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decided: October 1, 1980.


Appeal from the Order of the Secretary of Education in case of Ruth Lesley v. Board of School Directors of Oxford Area School District, Teacher Tenure Appeal No. 320.


Alexander A. DiSanti, of Richard, Brian, DiSanti & Hamilton, for petitioner.

R. Samuel McMichael, with him Winifred Moran Sebastian, and C. Richard Morton, for respondent.

Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 54 Pa. Commw. Page 121]

Ruth Lesley has appealed from an order of the Secretary of Education (Secretary) affirming the decision of the Board of School Directors of the Oxford Area School District (Board) dismissing Mrs. Lesley as a school teacher on the ground of immorality. See Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. ยง 11-1122.

The facts are not disputed. On May 24, 1974, Mrs. Lesley, a professional employee of the Oxford Area School District, was observed in the act of, and admitted, shoplifting at a local supermarket. The School Board, hearing of the incident, conducted a hearing on charges of incompetency and immorality against Mrs. Lesley, after which it dismissed her. Upon appeal by Mrs. Lesley, the Secretary reversed the Board's decision on procedural grounds and ordered Mrs. Lesley reinstated. On the Board's appeal to this court, we held that the Secretary had correctly decided that the hearing was procedurally defective but that the proper remedy was not reinstatement but the

[ 54 Pa. Commw. Page 122]

    provision of a new hearing properly conducted. We ordered the matter remanded for such a hearing. Department of Education v. Oxford Area School District, 24 Pa. Commonwealth Ct. 421, 356 A.2d 857 (1976).

The Board conducted a new hearing, after which it again dismissed Mrs. Lesley for incompetence and immorality. Mrs. Lesley appealed to the Secretary who found that there was no evidence to support the charge of incompetence but that the charge of immorality had been made out and that Mrs. Lesley's dismissal was therefore proper. This appeal followed.

Mrs. Lesley first contends that she was denied due process at the Board hearing because her counsel was denied access to the entire contents of a personnel file which happened to be in the possession of the school superintendent while the superintendent testified. While this argument seems not to have been raised below and for this reason we are not required to address it (See, e.g., Commonwealth v. DeMuro, 24 Pa. Commonwealth Ct. 480, 482, 357 A.2d 270, 271 (1976)), we will address it briefly. On direct examination the superintendent related how knowledge of Mrs. Lesley's conduct at the supermarket had come to his attention, described a conversation he had with Mrs. Lesley after the event about the possibility of her resigning and, without objection, expressed his opinion that a teacher who has shoplifted is not competent to teach. On cross-examination, Mrs. Lesley's counsel asked the superintendent whether he had Mrs. Lesley's "records or reports, evaluation reports." The superintendent answered "I have them, yes" and then "what is it specifically that you want?" Mrs. Lesley's lawyer then said that he would like to have the "entire folder." The superintendent then said that there was material in the folder "that does not pertain to anything that you could possibly ask." The superintendent then offered to and did supply all of Mrs.

[ 54 Pa. Commw. Page 123]

Lesley's evaluation records and Mrs. Lesley's counsel used these in an extended examination of the superintendent on this subject. In short, these records and the superintendent's testimony showed that Mrs. Lesley had been in every respect an entirely satisfactory teacher prior to the date of the shoplifting incident. Mrs. Lesley's lawyer did not ask the Board (which was being advised by able independent counsel) to require the superintendent to turn over the entire folder and never again mentioned the other materials which may have been in the superintendent's folder. The Board therefore certainly did not withhold anything; but even had it done so we fail to see how Mrs. Lesley was hurt. The Secretary had already properly held that no case had been made in support of the charge that Mrs. Lesley was incompetent. The issue is then solely that of whether Mrs. Lesley's shoplifting ...

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