IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James C. Whalen, :

Petitioner :

: No. 1263 C.D. 2016

v. :

: Argued: April 4, 2017

Department of Education, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY 

JUDGE McCULLOUGH FILED: May 8, 2017

James C. Whalen (Petitioner) petitions for review of the June 29, 2016 

order of the Department of Education’s Professional Standards and Practices 

Commission (Commission), which denied Petitioner’s exceptions to the proposed 

report and order of a hearing officer and immediately revoked his professional 

educator certification and eligibility to be employed as a charter or cyber charter 

school staff member or a contracted educational provider staff member.

Facts and Procedural History

The underlying facts of this case are not in dispute. Petitioner holds an 

Instructional II teaching certificate in the area of Mathematics 7-12. From the fall of 

1991 through June, 2001, Petitioner was employed as a teacher in the W.T. Woodson 

High School within the Fairfax County (Virginia) Public Schools. Petitioner 

commenced his employment with the Peters Township School District (District) in 
2

McMurray, Pennsylvania in the fall of 2006. On September 2, 2012, the District 

received a letter from R.B., who had been a student of Petitioner when he taught in 

Virginia, alleging that Petitioner had engaged in an inappropriate and sexual 

relationship with her while she was his student. On September 5, 2012, the District’s 

high school principal met with R.B. to discuss her allegations. (Commission’s 

Findings of Fact Nos. 1-5.)

R.B.’s allegations to the District triggered a mandatory report to the 

Department of Education (Department) pursuant to section 9.1(a)(3) of the then-titled 

Professional Educator Discipline Act (PEDA).1 The Department received the 

District’s mandatory report on September 18, 2012. The allegations in the mandatory 

 

1 Act of December 12, 1973, P.L. 397, added by the Act of December 20, 2000, P.L. 918, as 

amended, 24 P.S. §2070.9a(a)(3). In 2014, the Act was renamed the Educator Discipline Act

(EDA). Section 9.1(a)(3) provides as follows:

(a) The chief school administrator or his designee shall file all of the 

following information with the department in writing on a form 

prescribed by the department:

. . .

(3) Any educator against whom allegations have been made that the 

educator has:

(i) committed sexual abuse or exploitation involving a 

child or student; or

(ii) engaged in sexual misconduct with a child or 

student.

The report shall be filed within 15 days of the discovery of the 

allegations of misconduct.

24 P.S. §2070.9a(a)(3).
3

report involved conduct occurring between January 1, 1998, and December 31, 2001, 

when R.B. was between the ages of 14 and 16 and a student at W.T. Woodson High 

School in Virginia. At the time the allegations were brought to the District’s 

attention in 2012, R.B. was 28 years of age. (Commission’s Findings of Fact Nos. 6-

9.)

Educator Misconduct Complaint and Notice of Charges

On September 20, 2012, two days after receipt of the mandatory report, 

the Department filed an educator misconduct complaint against Petitioner.2 By letter 

dated October 25, 2012, the Department notified Petitioner that a legally sufficient 

educator misconduct complaint had been filed against him and that the Department 

had determined that probable cause for discipline existed. On May 14, 2014, the 

Department filed a notice of charges against Petitioner with the Commission. 

(Commission’s Findings of Fact Nos. 10-12.)

In its notice of charges, the Department charged Petitioner with 

immorality, negligence, and intemperance, and sought revocation of his professional 

educator certification and employment eligibility, based on the following allegations:

4. As set forth more fully below, between approximately 

January 1, 1998 and December 31, 2001, [Petitioner] 

engaged in unprofessional conduct. More specifically, 

[Petitioner] engaged in an inappropriate relationship with a 

female student (“RB”) beginning when she was 14 years of 

age that included comments on her physical appearance, 

letters, emails, online chats and handwritten notes 

indicating his desire to start, and then continue, a romantic 

and sexual relationship. [Petitioner] escalated the 

 

2

Section 9(b) of the Act, added by the Act of December 14, 1989, P.L. 612, as amended, 24 

P.S. §2070.9(b), specifically permits the Department to file an educator misconduct complaint.
4

relationship to include deeply romantic letter writing,

spending time alone with the student, and physical and 

sexual contact beginning when the student was 16 years of 

age. The sexual contact included countless instances of 

physical intimacy including kissing and touching, multiple 

instances of oral intercourse and one occasion of vaginal 

intercourse. In his written and verbal communication, 

[Petitioner] indicated that RB was not the first student or

significantly underage woman he’d developed strong 

feelings for nor the first with whom he’d acted on such 

feelings with.

5. Written correspondence that [Petitioner] has already 

admitted to writing to RB contains statements such as “love 

you deeply”, “I am yours for keeps”, and (regarding their

relationship) “I know it's not correct but I don't care”.

6. In addition, RB discovered that [Petitioner] accessed 

pornography while in his classroom, using his Districtissued computer. This pornography depicted females 

dressed like school-girls and other images of young girls. 

[Petitioner] admitted, both to RB and in a letter to her, that 

he [has known he’s had] “a problem with pornography for a 

while”. The letter goes on to reference his “inability to 

control [his] desires for women and girls”.

(Commission’s Finding of Fact No. 13; Notice of Charges at ¶¶4-6; Reproduced 

Record (R.R.) at 7a-8a.)

On June 11, 2014, Petitioner filed a motion to stay the deadline to 

answer the notice of charges and a petition for a declaratory order, arguing that the 

limitation on filing of complaints set forth in section 9(a) of the PEDA, formerly 24 

P.S. §2070.9(a),3barred prosecution of the matter and requesting dismissal of the 

 

3

Section 9(a), which has since been repealed by the Act of December 18, 2013, P.L. 1205, 

provided that disciplinary proceedings had to be initiated “by the filing of a complaint with the 

department by any interested party within one year from the date of the occurrence any alleged 

action . . . or from the date of its discovery.” This section further provided that “[c]omplaints 

involving sexual abuse . . . of a child or a student may be filed beyond the date of the alleged 

(Footnote continued on next page...)
5

notice of charges. The Commission granted Petitioner a stay to file an answer to the 

notice of charges and scheduled consideration of Petitioner’s petition for a 

declaratory order for its July 14, 2014 meeting. The Commission heard oral 

argument at this meeting and issued an order dated July 17, 2014, finding that in the 

absence of either an express or implied grant of power to provide declaratory relief, it 

was without authority to consider Petitioner’s request. (Commission’s op. at 2.)

On August 4, 2014, Petitioner filed an answer to the notice of charges 

with new matter and a motion to dismiss reiterating that the charges brought against 

him were barred by the time limitation of section 9(a) of PEDA, to which the 

Department filed a reply. The Commission heard oral argument at its September 15, 

2014 meeting, and subsequently denied Petitioner’s motion, finding that the charges 

were not barred by this time limitation. (Commission’s op. at 2-3.)

Proposed Report of Hearing Officer

On January 30, 2015, the Commission appointed a hearing officer and a 

hearing was held on July 30-31, 2015. (Commission’s op. at 3.) R.B. explained at 

these hearings that “she delayed reporting [Petitioner’s] misconduct because it took 

many years to come to an understanding that her relationship with [Petitioner] was 

not one of equals and that it was inappropriate.” (Commission’s Finding of Fact No. 

14.) She also explained that she harbored guilt and shame about the relationship and 

initially did not want to destroy Petitioner’s life. Id. R.B. testified that she did 

 

(continued...)

occurrence or date of discovery up until five years after the child or student reaches 18 years of 

age.” 
6

disclose the relationship to her former debate coach, Timothy Stroud, sometime in 

2002-03. (Commission’s Finding of Fact No. 15.) 

Following this disclosure, Stroud reported the allegations to the Iowa 

Department of Health and Human Services, mistakenly believing that Petitioner was 

teaching in Iowa, as well as the Fairfax County Public Schools. A representative of 

the latter informed Stroud that there was nothing it could do as he was no longer a 

teacher in their district. R.B. was unaware that Stroud had reported her allegations to 

either entity. Further, there was no evidence presented at the hearings that Petitioner 

affirmatively disclosed his alleged misconduct at any time. (Commission’s Findings 

of Fact Nos. 16-19.) 

In his proposed report, the hearing officer credited the testimony of R.B., 

and noted a significant amount of documentary evidence, such as notes, cards, and a 

letter from Petitioner to R.B., which corroborated R.B.’s allegations regarding an 

inappropriate relationship with Petitioner. The hearing officer noted that R.B.’s 

credible testimony further established that Petitioner accessed pornography on his 

school-issued computer. The hearing officer concluded that the credible testimony of 

R.B., coupled with the documentary evidence, established that Petitioner had engaged 

in conduct constituting immorality, intemperance, and negligence, which warranted 

revocation of Petitioner’s educator certification and employment eligibility. 

(Commission’s Finding of Fact No. 20.)

Petitioner’s Exceptions

Petitioner thereafter raised the following four exceptions to the hearing 

officer’s proposed report, none of which related to the hearing officer’s findings and 
7

conclusions that he engaged in an inappropriate and sexual relationship with R.B. or 

that he accessed pornography on a school-issued computer:

1. The Hearing Officer’s proposed report omits key facts 

regarding [Petitioner’s] statute of limitations defense.

2. The Hearing Officer’s Proposed Report inappropriately 

adopted the Commission’s interpretation of the Statute of 

Limitations contained in their [sic] Memorandum and Order 

dated October 15, 2014, issued in response to [Petitioner’s] 

Motion to Dismiss.

3. The Hearing Officer denied [Petitioner] his due process 

rights by failing to address the statute of limitations defense.

4. The Hearing Officer erred in failing to dismiss the 

Department’s Charges in their entirety as untimely.

(Commission’s op. at 10.)

Commission’s Memorandum and Order

By Memorandum and Order dated June 29, 2016, the Commission 

denied Petitioner’s exceptions and directed that Petitioner’s professional educator 

certification and eligibility to be employed as a charter or cyber charter school staff 

member or a contracted educational provider staff member be immediately revoked. 

The Commission began by addressing Petitioner’s fourth exception, 

noting that Petitioner had advanced varying arguments as to when the time to file a 

complaint actually expired, with his most recent argument that the time to file a 

complaint began to run when Stroud reported R.B.’s allegations to the Fairfax County 

Public Schools in 2002 or 2003. However, the Commission noted that the theory on 

which this argument was premised had “previously been squarely addressed and 

rejected” by this Court in Seltzer v. Department of Education, 782 A.2d 48 (Pa. 
8

Cmwlth. 2001). The Commission went on to describe our holding in Seltzer, wherein 

we rejected an untimeliness challenge under section 9(a) of the PEDA, formerly 24 

P.S. §2070.9(a), to a complaint filed by the Department.4 In that case, the petitioner 

had argued that the Department’s complaint was untimely because interested parties 

were aware of her alleged misconduct more than a year prior to the filing of the 

Department’s complaint and such knowledge must be imputed to the actual interested 

party, i.e., the Department. (Commission’s op. at 10-12.) 

The Commission specifically rejected Petitioner’s argument that 

Stroud’s reporting of the allegations to the Fairfax County Public Schools in 2002 or 

2003 initiated the one-year period within which a complaint had to be filed. The 

Commission described Petitioner’s argument as another attempt to impute the 

knowledge of another potentially interested party to the Department, identical to 

“notice of one is notice to all” theory we rejected in Seltzer. The Commission noted 

that such interpretation of the statute would allow Petitioner to evade responsibility 

for his predatory sexual conduct by virtue of the fact that a former out-of-state 

employer (Fairfax County Public Schools) failed to act. The Commission then cited 

Seltzer for the rule that only an affirmative disclosure of the conduct by the educator, 

which did not happen here, could preclude the filing of a complaint by other 

interested parties under the discovery exception to the one-year time limit. 

(Commission’s op. at 13-14.)

The Commission also rejected an alternative argument raised by 

Petitioner in previous pleadings that the discovery language of section 9(a) is 

 

4

The challenge was actually brought by the petitioner under section 1259(a) of the former 

Teacher Certification Law, Act of December 12, 1973, P.L. 397, formerly 24 P.S. §12-1259(a). We 

noted that the section had been renumbered as 9(a) under the newly titled PEDA.
9

inapplicable to any complaint involving sexual abuse or exploitation and that the time 

to file a complaint expired on July 28, 2006, when R.B. reached the age of 23. In 

other words, the Commission noted that Petitioner was asserting that the amendment 

to add the sexual abuse or exploitation language to section 9(a) created two separate 

and distinct limitation periods. The Commission described Petitioner’s interpretation 

as even more restrictive than the one we rejected in Seltzer, plainly erroneous, and 

rendering an absurd result. (Commission’s op. at 14-17.) 

The Commission stated that the amendment clearly left intact the oneyear time limit and its discovery exception while creating an additional exception to 

allow an interested party to file a complaint involving sexual abuse or exploitation up 

to five years after the victim turns 18 years of age even if the conduct occurred and 

was discovered more than one year before the filing of the complaint. The 

Commission characterized the amendment as enlarging the time period in which 

complaints involving sexual abuse or exploitation can be filed when the conduct is 

discovered before the victim reaches 23 years of age and in no way precluding the 

filing of a complaint after the victim reaches this age. Further, the Commission noted 

that, following Petitioner’s interpretation, an interested party who discovered a less 

serious ground for discipline could file a complaint at any time within one year of the 

discovery of the misconduct regardless of how many years had elapsed since the 

misconduct; however, if the misconduct involved sexual abuse or exploitation, an 

interested party would be barred from the filing of a complaint once the victim 

reached 23 years of age. (Commission’s op. at 15-18.)

The Commission then proceeded to deny Petitioner’s remaining 

exceptions. Regarding the first exception, the Commission noted that Petitioner’s 

proffered facts did not comport strictly with the record, were merely tangential to the 
10

legal issues in the case, and would not alter the conclusion that the Department’s 

complaint was not time-barred. Regarding the second and third exceptions, the 

Commission concluded that the hearing officer ruled appropriately by incorporating 

its legal reasoning on the merits of Petitioner’s limitations argument, and only did so 

after concluding that the facts of record, developed at the hearing, did not affect the 

legal analysis giving rise to its conclusion. Moreover, the Commission noted that it 

fully considered and rejected Petitioner’s limitations defense. (Commission’s op. at 

20-22.)

As for the sanction, the Commission concluded that Petitioner’s 

misconduct in the nature of immorality, intemperance, and negligence warranted 

revocation of his educator certification and employment eligibility. The Commission 

accepted the hearing officer’s reasoning that revocation was necessary to protect the 

health, safety, and welfare of students. The Commission emphasized the fiduciary 

duty that all educators owe to their students, most importantly the duty to protect 

students from harm. The Commission described Petitioner’s actions of engaging in 

sexual misconduct with a student as the most egregious breach of an educator’s duty 

and one which warrants immediate discipline.

Discussion

On appeal to this Court,5Petitioner reiterates his arguments that the 

Department’s claim, which was premised on the allegations of an alleged 29-year old 

 

5 Our review is limited to a determination of whether constitutional rights were violated, 

whether an error of law was committed, or whether necessary findings of fact were supported by 

substantial evidence. Gow v. Department of Education, Professional Standards and Practices 

Commission, 763 A.2d 528, 531 (Pa. Cmwlth. 2000), appeal denied, 781 A.2d 149 (Pa. 2001).
11

victim that occurred more than 13 years ago, was untimely, and that the one-year 

statute of limitations in section 9(a) of the PEDA began to run in 2002 when Stroud 

reported the allegations to the school district where the alleged incidents occurred. 

Additionally, Petitioner argues that the Commission’s interpretation was not entitled 

to deference because it construed a statute of limitations to have no end and did not 

reflect the intent of the General Assembly in amending section 9(a) in 2000 to add the 

sexual abuse or exploitation language. We disagree with each of Petitioner’s 

arguments.

Evolution of the Educator Misconduct Statutes

However, before we reach the merits of Petitioner’s arguments, we begin 

with a brief history of the evolution of the relevant statutory provisions relating to 

educator misconduct. Prior to December of 1989, the Secretary of the Department 

had the authority under former 24 P.S. §1225(j)6to suspend or revoke the 

certification of an educator and there was no statutory provision limiting the ability of 

the Department to pursue a suspension or revocation of a teacher’s certification. 

Effective December 14, 1989, Article XII of the Public School Code of 1949 was 

amended to establish the Commission, an independent body, as the adjudicator in 

educator misconduct cases and to create an educator discipline infrastructure.7 This 

section of the Public School Code became known as the Teacher Certification Law. 

 

6

Section 2 of the Act of May 29, 1931, P.L. 210, added by section 2 of the Act of August 

13, 1963, P.L. 689, 24 P.S. §1225(j) (repealed by Act 71 of December 14, 1989).

7 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§12-1251 - 12-1268.
12

Section 1259(a) of the Teacher Certification Law included a new time limitation, 

providing as follows:

A proceeding to discipline a professional educator shall be 

initiated by the filing of a complaint with the department by 

any interested party within one year from the date of the 

occurrence of any alleged action specified under section 

5(a)(11), or from the date of its discovery. If the alleged 

action is of a continuing nature, the date of its occurrence is 

the last date on which the conduct occurred.

Formerly 24 P.S. §12-1259(a).

In 2000, the General Assembly passed amendments to the Teacher 

Certification Law, which became effective February 20, 2001. These amendments 

renamed the Teacher Certification Law the PEDA and included additional language 

in the time limitation section, then found at section 9(a) of the PEDA, formerly 24 

P.S. §2070.9(a), relating to the sexual abuse and exploitation of a child or student. 

More specifically, section 9(a) provided as follows:

A proceeding to discipline a professional educator shall be 

initiated by the filing of a complaint with the department by 

any interested party within one year from the date of the 

occurrence of any alleged action specified under section 

5(a)(11), or from the date of its discovery. Complaints 

involving sexual abuse or exploitation of a child or a 

student may be filed beyond the date of the alleged 

occurrence or date of its discovery up until five years after 

the child or student reaches 18 years of age. If the alleged 

action is of a continuing nature, the date of its occurrence is 

the last date on which the conduct occurred.

24 P.S. §2070.9(a) (repealed by the Act of December 18, 2013, P.L. 1205). 

In 2013, the General Assembly passed amendments to the PEDA, which 

became effective February 18, 2014. These amendments renamed the PEDA the 

EDA and eliminated any time limitations for the filing of educator misconduct 
13

complaints. The new section 9(a) of the EDA simply states that “[t]he filing of a 

written educator misconduct complaint with the department will initiate the 

department’s review and investigation of an educator.” 24 P.S. §2070.9(a).

Timeliness of the Department’s Complaint 

Petitioner argues that the Commission erred as a matter of law in failing 

to conclude that complaints involving sexual abuse or exploitation of a student must 

be filed before the student reaches the age of 23. Alternatively, Petitioner argues that 

the one-year statute of limitations in section 9(a) of the PEDA began to run in 2002 

when Stroud reported the allegations to the Virginia school district where the alleged 

incidents occurred. Petitioner notes that R.B. was 29 years of age at the time the 

Department filed its educator misconduct complaint against him. Petitioner asserts 

that section 9(a) created two distinct limitations periods, the first a general limitation 

requiring that a complaint be filed within one year of the date of the alleged 

misconduct or its discovery, and a second more specific limitation that applies to 

complaints involving sexual abuse or exploitation of a child or student requiring a 

complaint to be filed before the child or student reaches 23 years of age. Petitioner 

points to the legislative history behind the 2000 amendments, which added the 

language discussing sexual abuse or exploitation of a child or student, as supportive 

of its assertion that a complaint filed after an alleged victim turns 23 years of age is 

untimely.

In response, the Department contends that the Commission properly 

determined that its complaint, filed within one year of the discovery of Petitioner’s 

misconduct involving a sexual relationship with a student, was timely under the 

Teacher Certification Law. The Department notes that while the notice of charges 
14

references a period of misconduct from January 1998 to June 2001,8the record 

reflected that Petitioner’s misconduct had ceased by the end of R.B.’s junior year, 

which would have been late in the spring of 2000, during the time that the Teacher 

Certification Law was in effect. In any event, the Department also contends that an 

examination of the legislative history surrounding the 2000 amendments to the 

Teacher Certification Law reveals the General Assembly’s intent to protect students 

from the worst breach of an educator’s fiduciary duty, sexual misconduct. Further, 

the Department contends that the Commission’s determination was consistent with, 

and supported by, this Court’s prior decision in Seltzer. We agree with the 

Department.

Generally, when a matter involves an issue of statutory interpretation, 

the courts have given an administrative agency charged with administering the 

particular statute a substantial amount of deference. Rosen v. Bureau of Professional 

and Occupational Affairs, State Architects Licensure Board, 763 A.2d 962, 967-68 

(Pa. Cmwlth. 2000), appeal denied, 781 A.2d 150 (Pa. 2001). However, such 

deference to an administrative agency is not required where the agency’s 

interpretation frustrates legislative intent. Id. at 968. Indeed, section 1921(a) of the 

Statutory Construction Act of 1972 provides that “[t]he object of all interpretation 

and construction of statutes is to ascertain and effectuate the intention of the General 

Assembly.” 1 Pa.C.S. §1921(a). Moreover, we always presume that the General 

Assembly did not “intend that a result that is absurd, impossible of execution or 

unreasonable.” Section 1922(1) of the Statutory Construction Act, 1 Pa.C.S. 

§1922(1).

 

8

The notice of charges actually references a period of misconduct from January 1998 to 

December 2001.
15

There is no question that the Department filed the educator misconduct 

complaint against Petitioner well within one year after its discovery of Petitioner’s 

gross misconduct. R.B. reported the misconduct to the District on September 2, 

2012; the District filed the mandatory report with the Department on September 18, 

2012; and the Department filed its complaint against Petitioner two days later, on 

September 20, 2012. Consistent with the discovery exception set forth in either 

section 1259(a) of the Teacher Certification Law or section 9(a) of the PEDA, the 

Department’s complaint was timely.

Even examining the additional language relating to the sexual abuse and 

exploitation of a child or student that was added by section 9(a) of PEDA, we believe 

the Department’s complaint was timely filed. Contrary to Petitioner’s argument, we 

do not believe this additional language foreclosed any and all complaints against an 

educator once the victim reaches 23 years of age. This additional language merely 

added an exception to the one-year limitation for certain cases by allowing an 

interested party to file a complaint up to the time the victim turns 23, regardless of 

when the misconduct occurred or was discovered. The Department focuses on the 

General Assembly’s use of the permissive “may” in this additional language, whereas 

the one-year limitation is prefaced by the mandatory “shall.”9 

 

9

The Department set forth the following example to show how the additional language and 

its “may” provision actually expanded the time in which complaints involving sexual abuse or 

exploitation of a child or student can be filed. If such allegations are discovered by the Department 

when a child/student is only 8 years of age, that child/student may be too scared to testify against 

the educator or otherwise participate in the educator disciplinary process, and thereby precluding 

the Department from proceeding with a complaint. However, another interested party, such as the 

mother of the child/student, could decide to pursue the claim once the child/student gets older. 

Under section 9(a) of PEDA, the interested party could bring a claim up until the child reaches 23 

years of age. 
16

Additionally, we agree with the Department that the interpretation 

proposed by Petitioner, i.e., limiting the discovery position to only include claims of 

victims under 23 years of age when the claims involve allegations of sexual abuse or 

exploitation, the most serious breach of an educator’s fiduciary duty to a student, 

renders an absurd result. Petitioner’s interpretation would further serve to preclude 

taking action against an educator for conduct involving sexual abuse or exploitation, 

while at the same time allow the Department to take action for less significant 

professional misconduct under the one-year discovery exception. 

Moreover, contrary to Petitioner’s argument, the legislative history 

surrounding the 2000 amendments to the Teacher Certification Law does not support 

his interpretation. While Petitioner cites to a discussion between two State 

Representatives, this discussion merely confirmed the permissive nature of the sexual 

abuse/child exploitation exception and the fact that it applies until the child reaches 

23 years of age. As the Commission noted in its decision, neither this discussion “nor 

the clear language of the statute substantiate the elimination of the discovery 

exception . . . The amendments merely added an additional exception to the one-year 

limitation for cases involving sexual abuse or exploitation by permitting interested 

parties to file a complaint up until the date that the victim reaches 23 years of age 

regardless of when the conduct occurred or was discovered.” (Commission’s op. at 

16-17) (emphasis in original). 

Furthermore, with regard to Petitioner’s argument that the one-year 

statute of limitations in section 9(a) of the PEDA began to run in 2002 when Stroud 

reported the allegations to the school district where the alleged incidents occurred, we 

agree with the Commission and the Department that our prior decision in Seltzer is 

controlling. In Seltzer, the educator assumed the position of Pupil Services 
17

Coordinator for the Western Montgomery Center for Vocation and Technical Studies

(Center) on July 1, 1993. In January 1995, the Office of Auditor General’s Bureau of 

School Audits (Auditor) conducted a regularly scheduled audit of the Center for years 

1992-1993 and 1993-1994 and discovered discrepancies between student records 

maintained by the Center and records maintained by the local high schools, whose 

students attended the Center. The Auditor thereafter performed a more extensive 

investigation and issued a final report to the Department on August 25, 1995, which 

prompted the filing of a complaint against the educator four days later.

The Department immediately filed a complaint against the educator on 

August 29, 1995. In a notice of charges filed with the Commission, the Department 

alleged that the educator’s conduct was immoral, negligent, intemperate, and 

incompetent. The notice of charges also alleged unlawful use of a professional title 

and sexual harassment. The Commission ultimately issued a decision revoking the 

educator’s certification. On appeal to this Court, the educator argued, inter alia, that

the Department’s complaint was untimely under section 1259(a) of the Teacher 

Certification Law because the alleged misconduct occurred during the 1993-94 

school year and there were interested parties, including a teacher and the director of 

the Center, aware of this misconduct for a period longer than one year prior to the 

Department’s filing of a complaint. The educator further argued that the knowledge 

of these interested parties should be imputed to the Department. The Department 

countered that the complaint was timely as it was filed within one year from the date 

of its discovery of the alleged misconduct, on August 25, 1995, when it received the 

Auditor’s report.

This Court rejected the educator’s argument, describing her 

interpretation of section 1259(a) as providing that a “notice of one is notice to all,” 
18

which created an absurd result. Seltzer, 782 A.2d at 56 (emphasis added). We 

recognized the flaw in the educator’s argument in that it presumed that any potential 

interested party will not only recognize the misconduct but will also act to report the 

misconduct appropriately. We noted that any inaction on the part of such an 

interested party “would vitiate future discovery and permit the educator to evade 

accountability merely because the [interested party] acted in an unprofessional 

manner.” Id. Recognizing, however, that the limitation period could not be merely 

disregarded, we adopted instead a “notice to one is notice to all” approach, which 

required an educator to “affirmatively act to disclose the conduct to preclude the 

filing of a complaint under the discovery exception to the one-year time limit.” Id. at 

57. Because the educator had not affirmatively disclosed her conduct, we held that 

the Department’s complaint was timely filed under the discovery exception.

The reasoning of Seltzer applies equally to the present case, as Petitioner 

attempts to revive the “notice of one is notice to all” approach we specifically 

rejected in Seltzer by arguing that Stroud’s report of the allegations against him in 

2002 to an out-of-state school district, the Fairfax County Public Schools in Virginia, 

equates to a report by an interested party that triggers the initiation of the one-year 

limitation for filing an educator misconduct complaint in this Commonwealth. In 

other words, Petitioner argues that notice should be imputed to the Department and 

that the one-year discovery exception began to run for the Department in 2002 by 

virtue of Stroud’s report to the Virginia school officials. Such logic is both 

unreasonable and absurd. 

In addition, Petitioner did not file exceptions to the hearing officer’s 

proposed report finding that he had engaged in conduct constituting immorality, 

intemperance, and negligence; rather, Petitioner only excepted to the timeliness of the 
19

Department’s filing of the complaint. Further, as the Commission noted, it was 

undisputed that Petitioner never affirmatively disclosed his misconduct at any time. 

Consistent with Seltzer, Stroud’s reporting of the allegations to the school officials in 

Virginia did not trigger the one-year limitation under section 1259(a) of the Teacher 

Certification Law or section 9(a) of PEDA, and, hence, the complaint filed by the 

Department herein was timely.

Conclusion

Based on the statutory interpretations discussed above, as well as the fact 

that our prior decision in Seltzer controls the outcome of this case, the Commission 

did not err as a matter of law in concluding that the Department’s complaint was 

timely filed.

Accordingly, the Commission’s order is affirmed.10

________________________________

PATRICIA A. McCULLOUGH, Judge

 

10 Petitioner raises an additional allegation in his brief that the Department could not pursue 

the issue of the pornography on the school-issued computer because this issue was not included in 

the Department’s educator misconduct complaint and was only first set forth in the notice of 

charges. The Department, however, contends that Petitioner waived this issue by failing to raise the 

issue below. We agree with the Department. Petitioner did not raise this issue in his exceptions 

before the Commission; instead, Petitioner only first raised it in his brief to this Court. The law is 

well settled that issues not raised before the government unit are waived and will not be heard or 

considered by the appellate court. See Pa.R.A.P. 1551(a) (“No question shall be heard or 

considered by the court which was not raised before the government unit. . . .”); Gow, 763 A.2d at 

533 (the educator waived his statute of limitations claim by failing to raise such claim in his 

exceptions filed with the Commission). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James C. Whalen, :

Petitioner :

: No. 1263 C.D. 2016

v. :

:

Department of Education, :

Respondent :

ORDER

AND NOW, this 8

th day of May, 2017, the order of the Department of 

Education’s Professional Standards and Practices Commission, dated June 29, 

2016, is hereby affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge