Commonwealth v. Kerstetter

62 A.3d 1065, 2013 WL 599891, 2013 Pa. Commw. LEXIS 49
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 19, 2013
StatusPublished
Cited by8 cases

This text of 62 A.3d 1065 (Commonwealth v. Kerstetter) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kerstetter, 62 A.3d 1065, 2013 WL 599891, 2013 Pa. Commw. LEXIS 49 (Pa. Ct. App. 2013).

Opinions

OPINION BY

Judge SIMPSON.

In this interlocutory appeal by permission, Jennifer Ann Kerstetter appeals from an order of the Court of Common Pleas of the 17th Judicial District (Snyder County Branch) (trial court)1 denying her motion to dismiss the charges filed against her by the Midd-West School District (School District) for alleged violations of Section 1327 of the Public School Code of 1949 (Code),2 regarding compulsory school at[1067]*1067tendance. Kerstetter contends her children were not of compulsory school age and, therefore, not subject to the compulsory school attendance laws. The sole issue before us involves the statutory interpretation of the phrase “compulsory school age.”

Kerstetter enrolled her twin daughters in the kindergarten program at the West Beaver Elementary School in the School District for the 2011-2012 school year.3 The School District issued three non-traffic citations against Kerstetter for alleged violations of Pennsylvania’s compulsory school attendance law citing alleged unlawful absences of her children from school on three days in November and December 2011.

Kerstetter appealed the citation to a magisterial district judge, who found her guilty in all three cases. Kerstetter then filed a summary appeal with the trial court. The trial court conducted two hearings. The administrator of the School District/principal of the West Beaver Elementary School, who issued the citations against Kerstetter, testified on behalf of the Commonwealth of Pennsylvania (Commonwealth). Kerstetter testified in her own defense.

At the first hearing, Kerstetter, who represented herself, testified she had difficulty getting the children out of bed in the morning to attend school. Notes of Testimony (N.T.), 5/8/2012, at 14. Kerstetter also testified she relied on information garnered from a website that students enrolled in kindergarten are not of compulsory school age and, therefore, not subject to compulsory school attendance. Id. at 15.

The Commonwealth recognized a potential inconsistency between the definition of “compulsory school age” in the Code and the attendant regulations promulgated by the Pennsylvania Department of Education (Department). Specifically, Section 1326 of the Code, defines “compulsory school age” as “the period of a child’s life from the time the child’s parents elect to have the child enter school, which shall be not later than at the age of eight (8) years.” 24 P.S. § 13-1826. However, Section 11.13 of the Department’s regulations provides:

Compulsory school age refers to the period of a child’s life from the time the child enters school as a beginner which may be no later than at the age of 8 years, until the age of 17 or graduation from a high school, whichever occurs first. A beginner is a child who enters a school district’s lowest elementary school grade that is above kindergarten.

22 Pa.Code § 11.13 (emphasis added).

Due to the unique legal issue presented, the trial court continued the proceeding, directed the appointment of counsel for Kerstetter, and directed the parties to prepare memoranda of law regarding compulsory school attendance for kindergarten children.

At the second hearing, the parties argued their respective positions. The Commonwealth argued that once a child is enrolled in school, including kindergarten, the child is subject to compulsory school attendance laws. Kerstetter argued compulsory school age does not include children enrolled in kindergarten.

[1068]*1068At the close of the hearing, Kerstetter moved to dismiss the charges based on the regulation’s definition of compulsory school age. The trial court denied the motion from the bench. N.T., 6/29/2012, at 12.

In the opinion and order that followed, the trial court determined that when parents elect to enroll their children in school, the children are subject to compulsory school attendance laws. As the trial court observed:

It would seem inappropriate to require school districts to admit students into a kindergarten program, even if they are younger than 8 years and not require their attendance after they are enrolled. Allowing parents to send their children to kindergarten or not send their children [to] kindergarten after they are enrolled would essentially turn our public schools into a free child care situation. School districts could not budget for materials, staff or meals if they would have absolutely no control or no idea how many students would be appearing on any given day for their kindergarten program.

Tr. Ct., Slip Op., 9/20/12, at 3-4. Ultimately, the trial court ruled Kerstetter’s children are subject to the Code’s compulsory school attendance provisions.

Kerstetter sought to certify the case for an interlocutory appeal, which the trial court granted. On further petition to this Court, we allowed the appeal limited to the issue of whether a child is considered of “compulsory school age” pursuant to Section 1326 of the Code if the child is younger than eight years old and currently enrolled in kindergarten courses in public school.4

In this appeal, Kerstetter maintains her children do not meet the definition of “compulsory school age” because they are only enrolled in kindergarten and, therefore, are not subject to the compulsory school attendance law. Kerstetter contends only children classified as “beginners,” who are enrolled in grades above kindergarten, are subject to compulsory attendance.

In support of her position, Kerstetter relies upon the Department’s regulation defining “compulsory school age” as a child who enters a school district’s lowest elementary school grade above kindergarten. She also relies on other information circulated by the Department, through written brochures, directives and the Internet, indicating that a child in kindergarten is not a “beginner,” and, therefore, not subject to compulsory attendance laws. Additionally, Kerstetter cites O’Leary v. Wisecup, 26 Pa.Cmwlth. 538, 364 A.2d 770 (1976), in support of her position that the law only compels attendance for “beginners,” not kindergarten students, because the state is not required to provide kindergarten.

In response, the Commonwealth counters, despite the inconsistency in the regulations, the controlling statutory definition in the Code compels school attendance for two categories of students: (1) children who have attained the age of eight years old, and (2) children whose parents elect to enroll them in school. The Code does not distinguish between children enrolled in kindergarten and children enrolled in [1069]*1069grades above kindergarten. The Commonwealth argues the compulsory school attendance provisions apply to Kerstetter’s children because they are enrolled in school. The Commonwealth asserts O’Leary is not controlling because the case involved whether the state must provide kindergarten to a child, not whether a child must attend kindergarten.

We are guided by the principles set forth in the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501-1991.

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Cite This Page — Counsel Stack

Bluebook (online)
62 A.3d 1065, 2013 WL 599891, 2013 Pa. Commw. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kerstetter-pacommwct-2013.