Kusnir v. LEACH

439 A.2d 223, 64 Pa. Commw. 65, 28 A.L.R. 4th 456, 1982 Pa. Commw. LEXIS 988
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 11, 1982
DocketAppeal, 1055 C.D. 1980
StatusPublished
Cited by11 cases

This text of 439 A.2d 223 (Kusnir v. LEACH) 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
Kusnir v. LEACH, 439 A.2d 223, 64 Pa. Commw. 65, 28 A.L.R. 4th 456, 1982 Pa. Commw. LEXIS 988 (Pa. Ct. App. 1982).

Opinions

Opinion by

Judge "Williams, Jr.,

Directed to our appellate jurisdiction under Section 763(a) of the Judicial Code, 42 Pa. C. S. §763(a), Raymond J. Kusnir (Appellant) has filed a Petition for Review asking this Court to reverse his suspension, as a student, from Clarion State College.

On March 17, 1980, the Conduct Board of the College served Kusnir with written notice that it would hold a hearing concerning his alleged participation in an off-campus incident of misconduct. More specifically, the notice charged that Kusnir was one of a group of people who uninvitedly entered a private party at a private off-campus residence, and refused to leave when asked to do so. It was further alleged that some of the alleged intruders disrobed; that one of the occupants of the dwelling was struck in the face; and that other disruptive conduct occurred. According to the written charges, the incident was violative of the College’s regulations against behavior such as assault, harassment, personal abuse and trespass. The incident in question took place on March 5,1980.

The misconduct hearing was held on March 24, 1980, as scheduled; and Kusnir appeared with his brother, who acted as his advisor in the proceedings. On March 25, 1980, the Conduct Board found that Kusnir was a culpable participant in the misconduct charged. That determination, in addition to the fact that Kusnir was already on disciplinary probation for fighting, induced the Conduct Board to recommend his suspension for the balance of that academic year and the Fall semester of 1980. From that decision Kusnir appealed to the College president, challenging the propriety of his suspension. In that challenge Kusnir asserted that the College had no jurisdiction over the off-campus incident. He also asserted that he had been deprived of due process in that he was (1) not adequately informed of the charges against him; (2) not [68]*68advised of Ms right to legal counsel; and (3) not given an opportumty to appear and “prepare” a defense.

On April 2, 1980, the College president dismissed the appeal and entered a written decision adopting the suspension recommendation.

On May 2, 1980, Kusnir filed his Petition for Review with this Court. Companion to the instant appeal, he requested this Court to stay his suspension pending disposition of the case. On May 5, 1980, this Court entered an order staying the suspension; but only to the extent of allowing Appellant KusMr to complete his then current school term, the Spring semester of 1980. In short, the Appellant’s period of suspension from school would be coextensive with the Pall semester of 1980.

The College and its president, as the named respondents in this matter, imtially sought to challenge Kusnir’s appeal to this Court by preliminary objections. When those objections were overruled, the respondents filed a motion under Pa. R.A.P. 1972 to transfer the case to the Board of Claims. That motion was directed to be heard at the same time as argument on the merits of the appeal.

We consider first the transfer motion; for, if the respondents are correct in that regard, we have no jurisdiction to entertain this appeal in its present posture. The respondents ’ transfer motion is based on the premise that the legal relation between the College and a student is contractual. And, since the College is a state agency, the respondents conclude that the Board of Claims has exclusive jurisdiction over this case in the first instance.

Section 4 of the “Board of Claims Act”1 provides in pertinent part that:

The Board of Claims shall have exclusive jurisdiction to hear and determine all claims [69]*69against the Commonwealth arising from contracts . . . with the Commonwealth, where the amount in controversy amounts to $300.00 or more. (Emphasis added.)

It is clear from the very language of Section 4, that for the Board of Claims to have exclusive jurisdiction, it is not enough that the claim is really one against the Commonwealth and sounding in contract; it must also appear there is an “amount in controversy” of at least $300.00. Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 431, 336 A.2d 609, 615 (1975). In the case at bar, there is nothing to indicate there is an “amount in controversy” equaling $300.00 or more; indeed, there is nothing to indicate there is any “amount in controversy” at all. Accordingly, we cannot say the instant case is within the exclusive jurisdiction of the Board of Claims; and the motion for transfer must be dismissed.

In urging this Court to reverse his suspension, the Appellant advances the following arguments to invalidate that sanction: (1) that the College lacked jurisdiction over off-campus conduct; (2) that there was no substantial evidence to support the findings upon which his suspension was based; (3) that he was not given adequate notice of the charges against him; (4) that he was not given the names of all the witnesses against him, nor otherwise given the right to confront and cross-examine them; and (5) that he was denied the right to be represented by legal counsel in the proceedings against him.

We ascertain no merit in Appellant’s first argument. Obviously, a college has a vital interest in the character of its students, and may regard off-campus behavior as a reflection of a student’s character and his fitness to be a member of the student body. It is also our conclusion that there was substantial evidence to show, at the least, that Kusnir entered the residence [70]*70uninvited and refused to leave when the occupants requested him to do so. That proof, coupled with the fact of Kusnir’s then already existing disciplinary probation, restrains us from saying that the Appellant’s suspension was not supported by the evidence. The weight and credibility of Kusnir’s version of the incident in question, and the weight and credibility of the evidence against him, were for the school authorities to determine; not-this Court. As for the Appellant’s contention that he was not adequately advised of the charges against him, the express contents of the notice served upon him by the Conduct Board show that argument to be meritless.

It is to be noted that, in his appeal to the College president, Kusnir made no assertion of having been denied the names of witnesses or of having been denied the right of confrontation and cross-examination. Accordingly, we will not consider those issues here. Except for a challenge to the validity of an involved statute, questions not raised before the governmental unit or agency below will not be considered by this Court for the first time on appeal, unless due cause is shown. 2 Pa. C. S. §703(a); Hugh H. Eby Co. v. Workmen’s Compensation Appeal Board, 47 Pa. Commonwealth Ct. 135, 407 A.2d 148 (1979).

The respondents concede that Kusnir’s hearing before the Conduct Board was under terms that did not permit him to be represented by legal counsel in that proceeding. The hearing notice served on the Appellant instructed, in pertinent part, as follows:

You may be assisted in this proceeding by an individual of your own choosing. This person may provide advice and guidance during the hearing but his/her function is not to represent you.

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Kusnir v. LEACH
439 A.2d 223 (Commonwealth Court of Pennsylvania, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
439 A.2d 223, 64 Pa. Commw. 65, 28 A.L.R. 4th 456, 1982 Pa. Commw. LEXIS 988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kusnir-v-leach-pacommwct-1982.