Lucciola v. Com. Secretary of Ed.

• Decision Date: 07 July 1976
• Parties: Benjamin LUCCIOLA, Appellant, v. COMMONWEALTH of Pennsylvania, SECRETARY OF EDUCATION The Board of School Directors of the Delaware Valley School District, Intervening-Appellee.
• Court: Pennsylvania Commonwealth Court

Page 310

360 A.2d 310

25 Pa.Cmwlth. 419

Benjamin LUCCIOLA, Appellant, v. COMMONWEALTH of Pennsylvania, SECRETARY OF EDUCATION The Board of School Directors of the Delaware Valley School District, Intervening-Appellee.

Commonwealth Court of Pennsylvania.

Argued June 11, 1976.

Decided July 7, 1976.

[25 Pa.Cmwlth. 420] John J. Schneider, Milford, for appellant.

Patricia Donovan, Deputy Atty. Gen., Harrisburg, Krawitz, Sigal & Ridley, P Before WILKINSON, MENCER and BLATT, JJ.

A., Milford, for Delaware Valley School Dist.

OPINION

Wilkinson, Judge.

This is an appeal from a decision of the Secretary of Education (Secretary) which upheld the dismissal of appellant as a professional employee by the Board of School Directors of the Delaware Valley School District (Board). We affirm.

During the 1974--1975 school year appellant was employed as an elementary school teacher in the Delaware Valley School District. On February 17, 1975, appellant submitted to the district superintendent a written request for personal business leave for Wednesday, Thursday and Friday of the next week, February 26, 27 and 28, for the following reasons: 'Sale of my ailing father's house in the city, requiring my presence at the bank, other personal matters to be cleaned up also.' The request was approved the same day. On Monday, February 24, 1975, a telephone call, on appellant's behalf, was made to the school district stating that appellant would not report for work that day or the next due to illness. Appellant, consequently, was absent the entire school week of February 24--28, 1975.

By letter dated July 8, 1975, appellant was notified that the Board was to consider his dismissal on the following statement of charges:

'On February 24 and 25, 1975, you were absent from the School District for allegedly being ill; and on February 26, 27 and 28, 1975, you had requested personal business days to handle the sale of your ailing father's property in the city. Other information indicates that you were, in fact, in Vermont during the period February 24--February 28, 1975.'

A hearing was held before the Board on July 22, 1975, following which, by letter dated August 1, 1975, appellant was informed that the Board had voted to discharge him, effective immediately, for persistent and willful violation of the school laws. The decision of the Board was appealed to the Secretary who affirmed, concluding that appellant deliberately abused his personal business and sick leave privileges. Specifically, the Secretary found that during the week of February 24--28, 1975, when appellant was apparently on personal business and sick leave, he was actually in New England on a skiing trip with a student. Appellant is now before this Court.

Section 1122 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, As amended, 24 P.S. § 11--1122, provides in relevant part:

'The only valid causes for termination of a contract heretofore or hereinafter entered into with a professional employe shall be . . . persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe . . ..'

Appellant argues that sufficient cause has not been demonstrated to justify his dismissal for persistent and willful violation of the school laws. We have carefully reviewed the record, as well as the pertinent caselaw arising under Section 1122 and the legislation proceeding it, and must disagree.

"( W)illful' obviously suggests the presence of intention, and at least some power of choice . . ..' Sinton's Case, 151 Pa.Super. 543, 548, 30 A.2d 628, 630 (1943). The Secretary's findings of fact which are properly supported by the record, clearly demonstrate that appellant intended, voluntarily, to misuse his personal business and sick leave privileges. The Secretary found that the mother of the student who was with appellant in New England submitted a written request to the school district on Friday, February 21, 1975, asking that her son be excused from school the following Monday, Tuesday and Wednesday, February 24, 25 and 26, for the purpose of taking a trip to New England; that appellant, accompanied by the student, departed for New England on Sunday, February 23, 1975; and that the student and appellant spent the entire week of February 24--28, 1975, in New England on a skiing trip. On these findings, the Secretary concluded that appellant had, through prior arrangements, planned to spend the week of February 24--28, 1975, on a New England holiday rather than on personal business and sick leave. We cannot disagree and, therefore, are compelled to hold that appellant willfully violated the school laws.

As a general proposition, 'persistent' is defined as 'continuing' or 'constant'. Sinton's Case, supra; Horosko v. Mount Pleasant Twp. School District, 135, Pa.Super. 102, 111, 4 A.2d 601, 604, Rev'd on other grounds, 335 Pa. 369, 6 A.2d 886, Cert. denied, 308 U.S. 553, 60 S.Ct. 101, 84 L.Ed. 465 (1939). In particular application, persistency characterizes a violation of the school laws by a professional employee where the violation occurs either as a series of individual incidents, See Johnson v. United School District Joint School Board, 201 Pa.Super. 375, 191 A.2d 897 (1963); Caffas v. Board of School Directors of Upper Dauphin Area School District, --- Pa.Cmwlth. ---, 353 A.2d 898 (1976); Stroman v. Secretary of Education, 7 Pa.Cmwlth. 418, 300 A.2d 286 (1973), or as one incident carried on for a substantial period of time. See Ambridge Borough School District's Board of School Directors v. Snyder, 346 Pa. 103, 29 A.2d 34 (1942); Ganopski's Case, 332 Pa. 550, 2 A.2d 742 (1938); Commonwealth ex rel. Wesenberg v. Bethlehem School...