adjustment, City
of Phila[.], 728 A.2d 445 (Pa. Cmwlth. 1999) . . . . A
reviewing court may look only to the evidence relied
upon by the fact[-]finder, in this case [the Board], to see
if it is sufficiently substantial to support the findings.
Section 754(b) of the Local Agency Law; SSEN; Kish v.
Annville-Cleona Sch[.] Dist[.], . . . 645 A.2d 361, 363-[]64
([Pa. Cmwlth.] 1994). “Nowhere in Section 754[(b) of
the Local Agency Law] is the reviewing court given
general authority to make its own findings of fact and
conclusions of law when the local agency has developed a
full and complete record. . . . ” Soc[’]y Created to Reduce
Urban Blight (SCRUB) v. Zoning B[d.] of Adjustment of
the City of Phila[.], 804 A.2d 147, 150 (Pa. Cmwlth.
2002).
Thompson, 896 A.2d at 668 (emphasis added). Hence, under Section 754(b) of the
Local Agency Law, “the [trial] court shall hear the appeal . . . on the record certified
by the agency.” 2 Pa.C.S. § 754(b) (emphasis added); see also Bonatesta (wherein
this Court upheld the trial court’s reversal of a school board’s decision without a
hearing, based on the school board’s record).
Here, the trial court conducted a conference with the parties on May 6,
2022, and, on May 27, 2022, ordered the parties to file briefs regarding their
positions, which they did. The trial court based its decision on the Board’s record
and the parties’ arguments, as authorized by Section 754(b) of the Local Agency
18
Law. Accordingly, the trial court did not err by reversing the Board’s adjudication
without conducting a hearing.
Based on the foregoing, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
G.W., a minor by his parent :
and guardian, H.W. :
:
v. :
:
Avonworth School District, : No. 1199 C.D. 2022
Appellant :
ORDER
AND NOW, this 2nd day of June, 2023, the Allegheny County Common
Pleas Court’s October 3, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge