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decided: April 22, 1987.


Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of MJN, by his father and natural guardian, NJN v. Pittsburgh Board of Public Education, Nos. SA 295-1985 and 438-1985, dated May 1, 1986.


Robert J. Stefanko, for appellant.

Maurice A. Nernberg, Jr., Nernberg & Laffey, for appellee.

Judges Craig and Barry (p), and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 105 Pa. Commw. Page 399]

The Pittsburgh Board of Public Education (Board) appeals from an order of the Allegheny County Court of Common Pleas granting the motion for summary judgment filed by MJN, appellee, and sustaining MJN's appeal under the Local Agency Law, 2 Pa. C.S. § 754, from a Board decision to suspend him from high school.

MJN, while a high school freshman, was suspended from high school for allegedly gaining unauthorized access after school hours into the school district's main computer from his home computer. He was subsequently charged with violating the Pittsburgh Public School Discipline Code. A suspension hearing was held before the Board on February 28, 1985, and the Board recommended that MJN be suspended for thirty days for violations of Rules Two and Eight of the School Discipline Code.*fn1 MJN immediately filed a complaint in

[ 105 Pa. Commw. Page 400]

    the United States District Court for the Western District of Pennsylvania. The Honorable Paul A. Simmons enjoined the Board from implementing the suspension, directed that MJN be reinstated as an attending student and ordered a rehearing. Specifically, Judge Simmons ruled that the Board denied MJN a fair hearing in violation of his due process rights. Pursuant to his order, a conference with MJN's parents was held on March 7, 1985 and a rehearing was held on March 13, 1985. On March 27, 1985, the Board again suspended MJN for thirty days.

On April 3, 1985, MJN appealed to the Court of Common Pleas of Allegheny County under Section 752 of the Local Agency Law. This appeal was consolidated with his earlier statutory appeal of the February 28, 1985 decision. On May 13, 1985, the trial court granted MJN's motion for allowance of discovery and a so-called motion for summary disposition which, in effect, requested leave to file a motion for summary judgment. The Board then moved for a protective order under Pa. R.C.P. 4012 which the trial court denied. On November 15, 1985, MJN filed a motion for summary judgment. The Board responded with a counter-motion to dismiss petitioner's motion for summary judgment. In that counter-motion the Board specifically requested that the trial court rescind its order of May 13, 1985 granting MJN the right to discovery and the right to move for summary judgment at the close of discovery. On May 1, 1986, the trial court, in an able opinion by the Honorable Richard Zeleznik, denied the Board's request to rescind its order permitting discovery and summary judgment reasoning that, if there are no material issues of fact remaining of record and a party is entitled to relief as a matter of law, the court should be free to grant summary relief whether it is an appeal from an administrative agency or some other proceeding. The

[ 105 Pa. Commw. Page 401]

    trial court ruled that discovery was permissible "in furtherance of our duty to take additional evidence, having concluded that the record below was incomplete, pursuant to the Local Agency Law. 2 Pa. C.S.A. § 754." The trial court then moved to the merits of MJN's motion for summary judgment. Judge Zeleznik, specifically addressing the allegation in the motion for summary judgment that the Board commingled prosecutorial and advisory functions at the March 13, 1985 rehearing, denying MJN his constitutional right to a fair hearing and a fair tribunal, ruled that impermissible commingling of functions had occurred which resulted in prejudice to MJN. The trial court pointed to the overlapping functions and the close working relationship of the Board's prosecuting attorney and the susceptibility that the prosecuting attorney would become involved in the ultimate decision.

Rather than remand the matter back to the Board, the trial court, reversed the Board, granted the motion for summary judgment and ordered that MJN be ...

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