Belasco v. Board of Public Educ. of School Dist. of Pittsburgh

• Decision Date: 03 June 1986
• Citation: 510 A.2d 337,510 Pa. 504
• Parties: , 33 Ed. Law Rep. 281 David J. BELASCO and Edward R. Powers, Appellees, v. The BOARD OF PUBLIC EDUCATION OF the SCHOOL DISTRICT OF PITTSBURGH, Appellant. The BOARD OF PUBLIC EDUCATION OF the SCHOOL DISTRICT OF PITTSBURGH, Appellant, v. David J. BELASCO and Secretary of Education, Commonwealth of Pennsylvania, Appellees. The BOARD OF PUBLIC EDUCATION OF the SCHOOL DISTRICT OF PITTSBURGH, Appellant, v. Edward R. POWERS and Secretary of Education, Commonwealth of Pennsylvania, Appellees.
• Court: Pennsylvania Supreme Court

Page 337

510 A.2d 337

510 Pa. 504, 33 Ed. Law Rep. 281

David J. BELASCO and Edward R. Powers, Appellees, v. The BOARD OF PUBLIC EDUCATION OF the SCHOOL DISTRICT OF

PITTSBURGH, Appellant.

The BOARD OF PUBLIC EDUCATION OF the SCHOOL DISTRICT OF

PITTSBURGH, Appellant, v. David J. BELASCO and Secretary of Education, Commonwealth of

Pennsylvania, Appellees.

The BOARD OF PUBLIC EDUCATION OF the SCHOOL DISTRICT OF

PITTSBURGH, Appellant, v. Edward R. POWERS and Secretary of Education, Commonwealth of

Pennsylvania, Appellees.

Supreme Court of Pennsylvania.

Argued March 6, 1986.

Decided June 3, 1986.

Bruce D. Campbell, Robert E. Durrant, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for appellant.

Eugene P. Girman, Girman & Bacharach, Pittsburgh, for Belasco & Powers.

Linda J. Wells, Harrisburg, for Secretary of Educ.

Louis B. Kushner, Shelley W. Elovitz, Rothman, Gordon, Foreman, and Groudine, P.C., Pittsburgh, amicus curiae, for Pa. Federation of Teachers-AFL-CIO.

Anthony D. Newman, Gen. Counsel, Harrisburg, amicus curiae, for Pa. State Educ. Assoc.

Michael I. Levin, Cleckner & Fearen, Blue Bell, amicus curiae, for Pa. School Boards Assoc.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

LARSEN, Justice.

The School District of the City of Pittsburgh appeals from an order of the Commonwealth Court affirming, and modifying in part, a decision of the Secretary of Education (Secretary) which reversed the School Board's dismissal of appellees, David J. Belasco (Belasco) and Edward R. Powers (Powers), as professional employees and reinstated them to their respective teaching positions in the appellant School District. At issue is the essence of the review powers of the Secretary in an appeal from a decision of a School Board. We are asked to decide the nature of the Secretary's review in a case where no additional testimony is taken. In such a case, is the Secretary limited to traditional appellate review, or is he to conduct a de novo review of the School Board's decision? The question is raised: may the Secretary make new findings of fact based upon the evidence presented to the board as reflected in the official record without taking additional testimony? Also at issue is the Commonwealth Court's finding that the School Board's decision was not in accordance with the law in that the evidence was insufficient to establish intemperance, cruelty and willful violation of the school laws.

Appellees Belasco and Powers were teachers at Halls Grove Opportunity School, a school for mentally and socially retarded children in the City of Pittsburgh. On April 20, 1982, appellees were separately involved in two distinct incidents centering around Gary Neel (Neel), a socially and emotionally disturbed student. Neel, an eighth-grader at the school, had been involved in physically aggressive conduct toward a fellow student. Appellee Powers one of Neel's teachers, talked to Neel about the incident and then as a form of punishment, lightly struck Neel on the buttocks with a wooden paddle. Powers characterized the single act of light contact as a "love tap" ¹ administered with a flick of the wrist. He described the force of the "love tap" as enough for the child to know it happened but not enough to hurt. Later, Power's class ended, and Neel went to his next class in the classroom of appellee Belasco. There he was called to the front of the room by a teacher's aide, Sandra Saunders, where he again was punished for his aggressive conduct. Ms. Saunders, ² using considerable force, smacked Neel five times with a paddle across the buttocks. Harrison Richman, a second teacher's aide in the room at the time, joined in the paddling and swatted Neel once on his buttocks. Belasco who was present in the classroom apparently observed the paddling but did not intervene. Belasco testified that he did not attempt to stop the aides from paddling Neel because when Neel was summoned to the front of the room, the other class members became excited and unruly. Belasco indicated that he was busy calming them and keeping order. After the aides left the room, Belasco took the paddle in hand and laid it on the buttocks of Neel in what both he and Neel described as a joking fashion, attempting to lighten the atmosphere.

Previously, in 1970, the School Board of Pittsburgh adopted a policy banning corporal punishment. That policy was in effect on April 20, 1982, the time of the events in question. Because of the incidents involving Gary Neel, Powers and Belasco were suspended without pay. On July 2, 1982, appellees were formally charged with intemperance, cruelty and willful and persistent violation of the school laws of Pennsylvania. A hearing on the charges was held before the School Board on July 13, 1982. On October 25, 1982 the Board found appellees guilty of the charges and dismissed them from their positions. On appeal the Secretary reversed the decision of the School Board and ordered appellees reinstated, but without back pay. The Commonwealth Court affirmed the Secretary's order reinstating appellees and modified that portion of the order denying back pay by directing that appellees receive back pay. ³ On petition brought by the School Board, we granted allowance of appeal.

The appellant School Board argues that the Secretary erred by making additional findings of fact based solely upon his review of the record of the hearing before the Board and without receiving additional testimony. ⁴ The appellant contends that where no additional testimony is taken the Secretary's review is limited to traditional appellate review--determining whether an error of law has been committed, constitutional rights have been violated, or the findings and conclusions are supported by substantial evidence.

The Public School Code, 24 P.S. § 1-101, et. seq., vests the Secretary of Education with authority to hear appeals brought by professional employees from actions of School Boards. Section 1131 of the code provides:

In case the professional employe concerned considers himself or herself aggrieved by the action of the board of school directors, an appeal by petition, setting forth the grounds for such appeal, may be taken to the Superintendent of Public Instruction at Harrisburg. Such appeal shall be filed within thirty (30) days after receipt by registered mail of the written notice of the decision of the board. A copy of such appeal shall be served by registered mail on the secretary of the school board.

The Superintendent of Public Instruction shall fix a day and time for hearing, which shall be not sooner than ten (10) days nor more than thirty (30) days after presentation of such petition, and shall give written notice to all parties interested.

The Superintendent of Public Instruction shall review the official transcript of the record of the hearing before the board, and may hear and consider such additional testimony as he may deem advisable to enable him to make a proper order. At said hearing the litigants shall have the right to be heard in person or by counsel or both.

After hearing and argument and reviewing all the testimony filed or taken before him, the Superintendent of Public Instruction shall enter such order, either affirming or reversing the action of the board of school directors, as to him appears just and proper. 1949, March 10, P.L. 30, art. XI, § 1131. (Footnote omitted.)

24 P.S. § 11-1131. The Secretary of Education, formerly Superintendent of Public Instruction, initially was given his present role in the appeal process by the Act of June 20, 1939, P.L. 482. ⁵ Under the 1939 Act, the Secretary was granted the authority to take additional testimony and to make a decision which to him "appears just and proper." This same authority is continued in the present School Code in Section 1131. Under the 1939 Act, a professional employee not satisfied with the decision of the Secretary could appeal to the Court of Common Pleas and, upon specific request, obtain a hearing de novo. ⁶ The Common Pleas Court, similar to the Secretary, was given the authority to "make whatever order it considers just."

The provision for a hearing de novo before the Common Pleas Court provided an aggrieved professional employee with an opportunity to have the facts of his case heard again in an independent forum. In the hearing before the School Board, the Board acts in a dual capacity, both as prosecutor and judge. The circumstance of the Board serving in this twin function creates a potential for prejudice. We recognized this potential in Appeal of Spano, 439 Pa. 256, 267 A.2d 848 (1970) where we said:

"[B]efore a tenured professional employee is dismissed he is entitled to notice of the charges against him and a public hearing before the board of school directors. At that hearing the board plays a dual role. It acts both as prosecutor and as judge, and because of this it can never be totally unbiased. See Spruce Hill Township School District Board of Directors v. Bryner, 148 Pa. Superior Ct. 549, 25 A.2d 745 (1942). Cf. Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969). By providing in § 1132(b) for a de novo hearing by request in the court of common pleas as part of the appeal from the decision of the Superintendent, the legislature has given the employee the opportunity for a hearing in a forum free of any bias. Thus, if the employee-appellant desires, he can have his case retried in a forum in which the School Board plays only the role of prosecutor and not that of judge also."

In 1971, Section 1132 of the School Code was amended and the then newly created Commonwealth Court was substituted for the Common Pleas Court as the court to which appeals from the Secretary were taken. At that time the Commonwealth Court had the same de novo review authority as previously held by the Court of Common Pleas. See Harris v. Commonwealth, Secretary of Education, 29 Pa.Cmwlth. 625, ...