where relevant; and (b) Rule 56 requires only that a party opposing a motion for summary judgment counter any affidavits presented by the moving party with his own affidavits, not that a party moving for summary judgment in all cases support his motion with affidavits. Exhibits, such as the voluminous ones submitted by defendants here, are sufficient to support a motion for summary judgment.
Turning to the merits of defendants' motion, the issues of fact that plaintiff contends are genuine and material, and the reasons why they are not are as follows:
(A ) Barndt alleges that the admission of hearsay testimony at her dismissal hearings unconstitutionally deprived her of the due process right of confrontation of witnesses. Plaintiff has failed to specify the objectionable statements and the prejudice that they caused, although she did complain at oral argument that evaluations of her performance filed by pupils and parents were summarized by Superintendent Stoutenburgh in his testimony.
I have scanned the 1,585 page transcript of the School Board hearings and conclude that plaintiff's complaint that she was exposed to an unconstitutional level of hearsay is unfounded. The record reveals that Barndt's counsel raised hearsay objections, for example p. 718a of defendants' exhibit 1, and that questions calling for a hearsay response were withdrawn, for example p. 742a of exhibit 1. Further, the only evidence that plaintiff cites as objectionable the complaints lodged against Barndt by pupils and parents was not hearsay because admitted not for the truth of those statements but rather as proof of public opinion, a material consideration in a dismissal proceeding. I thus need not reach the question of the constitutionally tolerable level of hearsay, California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), to decide that plaintiff's allegation raises no genuine issue of material fact.
(B ) Plaintiff alleges that the School Board's failure to present her with a written adjudication of her dismissal was a violation of due process. The January 29 letter sent to Barndt by the Secretary of the School Board informing her of the unanimous vote that she be discharged stated that the Board found the twenty-five count statement of charges supported by the evidence heard at the fourteen dismissal hearings. This incorporating reference in plaintiff's dismissal letter to the written charges against her is, I think, tantamount to a written adjudication of Barndt's case and satisfies the requirements of due process.
(C ) Plaintiff vaguely alleges that the procedure by which the School Board accepted the twenty-five statement of charges against her and set the matter for dismissal hearings was improper. The record discloses not a hint of constitutionally suspicious proceedings by the Board and I must conclude that no genuine issue of fact is raised by this allegation.
(D ) Plaintiff alleges that she was denied upon request various materials necessary to her defense. Although defendants concede that Barndt was denied access to certain sensitive documents, such as confidential pupil performance reports, plaintiff does not deny that the information contained in these papers was made available to her at the final hearings. I can discern in the record not the merest suggestion of prejudice to Barndt's defense caused by this form of disclosure and I find no genuine issue of material fact.
(E ) Plaintiff objects to the role of the School Board's counsel in her dismissal, alleging that he unconstitutionally served both as counsel to the Board during its adjudication of her case and as counsel to the Board during her appeal of the Board's decision to the Secretary of Education and the Commonwealth Court. This bizarre contention raises neither a genuine nor a material issue of fact, the conduct of counsel for the Board being both admitted and perfectly proper.
(F ) Finally, plaintiff alleges that Superintendent Stoutenburgh unconstitutionally performed the roles of prosecutor, witness and judge at her dismissal hearings. This allegation is anchored in the statutory provision granting the superintendent a seat, but not a vote, on the district school board, 24 P.S. § 10-1081. Barndt argues that because Stoutenburgh prepared the charges against her and testified against her at the hearings, his statutory seat on the Board intolerably commingled the duties of prosecutor and judge.
I need not consider whether a due process problem arises where a district superintendent actually takes a seat on the local board. Defendants have accompanied their motion for summary judgment with an affidavit given by Robert Russell, presently Secretary of the Board of School Directors of the Wissahickon School District and at all relevant times a member of the Board, swearing that Superintendent Stoutenburgh never assumed his statutory seat on the School Board. Plaintiff has failed to rebut with counter-affidavit defendants' sworn statement, and therefore has failed to put this potentially material fact in genuine issue as required by Rule 56.
Further, there is nothing in the record from which an inference of unconstitutional commingling of duties could be drawn. The School Board hearings on plaintiff's dismissal ended on January 23, 1975. No meeting was held between that time and January 27, 1975. On January 27, the School Board, in a public meeting, voted unanimously without discussion to discharge Barndt. The total absence of discussion by the Board between the end of the evidentiary hearings and the dismissal vote conclusively rebuts any contention of unfair influence by the Superintendent. No genuine issue of fact is raised by this allegation.
Barndt's complaint raises no issues of fact preclusive of summary disposition and defendants are entitled to judgment as a matter of law. Accordingly, I will grant the motion for summary judgment filed by defendant Wissahickon School District and joined in by all defendants. The various other motions filed by individual defendants will be denied as moot in light of my granting of the umbrella motion.
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