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SMITH v. WEBB

August 9, 1976

KIRK SMITH, a minor suing by VERNON SMITH and MARGARET SMITH, his parents and next of friend
v.
ALFRED E. WEBB, Individually and as principal of Whitemarsh Jr. High School, Whitemarsh Township, Montgomery County, Pennsylvania



The opinion of the court was delivered by: BRODERICK

BRODERICK, J.

 Presently before the Court are the cross-motions of the plaintiff and defendant for summary judgment. Plaintiff, Kirk Smith, brought this action alleging that the defendant, Alfred E. Webb, is liable to him in damages under 42 U.S.C. § 1983 *fn1" for the deprivation of his constitutional right to a hearing prior to his expulsion from public school. For the reasons stated herein, we have determined that we must grant the defendant's motion for summary judgment and deny the plaintiff's motion for summary judgment.

 In support of his motion for summary judgment, the defendant has submitted his affidavit and the affidavit of John Hepp. These two affidavits contain exhibits whose authenticity has not been challenged. The plaintiff has submitted no affidavits in support of his motion for summary judgment but has chosen to rely upon the uncontradicted affidavits and exhibits submitted by the defendant.

 In a motion for summary judgment, all doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. First Pa. B. & T. Co. v. United States Life Ins. Co., 421 F.2d 959, 962 (3d Cir. 1969). The burden is on the party moving for summary judgment to demonstrate that no genuine issue as to any material fact exists, and that he is entitled to judgment as a matter of law. As stated in 6 Moore's Federal Practice, para. 56.15[3], at 56-463 to 467:

 
The Courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable law, entitle him to judgment as a matter of law.
 
The Courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. (footnotes omitted).

 Under Rule 56, once a properly supported summary judgment motion is made, an adverse party may not rest upon the mere allegations of his pleading. His response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if otherwise appropriate, shall be entered against him. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968); Chapman v. Rudd Paint & Varnish Company, 409 F.2d 635, 643-644 (9th Cir. 1967). Accordingly, we have drawn all inferences favorable to the plaintiffs in considering the defendant's motion for summary judgment and find there is no genuine issue of material fact and that the defendant is entitled to summary judgment as a matter of law.

 Kirk Smith was registered as a student at Whitemarsh in September, 1969. Immediately after registering at Whitemarsh, Kirk Smith became involved in numerous incidents of misconduct which resulted in disciplinary action. The school records reflect that during the 1969-1970 school year, Kirk Smith was reported sixteen times for serious disciplinary and attendance infractions and he was suspended for such infractions four times. During the 1970-1971 school year, the school record shows that Kirk Smith was involved in at least seventeen serious disciplinary and attendance infractions which resulted in his again being suspended four times. These reported infractions include incidents of cutting classes, threatening teachers, talking back to teachers, lying, using obscenities, yelling and being disruptive in class, threatening other students and stealing.

 Before any of the eight suspensions noted above occurred, the following procedures were observed. A faculty member would first file a charge of misconduct against Kirk Smith with John Hepp, the Administrative Assistant at Whitemarsh during the 1969-1970, 1970-1971 and 1971-1972 school years. Mr. Hepp's duties included, among others, the handling of discipline and attendance matters. After a faculty member filed charges, Mr. Hepp would review the charges, confront Kirk Smith with the charges against him and give him an opportunity to dispute the charges and explain his view of the incident. Mr. Hepp would then determine if the charges were well founded and, if so, and if sufficiently serious, he would suspend Kirk Smith. Kirk Smith's parents were notified of each suspension by a letter which contained a short description of the reasons for the suspension. The school record reveals that there were numerous communications between Kirk Smith's parents and school officials in connection with Kirk Smith's disciplinary and behavioral problems. Also, defendant Webb was kept well informed of, and was aware of, the extensive disciplinary record of Kirk Smith during the 1969-1970 and 1970-1971 school years.

 After the commencement of the 1971-1972 school year, Kirk Smith's problems at Whitemarsh continued. During the month of September, Kirk Smith was truant for at least nine days. He cut classes on another day and as a result was suspended for three days. On October 7, 1971, Kirk Smith returned to school from a suspension, cut his morning classes and left school with another student. The two students were picked up hitchhiking by the School Home and School Visitor. A report of the incident was made to Mr. Hepp, who reviewed the charges, confronted Kirk Smith with the charges against him and gave Kirk Smith an opportunity to refute the charges and give his version of the incident. Mr. Hepp determined that the charges were accurate and serious and suspended Kirk Smith for five days. Kirk Smith's parents then received written notice of the suspension and the reasons therefor. Because of the seriousness of the infraction *fn3" involved and Kirk Smith's prior disciplinary record, Mr. Hepp and Mr. Webb held a conference concerning Kirk Smith. At the conference, the prior disciplinary and attendance record of Kirk Smith was thoroughly reviewed. As a result of this conference and a review of the prior record of Kirk Smith, and in light of the fact that Kirk Smith had shown no improvement in his discipline and attendance record, Mr. Webb concluded that Kirk Smith was a truant and a disruptive influence in Whitemarsh and that his conduct in connection with these matters was incorrigible. Therefore, on October 8, 1971, Mr. Webb signed a petition filed in the Court of Common Pleas of Montgomery County, Pennsylvania, Juvenile Division, captioned, "In re: Kirk Smith, A juvenile, No. 6033", alleging that Kirk Smith was incorrigible, a truant and a disruptive influence at Whitemarsh. The purpose of this petition, filed pursuant to the Juvenile Court Law then in effect, 11 P.S. § 243 et seq.,4 was to have Kirk Smith's status as a student at Whitemarsh terminated. Mr. Webb filed the petition with the Court in lieu of a hearing before the school board *fn5" because of his belief that juvenile court action would be preferable in order to accomplish: (1) the removal of Kirk Smith from his current home environment; (2) the avoidance of the stigma that would attach to Kirk Smith as a result of being permanently expelled by the school board; and (3) the placement of Kirk Smith by the Court in a school environment which would better accommodate his educational and emotional needs. *fn6"

 As a result of the filing of the petition in the juvenile court, a conference was held on October 27, 1971 at the office of the Juvenile Probation Department of Montgomery County. The conference was attended by Mr. Webb, Mr. Hepp, Alice Ter-Harr, the Home and School Visitor for Whitemarsh, Kirk Smith and Mr. and Mrs. Smith, Kirk Smith's parents. The conference was conducted by James W. Reustle, the Assistant Juvenile Probation Officer for Montgomery County. The purpose of the conference was to discuss the petition filed by Mr. Webb in connection with Kirk Smith. At the conference, Kirk Smith's discipline and attendance record was discussed in detail, as was the position of Mr. Webb and Alice Ter-Harr that Kirk Smith should be terminated as a student at Whitemarsh because of his chronic discipline and attendance infractions. As a result of the conference, it was agreed by all parties that the petition filed by Mr. Webb in connection with Kirk Smith would not be pursued at that time upon the conditions that: (1) Kirk Smith immediately see the school psychologist; (2) Kirk Smith attend all his classes without any further illegal cuts or absences; and (3) Kirk Smith not cause any further problems in the classroom with any teachers or students. It was also agreed that should any of the above conditions be broken by Kirk Smith, the petition would be reactivated. If Kirk Smith satisfactorily completed the school year, the petition would be dismissed.

 On November 15, 1972, it was reported to Mr. Hepp that Kirk Smith had created a disturbance in his art class. Mr. Hepp met with Kirk Smith after the incident, confronted him with the charge made against him, gave him an opportunity to speak on his own behalf and to give his version of the incident. Mr. Hepp then made a determination that Kirk Smith had in his possession in his art class a spray can of tear gas, as alleged, and that Kirk Smith had been insolent to the teacher when the tear gas was taken from him. Mr. Hepp also found that Kirk Smith had been loud and abusive and had disrupted the class. Mr. Hepp advised Kirk Smith that his conduct was in violation of the agreement reached at the October 27, 1971 juvenile court conference and that he would recommend reactivation of the petition. Mr. Hepp then suspended Kirk Smith indefinitely pending the outcome of the court proceeding. Mr. and Mrs. Smith were notified by letter of the suspension of Kirk Smith and the reasons therefor.

 Mr. Webb was advised by Mr. Hepp that Kirk Smith had been involved in a disturbance in his art class stemming from his possession of a can of tear gas, that Kirk Smith had been advised that his conduct was in violation of the October 27th agreement, and that Kirk Smith had been suspended pending the outcome of the hearing on the reactivated Court petition. Mr. Webb approved of all the actions taken by Mr. Hepp and advised Mr. Hepp to take immediate steps to have a hearing scheduled on the juvenile court petition. Mr. Webb received notice from the Court that there would be a hearing on the petition, which hearing took place on December 2, 1971. Mr. Webb furnished the juvenile court with a summary of Kirk Smith's discipline and attendance record and testified that in his opinion nothing more could be done by Whitemarsh to improve Kirk Smith's behavior and that he did not want Kirk Smith to return to Whitemarsh. Mr. Smith, Kirk Smith's father, also testified at the hearing and acknowledged Kirk Smith's infractions at Whitemarsh. Mary Flynn, a caseworker with Catholic Social Service, testified that in her opinion Kirk ...


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