Bruce D. Campbell, Robert E. Durrant, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for appellant.
Eugene P. Girman, Girman & Bacharach, Pittsburgh, for Belasco & Powers.
Linda J. Wells, Harrisburg, for Secretary of Educ.
Louis B. Kushner, Shelley W. Elovitz, Rothman, Gordon, Foreman, and Groudine, P.C., Pittsburgh, amicus curiae, for Pa. Federation of Teachers-AFL-CIO.
Anthony D. Newman, Gen. Counsel, Harrisburg, amicus curiae, for Pa. State Educ. Assoc.
Michael I. Levin, Cleckner & Fearen, Blue Bell, amicus curiae, for Pa. School Boards Assoc.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Hutchinson, J., concurred in the result.
The School District of the City of Pittsburgh appeals from an order of the Commonwealth Court affirming, and modifying in part, a decision of the Secretary of Education (Secretary) which reversed the School Board's dismissal of appellees, David J. Belasco (Belasco) and Edward R. Powers (Powers), as professional employees and reinstated them to their respective teaching positions in the appellant School District. At issue is the essence of the review powers of the Secretary in an appeal from a decision of a School Board. We are asked to decide the nature of the Secretary's review in a case where no additional testimony is taken. In such a case, is the Secretary limited to traditional appellate review, or is he to conduct a de novo review of the School Board's decision? The question is raised: may the Secretary make new findings of fact based upon the evidence presented to the board as reflected in the official record without taking additional testimony? Also at issue is the Commonwealth Court's finding that the School
Board's decision was not in accordance with the law in that the evidence was insufficient to establish intemperance, cruelty and willful violation of the school laws.
Appellees Belasco and Powers were teachers at Halls Grove Opportunity School, a school for mentally and socially retarded children in the City of Pittsburgh. On April 20, 1982, appellees were separately involved in two distinct incidents centering around Gary Neel (Neel), a socially and emotionally disturbed student. Neel, an eighth-grader at the school, had been involved in physically aggressive conduct toward a fellow student. Appellee Powers, one of Neel's teachers, talked to Neel about the incident and then as a form of punishment, lightly struck Neel on the buttocks with a wooden paddle. Powers characterized the single act of light contact as a "love tap"*fn1 administered with a flick of the wrist. He described the force of the "love tap" as enough for the child to know it happened but not enough to hurt. Later, Power's class ended, and Neel went to his next class in the classroom of appellee Belasco. There he was called to the front of the room by a teacher's aide, Sandra Saunders, where he again was punished for his aggressive conduct. Ms. Saunders,*fn2 using considerable force, smacked Neel five times with a paddle across the buttocks. Harrison Richman, a second teacher's aide in the room at the time, joined in the paddling and swatted Neel once on his buttocks. Belasco who was present in the classroom apparently observed the paddling but did not intervene. Belasco testified that he did not attempt to stop the aides from paddling Neel because when Neel was summoned to the front of the room, the other class members became excited and unruly. Belasco indicated that he was busy calming them and keeping order. After the aides left
the room, Belasco took the paddle in hand and laid it on the buttocks of Neel in what both he and Neel described as a joking fashion, attempting to lighten the atmosphere.
Previously, in 1970, the School Board of Pittsburgh adopted a policy banning corporal punishment. That policy was in effect on April 20, 1982, the time of the events in question. Because of the incidents involving Gary Neel, Powers and Belasco were suspended without pay. On July 2, 1982, appellees were formally charged with intemperance, cruelty and willful and persistent violation of the school laws of Pennsylvania. A hearing on the charges was held before the School Board on July 13, 1982. On October 25, 1982 the Board found appellees guilty of the charges and dismissed them from their positions. On appeal the Secretary reversed the decision of the School Board and ordered appellees reinstated, but without back pay. The Commonwealth Court affirmed the Secretary's order ...