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Behm v. Wilmington Area School Dist.

May 19, 2010

JAY AND JENNIFER BEHM
v.
WILMINGTON AREA SCHOOL DISTRICT, WILMINGTON AREA SCHOOL DISTRICT BOARD OF DIRECTORS, AND C. JOYCE NICKSICK, APPELLANTS



The opinion of the court was delivered by: Senior Judge Friedman

Argued: April 20, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

The Wilmington Area School District (District), the Wilmington Area School District Board of Directors (School Board) and C. Joyce Nicksick (collectively, Appellants) appeal from the June 19, 2009, order of the Court of Common Pleas of Lawrence County (trial court) granting the appeal filed by Jay and Jennifer Behm (the Behms) from the School Board's January 26, 2009, adjudication on procedural grounds. We reverse.

During the 2007-2008 school year, Nicksick, who is the District Superintendent, received inquiries from District residents as to whether the Behms and their five children resided within the District. At issue was whether the Behms actually "resided" at 166 Waugh Avenue, which was within the District, or at 668 Leesburg Station Road, which is located in the Grove City Area School District.*fn1 On May 15, 2008, Nicksick met with the Behms and asked them to fill out a residency affidavit. However, the Behms declined to sign the provided form and, instead, submitted their own, less detailed, affidavit.

In July 2008, an attorney retained by the District notified the Behms that, based on overwhelming evidence, the District Administration (Administration) determined that the Behms had not resided in the District for at least three school years, and, therefore, their children could not attend school in the District for the 2008-2009 school year. The notice advised the Behms of their right to a local agency hearing to challenge the Administration's determination and also indicated that the District would be willing to resolve the matter amicably through the payment of tuition. (R.R at 1-2.)

The Behms subsequently requested a hearing before the School Board, which was held August 14, 2008. At the hearing, Attorney Phillip Clark represented the Behms, and Attorney Lee V. Price represented the Administration in the prosecutorial function. (School Board Adjudication, ¶¶4, 7.) The District Solicitor, Charles Y. Mansell (Solicitor), conducted the hearing on behalf of the School Board and ruled on the admissibility of evidence. The School Board heard testimony from the Behms regarding the time spent, and activities pursued, by the family at each address. In addition, Peter McCann, a private investigator, Bill and Jackie Heinel, neighbors of the Behms at the Waugh Avenue address, and Nicksick all testified. The Administration also entered eight exhibits into the record, including: the residency affidavit provided to the Behms by Nicksick, (Ex. No. 2, R.R. at 226-28); the assessment record for the Waugh Avenue property, provided by the Lawrence County Assessor's office, which noted a change in mailing address from Waugh Avenue to Leesburg Station Road, (Ex. No. 6, R.R. at 245-46); and water usage records obtained from the New Wilmington Municipal Authority, showing quarterly water consumption at the Waugh Avenue address and at other addresses for purposes of comparison, (Ex. No. 7, R.R. at 247-64).*fn2

Following the hearing, the School Board voted to uphold the Administration's decision to prohibit the Behms' children from attending school in the District. Finding that the Behms made "numerous unbelievable misstatements of fact under oath," (R.R. at 281), the School Board concluded that the Behms are not sincere in their intent to reside at the Waugh Avenue address. (School Board

Adjudication, Conclusions of Law, No. 5.) Further, citing testimony presented by the Behms themselves, the School Board concluded that the Behms did not have a sufficient physical presence at the Waugh Avenue address to establish "residency" as required by section 1302 of the School Code.*fn3 (School Board Adjudication, Conclusions of Law, Nos. 1-2, 8(a)-(g).)

The Behms appealed to the trial court, and argument on the matter was scheduled for January 26, 2009.*fn4 In addition to the transcript of testimony and evidence presented before the School Board, the parties presented stipulations to the trial court, paraphrased as follows:

1. That at the time of the Local Agency hearing, the School Board was represented and advised by the Solicitor.

2. That at the time of the Local Agency hearing, the Solicitor advised the School Board on evidentiary issues, including the admission of evidence.

3. That during the course of the Local Agency hearing, the Administration, through Nicksick, offered into evidence certain water usage records regarding the Behms and other residents of New Wilmington Borough.

4. That said water usage records were obtained from the Borough of New Wilmington at the direction and behest of the Solicitor by an employee of the ...


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