IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hugo Prieto, :

Petitioner :

: No. 144 C.D. 2021

v. :

: Argued: November 15, 2022

The School District of Philadelphia :

(Department of Education), :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge 

HONORABLE LORI A. DUMAS, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: December 28, 2022

Hugo Prieto (Prieto) petitions for review of the January 29, 2021 order of 

the Acting Secretary of Education Noe Ortega1(Acting Secretary) that affirmed a 

decision of the Board of Education (Board) of the School District of Philadelphia 

(District) dismissing him from his position as a tenured professional employee. The 

Acting Secretary affirmed Prieto’s dismissal for two reasons. First, the Acting 

Secretary concluded that Prieto received due process because the District complied 

with the procedures required by the Public School Code of 1949 (School Code).2 

1 Acting Secretary Ortega resigned from office effective April 29, 2022. Governor Wolf 

named Eric Hagarty as Acting Secretary to replace Mr. Ortega. To date, Mr. Hagarty remains 

Pennsylvania’s Acting Secretary of Education. 

2 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101-27-2702.
2

Second, the Acting Secretary concluded that the District met its burden of showing a 

valid cause to terminate Prieto. Upon review, we affirm. 

I. FACTS AND PROCEDURAL HISTORY

This case stems from an incident that occurred on December 7, 2018,

between Prieto and a student. (Acting Secretary’s Op., Findings of Fact (FOF) ¶ 5.) 

There is no dispute that at that time Prieto was a tenured professional employee of the 

District and was employed as a chemistry teacher for the 2018-2019 academic school 

year. During a “hall sweep,” three students entered Prieto’s classroom at the start of 

class, sat in the back of the room talking to friends, and refused to leave when Prieto 

directed them. (FOF ¶ 5.) Prieto called the District’s main office and used a walkietalkie to seek assistance. (FOF ¶ ¶ 6-7.) Assistant Principal Albert Sniezevage 

(Sniezevage) responded to Prieto’s walkie-talkie call and entered the classroom, had 

Prieto identify the students in question, and proceeded to usher the students out of the 

classroom. (FOF ¶ 8; Hr’g Tr. at 8, Reproduced Record (R.R.) at 23a.) 

Sniezevage testified as follows. Prieto picked up a hardbound chemistry 

textbook from the floor and threw it at one of the students who was exiting the room, 

hitting the student in the lower back near the waistline. (Hr’g Tr. at 11, R.R. at 24a.) 

The student shouted an expletive at Prieto and became agitated. (Hr’g Tr. at 13, R.R. 

at 24a.) Sniezevage stepped between Prieto and the student and told Prieto to leave the 

classroom. (Hr’g Tr. at 13, R.R. at 24a.) Sniezevage attempted to restrain the student

but the student evaded Sniezevage and confronted Prieto who put his hands up and

began to exchange punches with the student. (Hr’g Tr. at 13, R.R. at 24a.) Sniezevage 

again stepped between Prieto and the student and ordered Prieto to leave the room. 

(Hr’g Tr. at 13-14, R.R. at 24a-25a.) Prieto slowly walked to the door and while doing 

so, the student broke free, and again confronted Prieto. (Hr’g Tr. at 14, R.R. at 25a.)

Prieto offensively fought the student again. (Hr’g Tr. at 14-15, R.R. at 25a.) A cell 
3

phone video recorded part of the fight between Prieto and the student. (FOF ¶ ¶ 19-20;

Hr’g Tr. at 25, R.R. at 27a.) Thereafter, Sniezevage and another student were able to 

step between Prieto and the student, and Sniezevage ordered Prieto to leave the room;

Prieto, in response, stepped into the storage room at the front of the classroom. (Hr’g 

Tr. at 32, R.R. at 29a.)

After the fight ended, School Principal Lillian Izzard entered the room and 

escorted the student to her office to be questioned by school police. (Hr’g Tr. at 16, 

R.R. at 25a.) That same day, Sniezevage memorialized the incident in a written 

statement and prepared a Form 204 Unsatisfactory Incident report. (FOF ¶ 26; Hr’g 

Tr. at 118-20, R.R. at 26a, 54a-58a.) School safety officers interviewed Prieto the day 

of the incident. (Hr’g Tr. at 33, R.R. at 29a.) As of December 10, 2018, Prieto was

removed from his classroom and reassigned to the District’s main building. (R.R. at 

65a.) As of December 11, 2018, Prieto was reassigned to the Education Center and, 

while at the Education Center, he was not given any work. (R.R. at 67a.) On January 

3, 2019, Sniezevage held an investigatory conference to discuss the incident. (R.R. at 

62a-63a.) On April 15, 2019, Prieto again met with Sniezevage at a second-level 

conference. (Hr’g Tr. at 33, R.R. at 29a.) 

On April 25, 2019, the District’s Board approved a resolution finding that 

there was sufficient evidence to issue a Statement of Charges and recommend 

disciplinary action be taken against Prieto. (R.R. at 52a.) On May 6, 2019, the Board 

provided Prieto with a written notice that included a statement of charges, informed 

Prieto of his right to a hearing, and scheduled a hearing before the Board on May 15, 

2019 at 10:00 a.m. (R.R. at 16a-18a.) The May 6, 2019 statement of charges indicated 

that Prieto was suspended on the grounds of intemperance, incompetency, and cruelty 

under section 1122 of the School Code. 24 P.S. § 11-1122; R.R. at 17a. On May 16, 

2019, Prieto’s counsel, Richard W. Migliore, Esq., emailed the District to reschedule 
4

the hearing, which request the District granted and indicated it would send prospective 

hearing dates. (R.R. at 74a-75a.) 

The Board hearing was held on August 25, 2020, and Prieto appeared with 

counsel by Zoom. (FOF ¶ 34.) Both counsel for Prieto and the District had full 

opportunity to call and question witnesses, cross-examine the other party’s witnesses, 

introduce evidence, and object to evidence offered by the opposing party. (FOF ¶ 35.) 

Both parties submitted briefs following the hearing. The hearing officer issued findings 

of fact and conclusions of law on October 14, 2020, recommending that the Board 

terminate Prieto’s employment. (FOF ¶ ¶ 36-37.) On October 22, 2020, the District’s 

Board adopted a resolution terminating Prieto’s employment. (FOF ¶ 38.) 

Thereafter, Prieto appealed to the Acting Secretary. A hearing was held 

virtually before hearing officer Robert Tomaine on December 10, 2020. (R.R. at 123a152a.) On January 29, 2021, the Acting Secretary issued a decision and order affirming 

the District’s dismissal of Prieto. (R.R. at 162a.)

Subsequently, Prieto appealed to this Court. 

II. ISSUES

Before this Court,3 Prieto presents four issues for review.

4

 First, Prieto 

argues the Acting Secretary erred in finding that his actions on December 7, 2018, 

constituted intemperance, thereby justifying his dismissal under the School Code.

3 Our review of the Acting Secretary’s order is limited to determining whether an error of law 

was committed, constitutional rights were violated, or necessary findings of fact were unsupported 

by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; McCoy v.

Lincoln Intermediate Unit No. 12, 391 A.2d 1119, 1121 (Pa. Cmwlth. 1978). An administrative 

decision is supported by substantial evidence “when a reasonable man, acting reasonably, would have 

reached the same decision.” Central York School District v. Ehrhart, 387 A.2d 1006, 1008 (Pa. 

Cmwlth. 1978). 

4 We have reordered and paraphrased the questions presented for clarity and ease of 

discussion. 
5

Prieto also argues the Board violated his due process rights as the District did not follow 

the School Code’s requirements for termination. He further contends he was 

effectively terminated without a hearing and that suspensions without pay pending 

termination are not permitted under the School Code. 

III. DISCUSSION

A. Prieto’s Intemperance

Prieto first argues that the Acting Secretary erred in finding that his 

conduct constituted intemperance under the School Code. Prieto argues “[i]n a ‘reflex 

action’ [he] ‘grabbed the book and tapped the student in the back of his leg.’” (Prieto’s 

Br. at 10.) In doing so, Prieto has attempted to reargue facts relating to his perspective 

of the incident and “the actual [t]ruth of the [m]atter.” (Prieto’s Br. at 12-13.) In 

essence, Prieto is requesting this Court to reweigh the evidence, make different 

findings, and make credibility determinations based upon his version of the incident. 

(Prieto’s Br. at 12-13, 18-19, 40-46.)

Section 1122 of the School Code provides: 

The only valid causes for termination of a contract heretofore 

or hereafter entered into with a professional employe shall be 

immorality; incompetency; unsatisfactory teaching performance 

based on two (2) consecutive ratings of the employe’s teaching 

performance that are to include classroom observations, not less 

than four (4) months apart, in which the employe’s teaching 

performance is rated as unsatisfactory; intemperance; cruelty;

persistent negligence in the performance of duties; wilful neglect 

of duties ... persistent and wilful violation of or failure to comply 

with school laws of this Commonwealth, including official 

directives and established policy of the board of directors; on the 

part of the professional employe ....

24 P.S. § 11-1122 (emphasis added). It is the District’s burden to prove that a 

professional employee committed one or more of the statutorily enumerated acts. 
6

Foderaro v. School District of Philadelphia, 531 A.2d 570, 571 (Pa. Cmwlth. 1987). 

Here, the District charged Prieto with incompetency, intemperance, and cruelty, which 

are expressly provided for in section 1122 of the School Code. (R.R. at 82a.) The 

Acting Secretary concluded that the District had met its burden of proof because there 

was sufficient support in the record for the allegation that “[Prieto’s] actions 

constitute[d] intemperance justifying his termination under the School Code.” (Acting 

Secretary’s Opinion at 9; R.R. at 161a.)

Notably, intemperance is not defined in the School Code. Nevertheless, 

this Court has explained that intemperance is a loss of self-control, which may be 

inferred from the use of excessive force. McFerren v. Farrell Area School District, 

993 A.2d 344 (Pa. Cmwlth. 2010); Belasco v. Board of Public Education of School 

District of Pittsburgh, 510 A.2d 337 (Pa. 1986). Upon review of the record and the 

Acting Secretary’s findings, we agree that there was ample evidence to the support the 

conclusion that Prieto’s conduct exhibited a loss of self-control or excessive use of 

force. 

It is undisputed that on December 7, 2018, Prieto engaged in two fist fights

with a student. The Acting Secretary additionally found that Prieto threw a textbook 

at the student as the student was leaving the classroom. In the Acting Secretary’s 

words:

[Prieto] testified that the book hit the student on the calf rather 

than on his back. He also testified that he did not throw the book 

at the student, but rather that the student kicked the book as 

[Prieto] was reaching for it, causing the book to hit [Prieto’s] toe. 

[Prieto] testified: ‘I opened my arms and I tapped him as a reflex 

action on the calf . . . with the flat part of the book.’ [Prieto’s] 

version of events was directly contradicted by Assistant Principal 

Sniezevage’s testimony. Sniezevage testified that he witnessed

[Prieto] intentionally throw a book at and exchange punches with 

a student. I find the testimony of Sniezevage to be credible. I 

do not find [Prieto’s] testimony to be credible. I find credible 
7

that [Prieto] intentionally threw a book at a student and 

participated in a fistfight in his classroom on the day in 

question. 

(R.R. at 161a.) (internal citations omitted) (emphasis added). The Acting Secretary is 

the ultimate factfinder when he makes findings of fact. Balog v. McKeesport Area 

School District, 484 A.2d 198, 200 (Pa. Cmwlth. 1984). As the ultimate factfinder, the 

Acting Secretary renders credibility determinations of the witnesses’ testimony. 

Rhodes v. Laurel Highlands School District, 544 A.2d 562, 565 (Pa. Cmwlth. 1988). 

Although Prieto continues to reargue the facts surrounding the December 7, 2018 

incident, this is of no moment as the Acting Secretary did not find his testimony 

credible. As stated by the Acting Secretary, he reviewed the testimony of Sniezevage 

and determined that Sniezevage’s testimony was credible. (Acting Secretary’s Opinion 

at 9; R.R. at 161a.) The Acting Secretary accepted Sniezevage’s testimony that Prieto 

threw the textbook at the student and engaged in two fist fights with the student. (FOF 

¶ ¶ 9-18, 21; Hr’g Tr. at 11, R.R. at 24a.) 

The record supports the Acting Secretary’s findings. Sniezevage testified:

As the students were leaving, I observed Mr. Prieto pick up the 

chemistry book and throw it at a student as the student was 

leaving the room. 

Q: He threw it at one of the exiting students? 

A: Yes. 

Q: And you say he threw it at the student. Did the book hit the 

student? 

A: Yes, it did. It struck him in the lower back, right around the 

waistline, like lower back right above his buttocks. 

Q: And you say a chemistry book, are we talking just a typical 

text or hardbound textbook or –
8

A: We are talking about your 500-plus page hardback chemistry 

textbook.

(Hr’g Tr. at 11, R.R. at 24a.) Sniezevage further testified that as the student became 

agitated, he instructed Prieto to leave the room, which Prieto did not. (Hr’g Tr. at 12-

13, R.R. at 24a). Sniezevage stated the student got around him and started exchanging 

punches with Prieto. (Hr’g Tr. at 13, R.R. at 24a.) Sniezevage testified that he stepped 

between the student and Prieto and again ordered Prieto to leave the room, but “[Prieto] 

again did not move with any urgency.” (Hr’g Tr. at 13-14, R.R. at 24a-25a.) 

Sniezevage stated that “[m]aybe to my recollection it was the third or fourth time where 

I told him to leave the classroom that he began to move towards one of the exits.” 

(Hr’g Tr. at 14, R.R. at 25a.) Sniezevage noted: “Again, the student got free, and Mr. 

Prieto was still in the classroom, and they went for a second round of punch exchange, 

which took place at the front of the classroom.” (Hr’g Tr. at 14, R.R. at 25a.) Because 

the Acting Secretary’s findings of fact are supported by substantial evidence, we must 

accept those findings on appeal. Balog, 484 A.2d at 200. 

Upon review of the Acting Secretary’s findings, which are supported by 

substantial evidence in the record, the Acting Secretary appropriately concluded that 

Prieto’s conduct demonstrated a lack of self-control, and, therefore, constituted

intemperance. Thus, the District met its burden of showing valid cause to terminate 

Prieto from his employment pursuant to section 1122 of the School Code. 

B. Prieto’s Procedural Arguments

Next, Prieto argues the Board did not follow the School Code’s 

termination procedures, and thus, violated his due process rights. (Prieto’s Br. at 3, 17-

19.) Although we have determined the Board met its burden proving intemperance, 

that ruling does not and cannot negate the District’s obligation to provide Prieto with 
9

the due process protection to which he is entitled. Therefore, we address Prieto’s due 

process issues in turn. 

1. Procedure for Termination

First, Prieto cites Vladimirsky v. School District of Philadelphia, 144 A.3d 

986 (Pa. Cmwlth. 2016), and School District of Philadelphia v. Jones, 139 A.3d 358 

(Pa. Cmwlth. 2016), to support his assertion that “[t]he District’s administrative staff 

suspended [his] pay and effectively terminated his employment as of the date of May 

6, 2019, without the mandatory prior school hearing” required by the School Code. 

(Prieto’s Br. at 20.)

Section 1127 of the School Code provides the following procedure for 

termination of a professional employee: 

Before any professional employe having attained a status of 

permanent tenure is dismissed by the board of school directors, 

such board of school directors shall furnish such professional 

employe with a detailed written statement of the charges upon 

which his or her proposed dismissal is based and shall conduct a 

hearing. A written notice signed by the president and attested by 

the secretary of the board of school directors shall be forwarded 

by registered mail to the professional employe setting forth the 

time and place when where such professional employe will be 

given an opportunity to be heard either in person or by counsel, 

or both, before the board of school directors and setting forth a 

detailed statement of the charges. Such hearing shall not be 

sooner than ten (10) days nor later than fifteen (15) days after 

such written notice. At such hearing all testimony offered, 

including that of complainants and their witnesses, as well as that 

of the accused professional employe and his or her witnesses, 

shall be recorded by a competent disinterested public 

stenographer whose services shall be furnished by the school 

district at its expense. Any such hearing may be postponed, 

continued or adjourned. 
10

24 P.S. §11-1127 (emphasis added). This Court has interpreted the above section as 

“requir[ing] the [school b]oard to resolve to demote the employee and to furnish him 

with a written statement of the charges prior to the hearing.” Patchel v. Wilkinsburg 

School District, 400 A.2d 299, 232 (Pa. Cmwlth. 1979). As we further noted in 

Patchel, the school board only needs to pass a resolution that it has sufficient evidence 

to support its belief to demote the professional employee, and then, direct the secretary 

and president of the school board to notify the professional employee of this fact and 

advise him of his right to a hearing. 400 A.2d at 232 (quoting Abington School District 

v. Pittenger, 305 A.2d 382, 387 (Pa. Cmwlth. 1973)). 

In the instant case, Prieto’s reliance on Vladimirsky and Jones is 

misplaced. In Vladimirsky, this Court reversed the termination of a tenured employee

because the letter terminating his employment sent by the school district was not 

authorized by the School Reform Commission (SRC) but rather was sent by the school 

district administrator, which violated section 1127 of the School Code. Specifically, 

the letter in Vladimirsky stated: “This is to advise you that we shall recommend to the 

[SRC] that your employment with [the school district] be terminated effective 

immediately.” Id. at 992 (emphasis added). Subsequent to receiving the letter, the 

employee had a hearing before the SRC, and then later the SRC passed a resolution 

formally terminating the teacher. We held the school district’s termination was

procedurally defective. We determined the school district erred because: (1) an 

administrator sent the teacher a letter recommending that he be terminated effective 

immediately; (2) the statement of charges was not issued as the result of the passage of 

a resolution by the SRC; (3) and the SRC did not vote by roll call to determine whether 

the charges had been sustained. Id. at 994-995. 

Similarly, in Jones, this Court reversed the termination of a tenured 

employee because the school district failed to follow the procedural requirements for 

termination found in the School Code. Additionally, the employee received a letter 
11

stating his “employment with [t]he [school district would] be terminated effective 

immediately” and his pay was stopped as of that date of the letter. Jones, 139 A.3d at 

367. This Court in Jones faulted the school district for (1) having an administrator and 

the SRC chairman send the employee a letter recommending that he be terminated; (2) 

issuing a statement of charges but not as the result of the passage of a resolution by the 

SRC; and (3) approving a resolution in December 2010 terminating the employee 

retroactively to August 2009. Id. at 368. 

Here, unlike Vladimirsky and Jones, the District complied with the 

mandates provided in section 1127 of the School Code as the Board initiated the 

termination rather than its administrative staff. On April 25, 2019, the Board passed 

the following resolution:

RESOLVED, that there is sufficient evidence to support the 

recommendation of the Superintendent and/or his designee to 

terminate the employment, from the [District], of the following 

professional employee: 

1. [Prieto]

and be it, 

FURTHER RESOLVED, that the [s]ecretary and [Board] 

[p]resident are directed to advise these professional employees 

of the action item and their right to a hearing. 

(R.R. at 104a.) Prieto’s notice and statement of charges were dated May 6, 2019, which 

is clearly after the resolution. (R.R. at 16a-18a.) The Board’s meeting minutes further 

support that the resolution was not Prieto’s termination, but instead, the Board’s 

approval of the administration’s recommended termination of Prieto. (R.R. at 90a.) 

Moreover, in the meeting minutes, a breakdown of the 9-0 vote indicates how each 

Board Member voted in favor of the resolution. (R.R. at 90a.) The resolution for the 

approval of Prieto’s recommended termination is also distinguishable from any other

action item at the same Board meeting as “Administration’s Recommended 

Termination of Professional Employee.” (R.R. at 89a-90a.) 
12

As required, the statement of charges set a date for a timely hearing to 

determine whether Prieto should be terminated.5(R.R. at 84a.) Moreover, the 

statement also specifically included, “This is not a final determination on the status 

of your employment....You remain suspended without pay, but with health 

benefits, pending a final decision on the School District recommendation of 

dismissal.” (R.R. at 83a-84a) (emphasis added). The letter Prieto received cannot be 

construed as terminating his employment effective immediately as Prieto remained 

suspended from May 2019 until his hearing in August 2020. Unlike the tenured 

employees in Vladimirsky and Jones, Prieto was not terminated effective immediately 

and was instead suspended pending a final decision on the recommendation for his

dismissal. 

Furthermore, Prieto was not terminated by Board resolution until October 

22, 2020, by a 6-0 vote. (R.R. at 120a.) Significantly, Prieto’s termination date was 

effective immediately on October 22, 2020 – not the date of the Board’s resolution that 

there was sufficient evidence to support Prieto’s termination in April 2019. Id. 

Moreover, Prieto was terminated after his hearing before the Board’s hearing officer

on August 25, 2020. (R.R. at 22a-50a.) The hearing officer issued findings of fact and 

conclusions of law on October 14, 2020, recommending that the Board terminate 

Prieto’s employment. (R.R. at 163a-188a.) The October 22, 2020, resolution to 

terminate Prieto specifically states:

RESOLVED, that ... PRIETO be dismissed from his 

employment as a professional employee by the [District], 

effective immediately, and be it

FURTHER RESOLVED, that the Hearing Officer’s Findings of 

Fact and Conclusions of Law are adopted as the reasons for this 

decision, 

5 The record shows that the hearing before the Board was scheduled on August 25, 2020, after 

a “mutually agreed upon postponement.” (R.R. at 163a.) However, we note, Prieto has not argued 

that he suffered prejudice or harm to his interests from the delay in the hearing. 
13

and be it

FURTHER RESOLVED, that this decision was made in 

accordance with the [School Code], as amended, following an 

independent review of the record by the individual members of 

the [Board]. 

(R.R. at 117a.) Because Prieto’s termination was not backdated and occurred after his 

Board hearing, the District complied with the procedural requirements of section 1127

of the School Code. 

Therefore, we find the Acting Secretary did not err in upholding Prieto’s 

dismissal. 

2. Dismissal Without a Hearing

Next, Prieto argues that he was effectively dismissed on May 9, 2019, the 

date of his suspension, without a hearing, which is an “illegal act.” (Prieto’s Br. at 27.) 

We must note, however, that Prieto was not terminated on May 9, 2019, but rather was 

suspended on that date. Therefore, we review this issue as to whether Prieto was 

entitled to a hearing before his suspension. 

It is well settled that suspension for cause without a hearing is permissible 

where the teacher’s conduct is potentially harmful to the safety of the children or the 

teacher is unable to maintain order in the classroom creating a possibility for harm. 

Kaplan v. Philadelphia School District, 130 A.2d 672 (Pa. 1957); Board of Education 

of School District of Philadelphia v. Kushner, 530 A.2d 541 (Pa. Cmwlth. 1987); Board 

of School Directors of the Eastern York School District v. Fasnacht, 441 A.2d 481 (Pa. 

Cmwlth. 1982).

Here, Prieto lost control when he threw a book at a student and used 

physical force on a student. Prieto’s actions presented a very real harm to the children. 

This alone justifies his pre-hearing suspension. Prieto’s use of physical force on a 

student would have allowed the District to suspend him without any hearing or 
14

investigatory conference. However, the District held an investigatory conference on 

January 3, 2019, and a second-level conference on April 15, 2019, both of which were 

opportunities for the District to investigate the facts and for Prieto to hear the 

allegations against him and respond. Importantly, Prieto was not suspended until the 

conclusion of both conferences on May 9, 2019, by Board action. Nevertheless, in this 

case, no pre-hearing was required for Prieto’s suspension due to his intemperate 

conduct. 

Accordingly, we hold the Acting Secretary did not err in concluding the 

District complied with the School Code. 

3. Suspensions Without Pay 

Lastly, Prieto argues that his pay could not be constitutionally stopped 

until after the termination hearing. Prieto asserts that a suspension without pay pending 

dismissal is effectively a termination and a violation of Vladimirsky and Jones. 

(Prieto’s Br. at 24, 31-34.) Prieto contends that his suspension without pay amounts to 

a termination and is an effort to “circumvent the procedural safeguards of the School 

Code.” (Prieto’s Br. at 24.) 

Pennsylvania courts have long permitted suspensions pending dismissal 

for public employees, including teachers. See Burger v. Board of School Directors of 

McGuffey School District, 839 A.2d 1005 (Pa. 2003) (upholding suspension without 

pay of school district superintendent in instance of serious charges of misconduct);

Kaplan, 130 A.2d at 676 (permitting suspension without pay for a teacher pending 

dismissal); City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 592 A.2d 

779, 783 (Pa. Cmwlth. 1991) (holding that a suspension without pay is not a de facto

termination). In Kaplan, the Supreme Court stated that to “allow compensation to a 

teacher who deliberately breaks the moral law which makes him unfit to teach[] would 
15

result in an absurd and unreasonable interpretation of the act.” 130 A.2d at 680

(internal citations omitted). 

Here, Prieto was not terminated effective immediately as the employees 

in Vladimirsky and Jones were. Instead, Prieto was suspended by Board resolution 

which indicated the Board had sufficient evidence to substantiate the charges against 

Prieto. Prieto was suspended without pay but with health benefits pending his 

termination proceedings. The Acting Secretary concluded that “[b]ecause [Prieto’s] 

conduct was potentially harmful to the safety of children, the District had the right to 

suspend [Prieto] without pay pending a final decision on the recommendation to 

terminate his employment.” (Acting Secretary’s Op. at 7, R.R. at 159a.) 

In Kaplan, the Supreme Court stated: 

The welfare of the children is the paramount consideration. It 

follows from the fact that the authorities are not required to give 

active employment to a teacher pending his removal hearing, 

that, when his removal is subsequently ordered, he is not entitled 

to receive salary for the period during which he has not taught. 

Kaplan, 130 A.2d at 676 (quoting Gentner v. Board of Education of Los Angeles, 25 

P.2d 824, 825 (Cal. 1933)) (emphasis in original). 

Prieto was accused of serious misconduct stemming from the December 

7, 2018 incident. After investigating the incident, the Board determined it had 

sufficient evidence to resolve to terminate Prieto. Pending the disposition of his 

termination proceedings, the Board suspended Prieto without pay but with health 

benefits. Prieto’s suspension was a disciplinary action taken by the Board to keep the 

District’s children safe and was within the constraints of due process. 

Therefore, we find the Acting Secretary did not err in finding the District 

did not violate Prieto’s due process rights by suspending him without pay as his 

intemperance was potentially harmful to the safety of children. 
16

IV. CONCLUSION

For the foregoing reasons, we find the Acting Secretary’s determination 

to be based on substantial evidence that supports the necessary factual findings. 

Because we do not detect any error of law or constitutional violation in the District’s 

termination proceedings, we affirm the Acting Secretary’s January 29, 2021 Order. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hugo Prieto, :

Petitioner :

: No. 144 C.D. 2021

v. :

:

The School District of Philadelphia :

(Department of Education), :

Respondent :

ORDER

AND NOW, this 28th day of December, 2022, the January 29, 2021 

Order of the Department of Education is hereby AFFIRMED. 

________________________________

PATRICIA A. McCULLOUGH, Judge