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APPEAL ROBERT M. FELDMAN. ROBERT M. FELDMAN (11/30/78)

decided: November 30, 1978.

IN RE: APPEAL OF ROBERT M. FELDMAN. ROBERT M. FELDMAN, APPELLANT


Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Appeal of Robert M. Feldman, No. 9544 of 1974.

COUNSEL

Jay M. Goldstein, for appellant.

Joseph A. Damico, Jr., for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and MacPhail. Judges Mencer and Craig did not participate. Opinion by Judge Blatt. Dissenting Opinion by Judge Rogers.

Author: Blatt

[ 38 Pa. Commw. Page 635]

Robert M. Feldman (appellant) received two unsatisfactory ratings and was dismissed from his employment as a temporary professional employee after a hearing before the Board of School Directors of the

[ 38 Pa. Commw. Page 636]

Rose Tree Media School District (Board). He appealed his dismissal to the Court of Common Pleas of Delaware County, which affirmed the Board's adjudication; and he then appealed to this Court, which reversed and remanded without reaching the merits.*fn1 The Board then filed a petition for allowance of appeal in the Supreme Court, which was denied but later granted on reconsideration. That Court then remanded the case to us for consideration in light of its decision in Pennsylvania Human Relations Commission v. Feeser, 469 Pa. 173, 364 A.2d 1324 (1976), which was not available when this case was previously before us.

Two issues are presented: (1) whether or not the petitioner was denied due process when the attorney who prosecuted the case before the Board also served as the Board's solicitor; and (2) whether or not the appellant's unsatisfactory ratings were made by an administrator empowered to make such determinations under the Public School Code.

Our study of the Feeser case convinces us that the appellant was not denied due process. In Feeser, the Supreme Court clarified its opinion in Horn v. Township of Hilltown, 461 Pa. 745, 337 A.2d 858 (1975), which held that a procedure by which the same attorney represented both a zoning hearing board and a township opposing an application was susceptible to prejudice, and therefore improper:

[ 38 Pa. Commw. Page 637]

In Horn the attorney involved was: (1) making objections to the evidence offered by his opponent, and then ruling on his own objections; (2) offering evidence to which his opponent objected and then ruling on the objection to his proffered evidence; and (3) advising the hearing panel concerning the law ...


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