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DAVID J. BELASCO AND EDWARD R. POWERS v. BOARD PUBLIC EDUCATION SCHOOL DISTRICT PITTSBURGH (01/07/85)

decided: January 7, 1985.

DAVID J. BELASCO AND EDWARD R. POWERS, PETITIONERS
v.
THE BOARD OF PUBLIC EDUCATION OF THE SCHOOL DISTRICT OF PITTSBURGH, RESPONDENT. THE BOARD OF PUBLIC EDUCATION OF THE SCHOOL DISTRICT OF PITTSBURGH, PETITIONER V. DAVID J. BELASCO AND SECRETARY OF EDUCATION, COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS. THE BOARD OF PUBLIC EDUCATION OF THE SCHOOL DISTRICT OF PITTSBURGH, PETITIONER V. EDWARD R. POWERS AND SECRETARY OF EDUCATION, COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Appeals from the Order of the Secretary of Education in the case of David J. Belasco and Edward R. Powers v. The Board of Public Education of The School District of Pittsburgh, Teacher Tenure Appeal, No. 16-82.

COUNSEL

Eugene P. Girman, with him, Louis B. Kushner, Girman & Bacharach, for petitioners/respondents, David J. Belasco and Edward R. Powers.

Robert E. Durrant, with him, Persifor S. Oliver and Bruce D. Campbell, Meyer, Darragh, Buckler, Bebenek & Eck, for respondents/petitioner, Board of Public Education of the School District of Pittsburgh.

Linda J. Wells, Assistant Counsel, with her, John A. Alzamora, Senior Counsel, for respondent, Pennsylvania Department of Education.

Judges Doyle, Colins and Palladino, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 87 Pa. Commw. Page 7]

These are consolidated appeals from the decision of the Secretary of Education (Secretary) which reversed the dismissal of teachers Edward R. Powers and David J. Belasco (Petitioners) by the Board of Public Education of the School District of Pittsburgh (Board) and reinstated Petitioners without back pay. Petitions for review of the order of the Secretary have been filed by all three parties. The Board appeals from the reversal of its dismissal order and Petitioners appeal from the denial of back pay. The Secretary has filed a brief limited to the issue of his scope of review.

Petitioners were suspended without back pay immediately following a series of events which transpired on April 20, 1982. On July 2, 1982, Petitioners were formally charged with intemperance, cruelty and willful and persistent violation of the school laws of Pennsylvania.*fn1 A hearing before the Board was held on July 13, 1982, and on October 25, 1982, Petitioners were dismissed. On December 7, 1983, the Secretary issued an opinion reversing the decision of the Board and ordering Petitioners reinstated but without back pay.

There is no dispute with regard to the essential facts involved in this case. Petitioners were employed as teachers at the Halls Grove Opportunity School in Pittsburgh, Pennsylvania, a school for mentally and socially retarded children. On April 20, 1982, Gary Neel, a student at the school, was involved in a physical altercation with another student. The Board's findings concerning the events that followed were, basically, that Petitioner Powers "swatted"

[ 87 Pa. Commw. Page 8]

Gary on the buttocks with a wooden paddle; that Petitioner Belasco was in his own classroom later that day when two teachers' aides entered and struck Gary with a wooden paddle, hurting him in the process; that Petitioner Belasco neither contributed to the aides' activities nor attempted to intervene, and that Petitioner Belasco "smacked" Gary once with a paddle himself. The Board also found that Petitioners were aware of the Board's policy against corporal punishment, and that "[t]eachers are responsible for the aides assigned to them and control all activities of teachers' aides in the classroom."

The Board argues first that the Secretary exceeded its scope of review by making additional findings of fact without taking additional testimony. In Strinich v. Clairton School District, 494 Pa. 297, 431 A.2d 267 (1981), cert. denied, 456 U.S. 982 (1982), the Pennsylvania Supreme Court stated that: "To the extent that additional testimony is taken, the Secretary may make additional findings of fact. If no such additional testimony is taken, however, the Secretary's review is limited to traditional appellate review." 494 Pa. at 302 n. 3, 431 A.2d at 270 n. 3. By way of comparison, the Court in Strinich cited Jones v. Workmen's Compensation Appeal Board, 25 Pa. Commonwealth Ct. 546, 360 A.2d 821 (1976), in which this Court stated that "The [Workmen's Compensation Appeal] Board, without taking further evidence, may not reverse the referee as to the credibility of the evidence produced before him merely because it might have evaluated that evidence otherwise." 25 Pa. Commonwealth Ct. at 551, 360 A.2d at 824.

According to Strinich, the Secretary erred in the case sub judice insofar as he made additional findings of fact on the basis of the testimony presented before the ...


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