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RAYMOND JOSEPH KUSNIR v. CHARLES D. LEACH (01/11/82)

decided: January 11, 1982.

RAYMOND JOSEPH KUSNIR, PETITIONER
v.
CHARLES D. LEACH, ACTING IN HIS CAPACITY AS INTERIM PRESIDENT OF CLARION STATE COLLEGE, AND CLARION STATE COLLEGE, A COMMONWEALTH AGENCY, RESPONDENTS



Appeal from the Order of Charles D. Leach, acting in his capacity as Interim President of Clarion State College and Clarion State College, a Commonwealth Agency, dated April 2, 1980.

COUNSEL

Richard L. Jacobs, for petitioner.

Jack E. Solomon, Assistant Attorney General, with him Nancy K. Matlowski, Acting Chief Counsel, for respondents.

President Judge Crumlish and Judges Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. This decision was reached prior to the expiration of the term of office of Judge Palladino. Concurring Opinion by Judge Blatt.

Author: Williams

[ 64 Pa. Commw. Page 67]

Directed to our appellate jurisdiction under Section 763(a) of the Judicial Code, 42 Pa. C.S. ยง 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

[ 64 Pa. Commw. Page 68]

    advised of his right to legal counsel; and (3) not given an opportunity 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 Kusnir 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 Fall semester of 1980.

The College and its president, as the named respondents in this matter, initially 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 ...


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