Appeal from the Order of the Acting Secretary of Education in case of Thomas J. Urso v. Penn-Delco School District, No. 288, dated March 2, 1977.
Melvin G. Levy, with him, of counsel, Levy and Levy, for petitioner.
Andrew J. Forbes, with him Cramp, D'Iorio, McConchie, Forbes and Surrick, P.C., for respondent.
Judges Wilkinson, Jr., Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 33 Pa. Commw. Page 503]
The Penn-Delco School District (District) appeals an order of the Acting Secretary of Education (Secretary) sustaining the appeal of Respondent, a professional employee, who was dismissed by the Board of Directors of the District (Board) on grounds of immorality.
There is no serious contention Respondent was not properly dismissed by the Board pursuant to procedures outlined in the Public School Code of 1949 (Code)*fn1 following a timely notice and hearing held February 3, 4 and 5, 1976. What is seriously disputed is whether the Board or Secretary properly defined and applied the standard of immorality used in the Code and whether evidence adduced at the hearing supports the Board's finding of immorality.
The charges against Respondent stem from two incidents involving two female students who were assigned to Respondent's classes. The first incident occurred in March of 1975. There is no material dispute as to the facts. Respondent, who knew the student both as a teacher and as a faculty advisor to the school newspaper, called the student, a 17-year-old senior, away from her newspaper assignment and into the corridor and offered, since it was her birthday, to "spank" her. The student, who at that time assumed Respondent was joking became concerned that he was seriously making an overture of an explicitly sexual nature when Respondent repeated his offer in a telephone conversation that same day. As
[ 33 Pa. Commw. Page 504]
a result, she immediately reported this incident to another teacher and thereafter to the school principal. At that time the student agreed that the incident should be treated as a joke and ignored; the principal advised her that she should report any similar overtures made by the Respondent in the future. Over the ensuing two weeks, Respondent sought this student outside of the classroom and attempted on two separate occasions to engage her in discussions about spanking.*fn2 On the occasion of the last incident, a conference
[ 33 Pa. Commw. Page 505]
was held with Respondent, school administrators and the girl's parents. Respondent admitted that he knew the student to be extremely shy and easily embarrassed and upset and further that he continued making these overtures knowing that they had caused the student to become nervous ...