IN THE COMMONWEALTH COURT OF PENNSYLVANIA
H.R., a minor, C.R., a minor, K.R., :
a minor by their Parent and Guardian :
A.R. :
:
v. : No. 1008 C.D. 2020
: Argued: October 21, 2021
:
Shaler Area School District, :
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE J. ANDREW CROMPTON, Judge1
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT2 FILED: January 5, 2022
Shaler Area School District (School District) appeals an order of the
Court of Common Pleas of Allegheny County (trial court) that set aside the School
District’s decision to terminate the enrollment of H.R., C.R., and K.R. (Children).
The School District did so for the stated reason that Children’s mother did not reside
in the School District. Concluding that the School District’s evidence did not
substantiate its claim that A.R. (Mother) and Children do not reside in the School
District, the trial court reversed the adjudication of the School District’s Board of
Directors. We affirm the trial court.
1
The Court reached the decision in this case prior to the conclusion of Judge Crompton’s service
on the Commonwealth Court.
2
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
Background
When Mother enrolled Children in the School District, she identified
her address as 3411 Spring Garden Road, in Reserve Township, which is a home
owned by her father (Grandfather) and located in the School District. During the
2019-2020 school year, K.R. was in eleventh grade at Shaler Area High School, C.R.
was in seventh grade at Shaler Area Middle School, and H.R. was in kindergarten at
Reserve Primary School. Children’s father (Father) owns a home on the same street
several blocks away, but it is located in the Pittsburgh Public School District.
Mother and Father are separated.
In 2009, while K.R. was enrolled in elementary school, the School
District challenged Mother’s residency. On December 9, 2009, the School Board
issued an adjudication that Mother and K.R. did not reside in the School District, but
it allowed K.R. to finish the semester. In its adjudication, the School Board
explained that Mother could change her family “living patterns” to make residency
“in fact” within the School District. School Board Adjudication, 12/9/2009, at 8;
Reproduced Record at 234a (R.R. __) (emphasis in original).
In response, Mother presented various documents to the School
District, including a driver’s license and an application for food stamp assistance,
that listed her home address as 3411 Spring Garden Road. By letter of January 14,
2010, the School District informed Mother that she had demonstrated her residency
in the School District and allowed K.R. to remain enrolled. The letter also advised
Mother that “residency is primarily evidenced by physical domicile, not what
address [she chose] to include on forms and applications.” R.R. 245a. The letter
warned that the School District intended to monitor Mother’s residency.
At the start of the 2019-2020 school year, all three Children attended
schools in the School District. In September of 2019, the School District initiated
2
an investigation into Mother’s residency, which consisted principally of
surveillance. By letter of January 8, 2020, the School District informed Mother that
it concluded that she resided in the Pittsburgh School District and demanded the
payment of tuition for the first semester of the 2019-2020 school year.3 Mother
requested a hearing.
At the February 10, 2020, hearing, the School District presented
testimony about its surveillance of Mother. It also presented a written log of that
surveillance, which was admitted into evidence.
Dr. Bryan O’Black, Assistant Superintendent, testified he is responsible
for enrollment. In September of 2019, he directed two school district employees to
investigate Mother’s residency. In October, O’Black hired a private investigator to
do additional surveillance.
The first employee, Kathy Newport, a social worker, testified that an
unnamed individual, who claimed to have knowledge of the situation, informed
Newport that Children did not reside in the School District. At approximately the
same time, O’Black “received an anonymous letter” making the same claim. Notes
of Testimony, 2/10/2020, at 56 (N.T. __); R.R. 33a.
Newport testified that on three different days in September, at different
times of the day, she sat in her car near the school bus stop to wait for Children. On
the afternoon of September 25, 2019, Newport saw Mother pick up K.R. and C.R.
and take them to their Father’s house in the Pittsburgh School District. On the
morning of September 26, 2019, Newport saw Mother deliver C.R. and K.R. to the
bus stop, at two different times, each time driving from the direction of Father’s
3
The letter included three invoices for each child’s education from August 28, 2019, to January
10, 2020. The School District has since claimed that Mother owes the School District $39,966.36
in tuition for the 2019-2020 school year. Mother Brief at 5 n.1.
3
house. On September 27, 2019, Newport saw Mother’s minivan at Father’s house.
When Mother did not appear at the bus stop, Newport drove to the elementary school
where she saw Mother drop off H.R.
Newport testified that also on September 27, 2019, she and Martin
Martynuska, the principal of Reserve Primary School, visited 3411 Spring Garden
Road. Grandfather admitted the two into the house, explaining that Mother was not
home. He showed them the bedroom where Mother and Children slept. Newport
testified that
[the] bedroom [] had just a bunkbed in it. . . . The room was very
neat. There were no clothes. There were no shoes. It was
literally just the beds, and they [] just kind of had sheets on them
with a blanket.
N.T. 70; R.R. 37a. Newport testified that she asked Grandfather if Children had
slept there the previous nights and he replied “yes.” Id. Newport and Martynuska
then drove to the Father’s house, where they found Mother’s parked vehicle.
Martynuska testified that between September 27, 2019, and November
1, 2019, he surveilled both houses 27 times. He confirmed Newport’s account of
their visit to Grandfather’s house in Reserve Township. He described the bedroom
occupied by Mother and Children as approximately 11 feet by 11 feet, with two sets
of bunkbeds and one dresser with nothing on it. He did not observe Children’s coats,
shoes, sports equipment, toys or any pets. After that visit, Martynuska returned to
the school and listened to a voicemail from Mother, who stated that she had been at
a dentist appointment when he and Newport visited Grandfather’s house. Mother
further stated that Children did not have beds at Father’s house. Martynuska called
Mother and advised her that they were following up on some information suggesting
that she did not reside in the School District.
4
Martynuska testified that from October 3, 2019, to November 1, 2019,
he saw Mother and Children at Father’s house in Pittsburgh more often than at
Grandfather’s house in Reserve Township. Martynuska saw Mother’s minivan
parked in front of the Pittsburgh house 15 times over the course of 13 days, at
different times of the day, but did not see Mother or Children. By contrast, he saw
Mother’s minivan parked at the Reserve Township house on four days at different
times of the day. On two of those days, he saw Mother leave the Reserve Township
house and take Children to the bus stop. Martynuska believed that Mother was
taking steps to evade being seen at the Pittsburgh house. For example, on October
18, 2019, Mother drove to the Reserve Township house after taking Children to the
bus stop and spent 30 minutes there before driving to the Pittsburgh house.
Jake DeChicchis, a private investigator hired by the School District,
testified about his surveillance on December 17, 18 and 19, 2019, at times in the
morning and late afternoon. On two days, he saw Mother leave the Pittsburgh house
at different times between 5:30 a.m. and 8:10 a.m., get into the minivan with one of
the Children, and drive toward the bus stop. He also watched the Pittsburgh house
in the afternoons, arriving at approximately 1:30 p.m. On the afternoon of December
17, 2019, he went to the Reserve Township house but saw no signs of Children.
Returning to the Pittsburgh house, DeChicchis saw Mother pull up in her minivan
and drop off an unidentified male. On December 19, 2019, DiChicchis saw a white
Ford truck arrive at the Pittsburgh house. A man resembling the individual he saw
two days earlier got out of the truck and carried Christmas presents into the house.
Thereafter, Mother and Children arrived at the house. DeChicchis reported no
activity on December 18, 2019, when there was inclement weather.
5
The School District offered documentary evidence consisting of
photographs of Children at the Pittsburgh house and Mother’s social media posts,
which also showed Children there.
Mother testified and presented documentary evidence. She offered
photographs of Children with their, clothing, beds, bedding and toys at the Reserve
Township house taken shortly before the School Board hearing. Mother also
presented a variety of legal and financial documents identifying her home address
as 3411 Spring Garden Road, Reserve Township. These documents included
electric utility bills from 2015-2019 addressed to Mother; Mother’s driver’s license;
K.R.’s learner’s permit; Mother’s certificate of title and registration for her minivan;
a state assistance report for Mother and Children; medical reports and prescription
labels; a bank statement; a tax form from Fidelity Investments for Mother; a
Department of Human Services questionnaire on medical assistance; a January 6,
2020, letter from Reserve Primary School regarding H.R.; a yearbook notice for
K.R.; a Sam’s Club membership renewal; and a Pennsylvania Prescription
Assistance letter.
Mother testified that she and Children reside in the School District.
Mother acknowledged that she and Children spend time at the Pittsburgh house to
visit Father, attend to the family pets, play on the trampoline or swim in the pool.
She testified that they celebrate Christmas and Children’s birthdays at the Pittsburgh
house. Mother goes back and forth between the two residences. While Children
sometimes sleep in the Pittsburgh house, they spend more time at Grandfather’s
house in Reserve Township.
School Board Adjudication
The School Board concluded that Mother’s “official residence” was in
the Pittsburgh School District. School Board Adjudication, 4/8/2020, at 15; R.R.
6
18a. The School Board credited Mother’s testimony that she and Children spend
time at both houses, but rejected her testimony that she and Children spend more
time at the Reserve Township house. The Board explained as follows:
As was the case in the 2009 residency proceeding, the evidence
presented at the 2020 residency hearing could be interpreted to
some extent to support some “residency” at either the
[Pittsburgh] home or the [Reserve Township] home. That is the
nature of conflicting evidence and testimony in any case.
When evaluating such conflict, the reliability and credibility of
witnesses, and their possible motivations to construct or adjust
testimony favorably must be considered. Here, [Mother] has
reason to slant her testimony, while the witnesses presented by
the [School] District have no stake in the outcome. . . .
The evidence of record persuades the Board that while [Children]
and [Mother] may stay at the [Reserve Township] home often,
their presence in the [Pittsburgh] home is far more frequent than
admitted. [Mother’s] testimony about frequency is therefore
rejected as unreliable. While there is obvious movement
between the houses, for a variety of reasons, and people can often
travel and “stay” other than “at home[,”] it remains that a person
can have only one official residence. Based on the evidence
presented in this case, the official residence of [Mother] and
[Children] is at the [Pittsburgh] home.
School Board Adjudication, 4/8/2020, at 14-15; R.R. 17a-18a. The School Board
agreed that Mother’s documentary evidence showed that she resided in Reserve
Township. However, it dismissed its significance, stating: “Ultimately, what
establishes residency is the physical domicile of the individuals in question and not
the address that such individuals may choose to have placed on any document or
form.” Id. at 15; R.R. 18a.
Thereafter, on May 6, 2020, the School District terminated the online
links used by Children to attend their virtual classes in the School District.
7
Trial Court
Mother appealed the School Board’s adjudication and sought
emergency relief to prevent the School District’s termination of Children’s online
education, at least through the end of the 2019-2020 school year. The trial court
granted this relief. The parties thereafter submitted briefs and presented oral
argument to the trial court, which reversed the School Board’s adjudication.
The trial court concluded that Mother’s “ample documentary evidence”
demonstrated her residency in the School District. Trial Court Op., 1/21/2021, at
11. That documentary evidence was all that was “necessary to enroll [Children] in
the School District in the first instance.” Id. The School District’s surveillance
evidence did not rebut Mother’s evidence of residency or substantiate its claim that
Mother did not reside in the School District.
First, the School District employees limited their site visit to the
Reserve Township house. The trial court suggested that without a visit to the
Pittsburgh house and an interview of Father, the visit to the Reserve Township house
had limited evidentiary value.
Second, the School District presented neither “documentary evidence”
nor “direct testimony” that Mother actually resided in the Pittsburgh house. Trial
Court Op., 1/21/2021, at 13. The School District did 45 separate observations of
both houses, but there were only 10 instances where Mother and Children were seen
leaving the Pittsburgh house in the morning to go to the bus stop. There was only
one instance where Children were seen at the end of the school day going from the
bus stop to the Pittsburgh house. The trial court agreed with the School Board that
the record evidence supported a finding of Mother’s residency at both houses.
However, the trial court rejected the School Board’s factual finding that Mother
8
spent more time “residing” at the Pittsburgh house as not supported by substantial
evidence.
The trial court also rejected the School Board’s explanation for its
credibility determination, i.e., that Mother’s testimony was slanted in her favor. The
trial court noted that the School District’s witnesses were all paid by the School
District and as such, their testimony was likewise slanted in favor of the School
District. The trial court concluded that the hearing examiner capriciously and
deliberately disregarded Mother’s testimonial and documentary evidence.
Based on the foregoing, the trial court concluded that the School
District’s “limited observations and surveillance demonstrated that Mother and
[Children] spend some time at the Pittsburgh home,” but this finding was insufficient
to support the School District’s conclusion that Mother and Children do not reside
in the School District. Id. at 14 (emphasis in original).
The School District filed the instant appeal.4
Appeal
Before this Court, the School District raises two issues. It contends,
first, that the trial court erred in rejecting the School Board’s finding that Mother
and Children did not reside in the School District as not supported by substantial
4
Where a complete record is made before a school board and the trial court does not take additional
evidence, the trial court’s review of the school board’s adjudication is limited to determining
whether constitutional rights were violated, an error of law committed, or necessary findings of
fact were supported by substantial evidence. Whitacker-Reid v. Pottsgrove School District, Board
of School Directors, 160 A.3d 905, 912 n.13 (Pa. Cmwlth. 2017); Bonatesta v. Northern Cambria
School District, 48 A.3d 552, 557 n.9 (Pa. Cmwlth. 2012). “Our scope of review of a trial court’s
decision is limited to determining whether the trial court abused its discretion, committed an error
of law, or violated constitutional rights.” Behm v. Wilmington Area School District, 996 A.2d 60,
64 n.6 (Pa. Cmwlth. 2010).
9
evidence. Second, it contends that the School Board did not deliberately disregard
Mother’s evidence in finding that she did not reside in the School District.
In support, the School District argues that its evidence established that
Mother and Children resided in the Pittsburgh School District. Residency requires
evidence of a person’s actual “physical presence in a particular place.” In re
Residence Hearing Before Board of School Directors, Cumberland Valley School
District, 744 A.2d 1272, 1275 (Pa. 2000) (Cumberland Valley) (quotation omitted).
The School Board credited the School District’s witness testimony that between the
end of September to early November of 2019, Mother and Children spent more time
at the Pittsburgh house. At the same time, the School Board did not credit Mother’s
testimony that she spends more time at the Reserve Township house. The School
District argues that the trial court erred in rejecting its factual finding that Mother
spent more time in the Pittsburgh house, which the trial court did by engaging in its
“own inappropriate weighing of competing evidence of record.” School District
Brief at 18.
Mother counters that the School Board misconstrued the residency
requirement in Section 1302(a) of the Public School Code of 1949 (Public School
Code).5 Only one parent must reside in the school district, and there is no
requirement that this residence be the parent’s “primary residence.” Cumberland
Valley, 744 A.2d at 1275. Mother notes that her testimony that Children do not have
sleeping accommodations in the Pittsburgh house was unrebutted, and her
documentary evidence, including utility bills, driver’s licenses and bank account
statements, were accepted when she enrolled Children in the School District. The
School District’s surveillance showed that children stayed overnight at Father’s
5
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §13-1302(a).
10
house 10 times over a 45-day period. This is not adequate to show that Mother spent
more time at Father’s Pittsburgh house than at the Reserve Township house. The
School District offered no direct testimony from the informant, neighbors or even
Father. Instead, it relied on anonymous tips and circumstantial evidence, from which
it drew unreasonable inferences.
Analysis
We begin with a review of the applicable law. Section 1302(a) of the
Public School Code states that “[a] child shall be considered a resident of the school
district in which his parents or the guardian of his person resides.” 24 P.S. §13-
1302(a) (emphasis added). To address the situation where parents are separated or
divorced, the Department of Education has adopted a regulation that states, in
relevant part:
A school age child is entitled to attend the public schools of the
child’s district of residence. A child’s district of residence is that
in which the parents or the guardian resides. When the parents
reside in different school districts due to separation, divorce or
other reason, the child may attend school in the district of
residence of the parent with whom the child lives for a majority
of the time, unless a court order or court approved custody
agreement specifies otherwise.
22 Pa. Code §11.11(a)(1) (emphasis added). Because a child cannot acquire a
residence apart from his parents, the child’s residency is that of the parent with whom
he lives. Mathias v. Richland School District, 592 A.2d 811, 812 (Pa. Cmwlth. 1991)
(quotation omitted). “Residence” has been defined by our Supreme Court as “a
factual place of abode evidenced by a person’s physical presence in a particular
place,” but it does not have to be the person’s primary residence or place of domicile.
Cumberland Valley, 744 A.2d at 1274. Section 1302(a) of the Public School Code
11
prevents “school shopping.” Paek v. Pen Argyl Area School District, 923 A.2d 563,
567 (Pa. Cmwlth. 2007). In a Section 1302(a) case, the parent has the initial burden
of proof, which may be satisfied by the presentation of evidence sufficient to satisfy
the enrollment requirements for a child in the district. Whitacker-Reid, 160 A.3d at
917. Then, the burden shifts to the school district. Id. Specifically, the school
district must substantiate its determination that the parent or guardian does not reside
in the school district. Id.
Cumberland Valley, 744 A.2d 1272, is instructive on school district
residency. In that case, the mother and her two children spent every weekend and
holiday at the family’s “primary” residence in Franklin County, where the Father
lived and worked. The parents were not separated. In August of 2015, the mother
leased a townhouse in Hampden Township and enrolled her younger child in the
Cumberland Valley School District’s special needs program. Her older child
attended a private school. By October, it became apparent that the younger child
needed placement in a residential educational institution, but Cumberland Valley
refused to pay the tuition, arguing that the child actually resided in Franklin County.
The school board held that the mother was not a resident of the school district
because she intended to return to Franklin County after her sons graduated. This
Court rejected this reasoning and reversed. On further appeal, the Supreme Court
affirmed this Court.
The Supreme Court held that the school district’s understanding of the
term “resides” in Section 1302(a) of the Public School Code was too narrow and
exacting. Cumberland Valley, 744 A.2d at 1275. It explained that a “domicile” is
“the fixed, permanent, final home to which one always intends to return.” Id.
However, Section 1302(a) uses the term “resides,” as opposed to “domiciled,” and
the choice of the legislature was purposeful. Cumberland Valley, 744 A.2d at 1275.
12
Section 1302(a) of the Public School Code does not require the residence in the
school district to be the “primary residence.” Cumberland Valley, 744 A.2d at 1275.
Paek, 923 A.2d 563, also concerned a parent with two residences. The
mother owned a home in the school district, paid taxes to the school district, and had
a driver’s license listing her home address in the school district. She also owned
another home two miles away, and the family moved between the two houses.
However, the mother was careful to sleep two nights a week at the house in the
school district. This Court concluded that the mother demonstrated only a
“residence of convenience” in the school district. Id. at 567. In actuality, she “was
keeping up the appearance of maintaining a home, not actually living there and
having a physical presence” in the school district. Id.
Whitacker-Reid, 160 A.3d 905, considered evidence similar to that
presented by the School District. In Whitacker-Reid, we explained that because the
mother provided the documentary evidence of residency required by the Department
of Education, the burden shifted to the school district to prove another residency.
The school district did not meet that burden with surveillance evidence because the
surveillance was not of sufficient duration on any one day, or in the aggregate, to
establish the mother’s physical presence. The school district employees watched the
district address “‘on a number of occasions’ between May and September, [but] they
did so only around the time the buses came to pick up and drop off students.” Id. at
918 (citation and footnote omitted; emphasis in original). They were not watching
the mother’s address in the district “24 hours a day.” Id. at 909. Accordingly, this
surveillance evidence did not constitute “substantial evidence” that mother resided
outside the school district; “it focused only on a limited time frame.” Id. at 918.
This Court concluded that many of the school board’s factual findings
were not supported by substantial evidence or were insufficient to prove non-
13
residency. By contrast, the documentary evidence uniformly pointed to the mother’s
residency in the school district. The Court addressed Behm, 996 A.2d 60, and Fort
Cherry School District v. Pawlosky (Pa. Cmwlth., No. 2811 C.D. 1999, filed July
21, 2000) (unreported), where the school district was able to prove a lack of
residency. In both cases, the school district presented testimony from multiple
witnesses, including neighbors, to prove that the family spent most of its time at the
residence outside the school district.
In Whitacker-Reid, this Court concluded that the school board’s
findings merely “suggest[ed] or speculate[d]” that there “could be” a residency
problem. Whitacker-Reid, 160 A.3d at 921 (emphasis in original). Given the
consequences of a conclusion of non-residency, including criminal charges and the
repayment of school tuition, this Court held the burden is on the school district to
substantiate non-residency. To meet this burden, the school district must offer more
than intermittent surveillance.
With these principles in mind, we turn to the School District’s appeal.
In its first issue, the School District contends that the trial court erred
in holding that substantial evidence did not support the School Board’s finding that
Mother resided outside the School District more than she resided inside the School
District. It claims that the trial court improperly disregarded the School Board’s
decision to reject Mother’s statement that she spent more time at Grandfather’s
house in Reserve Township than at Father’s house in Pittsburgh.
As explained, Section 1302(a) of the Public School Code and the
implementing regulation of the Department of Education provide that where, as here,
parents are separated, “the child may attend school in the district of residence of the
parent with whom the child lives for a majority of the time[.]” 22 Pa. Code §11.11(a)
(emphasis added). Where parents have joint custody and time is evenly divided
14
between them, a child may have two residences. Watts v. Manheim Township School
District, 121 A.3d 964, 975 (Pa. 2015). Parents also may have two residences, and
residency may be established in a school district even if it is not the parent’s
“primary” residence. Cumberland Valley, 744 A.2d at 1275.
Here, Mother made a prima facie case of residency in the School
District through documentary evidence showing the Reserve Township house as her
address. This evidence included electric utility bills in Mother’s name; Mother’s
voter registration; Mother’s driver’s license; and other pieces of mail. As noted by
the trial court:
While this Court agrees, at least to a certain extent, that
documents might not always tell the whole story, it remains
undisputed that Mother’s documentary evidence was sufficient
to originally enroll [Children] in the School District.
Trial Court Op., 1/21/2021, at 14. These documents satisfied Mother’s limited
burden. Whitacker-Reid, 160 A.3d at 917. The burden then shifted to the School
District to prove that Mother is not a resident of the School District. Id.
The trial court held that, as in Whitacker-Reid, the School District’s
surveillance evidence did not support the School Board’s finding that Mother spent
more time at the Pittsburgh house. The trial court stated:
School District’s mere ten observations of Mother and
[Children] exiting the Pittsburgh [h]ome in the early morning, a
collection of Mother’s social media posts, and generalized
conclusions regarding the interior and exterior of both homes, do
not necessarily lead to the conclusion that Mother and [Children]
spend more time at the Pittsburgh [h]ome. At best, the School
District’s observations and surveillance establish that Mother
and [Children] spent some time at the Pittsburgh [h]ome. This
fact is not surprising, given that Father lives at the Pittsburgh
15
[h]ome only a few blocks away and has a vested interest in
[Children’s] lives.
Trial Court Op., 1/21/2021, at 13 (emphasis added). The trial court identified
specific shortcomings in the School District’s evidence:
School District’s investigation of Mother and [Children]
primarily focused primarily on a limited time frame. In this case,
during the course of a four-month long investigation consisting
of at least forty-five (45) separate observations of both the
Pittsburgh [h]ome and the [Reserve Township] [h]ome, the
School District nonetheless only cites ten (10) specific instances
where Mother and [Children] were seen leaving the Pittsburgh
[h]ome in the morning to go to the School District bus stop before
school. The School District further reported that Mother and
[Children] were seen traveling back to the Pittsburgh [h]ome
after school on only one (1) of those ten (10) instances.
Id. (emphasis in original and added). In short, the periodic sightings by School
District employees did not support the School Board’s factual finding that Mother
and Children spent more time in the Pittsburgh house.
The School District takes issue with the trial court’s summary of its
surveillance evidence. It explains:
[O]bservations of both the Pittsburgh [h]ome and the [Reserve
Township] [h]ome on 22 dates at different times of the day, not
all of which involved observations immediately prior to or
following the school day and some which resulted in no
observations of either Mother or [Children]. In comparison to
the 10 instances noted by the [trial] court of leaving the
Pittsburgh [h]ome in the morning to travel to school, Mother and
[Children] were observed leaving the [Reserve Township]
[h]ome on only 6 of occasions, all within the two[-]week period
after School District personnel visited the [Reserve Township]
[h]ome to investigate residency. Of the 3 days on which the
School District observed Mother and [Children’s] return from
school, they were seen going to and entering the Pittsburgh
16
[h]ome on 2 of those days. (On the one day that the private
investigator conducted an afternoon investigation, Mother [and
Children] also went to the Pittsburgh [h]ome). On 3 other
observations at the end of the school day, Mother’s [minivan]
was observed parked at the Pittsburgh [h]ome.
School District Brief at 24 (emphasis added).
The School District, however, fails to address the trial court’s legal
conclusion that its surveillance suffered from the same deficiencies identified in
Whitacker-Reid. Specifically, the School District’s surveillance consisted of
intermittent sightings (or no sightings) of Mother and Children at different times of
the day; did not cover a 24-hour period; and covered only a 6-week period of time.
The School District’s staff observed Mother and Children on 22 days, at times just
before and just after the school day. This is inadequate to rebut Mother’s prima facie
case.
Further, the School District did not produce any other evidence, such
as testimony by the informant who allegedly knew that Mother and Children do not
reside in the School District, or from neighbors or even Father. Cf. Behm, 996 A.2d
60. The School District personnel did not visit the Pittsburgh house, which Mother
explained is a “one-bedroom house” where Children “occasionally” sleep on a
rollout couch. N.T. at 116; R.R. 48a.6
Mother acknowledged that she and Children spend time at the
Pittsburgh house for various reasons. Children’s birthday parties are held at Father’s
house because he has a swimming pool, trampoline, and swing set. Children’s pet
6
Allegheny County assessment records confirm that Father’s house is a one-bedroom home with
one bath and that the Reserve Township house is a three-bedroom home with two baths, which is
sufficient to accommodate a family. N.T. 20, School District Exs. 5 & 6; R.R. at 24a, 79a, 81a.
17
dogs live there, and Father decorates the house with lights for Christmas for
Children. These facts did not establish residency outside the School District.
It was the School District’s burden to substantiate where Mother and
Children spend the majority of their time. Cumberland Valley, 744 A.2d at 1274.
The School Board acknowledged that the evidence presented by the School District
could be interpreted “to support some ‘residency’ at either the [Pittsburgh h]ome or
the [Reserve Township h]ome.” School Adjudication, at 14 (emphasis added). The
School District’s surveillance evidence was inadequate for all the reasons set forth
in Whitacker-Reid, 160 A.3d at 918 (surveillance in the afternoon, not “24 hours,”
and not over an extended period of time did not constitute substantial evidence to
establish residency). Accordingly, the School District’s finding that Mother spent
more time at the Pittsburgh house was not supported by substantial evidence, and
the trial court did not err in so holding.7
Conclusion
For these reasons, we affirm the order of the trial court.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
7
Because of our decision on the School District’s first issue, we need not consider whether the
trial court was correct in concluding that the School Board capriciously disregarded Mother’s
evidence.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
H.R., a minor, C.R., a minor, K.R., :
a minor by their Parent and Guardian :
A.R. :
:
v. : No. 1008 C.D. 2020
:
:
Shaler Area School District, :
Appellant :
ORDER
AND NOW, this 5th day of January, 2022, the September 15, 2020,
order of the Court of Common Pleas of Allegheny County is AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita