Argued: October 9, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
MARY HANNAH LEAVITT, Judge
The Neshaminy School District appeals an order of the Court of Common Pleas of Bucks County denying its petition to vacate a grievance arbitration award that reinstated a discharged teacher to her former position. In doing so, the trial court held that the teacher had not waived her right to grieve her dismissal under the collective bargaining agreement between the School District and the Neshaminy Federation of Teachers (Union) even though she appeared at a hearing before the Board of School Directors. The trial court found that the teacher attended the Board hearing because she had been misled by the School District's notice stating that she would "lose" all her contractual and constitutional rights if she did not request a hearing from the School Board. The trial court accepted the Union's explanation that the teacher had always intended to pursue a grievance before an arbitrator as the way to challenge her dismissal. The School District contends that the teacher's attendance at the School Board hearing, regardless of her reasons, deprived the arbitrator of jurisdiction. We agree and, thus, reverse the trial court.
The School District employed Tara Buske as a Family and Consumer Science teacher at Maple Point Middle School. On December 7, 2010, Buske was arrested at K-Mart on charges of retail theft and receiving stolen property valued at $381.99. The School District learned of her arrest when it was reported in the Bucks County Courier Times. By letter of December 16, 2010, the School District instructed Buske to provide "a written determination by the Court" when the criminal charges were resolved. Reproduced Record at 99a (R.R. __).
Buske attended court hearings on the criminal charges on three occasions: January 25, 2011, February 15, 2011, and March 18, 2011. Using the School District's online reporting system, Buske logged herself off as "sick" for each of those three days. The criminal charges were resolved by agreement. The Commonwealth dropped the charge of receiving stolen property and agreed to resolve the retail theft charge with Accelerated Rehabilitative Disposition (ARD). Buske did not inform the School District that she had attended the three hearings or how the criminal charges were resolved. Buske continued teaching through the end of the 2010-2011 school year.
When the School District learned of what had happened, it concluded that Buske's conduct constituted "immorality" under the Public School Code of 1949. Accordingly, the School District decided to seek Buske's dismissal.
On July 8, 2011, the School District sent Buske a notice that read, in its entirety, as follows:
STATEMENT OF CHARGES AND NOTICE OF HEARING
Dear Ms. Buske:
You are hereby notified that pursuant to Article XI of the Public School Code of 1949, as amended, and more particularly, sections 1122, 1126, 1127, 1128, 1129, 1130 and 1133 thereof, the Board of School Directors of the Neshaminy School District [will meet] on July 28, 2011, beginning at 7 p.m. in the District Offices Board Room for the purpose of determining whether you should be dismissed from your employment with the school district.
You are being charged by the school district administration with the immorality as contemplated by the School Code of 1949, as amended, growing out of your alleged commission of the following:
Arrest for retail theft and receiving stolen property; being placed on ARD for retail theft; and misuse and misreporting of sick leave.
In addition, the evidence as to your disciplinary record may be presented at the hearing and considered by the Board.
Please be advised that you have the following rights if you choose a school board hearing:
(1) The right to be represented by counsel;
(2) The right to hear the witnesses and evidence against you and to cross-examine said witnesses;
(3) The right to present witnesses and evidence on your own behalf and to testify on your own behalf;
(4) The right to present evidence as to whether discharge or some lesser personnel action is appropriate under the circumstances;
(5) The right to have your choice of either a public or a private hearing; and
(6) All other rights guaranteed to you by the Constitution ...