Harmon v. Mifflin County School Dist.

• Decision Date: 17 June 1998
• Citation: 713 A.2d 620,552 Pa. 92
• Parties: , 127 Ed. Law Rep. 916 Terry L. HARMON, Appellant, v. MIFFLIN COUNTY SCHOOL DISTRICT, Appellee.
• Court: Pennsylvania Supreme Court

Page 620

713 A.2d 620

552 Pa. 92, 127 Ed. Law Rep. 916

Terry L. HARMON, Appellant, v. MIFFLIN COUNTY SCHOOL DISTRICT, Appellee.

Supreme Court of Pennsylvania.

Argued Feb. 3, 1998.

Decided June 17, 1998.

[552 Pa. 94] Lester H. Zimmerman, Jr., Lewistown, for Terry L. Harmon.

Norman L. Levin and Orris C. Knepp, III, Lewistown, for Mifflin Co. Sch. Dist.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and SAYLOR, JJ.

OPINION OF THE COURT

CAPPY, Justice.

In this case we review the Commonwealth Court's determination that Appellant's invocation of the Fifth Amendment privilege against self-incrimination at an employment termination hearing, alone, constituted substantial evidence supporting his termination. For the reasons that follow, we reverse the order of the Commonwealth Court.

By letter dated February 27, 1991, the Mifflin County School District (District) notified the Appellant, Terry L. Harmon, a District custodian, that he was suspended without pay for improper conduct, under Section 514 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-514. The letter charged that Appellant provided money to Richard Wagner, another District employee, to obtain marijuana between June 1 and September 24, 1990. Appellant was terminated at a regular public meeting of the District's Board of School Directors (Board) on March 18, 1991. Appellant challenged this decision and the Board conducted a hearing on August 15, 1991. A second hearing was held on February 27, 1992, to receive additional subpoenaed testimony.

At the initial hearing, it was revealed that the District's inquiry into this matter was prompted by its receipt of a copy of a criminal complaint and an accompanying arrest warrant affidavit filed against Wagner by Trooper Robert C. Freiler of the Pennsylvania State Police. The complaint charged Wagner with conspiring with several individuals to possess and deliver marijuana. Daniel Osborne, also a District employee, was among those named in the affidavit.

District Superintendent Dr. Robert Bohn testified at the initial hearing that he, Assistant Superintendent David Runk, and Director of Buildings and Grounds Herman Frank confronted Wagner the day following Wagner's arrest. Dr. Bohn testified that Wagner freely admitted the allegations were true and that Osborne had helped finance the purchase of marijuana. When pressed if other employees or students were involved Wagner refused to say, but wrote an answer on a piece of paper for his supervisors to read after he exited the meeting. Dr. Bohn testified that Appellant's name appeared on that slip of paper. ¹

After the meeting with Wagner, Dr. Bohn, Runk and Frank confronted Osborne with the affidavit containing his name and Wagner's confirmation of Osborne's involvement. According to Dr. Bohn's testimony at the termination hearing, Osborne confessed that he had given Wagner $750, $400 of it his own, to purchase one half-pound of marijuana. Osborne admitted to similar dealings with Wagner at a local car wash and that Osborne used marijuana in his own home on weekends. Osborne also implicated Appellant as a past purchaser from Wagner and said that he had once seen Appellant at Wagner's home.

Following Wagner's and Osborne's interviews with Dr. Bohn, Runk and Frank, Appellant also met with the administrators. Dr. Bohn informed Appellant of what transpired in his meetings with Wagner and Osborne. Dr. Bohn advised Appellant that the meeting was not a disciplinary hearing, but he thought it necessary to tell Appellant what he had heard "because of its implications and potential discipline." (R.R. at 164.) He told Appellant that he need not respond, but said nothing of the consequences if Appellant failed to do so. Appellant did not respond, and Dr. Bohn advised him that he would continue to investigate the matter.

The following day, according to Dr. Bohn's testimony, Appellant attended a second meeting accompanied by a union representative. Dr. Bohn did not recount what was said or done at this meeting. Rather, he explained that he entered the meeting hoping Appellant had decided overnight to speak to the allegations but, again, Appellant neither admitted nor denied his involvement. The District notified Appellant of his suspension by a letter dated the day after this second meeting. Following the suspension, Appellant filed a grievance and a hearing was held. Dr. Bohn's testimony provides no details of the grievance hearing, other than the fact that Appellant offered no admission or denial.

Appellant's counsel strenuously objected on hearsay grounds to Dr. Bohn's testimony regarding the statements of Wagner and Osborne. In response, the District argued that the testimony regarding the administrators' interviews with Wagner and Osborne was being offered as background information relevant to the circumstances of Dr. Bohn's confrontations with Appellant and not for the truth of any out of court statement referenced therein. ² (R.R. at 19a.)

Wagner appeared before the Board on August 15, 1991, pursuant to a subpoena. He authenticated the criminal information and affidavit but refused to answer any further questions. Osborne failed to appear at that hearing, forcing its continuance. When he did testify, on February 27, 1992, Osborne confirmed that he had responded affirmatively to Dr. Bohn's inquiry regarding Appellant's involvement, but he categorically denied having personal knowledge of Appellant using or trafficking in marijuana. Osborne confirmed that he had seen Appellant at Wagner's residence on one occasion, and that Wagner once indicated to Osborne that Appellant's money was "involved" in the purchase of marijuana.

The Board terminated Appellant at its May 18, 1992, meeting. Appellant appealed to the Mifflin County Court of Common Pleas, which reversed the Board's action. The trial court was in turn reversed by the Commonwealth Court. The Commonwealth Court remanded the matter to the court of common pleas for it to address Appellant's challenge to the evidentiary basis for the Board's finding of improper conduct. Harmon v. Mifflin County School District, 651 A.2d 681 (Pa.Cmwlth.1994). Upon remand, the court of common pleas again reversed the Board's decision and ordered that Appellant be reinstated with back pay. The Commonwealth Court reversed this decision, and upheld Appellant's termination. Harmon v. Mifflin County School District, 684 A.2d 651 (Pa.Cmwlth.1996)(en banc). The Commonwealth Court held that Appellant's invocation of his Fifth Amendment privilege against self-incrimination in response to questions put to him before the Board constituted substantial evidence of improper conduct. The court rejected the District's argument that Appellant's silence during his meetings with Dr. Bohn prior to his suspension and his silence at the grievance hearing could be considered implied admissions of his involvement in a conspiracy. We granted Appellant's petition for allowance of appeal to consider whether substantial evidence was presented to the Board to support Appellant's termination. ³

Appellate review of school board decisions is limited to determining whether the board committed an error of law, abused its discretion or violated constitutional rights. Blascovich v. Board of School Directors of Shamokin Area Sch. Dist., 49 Pa.Cmwlth. 131, 410 A.2d 407, 408 (1980). Board decisions must be supported by substantial evidence, which is that quantum of relevant evidence that a reasonable person would accept as adequate to support a conclusion. Id.

In arguing for affirmance of the Commonwealth Court's holding, the District asks us to uphold the termination based solely on the fact that Appellant invoked the Fifth Amendment in response to several specific questions. ⁴

In Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), the U.S. Supreme Court addressed the constitutional concern implicated by the evidentiary use of one's assertion of the Fifth Amendment privilege in a civil matter. The Baxter Court embraced the rule that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them[.]" Id. at 318, 96 S.Ct. at 1558, 47 L.Ed.2d at 821. ⁵

The inference discussed in Baxter is akin to the well established rule in civil proceedings that a party's failure to testify can support an inference that whatever testimony he could have given would have been unfavorable to him. See Beers v. Muth, 395 Pa. 624, 151 A.2d 465 (1959). Our case law indicates that the inference to be drawn from a party's failure to testify serves to corroborate the evidence produced by the opposing party. See Dommes v. Zuroski, 350 Pa. 206, 209, 38 A.2d 73, 75 (1944). Also, the failure to testify to facts within one's presumed knowledge permits an inference that can erase the equivocal nature of other evidence relating to a disputed fact. See Hall v. Vanderpool, 156 Pa. 152, 26 A. 1069 (1893). However, we have never suggested that a party could satisfy its burden of proof in a civil cause solely through reliance on the defendant's failure to testify.

In Ault v. Unemployment Compensation Bd. of Review, 398 Pa. 250, 157 A.2d 375 (1960), we reviewed the denial of unemployment benefits to Paul Ault, a steelworker who invoked the Fifth Amendment before the Permanent Subcommittee on Investigations of the United States Senate rather than affirm or deny a co-worker's statement that Ault had been a member of the Communist Party. The Superior Court held that the invocation of the Fifth Amendment was willful misconduct and affirmed the board of review's denial of unemployment benefits. This court held that the assertion of the Fifth Amendment was not willful misconduct and reversed the order denying benefits. Id. at 255, 157 A.2d at 379.

The Ault court found, as a matter of evidence, that the truth or...