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BOARD EDUCATION SCHOOL DISTRICT PHILADELPHIA v. CATHERINE KUSHNER (09/02/87)

decided: September 2, 1987.

BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF PHILADELPHIA, PETITIONER
v.
CATHERINE KUSHNER, RESPONDENT



Appeal from the Order of the Secretary of Education, in case of Catherine Kushner v. Board of Education, School District of Philadelphia, Teacher Tenure Appeal No. 15-83.

COUNSEL

Patricia A. Donovan, with her, Sally Akan, General Counsel, for petitioner.

Alfred D. Whitman, for respondent.

Judges Craig and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 109 Pa. Commw. Page 121]

This is an appeal by the Board of Education of the School District of Philadelphia (District) from an order

[ 109 Pa. Commw. Page 122]

    of the Secretary of Education (Secretary) reversing the District's dismissal of Catherine Kushner (teacher). She was a tenured employee who was dismissed from her teaching position with the District on grounds of incompetence.

Initially, the teacher was suspended without pay until a hearing was held and she was subsequently dismissed. She had received two consecutive unsatisfactory ratings from the District Superintendent at the end of each of the school years in 1981 and 1982. Her dismissal was reversed by the Secretary, who determined that: (1) a pre-hearing suspension was not warranted in this case, (2) dismissal was improper because the teacher had not received two consecutive unsatisfactory ratings and, (3) the District's failure to use numerical scores in its ratings invalidated these ratings. The issues on appeal are, simply, whether or not each of these three legal conclusions is correct.

Preliminarily, we recognize that the Secretary is vested with the authority to conduct a de novo review in cases involving disciplinary action for cause and that he is the neutral factfinder. Belasco v. Board of Public Education of School District of Pittsburgh, 510 Pa. 504, 510 A.2d 337 (1986). Our scope of review is limited to determining whether or not there has been a constitutional violation or an error of law and whether or not the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704; Belasco.

We begin by considering whether or not the District was permitted to suspend the teacher without pay before it held a hearing.

It is, of course, well settled that a suspension for cause pending a hearing is permissible where the teacher's conduct is potentially harmful to the safety of the ...


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