IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of :

Philadelphia, :

Petitioner :

:

v. :

:

Ellis Jones, : No. 2150 C.D. 2013

Respondent :

Ellis Jones, :

Petitioner :

v. :

:

The School District of :

Philadelphia, : No. 2230 C.D. 2013

Respondent : Argued: March 9, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY 

JUDGE COVEY FILED: June 2, 2016

The School District of Philadelphia (District) and Ellis Jones (Jones) 

petition this Court for review of Acting Secretary of Education Carolyn C. 

Dumaresq’s (Acting Secretary) November 5, 2013 order reinstating Jones to his 

position as a teacher and professional employee from August 10, 2009 to December 

15, 2010, and sustaining Jones’ employment termination as of December 15, 2010. 

The District presents six issues for this Court’s review: (1) whether the procedures 

the District used to terminate Jones’ employment complied with the Public School 
2

Code of 1949 (School Code);

1

(2) whether the School Code requires the School 

Reform Commission (SRC) to resolve before the issuance of charges that evidence 

existed that, if true, justified employment termination; (3) whether the District was 

required to present evidence that the SRC read or knew about the charges or the 

transcript of the employment termination hearing; (4) whether the August 10, 2009 

letter imposed a suspension without pay upon Jones; (5) whether the SRC would have 

violated Jones’ due process rights if it made a pre-charge determination; and (6) if the 

Court rules that there were procedural defects, whether the proper remedy is remand. 

Jones presents six issues for this Court’s review: (1) whether the District 

failed to comply with the mandatory procedures set forth in the School Code when 

the District terminated Jones’ employment as a teacher on August 10, 2009 without a 

hearing, and then belatedly held a hearing eight months later which also did not 

comply with the School Code, and finally resolved to ratify Jones’ illegal 

employment termination another seven months later on December 15, 2010; (2) 

whether the failure of the District and the SRC to comply with the procedural 

safeguards of the School Code is a Due Process Clause violation of the United States 

(U.S.) Constitution; (3) whether the Acting Secretary erred when, on reconsideration, 

she changed Secretary of Education Ronald J. Tomalis’ (Secretary) decision to 

sustain the illegal termination of Jones’ employment as of December 15, 2010, when 

there was no legal basis for such partial reversal; (4) whether the two year undue 

delay of the Acting Secretary in issuing her reconsidered Opinion created the 

appearance of impropriety and fatally compromised Jones’ due process rights by 

inhibiting the impartiality of the tribunal; (5) whether the SRC met its burden of proof 

to sustain a charge of immorality where the SRC presented no unbiased witness who 

said that Jones’ conduct offended the morals of the community, and whether the SRC

 

1 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 – 27-2702.
3

Chairman improperly refused to allow Jones’ witness, Eugene Woehr (Woehr), a 

department head at Dobbins Area Vocational Technical School (AVTS), to testify 

that Jones did nothing which rose to the level of immorality within the community, 

and that the allegations against Jones were, in his words, absurd; and (6) whether the 

Acting Secretary improperly took words and phrases from Jones’ conversations with 

individual students out of context and purposefully reconstructed them in an 

inflammatory manner, without proper citation to the record, in order to rationalize the 

reversal of the Secretary’s decision.

 

Background

The District hired Jones as a teacher and professional employee on

September 1, 2002. Jones was a vocational teacher at AVTS for six years until the

electronics program was discontinued at that location. During the 2008-2009 school 

year, Jones was assigned as a math teacher at Mastbaum AVTS (Mastbaum). On or 

about April 30, 2009, Mastbaum’s principal Mary Dean (Dean) received a letter 

containing alleged statements Jones made in his classroom while teaching. The letter 

was signed by the project manager and three corps members of City Year Greater 

Philadelphia (City Year) that spent time in Jones’ classroom working with him to 

help his students. City Year members include assistant teachers, tutors and mentors. 

In the City Year letter, the corps members related specific instances of 

Jones speaking unprofessionally to his students, including using foul language and 

inappropriate discussion topics such as sex. See Reproduced Record (R.R.) at 628a630a. Upon receiving the City Year letter, Dean asked a school police officer to 

conduct an investigation by randomly selecting pupils from a list of Jones’ students 

and asking them to write a statement about Jones. Seven students prepared written 

statements, five of which confirmed the allegations set forth in the City Year letter 

regarding Jones’ speaking improperly to his students. 
4

After Dean received the statements from Jones’ students, she conducted

an investigatory conference on June 1, 2009, which included Jones, Philadelphia

Federation of Teachers (PFT) representative Evette Jones (PFT Jones), and the 

District’s labor relations assistant Ted Bywalski (Bywalski). Jones admitted to 

making some of the statements, but asserted that they were taken out of context in 

some cases and were misinterpreted in others. He also maintained that he was trying 

to create an atmosphere of trust and rapport with his students. 

After the June 1, 2009 investigatory conference, Dean prepared an

unsatisfactory incident report (SEH-204) and recommended that Jones’ employment 

with the District be terminated. Jones sent a letter dated June 15, 2009 to Dean

responding to the SEH-204, wherein, he apologized for his remarks and repeated that 

he was trying to build trust and rapport with the students, and that some remarks were

taken out of context and misinterpreted while others were inaccurate and a 

misrepresentation of what happened in the classroom. Jones further stated that since 

he received the concerns from Dean and the City Year members, he immediately

changed his approach and apologized multiple times. 

On June 24, 2009, Assistant Regional Superintendent James Douglass

(Douglass) held a second-level conference regarding the SEH-204. In attendance 

were PFT Jones and Bywalski. PFT Jones spoke on Jones’ behalf and stated that 

Jones apologized, that the tactic he used to gain respect of the students was not 

appropriate, that his comments were taken out of context and that he was dedicated to 

his students. After the June 24, 2009 meeting, Douglass recommended that Jones be 

discharged from his employment with the District.

By August 10, 2009 letter, signed by the District Superintendent and the 

SRC Chairman, Jones was notified that the charges against him constituted “a willful 

violation of or failure to comply with the School Laws of this Commonwealth, and 

other improper conduct such as to constitute cause pursuant to . . . Section [1122] of 
5

the [School Code, 24 P.S. § 11-1122.]” R.R. at 727a. The letter informed Jones that 

they would recommend to the SRC that his employment with the District be 

terminated, and that he had a right to request an SRC hearing. In the same letter, 

Jones was told that the District’s payroll department would be advised to make the 

necessary salary adjustments. Jones requested a hearing which was held on April 16, 

2010 before the SRC Chairman.2 

Thereafter, on December 15, 2010, the SRC resolved to dismiss Jones, 

effective August 14, 2009. Jones appealed from the SRC’s decision to the Secretary. 

On September 13, 2011, the Secretary reversed the SRC’s decision, reinstated Jones

and ordered payment of any compensation that he lost due to his dismissal. On 

September 28, 2011, the District filed a petition for reconsideration (Reconsideration 

Petition) of the Secretary’s order pursuant to Section 35.241(a) of the General Rules 

of Administrative Practice and Procedure, 1 Pa. Code § 35.241(a). On October 11, 

2011, the District appealed from the Secretary’s order to this Court. On October 27, 

2011, the Secretary granted the District’s Reconsideration Petition and issued a 

briefing schedule. 

On December 6, 2011, this Court denied the District’s request to stay 

this matter pending the Secretary’s reconsideration decision because the 

Reconsideration Petition was a nullity. However, this Court construed the application 

for stay to include a request to remand the matter to the Secretary, and remanded the 

case to the Secretary with directions to consider the District’s Reconsideration 

Petition within thirty days. On December 20, 2011, the Secretary granted the 

District’s Reconsideration Petition. On November 5, 2013, the Acting Secretary

reinstated Jones’ employment from August 10, 2009 to December 15, 2010, and 

 

2 No other SRC members participated in the hearing.
6

terminated Jones’ employment as of December 15, 2010. The District and Jones 

appealed to this Court.3

Jones’ Non-School Code Arguments4

Two Year Delay

Jones argues that the two year undue delay of the Acting Secretary in 

issuing her reconsidered decision created the appearance of impropriety and fatally 

compromised Jones’ due process rights by inhibiting the impartiality of the tribunal. 

Jones cites Lyness v. State Board of Medicine, 605 A.2d 1204 (Pa. 1992), to support 

his position. The District rejoins that the delay did not constitute a due process 

violation because Jones did not allege harm or prejudice caused by the delay, and 

cites Kinniry v. Abington School District, 673 A.2d 429 (Pa. Cmwlth. 1996).

In Lyness, the Pennsylvania Supreme Court held: “Whether or not any 

actual bias existed as a result of the [b]oard acting as both prosecutor and judge is 

inconsequential; the potential for bias and the appearance of non-objectivity is 

sufficient to create a fatal defect under the Pennsylvania Constitution.” Id. at 1210

(emphasis added). The appearance of impropriety in Lyness was specific to the nonobjectivity of the board. Here, although there may have been a delay in the decision, 

the Acting Secretary was not involved in the SRC hearing or resolution. See id. 

Thus, because she did not act as prosecutor and judge, there is not even an 

appearance of non-objectivity. Accordingly, Lyness is inapposite.

 

3

“This Court’s standard of review of a decision of the Secretary of Education is limited to 

[the] determination of whether substantial evidence supports necessary factual findings, and 

whether an error of law or constitutional violation was committed.” Curl v. Solanco Sch. Dist., 936 

A.2d 183, 185 n.1 (Pa. Cmwlth. 2007).

4 We will address Jones’ arguments first as his issues overlap the District’s issues. The 

opinion separates Jones’ non-School Code and School Code arguments for clarification purposes.
7

Moreover, the Kinniry Court held:

We have previously held that a petitioner seeking to 

establish that his or her due process rights have been 

violated bears the burden of proving that some harm or 

prejudice to his or her interests was caused by the delay.

Here, [the petitioner] alleges only that the passage of time 

between hearing and final adjudication was too long; he has 

not alleged that he was harmed or prejudiced in any way as 

a result of the delay. Although we do not condone 

unnecessary delay in adjudicating the fate of a person’s 

livelihood, without evidence that [the petitioner] suffered 

any prejudice or harm as a result of the delay, we cannot 

conclude that [the petitioner’s] due process rights were 

violated. 

Id. at 433 (citation omitted; emphasis added). Kinniry controls the instant case. 

Because Jones has not offered any evidence that he suffered some prejudice or harm 

to his interests from the delay, we cannot conclude that Jones’ due process rights 

were violated by said delay.

Immorality

Jones next contends that the SRC failed to meet its burden of proof to 

sustain a charge of immorality because the SRC presented no unbiased witness who 

said that Jones’ conduct offended the morals of the community, and the SRC 

Chairman refused to allow Jones’ witness, Woehr, to testify that Jones did nothing 

which rises to the level of immorality within the community.

This Court has explained:

Immorality is not defined in the . . . School Code. Our 

appellate courts have defined ‘immorality’ as conduct that 

‘offends the morals of the community and is a bad example 

to the youth whose ideals a teacher is supposed to foster and 

to elevate.’ Horosko v. Sch[.] Dist[.] of Mt. Pleasant 

[Twp.], . . . 6 A.2d 866, 868 ([Pa.] 1939). To establish 

immorality, the school district must prove three elements: 
8

(1) that the alleged immoral act actually occurred; (2) that 

the act offends the morals of the community; and (3) that 

the act sets a bad example for students. The moral 

standards of the community will not be presumed; they 

must be proved by substantial evidence. Immoral conduct 

is something more serious than unprofessional conduct.

McFerren v. Farrell Area Sch. Dist., 993 A.2d 344, 353-54 (Pa. Cmwlth. 2010) 

(citations omitted). Further,

[w]e have previously held that a school board’s finding that 

a professional employe[e] was guilty of offending the moral 

standards of the community by his actions would not be 

disturbed on appeal if supported by substantial evidence. . . 

. We have held, of course, that an administrative decision is 

supported by substantial evidence when a reasonable man, 

acting reasonably, would have reached the same decision. . . 

.

Central York Sch. Dist. v. Ehrhart, 387 A.2d 1006, 1008 (Pa. Cmwlth. 1978).

Here, it is undisputed that the acts occurred. In addition, our careful 

review of the record convinces us that “a reasonable man, acting reasonably” could 

have reached the decision made by the Acting Secretary, whose findings represent a 

fair and supportable amalgam of the whole. Id. Several students and City Year corps

members testified at the SRC hearing to the numerous incidents of unacceptable 

interaction between Jones and his students. Moreover, City Year corps members, 

who were not students and/or agents of the school, are a fair representative of the 

community and they were so offended by Jones’ behavior that they wrote the letter 

that initiated the investigation into Jones’ conduct. Finally, this Court cannot fathom 

how a teacher repeating and joining in his students’ bad behavior can set a good

example for the students. Accordingly, the Acting Secretary properly determined that 

the SRC met its burden of proving that Jones’ conduct offended the moral standards 

of the community.
9

With respect to Woehr’s testimony, because Jones has not developed this 

argument by providing case law or record evidence, we are precluded from 

addressing this issue. See In re Condemnation of Land for S.E. Cent. Bus. Dist.

Redevelopment Area No.1, 946 A.2d 1154, 1156 (Pa. Cmwlth. 2008) (“Arguments

not properly developed in a brief will be deemed waived.”). Notwithstanding,

Woehr’s testimony cited in Jones’ brief is irrelevant to the immorality standard, i.e., 

in answer to the question “[f]rom your experience working with [] Jones and 

observing him, do you think he is a clear and present danger to the school children of 

Philadelphia?” Woehr responded: “The idea is [a]bsurd! He is just totally not. He 

always has had the best interests of students at heart, always[.]” Jones Br. at 31

(quoting Notes of Testimony April 16, 2010 at 177-178; R.R. at 535a-536a.) The 

issue is not whether Jones’ conduct is a clear and present danger to his students, but 

rather, whether his conduct offends the morals of the community and is a bad 

example to his students. Because substantial evidence supports the Acting 

Secretary’s finding that Jones’ conduct constitutes immorality, we cannot disturb that 

finding.5

Out of Context

Jones also maintains that the Acting Secretary improperly took words 

and phrases from Jones’ conversations with individual students out of context and 

purposefully reconstructed them in an inflammatory manner, without proper citation 

to the record, in order to rationalize the reversal of the Secretary’s decision. 

 

5

In his brief, Jones attaches a progressive discipline issue to this argument, i.e., Jones’ due 

process rights were violated because he was not given progressive discipline. Because Jones did

not develop this argument by providing case law or record evidence, we are precluded from 

addressing this issue. See In re Condemnation of Land for S.E. Cent. Bus. Dist. Redevelopment 

Area No.1. Notwithstanding, we discern no merit in this additional argument. 

 
10

Specifically, Jones contends that his discussions and joking with students were taken 

out of context and improperly reconstructed to demonize him.

First, virtually all of Jones’ statements contained in the Acting 

Secretary’s findings of fact contain accurate record citations, those that do not,

reference from where they were taken, i.e., the SRC hearing testimony of specific 

students. More importantly, in his brief, Jones does not deny that he made the 

statements, but rather explains them and admits to their inappropriateness. 

Specifically, Jones’ counsel rationalizes:

[] Jones made the mistake that many teachers do — he 

became too familiar with the students at times. They felt a 

bit too free to joke with [] Jones about such things as

Viagra. That is normal in high schools because students see 

Viagra commercials on television and they sometimes joke 

with teachers. [] Jones, who is a jovial and friendly

personality [sic], was willing to respond in a humorous 

way. That may be inappropriate but it is not immorality.

Jones Br. at 31 (emphasis added). Jones’ statements were not mischaracterized and 

supported the Acting Secretary’s decision. 

Jones’ School Code Arguments

Property Interest

Before we address Jones’ alleged School Code violations, this Court 

acknowledges the well-established law that as a tenured professional employee, 

Jones has a property interest in continued employment. Andresky v. W. Allegheny 

Sch. Dist., 437 A.2d 1075 (Pa. Cmwlth. 1981). The U.S. Supreme Court has 

explained:

Property interests, of course, are not created by the 

Constitution. Rather they are created and their dimensions 
11

are defined by existing rules or understandings that stem 

from an independent source such as state law—rules or 

understandings that secure certain benefits and that support 

claims of entitlement to those benefits.

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Accordingly, 

Jones has a legitimate claim to continued employment secured by state statute. 

Specifically, Section 1122 of the School Code provides that the contract of a 

professional employee may only be terminated for “immorality, incompetency, 

intemperance, cruelty, persistent negligence, mental derangement . . . (or) persistent 

and wilful violation of . . . school laws . . . .” 24 P.S. § 11-1122. The U.S. Supreme 

Court expounded in Cleveland Board of Education v. Loudermill, 470 U.S. 

532 (1985):

If a clearer holding is needed, we provide it today. The 

point is straightforward: the Due Process Clause provides 

that certain substantive rights—life, liberty, and property—

cannot be deprived except pursuant to constitutionally 

adequate procedures. The categories of substance and 

procedure are distinct. Were the rule otherwise, the Clause 

would be reduced to a mere tautology. ‘Property’ cannot be 

defined by the procedures provided for its deprivation any 

more than can life or liberty. The right to due process ‘is 

conferred, not by legislative grace, but by constitutional 

guarantee. While the legislature may elect not to confer 

a property interest in [public] employment, it may not 

constitutionally authorize the deprivation of such an 

interest, once conferred, without appropriate 

procedural safeguards.’ Arnett v. Kennedy, . . . 416 U.S.

[134,] 167 . . . [(1974)] (POWELL, J., concurring in part 

and concurring in result in part); see id., at 185 . . . 

(WHITE, J., concurring in part and dissenting in part).

Loudermill, 470 U.S. at 541 (emphasis added). Thus, although we hold that the 

District has met its burden of proving immorality, and immorality is a dischargeable 

offense, that ruling does not and cannot negate the District’s obligation to provide

Jones the due process protection to which he is entitled. Because “no dismissal of a 
12

tenured professional employee can be valid unless the dismissing school district 

acts in full compliance with the Code[,]” it is our duty to review whether the 

District has in fact done so in the instant case. West Shore Sch. Dist. v. Bowman, 409 

A.2d 474, 480 (Pa. Cmwlth. 1979) (emphasis added).

School Code

Jones argues that the District failed to comply with the School Code’s 

mandatory procedures when the District terminated his employment as a teacher 

on August 10, 2009 without a hearing, and then belatedly held a hearing eight

months later which also did not comply with the School Code, and finally resolved 

to ratify Jones’ illegal employment termination another seven months later on 

December 15, 2010.

The District sent Jones a letter dated August 10, 2009 which stated, in 

relevant part:

Dear Mr. Jones:

This is to advise you that we shall recommend to the [SRC] 

that your employment with [t]he [District] be terminated 

effective immediately. The [District’s] Payroll Department 

shall be advised to make the necessary salary adjustments. 

The charges against you constitute just cause pursuant to 

the collective bargaining agreement and, in addition, 

constitute a willful violation of or failure to comply with the 

School Laws of this Commonwealth, and other improper 

conduct such as to constitute cause pursuant to . . . Section 

[]1122 of the [School Code, 24 P.S. § 11-1122]. 

. . . .

You are entitled to request a hearing before the [SRC]. If it 

is your intention to appeal this recommendation, you must 

contact Francis X. Bielli, Assistant General Counsel, 440 N. 

Broad Street, Third Floor, Philadelphia, PA 19130 in 

writing, within five (5) days of receipt of this letter. Your 

letter should include a telephone number where you can be 
13

reached. Your hearing, if you request one, will be on

August 21 @ 2[:]00[]p[.]m[.] at 440 N. Broad Street, First 

Floor, Philadelphia, PA 19130.

Failure to request a hearing in writing within the time stated 

will be deemed a waiver of any and all rights you may have 

to an appeal. 

In the alternative, you may utilize the grievance procedure 

by requesting your union to follow the collective bargaining 

agreement grievance procedure applicable to you.

You may elect one or the other of these two appeal 

procedures, but not both.

R.R. at 727a-728a. Thereafter, Jones requested an SRC hearing which occurred on 

April 16, 2010. Jones’ subsequent discharge did not occur until the SRC’s December 

15, 2010 resolution. Although the resolution stated that Jones’ employment 

termination was effective August 14, 2009, the Acting Secretary’s November 5, 2013 

order reinstated Jones to his position as a professional employee from August 10, 

2009 to December 15, 2010. 

Section 1127 of the School Code provides:

Before any professional employe[e] 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[e] 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[e]

setting forth the time and place when and where such 

professional employe[e] 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[e] and his or 
14

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.

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 

Sch. Dist., 400 A.2d 229, 232 (Pa. Cmwlth. 1979) (emphasis added). 

More importantly, . . . [t]he [school b]oard only need[s] to . 

. . pass[] a resolution that it ha[s] sufficient evidence to 

support its belief, to demote . . . [the professional employee]

by some given date, and therein direct the Secretary and 

President of the [school b]oard to serve notice upon [the 

professional employee] of this fact and to advise him of his 

right to a hearing. 

Id. (quoting Abington Sch. Dist. v. Pittenger, 305 A.2d 382, 387 (Pa. Cmwlth. 1973)).

In the instant case, other than providing a statement of charges, the 

District did not comply with the mandates provided in Section 1127 of the School 

Code. Specifically, the SRC resolution did not occur until December 15, 2010, and 

the notice was not attested by the SRC Secretary. Pursuant to the SRC resolution, the 

effective date of Jones’ employment termination was August 14, 2009. Clearly, the 

April 16, 2010 SRC hearing and the December 15, 2010 resolution do not pre-date 

Jones’ employment termination. “In no case can the effective date of the dismissal be 

earlier than the date of the school board’s resolution.” Neshaminy Sch. Dist. v. 

Neshaminy Fed’n of Teachers, 84 A.3d 391, 397 (Pa. Cmwlth. 2014). Accordingly, 

the District failed to comply with the mandatory procedures set forth in the School 

Code.
15

Due Process

Jones further asserts that the failure of the District and the SRC to 

comply with the procedural safeguards of the School Code is a Due Process Clause 

violation of the U.S. Constitution. The District rejoins that Jones’ employment was 

not terminated until after an SRC hearing “and a public vote to terminate on 

December 15, 2010.”6 District Br. at 20. In addition, the District contends that the 

August 10, 2009 letter merely suspended Jones without pay pending his potential 

discharge. District Br. at 30.

Pennsylvania courts have construed Section 1127 [of the 

School Code] to mean that a tenured teacher can only be

dismissed by a school district’s board, not its administrative 

staff. Further, the statutory procedures for dismissal 

must be strictly followed and . . . no material deviation 

therefrom is permissible. A deviation from these 

procedures constitutes a denial of due process.

Neshaminy Sch. Dist., 84 A.3d at 397 (citations and quotation marks omitted; 

emphasis added). Here, on August 10, 2009, the District communicated to Jones that 

it “shall recommend to the [SRC] that your employment with [t]he [District] be 

terminated effective immediately” and effective immediately the District ceased his 

pay. R.R. at 727a. Contrary to the District’s argument, the letter does not lend itself 

to informing Jones that his employment with the District has been suspended. If that 

is what the District intended then it could have so communicated. Rather, the 

unambiguous words reveal finality and the District’s intent to immediately discharge

Jones. Moreover, the District’s actions immediately after issuance of the letter in 

stopping Jones’ pay with no statement beyond the words that the District 

recommends his immediate discharge further evidences a termination, not a 

 

6

The SRC hearing was conducted by one member of the SRC on April 16, 2010, and the 

“public vote” was the SRC resolution that was presented for formal action by the 4 attending 

members of the SRC on December 15, 2010. District Br. at 20.
16

suspension. “[A]ssuming arguendo that there was ambiguity, doubtful language is 

construed most strongly against the drafter thereof.” Rusiski v. Pribonic, 515 A.2d 

507, 510 (Pa. 1986). Thus, the letter cannot be construed as suspending Jones’ 

employment. 

The District admits in its brief that “[u]nder Pennsylvania law, school 

administrators do not have authority to terminate tenured professional employees. In 

the [District], only the SRC has that authority. Just as plainly, school administration 

may suspend a tenured professional employee without pay pending discharge.” 

District Br. at 30. This acknowledgment is at complete odds with the District’s initial 

argument before the Secretary that the letter was the result of SRC action and not 

administrative, and appears to be a disingenuous attempt to justify the District’s noncompliance with the School Code. 

The Acting Secretary subsequently revised the termination date to 

December 15, 2010, the date of the SRC resolution, and ordered backpay for the time 

in between. However, a retroactive order does not cure the defect.7 As explained 

above, the District did not comply with the School Code. “A deviation from these 

procedures constitutes a denial of due process.” Neshaminy Sch. Dist., 84 A.3d at 

397. Accordingly, the District violated Jones’ due process rights under the U.S. 

Constitution.

Partial Reversal

Jones next contends that the Acting Secretary erred when the decision of 

the Secretary, upon her reconsideration, was changed to sustain the illegal 

 

7 Our conclusion that the retroactive order changing the date of Jones’ employment 

termination to the date of the SRC resolution cannot cure the District’s failure to adhere to the 

mandatory statutory provisions is discussed more fully below. 
17

termination of Jones’ employment as of December 15, 2010, when there was no legal 

basis for such partial reversal. 

In In re Swink, . . . 200 A. 200 ([Pa. Super.] 1938), a school 

board voted to dismiss a teacher for immorality. Thereafter, 

it sent her a notice stating that she could attend a hearing to 

convince the board of the reasons she should be reinstated. 

The Superior Court held that dismissing the teacher without 

a prior hearing violated the statutory procedure in effect at 

that time.[FN]5These deviations from the statutory 

procedures constituted ‘fatal defects,’ making the school 

board’s dismissal an ‘illegal’ act. Id. at 203. Accordingly, 

the Superior Court reversed the school board’s decision.

[FN]5. The statute then in effect was Section 1205 of 

the Public School Code, Act of May 18, 1911, P.L. 

309, as amended by Section 2 of the Teachers’ Tenure

Act, Act of April 6, 1937, P.L. 213, formerly 24 P.S. § 

1126, repealed by Section 2701 of the Public School 

Code of 1949. It provided as follows: 

(d) Before any professional employe[e] is dismissed 

... the secretary of the school district shall furnish 

such professional employe[e] with a detailed written 

statement of the charges upon which his or her 

dismissal ... is based, together with a written notice 

signed by the president and attested by the secretary 

of the board of school directors of a time and place 

when and where such professional employe[e] will 

be given an opportunity to be heard either in person 

or by counsel, or both, before the board of school 

directors. 

* * *

(f) After fully hearing the charges or complaints and 

hearing all witnesses produced by the board and the 

person against whom the charges are pending, and 

after full, impartial and unbiased consideration 

thereof, the board of school directors ... shall by a 

two-thirds vote of all the members thereof, to be 

recorded by roll call, determine whether or not such 

charges or complaints have been sustained and 
18

whether the evidence substantiates such charges and 

complaints, and in accordance with such 

determination shall discharge ... such professional 

employe[e] or shall dismiss the complaint. 

24 P.S. § 1126(d), (f). Similar provisions are now 

found in Sections 1127 and 1129 of the [School Code].

In short, a school board that does not strictly follow the 

statutory procedures for a teacher dismissal violates due 

process. Further, a ‘fatal defect’ in the procedures 

followed by the school board will render its teacher 

dismissal an illegal act. In re Swink, 200 A. at 203.

Neshaminy Sch. Dist., 84 A.3d at 397-98 (citation omitted; emphasis added). In the 

instant case, the Secretary opined in his decision:

There is no evidence in the record that the SRC, other than 

the Chairman, had seen or reviewed the charges prior to the 

hearing on April 16, 2010. There is no evidence that, prior 

to the hearing on April 16, 2010, the SRC had resolved to 

dismiss [] Jones and had directed the Chairman and the 

Secretary of the SRC to serve notice on [] Jones of this fact 

and to provide him the right to a hearing. In addition, the 

hearing was held before the Chairman of the SRC and not 

the entire SRC; thus, not only is there no evidence that the 

SRC reviewed the charges prior to the hearing and resolved 

to dismiss [] Jones, there is no evidence that the SRC even 

knew about the charges or the hearing. The only evidence 

of the SRC’s knowledge of anything regarding [] Jones and 

his dismissal was when the SRC resolved on December 15, 

2010, to dismiss him[] effective August 14, 2009.

In the August 10, 2009 letter, the SRC Chairman and the 

Superintendent of the District advised [] Jones that they 

would recommend to the SRC that he be dismissed from his

employment with the District immediately. In addition, the 

letter stated that the payroll department would be advised to 

make the necessary salary adjustments. The record 

evidences that [] Jones was paid for his employment 

with the District through the 2008-2009 school year but 

was no longer employed by the District beyond that 

school year. Thus, [] Jones was dismissed as of, at least, 

August 10, 2009, without any action by the SRC. The 
19

dismissal was a dismissal by administrative action, not 

by action of the SRC. The vote by the SRC on 

December 15, 2010 was a ratification of [] Jones’ 

dismissal by the administration, which is not permitted. 

See[] Pitt[e]nger, 305 A.2d at 386.

Secretary September 13, 2011 Dec. at 9-10 (emphasis added). In reliance on the 

above, the Secretary concluded:

Based on the dismissal procedures required under the 

School Code and the relevant case law interpreting those 

procedures, I have no choice but to find that [] Jones’

dismissal was in violation of the School Code. 

Notwithstanding the consequences, I do not have discretion 

to ignore the District’s failure to comply with the applicable 

provisions of the School Code and relevant case law.

Therefore, I am obligated to find that the District’s 

dismissal of [] Jones is void and that he shall be reinstated 

to his position with the District as a professional employee. 

In addition, [] Jones shall be reimbursed any amount of 

compensation he lost due to his improper dismissal. 

Id. at 12 (emphasis added). This Court is constrained to agree on the well-established

constitutional grounds of due process. The retroactive order changing the date of 

Jones’ employment termination to the date of the SRC resolution cannot cure the 

District’s failure to adhere to the mandatory statutory provisions because the SRC 

resolved to dismiss Jones on December 15, 2010, a date after his hearing and the 

same date the Acting Secretary ruled was the effective date of Jones’ employment 

termination. Accordingly, due to the District’s violation of Section 1127 of the 

School Code, and its consequential denial of Jones’ due process rights, the Acting 

Secretary erred in her partial reversal of the Secretary’s decision. 

District’s Arguments

After disposing of Jones’ arguments, three of the District’s issues remain 

which are summarized as follows: (1) whether the Acting Secretary misinterpreted 
20

Patchel and Pittenger when she determined that a pre-charge resolution in favor of 

dismissal was required prior to holding Jones’ hearing; (2) whether the SRC would 

have violated Jones’ due process rights if it made a pre-charge determination; and (3) 

if the Court finds that there were procedural defects, whether the proper remedy is 

remand.

Patchel and Pittenger

The District argues that the Acting Secretary misinterpreted Patchel and 

Pittenger when she determined that a pre-charge resolution in favor of dismissal was 

required prior to holding Jones’ hearing. 

The Patchel Court explained that in Pittenger, the Court 

held that in the case of a professional employee who had 

been demoted without a hearing, the later decision of the 

[school b]oard to ratify the improper administrative action 

was void. The facts here, however, are easily 

distinguishable. In [Pittenger], the hearing was not 

scheduled by the [school b]oard until months after the 

employee’s demand for it, and the [school b]oard never saw 

the charges until the hearing began. There was a clear 

violation of Section 1127 of the School Code, 24 P.S. § 

11-1127, which requires 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. More 

importantly, in [Pittenger] we explicitly stated the manner 

in which the school board could have cured the defects in 

its procedure:

The [school b]oard only needed to have passed a 

resolution that it had sufficient evidence to support 

its belief, to demote . . . [the professional employee]

by some given date, and therein direct the Secretary 

and President of the [school b]oard to serve notice 

upon [the professional employee] of this fact and to 

advise him of his right to a hearing.
21

Patchel, 400 A.2d at 231-32 (bold emphasis added) (quoting Pittenger, 305 A.2d at 

387). The District asserts that “[t]hose cases do not require the SRC or any other 

school board in the first instance to resolve, before the issuance of charges, that 

evidence exists that supports charges that, if true, would support dismissal.” District 

Br. at 25. Rather, the District maintains that “the Court simply explained how a 

school board might remedy a procedurally defective demotion, which occurs when 

the administration of a school district - as opposed to the school board - ‘had already 

accomplished the demotion’ before the board had any notice or knowledge.” Id. 

The District cites Clark v. Colonial School District, 387 A.2d 1027 (Pa.

Cmwlth. 1978), to support its position. The Clark Court held that “[t]he School Code 

clearly does not require formal school board action authorizing the initiation of 

charges and the sending of notice of hearing.” Id. at 1029. Notwithstanding, after

Clark, this Court expressly interpreted otherwise in Patchel. The Patchel Court

expressly opined that it “was [] clear . . . Section 1127 of the School Code . . . 

requires 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, 400 A.2d at 232. 

Moreover, Section 1127 of the School Code specifically requires that 

[b]efore any professional employe[e] 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[e] 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[e] setting forth the time and place when and where 

such professional employe[e] 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. 
22

24 P.S. § 11-1127 (emphasis added). Here, the August 10, 2009 letter was signed by 

the District Superintendent and the SRC Chairman, but not attested by the SRC 

Secretary. Thus, even if a resolution was not expressly required under Section 1127 

of the School Code, the SRC Secretary was required to attest the written notification,

and he did not do so in the instant case.

8

 As stated by the Acting Secretary in her 

opinion, “because the SRC did not issue a resolution stating that it found the charges 

sufficient to support termination if proved at a hearing, there is no evidence that the 

SRC ever reviewed the charges prior to the hearing that was held in April 

2010[,]” as required by this Court’s interpretation of the statute. Acting Secretary 

November 5, 2013 Dec. at 15 (emphasis added). Accordingly, we discern no error in 

the Acting Secretary’s interpretation of Patchel and Pittenger.

Pre-Charge Determination

The District also asserts that it would have violated Jones’ due process 

rights if it in fact had made a pre-charge determination. Specifically, the District cites 

Lyness to support its contention that if the SRC had resolved to dismiss Jones prior to 

Jones’ notice of the charges it would have been mixing prosecutorial and adjudicatory 

functions, thus, at least by the appearance of impropriety, violating Jones’ due 

process rights.

 

8

The District argues that the District Superintendent had the powers of the SRC Secretary at 

the time of the August 10, 2009 letter. It explained that “[a]lthough it [was] common knowledge 

that [the District Superintendent] was the Chief Executive Officer of the District during the time 

relevant to [Jones’] dismissal, it [was] not common knowledge that she also had the power and 

authority of the Secretary/Treasurer of the SRC.” Acting Secretary November 5, 2013 Dec. at 12. 

The District’s Petition for Reconsideration referred to attachments to prove said authority; however, 

the attachments were incomplete, i.e., the attachment contained a proposed resolution to appoint 

Arlene C. Ackerman as the District’s Chief Executive Officer with the powers and authority of the 

District’s Superintendent and the SRC’s Secretary/Treasurer, but no documentation was included 

evidencing that the resolution was voted thereon and approved. Id.
23

In Harmon v. Mifflin County School District, 651 A.2d 681, 686 (Pa. 

Cmwlth. 1994), rev’d on other grounds, 713 A.2d 620 (Pa. 1998), this Court 

expressly held that “[e]ven though [the School Code] requires a school board to 

terminate an employee and hear the challenge to that termination, Lyness simply 

doesn’t apply because the ‘interests’ involved in the employment relationships are 

totally different than an independent agency actions regulating individuals.”9 

Harmon, 651 A.2d at 686. The Harmon Court further explained:

We have recognized this distinction and determined that the 

same type of due process requirements do not apply to 

school boards as they do to other independent 

administrative agencies. In Covert v. Bensalem Township 

School District, . . . 522 A.2d 129 ([Pa. Cmwlth.] 1987),

this [C]ourt held that the inherent potential for bias on the 

part of school boards has long been recognized. We 

continued:

The making of the charges presupposes that the 

members of the board had some knowledge of the 

facts upon which the charges were based. Unless 

they had an opinion that the charges, if sustained, 

would warrant dismissal, they should never have 

been made . . . . We do not think that anything more 

was required of the members of the board than that 

they could hear and determine the charges against 

appellant on the evidence given before them, 

uninfluenced by other previous impressions.

[Covert], 522 A.2d at 131 (quoting Lomas v. [Bd.] of [Sch.]

Directors of [Nw.] Lehigh [Sch.] [Dist.], . . . 444 A.2d 1319, 

1325 ([Pa. Cmwlth.] 1982)).

Harmon, 651 A.2d at 686-87. Accordingly, there is no merit to this argument.

 

9

Lyness involved the State Board of Medicine.
24

Remand

Finally, the District contends that if this Court finds that there is a 

procedural defect, the proper remedy is remand not reinstatement and compensation. 

Specifically, the District contends that: “Here, and only here, is where [Pittenger] is 

relevant, because the Court stated in that case that a school board might remedy a 

procedural defect by resolving that evidence existed as of a certain date that justified 

termination.” District Br. at 39. The District misconstrues the holding in Pittenger. 

The Pittenger Court held:

It would have been a simple matter for the [school b]oard 

to have cured the defects at the outset. The [school 

b]oard only needed to have passed a resolution that it had 

sufficient evidence to support its belief, to demote [the 

petitioner] by some given date, and therein direct the 

Secretary and President of the [school b]oard to serve notice 

upon [the petitioner] of this fact and to advise him of his 

right to a hearing. At this point, [the petitioner] would have 

had a decision to make: whether to request the hearing or 

consent to the demotion. The [school b]oard did not 

follow this procedure. Instead, it permitted its

administrative staff to demote [the petitioner] without 

[school b]oard action, and only after [the petitioner’s]

demand for a hearing, set the wheels in motion for a hearing 

several months later. As alluded to hereinbefore, the 

[school b]oard did not know the contents of the charges 

which had been promulgated by the Principal until the first 

day of hearing. This was improper.

Id. at 387 (emphasis added). Clearly, the Court is referring to what could have been 

done prior to the hearing, not after the fact as the District purports. 

This Court in Neshaminy School District explained:

[T]he statutory procedures for dismissal ‘must be strictly 

followed and . . . no material deviation therefrom is 

permissible.’ [Dep’t] of [Educ.] v. Oxford Area [Sch.] 

[Dist.], . . . 356 A.2d 857, 860 ([Pa. Cmwlth.] 1976). A 
25

deviation from these procedures constitutes a denial of due 

process. Id. at 860-61.

In Oxford, the district superintendent recommended that a 

teacher who had been arrested for shoplifting be dismissed 

for immorality. The superintendent testified as a witness at 

the school board hearing and participated in the school 

board’s post-hearing deliberations. The school board voted 

to dismiss the teacher. This Court held that the School 

Code’s requirement of ‘impartial and unbiased’ 

consideration had been violated, although inadvertently, and 

remanded to the school board for a new hearing. Id. at 861.

In In re Swink, . . . 200 A. 200 ([Pa. Super.] 1938), a school 

board voted to dismiss a teacher for immorality. Thereafter, 

it sent her a notice stating that she could attend a hearing to 

convince the board of the reasons she should be reinstated. 

The Superior Court held that dismissing the teacher without 

a prior hearing violated the statutory procedure in effect at 

that time. These deviations from the statutory procedures 

constituted ‘fatal defects,’ making the school board’s 

dismissal an ‘illegal’ act. Id. at 203. Accordingly, the 

Superior Court reversed the school board’s decision.

Neshaminy Sch. Dist., 84 A.3d at 397-98 (footnote omitted; emphasis added). This 

distinction between the violations in Oxford and Swink demonstrates the proper 

manner of disposition in such circumstances. In Oxford, the due process violation 

occurred when the board failed to provide an impartial and unbiased hearing and thus, 

the violation could be cured with a remand for a new hearing. In contrast, the 

Superior Court in Swink found that the school board’s action in employer dismissing 

a tenured teacher without following the statutory procedure for employment

termination constituted a fatal defect. The facts herein are similar to those of Swink. 

Notably, the Swink Court stated:

Our appellate courts have frequently held that a valid and 

enforceable contract between a teacher and a school district 

could be created only by compliance with the strict 

requirements of the statute. Likewise, in dismissing a 

teacher, an observance of the procedure prescribed is 
26

mandatory. The board of school directors cannot be 

relieved of the consequences of its failure to observe the 

essential statutory requirements in dismissing a teacher any 

more than a teacher can be relieved from showing the vital 

and essential elements required to make a valid and 

enforceable contract between the teacher and the school 

district when such teacher seeks to enforce such contractual 

obligation. The procedure which the board adopted was 

irregular and fatally defective. There was no required 

statement of charges before dismissal, no proper notice 

of hearing before dismissal, and no recording on the 

minutes how each member voted after such hearing. The 

action of the board, and the affirmance of such action by 

the court below, must be reversed for want of compliance 

with the provisions.

Id. at 204 (emphasis added). Failure to follow the statutory mandatory termination 

procedures is fatal and requires reversal of the District’s action as opposed to 

remanding (as in Oxford which involved the denial of an impartial and unbiased 

hearing). Here, the specific procedural defects are as follows. Pursuant to wellestablished case law, the District was required to pass a resolution that it had 

sufficient evidence to support Jones’ employment termination prior to sending him a 

notice of charges and intent to terminate his employment. The District did not do so. 

Further, pursuant to the School Code, Jones’ notice was required to be attested by the 

SRC Secretary. It was not. 

 Most importantly, the date of Jones’ notice of charges and hearing date 

was actually the effective date of Jones’ employment termination because it expressly 

stated: “This is to advise you that we shall recommend to the [SRC] that your 

employment with [t]he [District] be terminated effective immediately. The 

[District’s] Payroll Department shall be advised to make the necessary salary 

adjustments.” R.R. at 727a (emphasis added). The fact that his pay was stopped as 

of that date makes it undisputable that Jones’ employment was terminated as of that 

date which is directly contrary to the School Code’s requirement that a hearing pre-
27

date the employment termination. Indeed, the required resolution took place after the 

hearing. As the Swink Court held: dismissing a teacher without a prior hearing 

violated the statutory procedure in effect at that time. These deviations from the 

statutory procedures constitute ‘fatal defects,’ making the school board’s dismissal 

an ‘illegal’ act. Id. at 203 (emphasis added). As in Swink, we find the District’s 

failure to follow Section 1127 of the School Code prior to terminating Jones’

employment a fatal defect mandating reversal.

When the District discharges a professional employee without full 

compliance with the School Code, “the employee is entitled to reinstatement.” West 

Shore Sch. Dist., 409 A.2d at 480 (emphasis added). “We have repeatedly held that 

no dismissal of a tenured professional employee can be valid unless the dismissing 

school district acts in full compliance with the Code.” Id. “The only conclusion we 

can reach on these facts is that [Jones’] dismissal was a nullity and that []he must be 

treated as if h[is] employment were never terminated.” Id. Thus, Jones is entitled to 

be reinstated to his former position with back pay, minus his obligation to mitigate 

damages, until the District properly terminates his employment in conformity with 

the procedural due process requirements set forth in the School Code.

Due to the District’s violation of Section 1127 of the School Code, 

and its consequential denial of Jones’ due process rights, this Court is dutybound to reverse the Acting Secretary’s November 5, 2013 order discharging 

Jones as of December 15, 2010, and sustain the Secretary’s September 13, 2011 order

reinstating Jones. Accordingly, Jones is reinstated to his position as a professional 

employee until the District properly terminates his employment in accordance 

with the School Code and shall be entitled to the amount of compensation he is due 

as a result of his dismissal.
28

Damages

With respect to Jones’ damages, the law is well established that “[a]

school teacher is not a public officer, but is an employe[e] of the school district, and 

the ordinary rules relating to damages for breach of contract of employment apply.” 

Coble v. Sch. Dist. of Metal Twp., 116 A.2d 113, 115 (Pa. Super. 1955) (citation 

omitted). “Where a teacher is wrongfully discharged, he is to be compensated for 

loss of salary during such period, but there is no requirement that the school district 

pay the compensation provided in the contract regardless of set-off or the amount of 

damages the employe[e] has suffered.” Id. 

[W]e find no apparent reason why the ordinary rules 

relating to damages for breach of contract of employment 

should not be applied. As stated in 47 Am.Jur., Schools, § 

145, p. 402: . . . [I]n an action for breach of contract by one 

employed as a teacher, the measure of damages is the wages 

which were to be paid, less any sum actually earned, or 

which might have been earned, by the [teacher] by the 

exercise of reasonable diligence in seeking other similar 

employment. 

Id. at 116. More recently this Court held in Merrell v. Chartiers Valley School

District, 51 A.3d 286 (Pa. Cmwlth. 2012):

A plaintiff has a duty to mitigate damages. Circle Bolt & 

Nut Co. v. Pa. Human Relations Comm’n, 954 A.2d 1265 

(Pa. Cmwlth. 2008). The duty to mitigate damages, 

however, ‘is not onerous and does not require success.’ Id.

at 1270. All that is required to mitigate damages is to make 

‘an honest, good-faith effort.’ Id. at 1271. The employer 

has the burden of proving that substantially comparable 

work was available and that the plaintiff failed to exercise 

reasonable due diligence in seeking alternative 

employment. The substantially comparable or equivalent 

work refers to employment which affords virtually identical 

opportunities for a promotion, compensation and 
29

responsibilities. Whether the plaintiff properly mitigated 

damages is a factual determination to be made by the factfinder.[10]

Merrell, 51 A.3d at 298 (citations omitted). Accordingly, we remand this matter to

the Secretary of Education to determine the amount of compensation due Jones.

Conclusion

This Court does not condone Jones’ conduct. However, we resist the 

urge to permit “bad facts [to] make bad law.” Doggett v. United States, 505 U.S. 

647, 659 (1992) (Thomas, J., dissenting) (emphasis added); Berg v. Nationwide Mut. 

Ins. Co., 6 A.3d 1002, 1017 n.3 (Pa. 2010) (Baer, J., concurring and dissenting)

(emphasis added); see also Commonwealth v. States, 938 A.2d 1016, 1028 (Pa. 2007) 

(Castille, J., dissenting). Given our conclusion that the District failed to adhere to the 

mandatory provisions of the School Code when it terminated Jones’ employment, and 

the precedential effect of this Court’s decision on subsequent employment actions 

involving tenured professional employees by this and other school districts, we are 

constrained to reverse the Acting Secretary’s decision.

The Legislature enacted the School Code and provided “explicit 

procedural safeguards” that it required school boards to use when terminating the 

employment of a tenured professional. Neshaminy Fed’n v. Neshaminy Sch. Dist.,

462 A.2d 629, 636 (Pa. 1983). Our Supreme Court clearly and unambiguously stated 

that there must be full compliance with the provisions of the School Code in order to 

effectuate employment termination of a tenured professional. Were we to affirm the 

Acting Secretary’s order, allowing her review to cure the District’s non-compliance 

with the School Code, we would eviscerate the very statutory protections that the 

Legislature afforded tenured professionals, thereby contravening legislative intent. In 

 

10 “Jones has, since his dismissal, mitigated his damages by working in a charter school in 

Philadelphia, and for the Upper Darby public school district.” Jones Br. at 29 n.9. 
30

essence, we would be amending the statute. This we may not do. See Mohamed v. 

Dep’t of Transp. Bureau of Motor Vehicles, 40 A.3d 1186 (Pa. 2012). We may not, 

and will not encourage school boards and other government entities whose decisions 

are subject to review to disregard their mandatory statutory duties based on the belief 

that their malfeasance will be cured.

For all of the above reasons, the Acting Secretary’s order is reversed and 

the matter is remanded to the Secretary of Education with the direction to reinstate 

Jones and to calculate the compensation which he is due taking into consideration 

Jones’ obligations to mitigate his damages.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of :

Philadelphia, :

Petitioner :

:

v. :

:

Ellis Jones, : No. 2150 C.D. 2013

Respondent :

Ellis Jones, :

Petitioner :

v. :

:

The School District of :

Philadelphia, : No. 2230 C.D. 2013

Respondent :

O R D E R

AND NOW, this 2

nd day of June, 2016, the Acting Secretary of 

Education’s November 5, 2013 order is REVERSED. Ellis Jones is hereby reinstated 

to his position as a professional employee of the School District of Philadelphia and 

the matter is REMANDED to the Secretary of Education for further proceedings 

consistent with this Opinion.

Jurisdiction is relinquished.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of :

Philadelphia, :

Petitioner :

:

v. : No. 2150 C.D. 2013

:

Ellis Jones, :

Respondent :

Ellis Jones, :

Petitioner :

:

v. : No. 2230 C.D. 2013

: Argued: March 9, 2016

The School District of :

Philadelphia, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

CONCURRING OPINION 

BY JUDGE SIMPSON FILED: June 2, 2016

I concur in the result reached by the Majority. I write separately to 

reference an issue not fully developed by the parties: the consequences of de novo

review by the Secretary of Education. An argument could be made that de novo

review by the Secretary could cure certain procedural problems which occurred at 

an earlier stage of teacher termination proceedings. However, the School District 

does not make that argument. Accordingly, I need not address it in this case. 
RES - 2

Hopefully, the result here will clarify procedures to be followed in the future in the 

Philadelphia School District when a professional employee chooses a School Code 

remedy over a collective bargaining agreement remedy.

 

 ROBERT SIMPSON, Judge

Judges Cohn Jubelirer and McCullough join in this concurring opinion.