Picone Ex Rel. Picone v. Bangor Area School District

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority holds that the Bangor Area School District and the Board of School Directors of the Bangor Area School District (School District) properly expelled Kyle Russel Picone (Student), a minor by and through his natural parents and guardians, Anthony Picone and Kimberly Picone, his wife, under section 1317.2(a) of the Public School Code of 19491 (Public School Code) for possessing a “weapon” on school property.2

Section 1317.2(a) of the Public School Code authorizes a school district to expel for not less than one year any student who is determined to be in possession of a “weapon” on school property. 24 P.S. § 13-1317.2(a).

As used in this section, the term “weapon” shall include, but not be limited to, any knife, cutting instrument, cutting tool, nunchaku, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.

24 P.S. § 13-1317.2(g) (emphasis added). In this case, the School District expelled Student for possession of a toy soft air pellet gun after Student shot the pellet gun at his girlfriend and a plastic pellet struck her on the thigh. The School District determined that the toy3 pellet gun is *565a “weapon” because it is capable of inflicting serious bodily injury to the eye.

However, virtually anything is capable of inflicting serious bodily injury if not used for its intended purpose. For instance, our supreme court once held that a bedroom slipper is a deadly weapon when used to beat someone over the head. See Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992). Moreover, our superior court has held that a raw egg thrown from the roof of a building at the windshield of a moving vehicle is a dangerous and deadly missile because it could leave the driver with little or no visibility. Commonwealth v. Roman, 714 A.2d 440 (Pa.Super.), appeal denied, 556 Pa. 707, 729 A.2d 1128 (1998). A witness for the School District in this case testified that a water pistol would be a “weapon” because it might contain a liquid other than water that could inflict serious bodily injury.4 (R.R. at 40a.)

If the test for determining whether a student possesses a “weapon” on school property is simply whether the item is capable of inflicting serious bodily injury, then school districts could expel students for possessing innumerable common, everyday objects. I believe that to derive such a test from the statutory definition would lead to absurd results.5

In trying to avoid absurd results, I take a common sense approach. When a student uses an object that is not inherently a weapon to intentionally inflict serious bodily injury to another, the object is a weapon. When a student using an object accidentally or carelessly inflicts serious bodily injury to another, the fact that the other person suffered an unintentional, accidental injury does not make the object a weapon. Here, Student did not intend to inflict serious bodily injury on his girlfriend and, in fact, did not do so. If Student had inflicted serious bodily injury on his girlfriend, it would have been entirely unintentional. Although Student was careless in using his toy pellet gun,61 submit that Student did not use it as a “weapon.”

Student testified that he learned his lesson. (Findings of Fact, No. 21.) However, the lesson to be learned from this case should be learned by all students, not just Student. I understand that it is the legislature’s duty to define terms in a particular context, but the legislature, in its wisdom, could have done a better job in enacting a school safety law to prevent harm to students. Rather than expelling a student arbitrarily for possessing everything from the baseball bat a student might bring for the pick-up game after school to the knitting needles a student might bring to make a scarf during lunch or study hall, the legislature could have required that school districts hold assemblies to educate children about the prevention of serious bodily injury to others when using potentially dangerous objects.

Moreover, where the law punishes a student by depriving that student of a normal *566educational experience, and imposing severe sanctions, without any proof that the student intended any harm, as the evidence here clearly shows, students will learn well that ambiguities in the law create arbitrary and unreasonable results. For that reason, the School District’s decision, and the majority’s affirmance, is regrettable.

Accordingly, unlike the majority, I would reverse.

. Act of March 10, 1949, P.L. 30, as amended, added by section 4 of the Act of June 30, 1995, P.L. 220, as amended, 24 P.S. § 13-1317.2(a).

. The basis for the majority’s holding is unclear. On the one hand, the majority appears to follow In the Interest of M.H.M., 864 A.2d 1251 (Pa.Super.2004), appeal denied, 584 Pa. 678, 880 A.2d 1239 (2005), in which our superior court held that a carbon dioxide-powered paintball gun is a "weapon" under section 912(a) of the Crimes Code, 18 Pa.C.S. § 912(a), because it is capable of inflicting serious bodily injury to the eye. (See Majority op. at 562.) On the other hand, the majority appears to follow the reasoning of the Court of Common Pleas of Northampton County (trial court), which held that Student's toy soft air pellet gun is a “weapon" under section 1317.2(g) of the Public School Code, 24 P.S. § 13-1317.2(g), because it is capable of inflicting serious bodily injury to the eye when used as intended. (See Majority op. at 562.)

. I note that a "toy” is an "article for the playtime use of a child” or "something designed for amusement or diversion rather than practical use.” Webster’s Third New International Dictionary 2419 (1993). However, as ordinarily understood, a "weapon” is "an instrument of offensive or defensive combat: something to fight with.” Webster’s Third New International Dictionary 2589 (1993). The legal definition of "weapon” here does not suggest otherwise. To say that a "toy” is a "weapon” is an oxymoron; the concepts are mutually exclusive.

. I note that, if the water pistol contained only water, or contained nothing at all, it would not be capable of inflicting serious bodily injury. Nevertheless, the witness suggested that the student could be expelled for possessing a water pistol, whatever the contents.

. The trial court agrees, stating that “to read [the Public School Code definition of "weapon”] in a way that would make the possession of scissors, pencils, neckties, shoelaces, belts, and jewelry illegal on school grounds [leads to] a result that is absurd, impossible of execution or unreasonable.” (Trial ct. op. at 7-8.)

.Student’s undisputed testimony was that he did not even intend to hit his girlfriend when he shot the pellet gun in her direction. (Trial ct. op. at 10; R.R. at 119a.)