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ROBERT T. HOFFMAN v. WEST CHESTER AREA DISTRICT SCHOOL BOARD (02/09/79)

decided: February 9, 1979.

ROBERT T. HOFFMAN, JR., PETITIONER
v.
WEST CHESTER AREA DISTRICT SCHOOL BOARD, RESPONDENT



Appeal from the Order of the Secretary of Education in case of Appeal of Robert T. Hoffman, Jr., a Professional Employe, from a decision of the West Chester Area District School Board, West Chester, Pennsylvania, No. 302.

COUNSEL

Arthur E. Oaks, with him Franklin D. Green, for petitioner.

Ross A. Unruh, with him MacElree, Harvey, Gallagher & Kean, Ltd., for respondent.

Judges Crumlish, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 40 Pa. Commw. Page 375]

Robert T. Hoffman, Jr. (Hoffman) appeals from a decision of the Secretary of Education (Secretary) which affirmed his dismissal by the West Chester Area District School Board (Board) on the ground of persistent negligence. He was a professional employee.

After providing the notices required by the Public School Code of 1949,*fn1 the Board held a series of five hearings at which Hoffman was present and permitted to testify. By action of May 10, 1976, the Board voted for dismissal and a written adjudication was sent to Hoffman on or about May 18, 1976. On June 8, 1976, he attempted to file an appeal to the Secretary from the Board's decision, but considering the appeal to have been improperly filed the Secretary refused to consider it. On reconsideration, however, the Secretary agreed to hear the appeal, and a subsequent Motion

[ 40 Pa. Commw. Page 376]

    to Quash filed by the West Chester Area School District was denied.

The first hearing on Hoffman's appeal to the Secretary was scheduled to be held before the Secretary's designee on August 13, 1976. At the request of Hoffman's counsel the hearing was rescheduled for September 15, 1976. On that morning, however, counsel telephoned the Department of Education (Department) and requested a further continuance because Hoffman was ill. He was informed by the Department's Chief Counsel that there had already been one continuance, that opposing counsel and the hearing examiner were already en route to the hearing, and that, inasmuch as neither Hoffman nor the School District had notified the Secretary of any intent to offer additional testimony, Hoffman's counsel could safely waive the need for Hoffman's presence and present legal argument. The hearing was delayed one-half hour beyond the time set for it to begin in order to wait for the appearance of Hoffman's counsel, but, when he did not appear, the hearing was held. By Order of June 22, 1977, the Secretary dismissed Hoffman's appeal. Hoffman, now by new counsel, argues here that the Department should have continued the September 15 hearing because he was unable to attend and that the reasons cited for his dismissal were not supported by substantial evidence.

In Cotter v. State Civil Service Commission, 6 Pa. Commonwealth Ct. 498, 500, 297 A.2d 176, 178 (1972), we held:

The power to grant or refuse a continuance is an inherent power of a court and ordinarily is discretionary. The exercise of such discretion is usually not reviewable, except upon a clear showing of an abuse of discretion. ...


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