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BERNICE HAMBURG v. COMMONWEALTH PENNSYLVANIA (03/31/83)

decided: March 31, 1983.

BERNICE HAMBURG, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION AND NORTH PENN SCHOOL DISTRICT, RESPONDENTS



Appeal from the Order of the Department of Education in case of Bernice Hamburg v. North Penn School District, Teacher Tenure Appeal No. 26-79.

COUNSEL

Richard W. Rogers, Rogers, King & Cole, for petitioner.

Donna S. Weldon, Counsel, with her Michael A. Davis, Chief Counsel, for respondent, Department of Education.

Charles Potash, with him Harris F. Goldich, Wisler, Pearlstine, Talone, Craig & Garrity, for respondent, North Penn School District.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 73 Pa. Commw. Page 227]

Bernice Hamburg, a tenured second grade classroom teacher employed for some twelve years by the North Penn School District, here seeks review of an Order of the Secretary of Education (Secretary)*fn1 affirming the decision of the school authorities to terminate her employment on the ground of incompetency.

Before examining the petitioner's assertions of error we must note that a number of factors contribute to the difficulty of this appeal. First among these is the appellant's failure to comply with Pa. R.A.P. No. 2116(a) requiring a statement of questions presented to be included in the written argument presented to this Court. Instead, the appellant unhelpfully represents our scope of review as the "Question Involved"*fn2 and then proceeds with a thirty-seven page statement of the case followed by a forty-seven page legal argument, the aggregate well in excess of the maximum permitted by Pa. R.A.P. No. 2135 and, in violation of Pa. R.A.P. No. 2119, undivided into questions presented. In addition, the appellant's brief does not include as an appendix the adjudication of the North Penn School Board although Pa. R.A.P. No. 2111(b) so requires and, as we shall indicate, it is the Board's adjudication to which the appellate focus of this Court is primarily directed.

Compounding this set of difficulties is the breadth of the record created before the school board. Twenty-three evidentiary hearings were held between July,

[ 73 Pa. Commw. Page 2281979]

, and the end of November, 1979, producing nearly four thousand pages of exhibits and transcribed testimony. The school board's adjudication contains fifty-eight findings of fact -- that of the Secretary of Education; thirty-three factual findings. The appellant contends that none of the Secretary's findings related to her incompetency as a teacher are supported by substantial evidence of record. In this regard the appellant discusses at some length the asserted insufficiency of the evidence expressly relied on by the Secretary with respect to each such finding. Distressingly, all of this discussion misses the mark. Although the parties may have reasonably embraced a contrary view, it is now clear that the function of this court in appeals like that here presented where the Secretary has taken no additional evidence is to review the decision of school board and to determine inter alia whether that decision contains unsupported but necessary factual findings. Strinich v. Clairton School District, 494 Pa. 297, 431 A.2d 267 (1981), cert. denied, U.S. ; Board of School Directors of Eastern York School District v. Fasnacht, 64 Pa. Commonwealth Ct. 571, 441 A.2d 481 (1982). On this score, the appellee's brief refers to and offers citations to the record in support of some thirty factual findings, unnumbered but separated by typographical indention, which resemble in many particulars those contained in the school board's adjudication but which also depart from that document significantly by means of additions, deletions, and material changes in language.

In sum, one of our tasks is to consider the evidentiary support contained in this gargantuan record for each of the fifty-eight factual findings of the school board called into question by the appellant. However, the school board's findings as such are not the target of any attack. Nor are they, -- without omissions and exceptions -- now the subject of supporting argument.

[ 73 Pa. Commw. Page 229]

For this reason alone, it is necessary that we remand this matter for further proceedings.*fn3

Due to the protracted nature of this litigation we have endeavored in the face of the substantial difficulties described briefly above to finally decide the legal issues here presented. For the reasons we now

[ 73 Pa. Commw. Page 230]

    discuss, such a final decision of the questions of law raised by the appellant is also impossible and we are compelled with respect to those issues to remand the record for further proceedings by the Secretary of Education.

[ 73 Pa. Commw. Page 231]

The appellant was notified by letter dated June 20, 1979, of the grounds for her discharge as follows

At the meeting of the Board of School Directors of the North Penn School District to be held on the 21st day of June, 1979, I will recommend to the Board of School Directors of the North Penn School District that your professional contract with the school district be terminated on the basis of ...


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