Occhipinti v. Bd. of S. Dirs., Old Forge SD

408 A.2d 1189, 48 Pa. Commw. 56, 1979 Pa. Commw. LEXIS 2287

• Court: Commonwealth Court of Pennsylvania
• Decided: December 17, 1979
• Docket: Appeal, 2715 C.D. 1978
• Status: Published

Opinion

Opinion by

Judge DiSalle,

This is a petition for review of an order of the Secretary of Education (Secretary) affirming the action of the Board of School Directors (Board) of the Old Forge School District (School District) dismissing Mary Burke Occhipinti (Petitioner). We will reverse and remand.

On September 14, 1970, School District hired Petitioner on a one-year emergency certificate as a female physical education teacher. She held that position until her dismissal on May 31, 1977. Needing five courses to qualify for professional certification, Petitioner, in May of 1972, received from the Pennsylvania Department of Education (Department) an interim certificate valid for five years. When that certificate expired in May of 1977, Petitioner still Rad not taken tRe five courses sRe needed for permanent certification. As a result, tReBoard Reid a Rearing on June 27, 1977, and voted to dismiss Petitioner, effective May 31, 1977. TRe Secretary, following an August 15, 1977 Rearing, affirmed. 1

Petitioner argues that sRe did not receive a fair and impartial Rearing before the Board. We agree. The record indicates that ScRool District’s superintendent, Adam Iioynoski, appeared at the Board Rearing on behalf of ScRool District and testified against Petitioner. The record further indicates that Mr. Hoynoski was present during the Board’s deliberations involving Petitioner and that Re was asked and answered several questions about her. Having testified against Petitioner, Mr. Hoynoski should not Rave participated in the deliberations following the Rearing.

In Department of Education v. Oxford Schools, 24 Pa. Commonwealth Ct. 421, 356 A.2d 857 (1976), we Reid that it was improper for a school superintendent to testify against a teacher and then participate in the school board’s deliberations concerning that teacher. In response to the school district’s contention that Section 1081 of the Public ScRool Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §10-1081, permitted the superintendent to be present and speak out during the Board’s deliberations, President Judge Bowman wrote as follows:

We are not convinced that the employee’s right to an unbiased adjudication may be compromised because of the Superintendent’s broadly stated statutory right to sit ou the Board and participate in its deliberations. The vice lies in the two capacities in which he participated in this administrative adjudication. Having chosen to wear the hat of an adverse witness, he cannot then don the hat of a nonvoting Board member even though otherwise entitled to do so. We cannot allow such an elevation of form over substance, regardless of the good faith or integrity of those involved.

Oxford Schools, 24 Pa. Commonwealth Ct. at 428, 356 A.2d at 861. This case is controlling and compels us to reverse and remand for a proper hearing.

Order

And Now, this 17th day of December, 1979, the order of the Secretary of Education affirming the dismissal of Mary Burke Occhipinti is hereby reversed and the matter is remanded to the Secretary for remand to the Board of School Directors of the Old Forge School District for further proceedings consistent with this opinion.

1 The record indicates that during the summer of 1977, Petitioner took the five courses she needed and that in September of 1977, the Department issued to her a professional certificate in the area of health and physical education.