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JOSEPH F. FODERARO v. SCHOOL DISTRICT PHILADELPHIA (09/23/87)

decided: September 23, 1987.

JOSEPH F. FODERARO, PETITIONER
v.
THE SCHOOL DISTRICT OF PHILADELPHIA, RESPONDENT



Appeal from the Order of the Department of Education, in case of Joseph F. Foderaro v. Board of Education of the School District of Philadelphia, Teacher Tenure Appeal No. 13-84.

COUNSEL

Leonard Zack, with him, Anthony C. Busillo, Manche, Lightman & Wagner, for petitioner.

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

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 109 Pa. Commw. Page 493]

Joseph F. Foderaro (Petitioner) petitions for our review of an order of the Secretary of the Department of Education (Secretary) which affirmed the action of the Board of Education of the School District of Philadelphia dismissing Petitioner from his position with Murrell Dobbins Vocational-Technical High School (Dobbins) for persistent and willful violation of the school laws. We affirm.

Petitioner had been employed by the School District of Philadelphia for approximately 19 years when he was discharged by resolution of the School Board on June 24, 1984. Prior to his discharge, Petitioner served as Trade Coordinator with Dobbins School and one of his responsibilities was to purchase supplies for the school. As found by the Board, the school district has extensive policies and procedures prescribing how purchases are to be made and none of them permit one to make purchases in the school's name for personal use or for research. However, during a period of approximately 9 months, from June 18, 1982 through March 24, 1983, Petitioner purchased $8,000 to $10,000 worth of glassware and chemical equipment from the Arthur H. Thomas Company for his personal use. These purchases were all made in the Dobbins School's name which enabled Petitioner to use the school's tax exempt number and to receive the school's 15% discount.

Petitioner placed most of the orders by telephone although at least one order was made on Dobbins School stationery and Petitioner always paid with his own funds on a cash on delivery basis. Petitioner testified that the equipment was purchased to facilitate him in the manufacture of "octane plus," an experimental gasoline additive.

On April 10, 1983, a drug raid occurred at the home of Mr. George F. Lynch in Slickersville, New Jersey at

[ 109 Pa. Commw. Page 494]

    which certain items, specifically two heating mantles, which had been purchased by Petitioner through Dobbins School, were confiscated.*fn1 Petitioner later testified that he had given the equipment he purchased in the school's name to Mr. Lynch and that he had enfranchised Mr. Lynch to manufacture octane plus for him. The Dobbins School principal was notified of the drug raid and that items purchased through the school by Petitioner had been seized. Several conferences were held with Petitioner and various school officials which culminated in the Board's adoption of a resolution dismissing Petitioner for persistent and willful violation of school laws. Petitioner timely appealed the Board's action to the Secretary who affirmed the dismissal. The present appeal followed.

Our scope of review in a case such as this, where the Secretary has taken no additional testimony, is limited to a determination of whether constitutional rights were violated, an error of law committed, or if the Board's findings of fact are supported by substantial evidence. Harrison v. Capital Area Intermediate Unit, 84 Pa. Commonwealth Ct. 344, 479 A.2d 62 (1984).*fn2

We note first that a tenured professional school employee, such as Petitioner, can be discharged only for reasons set forth in Section 1122 of the Public School Code of ...


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