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BERNICE I. HAMBURG v. NORTH PENN SCHOOL DISTRICT (12/07/84)

decided: December 7, 1984.

BERNICE I. HAMBURG, PETITIONER
v.
NORTH PENN SCHOOL DISTRICT, RESPONDENT



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

COUNSEL

James J. Auchinleck, Jr., McCoy & Auchinleck, P.C., for petitioner.

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

Judges Williams, Jr., Doyle and Barry, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 86 Pa. Commw. Page 372]

Bernice I. Hamburg (Hamburg) seeks review of an Order of the Secretary of Education (Secretary), dated January 9, 1984, which affirmed the decision of the School Board of the North Penn School District (North Penn) to terminate her employment on the ground of incompetency. Hamburg contends that two

[ 86 Pa. Commw. Page 373]

    unsatisfactory mid-year ratings used to support her discharge were invalid and that the findings of fact found by the Secretary to be supported by substantial evidence do not support her termination for incompetence. We affirm.

Hamburg was a tenured second grade classroom teacher employed for some twelve years at North Penn. During the 1978-1979 school year, she received two unsatisfactory mid-year ratings as well as an unsatisfactory year-end rating. Due to these unsatisfactory ratings, North Penn proposed to terminate her employment as a professional employee on the basis of incompetence as set forth in Section 1122 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1122. Between July 1979 and the end of November 1979, twenty-three evidentiary hearings were held. North Penn's adjudication dismissing Hamburg for incompetency contained fifty-eight findings of fact.

[ 86 Pa. Commw. Page 374]

Hamburg appealed her dismissal to the Secretary. The Secretary affirmed her dismissal in an adjudication dated September 19, 1980 containing thirty-three findings of fact. In his 1980 adjudication, the Secretary did not consider the two unsatisfactory 1978-1979 mid-year ratings because of the absence of numerical scores, but relied on the rating Hamburg received at the end of the 1977-1978 school year. North Penn had not based its decision on the 1977-1978 rating. The Secretary carefully avoided the issue of the validity of the two mid-year 1978-1979 ratings. Hamburg appealed the Secretary's September 1980 order to this Court. In that appeal, we remanded the matter to the Secretary for a determination of whether North Penn's findings of fact were supported by substantial evidence and whether Hamburg's discharge was valid without consideration of the 1977-1978 rating. Hamburg Page 374} v. Department of Education, 73 Pa. Commonwealth Ct. 225, 458 A.2d 288 (1983) (Hamburg I).

On January 9, 1984, after remand, the Secretary determined that forty-six of North Penn's factual findings were supported by substantial evidence. The Secretary also determined that Hamburg's two unsatisfactory mid-year ratings for 1978-1979 were valid despite the lack of numerical scores, and that Hamburg's discharge was valid. Hamburg appealed the Secretary's January 1984 adjudication to this Court, where she challenges the validity of the two mid-year 1978-1979 ratings and the Secretary's conclusion that the forty-six findings of fact are sufficient to support her discharge for incompetence.

Our scope of review, where the Secretary has taken no additional evidence, is to review the decision of the school board and determine whether that decision contains any necessary factual findings which are not supported by substantial evidence, is in accordance with law, and whether any constitutional rights of the appellant were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Strinich v. Clairton School District, 494 Pa. 297, ...


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