Augustine v. Turkeyfoot Valley Area School District

9 Pa. D. & C.3d 191, 1978 Pa. Dist. & Cnty. Dec. LEXIS 89
CourtPennsylvania Court of Common Pleas, Somerset County
DecidedFebruary 21, 1978
DocketNo. 3
StatusPublished

This text of 9 Pa. D. & C.3d 191 (Augustine v. Turkeyfoot Valley Area School District) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Somerset County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Augustine v. Turkeyfoot Valley Area School District, 9 Pa. D. & C.3d 191, 1978 Pa. Dist. & Cnty. Dec. LEXIS 89 (Pa. Super. Ct. 1978).

Opinion

COFFROTH, P.J.,

This case is before us on a teacher’s appeal under the Local Agency Law of December 2, 1968, P.L. 1133, 53 P. S. § 11301 et seq., from his dismissal by the school board for unsatisfactory rating. Since this is the second appeal and the fourth time the case has been heard by the court on some phase, we briefly annotate the history as follows:

August 23, 1976 —Appellant dismissed by school board for unsatisfactory rating after hearing before the board.
June 1, 1977 —On appeal to the court, opinion and order filed finding the dismissal invalid for want of anecdotal records, and scheduling the case for hearing before the court “for the purpose of affording the school district an opportunity to present an anecdotal record supporting the dismissal.”: Augustine v. Turkeyfoot Valley Area School District (No. 1), 35 Somerset 45 (1977),9 D. & C. 3d 183 (1977).
June 29, 1977 —Anecdotal record hearing held.
July 5, 1977 —Opinion and order filed finding the anecdotal record facially adequate, [193]*193vacating the dismissal, and remanding the case to the board for further hearing to consider the anecdotal record and to allow appellant to present evidence: Augustine v. Turkeyfoot Valley Area School District (No. 2), 35 Somerset 76 (1977), 9 D. & C. 3d 183 (1977).
October 12, 1977 —Further hearing held before the board.
November 10, 1977 —Hearing held before the court to take the testimony of a witness under subpoena issued by the court.
December 3, 1977 —Appellant again dismissed by school board.
December 28, 1977 —Appellant again appealed the dismissal under the Local Agency Law, now before this court.

All of the issues now raised by appellant, save one, were raised and adjudicated in the prior proceedings; they are fully discussed in the previous opinions above referred to. We see no reason to alter those holdings, and no purpose would be served by repeating them here.

The one issue raised here squarely for the first time is that the unsatisfactory ratings were invalid because appellant was not supplied with copies of the anecdotal records immediately after they were made. This contention is based on paragraph 3 of the General Rating provisions of the rating cards which provides that: “Ratings should have the support of anecdotal records. In the case of UNSATISFACTORY ratings, such records must be maintained in the office of the superintendent of schools and a copy supplied to the employee immediately after it has been completed.”*

In the initial opinion of June 1, 1977 (Augustine (No. 1), supra), we held that the making and keeping of anecdotal records is mandatory in order to support a dismissal for unsatisfactory rating. Those [194]*194records were maintained, as later held in the opinion of July 5, 1977. It is conceded that copies of those records were not immediately furnished to appellant when they were made; such copies were not furnished to him until June 29, 1977, at the hearing before the court when the records were produced for the first time.

On the initial appeal, the focus was upon the question whether anecdotal records, admittedly absent from the hearing record, were mandatory, and the subsidiary question of furnishing copies was not stressed. The matter was mentioned, however, in footnote 12 to the initial opinion which states: “Whether the direction on the rating card that a copy of the anecdotal record be immediately supplied to the employe is mandatory or directory has not been directly raised, but we do not consider that omission fatal in the absence of prejudice to the employe which is not shown here.” The conclusion of no prejudice was based on the evidence in the record that appellant was orally informed of the deficiencies noted in the anecdotal records at the time of the occurrences, and that they were orally discussed with him. We must now give full consideration to the question whether the requirement to supply the employe with a copy of the anecdotal records when they were made is, like the requirement to make and maintain the records, mandatory, so that failure to comply is fatal to the dismissal.

It is a well established principle of statutory construction that every requirement imposed by law is not mandatory; some are, instead, directory. A mandatory provision is one whose violation renders void the proceedings to which it relates, while a [195]*195directory provision is one whose performance is required but is not vital to the validity of the proceedings: 34 P.L.E. 461, §141; 82 C.J.S §374, 868.1

Whether a legal requirement is mandatory or directory depends basically on the legislative intention, more specifically on whether the thing directed is of the essence of the proceeding: 34 P.L.E. §141, supra. In ascertaining that intention and essence, basic canons of statutory construction are generally applicable. See Statutory Construction Act of December 6,1972, P.L. 1339, subchapter b, 1 Pa.C.S.A. §1921 et seq., which substantially reenacts article IV of the Statutory Construction Act of May 28, 1937, P.L. 1019, 46 P.S. §551 et seq.

The initial principle is that when the words of an enactment are clear and free from all ambiguity, its letter may not be disregarded in order to pursue its spirit: 1 Pa.C.S.A. § 1921(b). Therefore, we must begin with the language of the regulation itself: Pennsylvania Railroad v. Board of Revision of Taxes, 372 Pa. 468, 93 A. 2d 679 (1953). In order to be completely clear and unambiguous in enacting a [196]*196mandatory directive whose violation voids the proceeding to which the directive relates, it is essential to use negative and prohibitory language which expressly renders the proceeding void and unenforceable if the directive is not complied with. See McQuiston’s Adoption, 238 Pa. 304, 86 Atl. 205 (1913); Altoona Mayor Substitute Nomination Case, 413 Pa. 305, 311, 196 A. 2d 371 (1964); 34 P.L.E. §141, 365; 82 C.J.S. §377, 875. Compare Spickler v. Lombardo, 32 Somerset 16, 29 (1976), and Com. v. Holsopple, 28 Somerset 105, 107 (1972). In this case there is no such negative language. Instead, the regulation uses affirmative language that anecdotal records must be kept and a copy given immediately to the employe.

The affirmative words “must” and “shall,” in their usual and customary meaning, are imperatives and are usually regarded as creating mandatory directives, but not always; in the absence of express negative prohibition, enactments are not always and necessarily intended to render invalid the proceeding if the directive is not carried out; instead, there is frequently the intention to establish directory requirements of “convenience and prudence”: Altoona Mayor Nomination Case, supra, 311. Therefore, where explicit prohibitory language is lacking in a legislative directive, and its words are affirmative only, even though in form imperative such as “shall” and “must,” the reviewing court must go beyond the language to the purposes and policies which underlie the enactment in order to find its essence and legislative intent, as provided in 1 Pa.C.S.A. §1921(c). See Fishkin v. Hi-Acres, Inc., 462 Pa. 309, 315, 341 A. 2d 95 (1975); Francis v. Corleto, 418 Pa. 417, 211 A. 2d [197]*197503 (1965); Kowell Motor Vehicle Registration, 209 Pa. Superior Ct. 386, 228 A.

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9 Pa. D. & C.3d 191, 1978 Pa. Dist. & Cnty. Dec. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/augustine-v-turkeyfoot-valley-area-school-district-pactcomplsomers-1978.