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decided: April 21, 1987.


Appeal from the Order of a Commonwealth agency, East Stroudsburg University, in case of In Re: Gerald W. Beaver, File No. 17535, dated November 26, 1985.


James V. Fareri, Mervine, Brown, Newman, Williams and Mishkin, P.C., for petitioner.

Wayne M. Richardson, Chief Legal Counsel, for respondents.

Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry. Judge Kalish dissents.

Author: Barry

[ 105 Pa. Commw. Page 363]

This appeal results from an order of the Vice-President of East Stroudsburg University which adopted in its entirety the recommendation of the University Student/Faculty Judicial Board (Board) that the petitioner herein, Gerald W. Beaver, receive a suspended suspension for his "major violation" of the Student Code of Conduct.

Neither the Board nor the Vice-President made any findings of fact, but the following scenario we believe describes adequately the unfolding of events in this case. On October 31, 1985, two resident advisers of the dormitory in which petitioner resided were walking in the vicinity of petitioner's room when they smelled what they believed to be marijuana smoke. Upon entering petitioner's room they found petitioner's roommate, Richard Allen (Allen) attempting to rid the room of smoke by means of an electric fan. When questioned about the smoke, Allen replied that it was petitioner and his friends, rather than he, who had caused it, and that petitioner and friends had since departed for a concert. Allen testified later, however, that he did not see anyone actually smoking, due to the fact that he was "out cleaning the hotpot" during most of the friends' visit.

Upon inspection of the room, a small quantity of what were apparently marijuana seeds was found in a styrofoam cup and was subsequently confiscated. Allen testified that he had found them in the room and had placed them in the cup in the course of his tidying of the room. After the resident advisers filed a report concerning the incident, Beaver appeared before the Assistant Dean of Students, Joseph Catanzaro, and told him that Allen was not "involved in the alleged incident."

After it was determined that the confiscated material was marijuana, petitioner was accused of violating the

[ 105 Pa. Commw. Page 364]

Student Code of Conduct by engaging in the "illegal use . . . or possession of narcotics or drugs (Marijuana)." He was informed that he had the right to a hearing on the matter and that he had the right to counsel to represent him at such hearing.

Petitioner opted for this procedure and he and counsel thereafter appeared at a hearing of the Student/Faculty Judicial Board convened on November 12, 1985. The Chairwoman, one Balducci, initiated the proceeding by reading the charges against petitioner. She then proceeded to call as witnesses the two resident advisers and Allen, the roommate. These individuals testified, pursuant to Balducci's questioning, substantially as recounted above. Counsel for petitioner then cross-examined the witnesses during which process Balducci objected to counsel's attempt to challenge the competence of one of the resident adviser's testimony. Balducci also undertook to offer as evidence the marijuana seeds and a police report analyzing the substance.

Petitioner then testified that, while his friends may have been smoking in the dorm room, (1) it was only a stale cigar which had been smoked -- by one "Bubba"; and (2) that in fact during this period he, petitioner, had not in fact been in the room at all, but, rather had gone to the student union to cash a check in contemplation of the subsequent outing. Petitioner also denied testimony which had been offered from Catanzaro that he had told the latter that Bubba had brought marijuana into the room and smoked it in his presence.

Petitioner was then interrogated with respect to this testimony by Balducci and other Board members. During this portion of the hearing petitioner denied any knowledge of the marijuana seeds, but surmised that Bubba and friends had been rolling a marijuana cigarette for smoking at the later gathering. At the end of

[ 105 Pa. Commw. Page 365]

    the hearing, petitioner offered testimony that apparently conflicted ...

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