Board of Public Educ. School Dist. of Philadelphia v. Beilan

• Decision Date: 25 June 1956
• Citation: 125 A.2d 327,386 Pa. 82
• Parties: BOARD OF PUBLIC EDUCATION SCHOOL DISTRICT OF PHILADELPHIA, Appellant, v. Herman A. BEILAN.
• Court: Pennsylvania Supreme Court

Page 327

125 A.2d 327

386 Pa. 82

BOARD OF PUBLIC EDUCATION SCHOOL DISTRICT OF PHILADELPHIA, Appellant, v. Herman A. BEILAN.

Supreme Court of Pennsylvania.

June 25, 1956.

Rehearign Denied Oct. 3, 1956.

Sidney L. Wickenhaver, C. Brewster Rhoads, Edward B. Soken, Philadelphia, for appellant.

John Rogers Carroll, Thomas D. McBride, Philadelphia, for appellee.

Julian E. Goldberg, Thomas A. Masterson, Philadelphia, on brief for American Civil Liberties Union.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

CHIDSEY, Justice.

Herman A. Beilan, a professional employe of the School District of Philadelphia, taught English for the Simon Gratz High School. He had been a teacher in the District for about 23 years. At the written request of Dr. Louis P. Hoyer, Superintendent of the Philadelphia Public Schools, Beilan reported to the Superintendent's office for an interview on June 25, 1952. Dr. Hoyer advised Beilan that he had information bearing on the question of the latter's loyalty and wanted to know whether the information was correct. Mr. Beilan suggested that the Superintendent ask the questions, whereupon Dr. Hoyer asked whether Mr. Beilan was Press Director of the Professional Section of the Communist Political Association in 1944. Beilan did not answer the question but stated he wanted to consult counsel. Dr. Hoyer acceded to this request and stated that he wanted Beilan to report again after he had consulted counsel. There the matter rested until Dr. Hoyer made a written request in October that Mr. Beilan report to the Superintendent's office on October 14th to further discuss matters already brought to Beilan's attention. Beilan came to the Superintendent's office and stated that he had consulted counsel and had been advised that he could not legally answer the question asked about his Communist activity in 1944 or similar questions. Dr. Hoyer advised Mr. Beilan that this was a very serious and important matter and that failure to answer might lead to his dismissal. Beilan, however, persisted in his refusal.

On November 18, 1953, Beilan testified before a sub-committee of the House Committee on Un-American Activities of the House of Representatives of the United States Congress. He testified to his educational and employment background. When asked by the Committee whether he had ever been a member of the Communist Party Mr. Beilan pleaded the privilege of the Fifth Amendment of the Federal Constitution. Counsel for the Congressional Committee stated that the Committee had received sworn testimony that Mr. Beilan was a member of the Communist Party; that in 1943 and 1944 he was a member of the Daily Worker Press Club; that he was Press Director of the Professional Section of Section 8 of the Communist Political Association in 1944; that he was Secretary of Section 8 of the Communist Political Association in 1945; that he was a member of the Communist Party and held membership book number 78343 in 1944; that he held membership book number 87591 in the Communist Party in 1945; that he was organizer of the Professional Section of the Communist Party of Eastern Pennsylvania and Delaware in 1946 and 1947; that he was a member of the International Workers Order (an organization cited by the U. S. Attorney General as subversive) in 1947 and 1949. He was asked separately about each of these activities. In each case he refused to answer and relied on the protection of the Fifth Amendment.

On December 22, 1953 the Board of Education conducted a formal hearing which was private at Mr. Beilan's request. ¹ Beilan who was represented by counsel, did not testify in his own behalf. The hearing was conducted pursuant to a resolution passed by the Board wherein Beilan was charged under Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, 24 P.S. § 11-1122, with incompetency and persistent and wilful violation of the school laws. The charge of incompetency was based on two counts, one, Mr. Beilan's conduct in refusing to respond to the Superintendent's inquiry as to his loyalty and the other his conduct in refusing to respond to the Congressional Committee's inquiry as to his alleged Communist affiliations, to which he invoked the Fifth Amendment. On January 7, 1954 by a vote of 14 to 1, the Board held that the charges had been sustained and ordered Mr. Beilan's discharge. Beilan appealed to the Superintendent of Public Instruction of the Commonwealth, who upheld the action of the Board. Beilan then appealed to the Court of Common Pleas of Philadelphia. His appeal was heard on the record and no further testimony was taken. The court reversed the order of the Superintendent of Public Instruction and set aside Mr. Beilan's dismissal. This appeal followed. Extended briefs were filed on behalf of appellant and appellee, and the American Civil Liberties Union filed a brief under Rule 46 urging affirmance.

From the opinion of the court below it appears that its decision was based first on the ground that the charges did not come within the purview of the School Code, and second that '* * * the proceedings before the Board of Education were actually concerned solely with the question of appellant's [Beilan's] suspected disloyalty * * *'. We disagree with both of these conclusions.

Considering them in reverse order, we find absolutely no support for the second conclusion reached by the court below. ² It not only impugns the good faith of the members of the Board but completely brushes aside the record which consistently from beginning to end irrefutably demonstrates that appellee was not dismissed for subversion or disloyalty but for refusal to answer pertinent questions bearing directly upon his fitness as a teacher and, therefore, his competency. This is clear from the charges, the testimony adduced and the rulings of the Chairman of the Board who presided at the hearing. The issue before the Board was expressly defined and limited at the outset of the hearing by counsel for the Board and counsel for the appellee who were in complete agreement in this regard. ³ The court's conclusion is the more difficult to understand in view of the statement in its opinion that 'Appellant was not dismissed on the ground that he advocates or participates in subversive doctrines. His contract of employment was terminated on the alleged grounds of incompetency as a teacher and of wilful and persistent violation of the school laws.', and later in its opinion that '* * * the testimony presented at the hearing related merely to appellant's refusal to answer questions, and no attempt was made to prove that appellant was actually a Communist or otherwise disloyal.'.

We turn to the conclusion of the court below that the charges against appellee did not come within the grounds for dismissal set forth in the School Code of 1949, supra. Under the Act of May 18, 1911, as amended by the Act of June 20, 1939, P.L. 482, the grounds for dismissal of a teacher were 'immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, and persistent and wilful violation of the school laws of this Commonwealth'. The School Code of 1949 added as an additional ground for dismissal 'advocation of or participating in un-American or subversive doctrines'. In 1951 there was enacted the Loyalty Act, 65 P.S. § 211 et seq., sometimes called the Pechan Act, which provides for the removal of subversives in all areas of public service. Section 16 of this Act repealed Section 1122 of the School Code of 1949 in so far as it authorized dismissal of a teacher for 'advocation of or participating in un-American or subversive doctrines'. All other grounds for dismissal, including incompetency, remained in force as theretofore. If the appellee had been charged with being a subversive, it may be conceded that the Loyalty Act should have been employed, but this was not the charge. Appellee was charged with incompetency based on his refusal to respond to a pertinent inquiry as to his fitness to be a teacher. The Loyalty Act preempted the field of dismissal for subversion as therein defined, but other causes of dismisal remained unaffected. Section 15 of the Loyalty Act expressly provides: 'The provisions of this act shall not affect the right to discharge any person for any cause other than those provided for by this act or without cause under existing law. * * *' Moreover the Loyalty Act provides neither the procedure nor the substantive law with respect to the duty of a teacher to answer proper question. The provisions of the School Code do provide the basis for dismissal of a teacher who refuses to answer such questions.

We have held that incompetency as a cause for dismissal is to be given a broad meaning. In Horosko v. Mount Pleasant Township School District, 335 Pa. 369, at pages 374-375, 6 A.2d 866, at page 869, Mr. Justice Linn, speaking for the Court, said: 'The term 'incompetency' has a 'common and approved usage'. The context does not limit the meaning of the word to lack of substantive knowledge of the subjects to be taught. Common and approved usage give a much wider meaning. For example, in 31 C.J., with reference to a number of supporting decisions, it is defined: 'A relative term without technical meaning. It may be employed as meaning disqualification; inability; incapacity; lack of ability, legal qualifications, or fitness to discharge the required duty.' In Black's Law Dictionary, 3rd edition, page 945, and in 1 Bouv. Law Dict., Rawle's Third Revision, p. 1528, it is defined as 'Lack of ability or fitness to discharge the required duty.' Cases construing the word to the same effect are found in 4 Words and Phrases 1st Series, page 3510, and 2 Words and Phrases Second Series, page 1013 [Perm.Ed. vol. 20, p. 532], Webster's New International Dictionary defines it as 'want of physical, intellectual, or moral ability; insufficiency; inadequacy; specif., want of legal...