IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Slater, :

Petitioner :

: No. 725 C.D. 2022

v. :

: Submitted: April 14, 2023

The School District of Philadelphia :

(Department of Education), :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION 

BY JUDGE McCULLOUGH FILED: February 5, 2024

James Slater (Petitioner) petitions for review of the Order and Opinion of 

the Acting Secretary of Education, Eric Hagerty (Acting Secretary), dated June 16, 

2022, affirming the School District of Philadelphia’s (School District) dismissal of him 

from his position as a tenured professional employee due to an incident that occurred 

on December 6, 2019. After careful review, we affirm. 

I. FACTS AND PROCEDURAL HISTORY

A. December 6, 2019 Incident

Petitioner was a tenured professional employee of the School District as a 

teacher beginning in 2004, and he was assigned to Woodrow Wilson Middle School 

(Woodrow Wilson) from August 26, 2019, until December 9, 2019. (Reproduced 

Record (R.R.) at 62a; Supplemental Reproduced Record (S.R.R.) at 119b, 128b.) 

On December 6, 2019, the regular teacher for the class where the incident 

occurred was absent and the class had a substitute teacher. (R.R. at 75a.) Petitioner 
2

testified that when he entered the classroom, the class was out of order, many students 

were in the hallway acting aggressively, and one student threw something at him. (R.R. 

at 75a-76a.) Petitioner testified that after discovering the classroom phone had been 

disconnected, he went to another room to call the main office for help. Id. He went 

back to the classroom to assist the substitute teacher, at which time he became involved 

in a physical altercation with a student, S.M., and at least two other students. Id. 

Woodrow Wilson principal, Shawn McGuigan, conducted an 

investigation of the incident by interviewing and taking signed statements from 

Petitioner, two other teachers, and 19 students. (R.R. at 34a, 36a-37a; S.R.R. at 12b40b.) The investigative results concluded that the incident began when S.M. was 

attempting to leave the classroom while the substitute teacher was trying to enter the 

same room. (R.R. at 29a; S.R.R. at 19b-40b.) Petitioner shouted in S.M.’s face

because he was blocking the substitute teacher’s path into the room. Id. S.M. backed

up and let the teacher into the room but Petitioner continued to scream at the student 

so forcefully that he spit in his face. Id. S.M. got angry and pushed Petitioner away. 

Id. Petitioner grabbed S.M. and choked him preventing him from breathing properly. 

Id. Two students, A.T. and T.R., attempted to pull Petitioner away from S.M. Id. 

Petitioner and the two other students became engaged in a brief physical conflict, which 

ended when a third teacher reported to the room and pulled everyone apart. Id. The

students involved in the incident were taken to the nurse’s office afterwards to be 

examined for injuries. The school nurse found S.M. to have red marks on his neck and 

scratches on his cheek and determined the injuries were consistent with being choked. 

(R.R. at 23a, 29a; S.R.R. at 41b-42b.) A.T. also had injuries to his neck. Id. Both 
3

students’ injuries were reported to the Philadelphia Police Department, the Department 

of Human Services (DHS) and the ChildLine and Abuse Registry.

1

Petitioner also received injuries from the incident, sustaining contusions 

to his back, forearms and thorax. (R.R. at 176a-80a.) He met with a workers’ 

compensation physician on December 8, 2019. Id. The workers’ compensation 

physician referred him for physical therapy and signed a work release as of December 

11, 2019, with light restrictions. Id. Petitioner was relegated to the reassignment room 

at the central district office while an investigation into the incident was pending. (R.R. 

at 62a.)

B. Investigative Conferences

An investigatory conference was held on January 14, 2020, at which time 

Petitioner and his union representative were given an opportunity to respond to the 

allegations and written statements made against him. (S.R.R. at 12b-18b.) Present at 

the conference were Petitioner, Mr. McGuigan, a labor relations representative, 

Andrew Montagna, and a union representative, Suzanne Cataline. Id. Twenty-two 

written statements were provided, including written statements from two adults, one of 

which was the substitute teacher who was in the room at the time of the incident and 

supported the claim that Petitioner in fact caused the injuries to the students. Petitioner 

flatly denied all the allegations and statements made by the students, teachers, and the 

nurses. 

After the conference, Mr. McGuigan concluded that Petitioner did assault 

several students during the December 6, 2019 incident, and because Petitioner had

1 By letters dated December 30, 2019, and January 3, 2020, both allegations of suspected child 

abuse were deemed unfounded by DHS. (R.R. at 181a-182a.) 
4

previously been disciplined for improper physical interactions with students,

2 Mr. 

McGuigan recommended that Petitioner’s employment be terminated. (S.R.R at 18b.) 

A second investigatory conference was held by Mr. McGuigan on 

September 9, 2020, to review the initial recommendation to terminate Petitioner from 

the School District. Petitioner claimed that his statements from the January 2020 

conference were misinterpreted. He reiterated his position but failed to provide any 

supporting witnesses or evidence to counter the 20 plus witness statements taken on 

the day of the incident. (S.R.R. at 54b.) Mr. McGuigan upheld the recommendation

that Petitioner should be terminated. Id. 

On October 1, 2020, a “204 Second-Level conference” was conducted by 

Attorney Ronak Chokshi, Interim Deputy of the School District’s Office of Employee 

and Labor Relations. Petitioner was provided another opportunity to address the 

witness statements and disciplinary recommendation. On October 16, 2020, Mr. 

Chokshi wrote a “Second Level Conference Summary” advising Petitioner that, based 

on the investigation, supporting documents, and Petitioner’s prior disciplinary record,

2 Petitioner had several prior disciplinary actions filed against him with the School District

while working at Lowell Elementary School. (S.R.R. at 76b-188b.) An incident occurred on 

November 21, 2014, in which it was found that Petitioner grabbed a student’s earlobes, punished 

students by making them stand against the wall until “ready to be reintegrated,” and made statements 

“unsuitable to a learning environment.” (S.R.R. at 91b.) In a separate incident on November 24, 

2014, Petitioner pushed a student to the ground, which was observed by another teacher who reported 

the incident to DHS. (S.R.R. at 86b-88b, 106b.) Petitioner was suspended for three days without pay 

and was warned that “any other unsatisfactory incident will lead to further disciplinary action which 

may include . . . dismissal from the [S]chool [D]istrict.” (S.R.R. at 88b.) 

A third incident occurred on January 4, 2017, during which Petitioner was accused of pulling 

a student’s chair out from underneath him, causing him to hit his face on a table resulting in a bruised 

cheek. DHS was notified of the incident and later deemed the incident unfounded. (S.R.R. at 106b.) 

The School District filed a Second Level Conference Summary and recommended that Petitioner’s 

employment be terminated. Following several investigative conferences, Petitioner was terminated 

without pay; however, his employment was later reinstated by Opinion and Order of then-Secretary 

of Education, Pedro Rivera, dated June 6, 2019. (S.R.R. at 101b-18b.)
5

the School District would be recommending to the School District’s Board of 

Education (Board) that his employment be terminated. Mr. Chokshi further advised 

that Petitioner “will be suspended without pay effective immediately pending final 

action by the Board.” (S.R.R. at 55b-57b.) 

C. Board Resolution and Statement of Charges

At a public meeting held on December 10, 2020, the Board approved, by 

a 7-0 vote, a resolution finding that there was sufficient evidence to support the 

recommendation to terminate Petitioner’s employment.

3

(R.R. at 54a; S.R.R. at 6b, 

11b.) By certified mail dated January 22, 2021, the Board provided Petitioner with a 

written Statement of Charges and Notice of Right to Hearing (Notice and Statement of 

Charges).

4

 (S.R.R. at 128b-30b.) The Notice and Statement of Charges recounted the 

allegations against Petitioner as follows:

In the [Second Level Conference Summary] prepared by 

Shawn McGuigan, Principal, it was noted that Principal 

McGuigan received a report that multiple students were 

injured as a result of an altercation with you. Principal 

McGuigan obtained over twenty student statements, nurse 

reports, teacher statements[,] and a picture. In general, the 

student statements indicated that during an altercation you 

grabbed two students around their neck[s] and/or choked 

them. The nurse reports also documented abrasions to one 

student’s neck and “multiple areas of erythema” to the back 

of the neck of another student along with scratches to [his]

3 On December 23, 2020, the School District erroneously sent Petitioner a termination of 

employment letter. (R.R. at 54a, 159a; S.R.R. at 121b-22b.) However, a correction letter was sent to 

Petitioner the same day by overnight mail, instructing him to disregard the December 23, 2020 letter 

that was sent in error, clarifying that the Board had resolved that there existed sufficient evidence to 

support the recommendation of his termination and advised him of his right to a hearing. (R.R. at 

54a; S.R.R. at 123b.)

4 This Notice and Statement of Charges superseded a previous version dated January 5, 2021, 

which inadvertently scheduled the hearing for only three days later. (S.R.R. at 124b-27b.)
6

lower cheek. In addition, a statement from a teacher indicated 

that you had one student in a “neck hold.”

At the investigatory conference on December 11, 2019, you 

denied ever touching the neck area of any student. Instead, 

regarding student S[.]M[.], you stated that you attempted to 

slide his hands off of you. Regarding student A[.]T[.], who

also alleged you grabbed his neck, you stated that you made 

no contact with him and he was not in the area for you to

reach him. In general, you maintained that you were acting 

in self-defense and used reasonable force to protect yourself

against students attacking you.

Based on all of the testimony and evidence, Principal 

McGuigan found that you assaulted the students. He

recommended that your employment be terminated. 

A second level conference was conducted on October 1, 2020 

by Ronak Chokshi, Interim Deputy, Employee & Labor 

Relations. There, you again denied touching any student on 

[the] neck in response to direct questioning. 

Mr. Chokshi noted that Students S[.]M[.] and A[.]T[.] both 

alleged that you choked and/or grabbed them by the neck,

and that their statements were supported by other student 

witnesses along with a teacher witness who stated that you

had a student in a neck hold. He also explained that 

documentation from the school nurse, who saw the students 

that same day, stated that student S[.]M[.] had two scratches 

on his lower cheek and multiples areas of erythema (redness) 

to the back of his neck. Mr. Chokshi noted that similar 

documentation for Student A[.]T[.] indicated that there were 

three abrasions to the student’s neck—which was also shown 

in a photograph that was submitted as evidence. He stated 

that this additional evidence further corroborated the 

students’ version of events.

Moreover, Mr. Chokshi found your denial of even touching 

any student’s neck, particularly in light of the evidence 

referenced above, unpersuasive and not credible, which 
7

further undermined the veracity of your version of the events 

as a whole that day.

Mr. Chokshi noted that your behavior was egregious, 

excessive and completely inconsistent with your

responsibilities as a teacher. He also explained that it was 

violative of the [School] District’s Code of Ethics, which 

requires that employees engage with students in a fair and 

respectful manner, along with Policy 317 which prohibits 

physical misconduct and/or threat of harm to anyone.

* * * *

Mr. Chokshi also noted that you were recommended for 

termination in the 2016-2017 school year after your principal 

found that you again acted in a physically aggressive manner 

towards another student at Lowell Elementary School. While 

that recommendation was subsequently reversed, Mr. 

Chokshi explained that your participation in the underlying 

disciplinary conferences was further evidence that you were 

well aware of the [School] District’s policies prohibiting 

teachers from directing physically inappropriate behavior 

towards students.

Accordingly, based on the SEH-204, supporting documents 

and your record of employment as a whole, Mr. Chokshi 

concluded that Principal McGuigan’s recommendation for 

termination should be upheld.

(S.R.R. at 128b-29b.)

The Board informed Petitioner that it had “resolved that there existed 

sufficient evidence to support the School District’s recommendation” to terminate his 

employment, and that the allegations against him constituted “intemperance, cruelty, 

willful neglect of duties and persistent and willful violation of or failure to comply with 

school laws of this Commonwealth, including official directives and established policy 

of the [Board]” under Section 1122 of the Public School Code of 1949 (School Code).

5

 

5 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1122.
8

Id. at 128b-30b. The Board also advised Petitioner that “[he] remain[ed] employed 

but, suspended without pay with health benefits, pending a final decision on the School 

District’s recommendation of dismissal.” Id. at 129b. The Notice and Statement of 

Charges explicitly stated in bold type on the first page that it was “not a final 

determination on the status of your employment” and advised Petitioner of his right 

to contest the recommendation at a hearing on February 22, 2021, or through a 

grievance procedure under the collective bargaining agreement between the School 

District and his union. Id. (emphasis in original).

Petitioner contested the recommendation, and an administrative hearing 

was held remotely before Hearing Officer Rudolph Garcia on March 24, 2021. 

Petitioner was represented by counsel and given a full and fair opportunity to crossexamine every witness presented by the School District, to object to the School 

District’s exhibits, to present exhibits, and to call witnesses on his behalf. The School 

District presented testimony by Mr. McGuigan, Mr. Chokshi, Jennifer Proctor and 

Patricia Melloy (school nurses), S.M. and T.R. (minor students), and Kevin Griffis 

(Woodrow Wilson’s assistant principal). Hearing Officer Garcia issued findings of 

fact and conclusions of law on June 24, 2021, recommending that the Board terminate 

Petitioner’s employment. 

D. Board Resolution Dismissing

 Petitioner and Appeal to Department

On August 19, 2021, an “Action Item 12” was placed on the Agenda of 

the Board’s meeting styled as: “Approval of Personnel Terminations.” Action Item 12

was a Resolution to approve the terminations of fourteen employees. Included in that 

Action Item on the last page was a sub-resolution to dismiss Petitioner and “adopt” the 

decision of Hearing Officer Garcia. (R.R. at 1a-6a.) Following roll call, the Board 

adopted Hearing Officer Garcia’s findings of fact and conclusions of law and dismissed 
9

Petitioner from his employment for engaging in physically inappropriate conduct 

towards students. Id. at 267a. 

Petitioner appealed the Board’s decision to the Department of Education 

(Department) on July 25, 2020. A remote hearing before Hearing Officer Maribeth 

Wilt-Seibert was held on October 14, 2021. Id. at 192a-234a. On June 16, 2022, the 

Acting Secretary issued an Opinion and Order affirming the School District’s decision 

to dismiss Petitioner. The Acting Secretary found Petitioner not credible in all respects 

regarding his description of the incidents that led to his dismissal. He further held that 

Petitioner was properly suspended in November of 2020 and was provided with all due 

process. 

II. ISSUES

Before this Court,6 Petitioner presents seven issues for review.7 First, he 

asks this Court to consider whether the School District followed the procedure outlined 

in the teacher tenure provisions of Section 1127 of the School Code, 24 P.S. § 11-1127 

(Procedure on Dismissals; Charges; Notice; Hearing),8 Section 1129 of the School 

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

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

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

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

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

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

Cmwlth. 1978).

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

discussion.

8 Section 1127 of the School Code provides:

Before any professional employe having attained a status of permanent 

tenure is dismissed by the board of school directors, such board of 

school directors shall furnish such professional employe with a detailed 

(Footnote continued on next page...)
10

Code, 24 P.S. § 11-1129 (Vote Required for Dismissals),

9

and Section 1151 of the 

School Code, 24 P.S. § 11-1151 (Salary Increases, Demotions),10 when it terminated 

written statement of the charges upon which his or her proposed 

dismissal is based and shall conduct a hearing. A written notice signed 

by the president and attested by the secretary of the board of school 

directors shall be forwarded by registered mail to the professional 

employe setting forth the time and place when and where such 

professional employe will be given an opportunity to be heard either in 

person or by counsel, or both, before the board of school directors and 

setting forth a detailed statement of the charges. Such hearing shall not 

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

written notice. At such hearing all testimony offered, including that of 

complainants and their witnesses, as well as that of the accused 

professional employe and his or her witnesses, shall be recorded by a 

competent disinterested public stenographer whose services shall be 

furnished by the school district at its expense. Any such hearing may 

be postponed, continued or adjourned.

24 P.S. § 11-1127. 

9 Section 1129 of the School Code provides:

After fully hearing the charges or complaints and hearing all witnesses 

produced by the board [of school directors] 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 twothirds vote of all the members thereof, to be recorded by roll call, 

determine whether such charges or complaints have been sustained and 

whether the evidence substantiates such charges and complaints, and if 

so determined shall discharge such professional employe. If less than 

two-thirds of all of the members of the board [of school directors] vote 

in favor of discharge, the professional employe shall be retained and 

the complaint shall be dismissed.

24 P.S. § 11-1129.

10 Section 1151 of the School Code provides:

(Footnote continued on next page...)
11

his employment. Imbedded in this argument is whether the School District had the 

authority to suspend his pay pending the outcome of termination proceedings and 

whether he was afforded proper due process. Petitioner also argues that there was a 

lack of substantial evidence to support the conclusion that he committed an act which 

warrants dismissal under the Causes for Termination set forth in Section 1122 of the 

School Code, 24 P.S. § 11-1122.

III. DISCUSSION

A. Petitioner’s Procedural Arguments

1. Procedure for Termination

First, Petitioner cites Vladimirsky v. School District of Philadelphia, 144 

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

358 (Pa. Cmwlth. 2016), to support his assertion that the School District’s 

administrative staff suspended his pay and effectively terminated his employment as 

of December 10, 2020, without the mandatory prior Board hearing required by the 

School Code.

The salary of any district superintendent, assistant district 

superintendent or other professional employe in any school district may 

be increased at any time during the term for which such person is 

employed, whenever the board of school directors of the district deems 

it necessary or advisable to do so, but there shall be no demotion of any 

professional employe either in salary or in type of position, except as 

otherwise provided in this act, without the consent of the employe, or, 

if such consent is not received, then such demotion shall be subject to 

the right to a hearing before the board of school directors and an appeal 

in the same manner as hereinbefore provided in the case of the 

dismissal of a professional employe.

24 P.S. § 11-1151.
12

Recently, we rejected this very claim in a case with a very similar fact 

pattern. In Prieto v. School District of Philadelphia (Department of Education) (Pa. 

Cmwlth., No. 144 C.D. 2021, filed December 28, 2022), appeal denied, (Pa. No. 58 

EAL 2023, filed August 22, 2023), Hugo Prieto (Prieto), a tenured teacher, threw a 

hardbound textbook at, and engaged in a fist fight with, a student.11 The School District 

held an investigatory conference and a second-level conference. The Board approved 

a resolution finding that there was sufficient evidence to issue a statement of charges. 

The Board then provided Prieto with a written notice that included a statement of 

charges, informed him of his right to a hearing, and scheduled a hearing before the 

Board. The statement of charges indicated that Prieto was suspended without pay, but 

with health benefits, pending his termination proceedings. The Board held a hearing 

at which Prieto appeared with his counsel and was given the opportunity to call and 

question witnesses, cross-examine the other party’s witnesses, and object to evidence 

offered by the opposing party. Slip op. at 2. The hearing officer issued findings of fact 

and conclusions of law, recommending that the Board terminate Prieto’s employment. 

The Board adopted a resolution terminating Prieto’s employment. Thereafter, Prieto 

appealed to the Acting Secretary. A virtual hearing was held before a hearing officer, 

after which the Acting Secretary issued a decision and order affirming the School 

District’s dismissal of Prieto. Id. at 3. 

On appeal, Prieto argued that the Board did not follow the School Code’s 

termination procedures and, thus, violated his due process rights. Like Petitioner here, 

Prieto relied on Vladimirsky and Jones to argue that he was effectively terminated by 

the School District’s administrative staff without a hearing in violation of the School 

Code. 

11

 We note that both Prieto and Petitioner have been represented by the same legal counsel.
13

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

because the letter terminating his employment sent by the School District was not 

authorized by the School Reform Commission (SRC)12 but rather was sent by the 

School District administrator, which violated Section 1127 of the School Code. 

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

recommend to the [SRC] that your employment with [the School District] be 

terminated effective immediately.” 144 A.3d at 992 (emphasis added). After

receiving the letter, the employee had a hearing before the SRC, and then later the SRC 

passed a resolution formally terminating the teacher. We held the School District’s 

termination was procedurally defective. We determined the School District erred 

because: (1) an administrator sent the teacher a letter recommending that Vladimirsky 

be terminated effective immediately; (2) the statement of charges was not issued as the 

result of the passage of a resolution by the SRC; and (3) the SRC did not vote by roll 

call to determine whether the charges had been sustained. Id. at 994-95.

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

employee because the School District failed to follow the procedural requirements for 

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

stating his “employment with [t]he [School District would] be terminated effective 

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

367. This Court in Jones faulted the School District for (1) having an administrator 

and the SRC chairman send the employee a letter recommending that he be terminated; 

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

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

retroactively to August 2009. Id. at 368.

12 The SRC was replaced by the Board on July 1, 2018.
14

In Prieto, we distinguished Vladimirsky and Jones on the basis that, unlike 

in those cases, the Board initiated the termination of Prieto rather than its administrative 

staff. We recounted that (1) the Board passed a resolution stating that there was 

sufficient evidence to support the recommendation of the School District to terminate 

Prieto’s employment; (2) the Board provided Prieto’s written notice and statement of 

charges that post-dated the Board’s resolution; and (3) Prieto was not terminated by the

Board until after his hearing before the Board. We further noted that unlike the tenured 

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

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

dismissal. Prieto, slip op. at 6. 

As in Prieto, Petitioner was not terminated by the School District’s 

administrative staff. The October 16, 2020 Second Level Conference Summary sent 

by Mr. Chokshi cannot be construed as terminating Petitioner’s employment effective 

immediately as he remained suspended from November 6, 2020, until the Board’s final 

decision on the recommendation for his dismissal. Rather, as in Prieto, the Board 

initiated the termination by passing the following Resolution on December 10, 2020:

RESOLVED, that there is sufficient evidence to support the 

recommendation of the Superintendent and/or his designee 

to terminate the employment, from the [School District], of 

the following professional employee:

1. [Petitioner]

* * * *

and be it,

FURTHER RESOLVED, that the Secretary and [Board] 

President are directed to advise these professional employees 

of the action item and their right to a hearing.
15

(R.R. at 156a.)

As required by Section 1127 of the School Code, the Board’s January 23, 

2021 Notice and Statement of Charges set a date for a timely hearing to determine 

whether Petitioner should be terminated. Id. at 168a. The Notice and Statement of 

Charges also specifically stated, “[t]his is not a final determination on the status of 

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

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

Id. at 168a-69a (emphasis in original). A hearing was then conducted before Hearing 

Officer Garcia on March 24, 2021. Id. at 7a-148a. Hearing Officer Garcia issued 

findings of fact and conclusions of law on June 24, 2021, recommending that the Board 

terminate Petitioner’s employment. The Board then on August 19, 2021, voted, 8-0,

to terminate Petitioner’s employment:

RESOLVED, that [Petitioner] be dismissed from his 

employment as Teacher by the School District [], effective 

August 19, 2021, and be it

FURTHER RESOLVED, that the Hearing Officer’s 

Findings of Fact and Conclusions of Law are adopted as the 

reasons for this decision, and be it

FURTHER RESOLVED, that this decision was made in 

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

an independent review of the record by the individual 

members of the [Board]. 

(R.R. at 4a) (emphasis added).

Section 1127 of the School Code requires that before any professional 

employee is dismissed by the board of school directors, the board (1) shall furnish the 

employee with a detailed written statement of the charges upon which his or her 

proposed dismissal is based and (2) shall conduct a hearing. 24 P.S. § 11-1127.
16

This Court has interpreted Section 1127 as “requir[ing] the [board of 

school directors] to resolve to demote the employee and to furnish him with a written 

statement of the charges prior to the hearing.” Patchel v. Board of School Directors of 

the Wilkinsburg School District, 400 A.2d 229, 232 (Pa. Cmwlth. 1979). As we further 

noted in Patchel, the board of school directors only needs to pass a resolution that it 

has sufficient evidence to support its belief to demote the professional employee and 

then direct the secretary and president of the board of school directors to notify the 

professional employee of this fact and advise him of his right to a hearing. Id. at 232 

(quoting The Board of School Directors of the Abington School District v. Pittenger, 

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

That is precisely what occurred here. Petitioner was not terminated prior 

to his Board hearing. In December of 2020, after hearing the charges against Petitioner, 

the Board voted by roll call that there existed sufficient evidence to support a 

recommendation of his termination and directed the Board secretary and president to 

advise Petitioner of the Resolution and his right to a hearing. In January of 2021, the 

president of the Board and the secretary of the Board sent Petitioner a letter containing 

a detailed written Notice of Statement of the Charges against him, and a notice of right 

to a hearing. Following the hearing before Hearing Officer Garcia, a roll call of the 

Board was taken prior to his termination, and the Board voted to terminate Petitioner. 

By issuing the Notice of Statement of Charges following passage of a Board 

Resolution, and terminating Petitioner after his Board hearing, the Board acted fully in

compliance with the requirements of Section 1127. Accordingly, we agree with the 

Acting Secretary that the School District complied with the procedural requirements of 

Section 1127 of the School Code.
17

Petitioner next argues that the Board did not vote in accord with Section 

1129 of the School Code, which requires that the board of school directors shall by a 

two-thirds vote of all members to be recorded by roll call, determine whether such 

charges have been sustained. 24 P.S. § 11-1129. He maintains that the Board “blindly 

adopted by roll call a [R]esolution that it did not even read” and “took no part in any 

aspect to the decision-making at any step of the way.” (Petitioner’s Br. at 46-47.) He 

also argues that the Board failed to comply with Section 1129 of the School Code 

because its vote on August 19, 2021, was done in a “block vote” to “approve” several 

personnel resolutions at once, including the terminations Resolution containing the 

nine names on the terminations list, which included a reference to Petitioner’s matter. 

(Petitioner’s Br. at 24-25.) He further contends that here, as in Vladimirsky, the Board 

“did not record the vote by roll call and determine whether such charges should have 

been sustained and whether the evidence substantiate[d] such charges and complaints.” 

Id. at 47 (citing Vladimirsky, 144 A.3d at 1004). We must reject Petitioner’s argument 

for several reasons.

First, simply because the Board’s vote on multiple cases occurred at once 

does not mean that each case was not addressed or considered individually, as 

Petitioner advocates. Moreover, Petitioner’s argument that the Board “blindly 

adopted” the Resolution is unfounded in the record and simply not supported. In fact, 

the August 19, 2021 Resolution specifically states that the Board’s decision to 

terminate Petitioner’s employment “was made in accordance with the [School 

Code], as amended, following an independent review of the record by the 

individual members of the [Board].” (R.R. at 4a) (emphasis added). The Resolution

specifically states that the Board members reviewed the record in Petitioner’s case and 

to the extent Petitioner does not believe that happened, he has not produced any 
18

evidence. The only evidence in the record is the August 19, 2021 Resolution that states 

that the record was reviewed. 

Therefore, we find the Acting Secretary did not err in concluding that the 

School District complied with the procedural requirements of Section 1127 of the 

School Code.

2. Dismissal Without a Hearing

Petitioner next contends that his dismissal was not in “strict compliance” 

with the mandatory procedural safeguards set forth in the School Code because, Mr. 

Chokshi, a member of the School District’s administrative staff, had no authority to 

suspend his pay under the School Code without any knowledge or “action” of the 

Board. Petitioner argues that his suspension without pay was “in effect” a termination 

of his employment. (Petitioner’s Br. at 26, 39, 41.) 

This same argument was raised in Prieto. We specifically rejected the 

argument that Prieto was effectively dismissed on May 9, 2019, the date of his 

suspension, without a hearing, which he claimed was an “illegal act.” Prieto, slip op.

at 7. We first noted that Prieto was not terminated on May 9, 2019, but rather he was 

suspended on that date. We then considered whether Prieto was entitled to a hearing 

before the Board before he was suspended. Finding that he was not, we explained:

It is well settled that suspension for cause without a hearing 

is permissible where the teacher’s conduct is potentially 

harmful to the safety of the children or the teacher is unable 

to maintain order in the classroom creating a possibility for 

harm. Kaplan v. Philadelphia School District, 130 A.2d 672 

(Pa. 1957); Board of Education of School District of 

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

Board of School Directors of the Eastern York School 

District v. Fasnacht, 441 A.2d 481 (Pa. Cmwlth. 1982).
19

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

and used physical force on a student. Prieto’s actions 

presented a very real harm to the children. This alone justifies 

his pre-hearing suspension. Prieto’s use of physical force on 

a student would have allowed the [School] District to 

suspend him without any hearing or investigatory 

conference. However, the [School] District held an 

investigatory conference on January 3, 2019, and a secondlevel conference on April 15, 2019, both of which were 

opportunities for the [School] District to investigate the facts 

and for Prieto to hear the allegations against him and 

respond. Importantly, Prieto was not suspended until the 

conclusion of both conferences on May 9, 2019, by Board 

action. Nevertheless, in this case, no pre-hearing was

required for Prieto’s suspension due to his intemperate 

conduct.

Prieto, slip op. at 7.

Here, as in Prieto, Petitioner was not terminated on October 16, 2020, 

rather he was suspended without pay for cause as of that date.

13

 A suspension for cause 

without any hearing is permissible where the teacher’s conduct is potentially harmful 

to the safety of the children or where teachers have been charged with inappropriate 

behavior involving students – as in Petitioner’s case. Kaplan; Kushner; Fasnacht.

In this case, Petitioner’s use of extreme physical force on several students

and his inability to maintain classroom order would have allowed the School District 

to suspend him without any type of investigatory hearing at all. However, the School 

District went above and beyond in providing numerous opportunities for Petitioner to

hear the allegations against him and to respond to them. No further process was 

required.

13 It is undisputed that Petitioner continued to be paid for nearly a year without doing work. 
20

3. Suspension Without Pay Pending Termination

Lastly, we address Petitioner’s contention that his pay could not be 

constitutionally stopped until after the Board’s termination hearing. Relying on School 

District of Philadelphia v. Twer, 447 A.2d 222 (Pa. 1982), Petitioner argues that a 

suspension of pay is a demotion in status and pay and requires the opportunity for a 

full, fair hearing held by the school board and a roll call vote to suspend the teacher. 

24 P.S. § 11-1151. He contends there was never any “Board action” to suspend his 

employment status and pay, and that no administrative officer has any authority to 

suspend a teacher without pay or to hold any type of dismissal hearing. 

In Prieto, the teacher asserted, as Petitioner does here, that a suspension 

without pay pending dismissal is effectively a termination and a violation of the School 

Code. Rejecting the argument, we explained, 

Pennsylvania courts have long permitted suspensions 

pending dismissal for public employees, including teachers. 

See Burger v. Board of School Directors of McGuffey School 

District, 839 A.2d 1005 (Pa. 2003) (upholding suspension 

without pay of school district superintendent in instance of 

serious charges of misconduct); Kaplan, 130 A.2d at 676 

(permitting suspension without pay for a teacher pending 

dismissal); City of Philadelphia v. Fraternal Order of Police, 

Lodge No. 5, 592 A.2d 779, 783 (Pa. Cmwlth. 1991) (holding 

that a suspension without pay is not a de facto termination). 

In Kaplan, the Supreme Court stated that to “allow 

compensation to a teacher who deliberately breaks the moral 

law which makes him unfit to teach[ ] would result in an 

absurd and unreasonable interpretation of the act.” 130 A.2d 

at 680 (internal citations omitted).

* * * *

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

conduct was potentially harmful to the safety of children, the 
21

[School] District had the right to suspend [Prieto] without 

pay pending a final decision on the recommendation to 

terminate his employment.” 

Prieto, slip op. at 7-8 (citations omitted) (emphasis in original).

Because Prieto’s suspension was a disciplinary action taken by the Board 

to keep the School District’s children safe, we concluded that his suspension without 

pay was within the constraints of due process.

Here, as in Prieto, Petitioner was accused of serious misconduct stemming 

from the December 6, 2019 incident. Addressing whether a suspended teacher is 

entitled to salary for the period between suspension and dismissal, the Supreme Court 

stated in Kaplan:

In our view it is not an incident of such tenure that a teacher 

must be given active employment pending the conclusion of 

dismissal proceeding against him, or paid his full salary when 

it is determined upon hearing held that cause for removal 

existed. . . . The welfare of the children is the paramount 

consideration. It follows from the fact that the authorities 

are not required to give active employment to a teacher 

pending his removal hearing, that, when his removal is 

subsequently ordered, he is not entitled to receive salary for 

the period during which he has not taught. The law does not 

contemplate that public funds shall be expended where no 

services are performed, and where not only is there no duty 

to accept services tendered, but the welfare of the children 

may require that they be dispensed with until a hearing can 

be held.

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

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

Here, the School District found that Petitioner exhibited a loss of selfcontrol that was extreme, violent and severe, Petitioner choked a student until he was 

unable to breath, and assaulted several other students who freed the student from 
22

Petitioner’s grasp. (S.R.R. at 154b-55b.) Petitioner had previously been warned and 

suspended for inappropriate physical contact with students in the past. Such facts led 

to the conclusion that a very real potential of harm existed. Accordingly, we agree with 

the Acting Secretary that a suspension without pay was permissible under established 

case law. 

4. Lack of Substantial Evidence

Turning next to the merits, Petitioner argues that the Acting Secretary 

erred in finding that his conduct constituted intemperance under the School Code. He 

insists that he “did not choke the student.” (Petitioner’s Br. at 29.) He maintains that 

the facts show that he was assaulted by an unruly student who initiated the melee by 

pushing Petitioner and grabbing him by the neck. He avers that other students joined 

in and punched him. He submits that all his actions were defensive in nature. We find 

Petitioner’s argument to be without merit.

In essence, Petitioner is requesting this Court to reweigh the evidence, 

make different findings, and make credibility determinations based upon his version of 

the incident. However, such would be in violation of our standard of review as well as 

clearly against the weight of the evidence. In a case involving the dismissal of a 

professional employee of a school district, as here, the Acting Secretary is “the ultimate 

factfinder” with the “power to determine the credibility of witnesses, the weight of their 

testimony[,] and the inferences to be drawn therefrom.” Belasco v. Board of Public 

Education of the School District of Pittsburgh, 510 A.2d 337, 342 (Pa. 1986) (quoting 

Grant v. Board of School Directors of Centennial School District, 403 A.2d 157, 159

(Pa. Cmwlth. 1979)).

Section 1122 of the School Code provides:
23

The only valid causes for termination of a contract heretofore 

or hereafter entered into with a professional employe shall be 

immorality; incompetency; unsatisfactory teaching 

performance based on two (2) consecutive ratings of the 

employe’s teaching performance that are to include 

classroom observations, not less than four (4) months apart, 

in which the employe’s teaching performance is rated as 

unsatisfactory; intemperance; cruelty; persistent negligence 

in the performance of duties; wilful neglect of duties . . . 

persistent and wilful violation of or failure to comply with 

school laws of this Commonwealth, including official 

directives and established policy of the board of directors; on 

the part of the professional employe . . . .

24 P.S. § 11-1122(a). 

It is the School District’s burden to prove that a professional employee 

committed one or more of the statutorily enumerated acts. Foderaro v. School District 

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

Petitioner with “intemperance, cruelty, willful neglect of duties[,] and persistent and 

willful violation of or failure to comply with school laws of this Commonwealth, 

including official directives and established policy of the board of directors” under 

Section 1122 of the School Code. (S.R.R. at 128b-30b.) 

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

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

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

993 A.2d 344 (Pa. Cmwlth. 2010). 

The Acting Secretary concluded that the School District met its burden of 

proof because there was sufficient support in the record for the allegation that 

Petitioner’s actions constituted intemperance and cruelty justifying his termination 

under the School Code. (Acting Secretary’s Opinion at 14; R.R. at 274a.) Although 

Petitioner continues to reargue the facts surrounding the December 6, 2019 incident, 
24

this is of no moment as the Acting Secretary did not find his testimony credible. As 

stated by the Acting Secretary, he reviewed the testimony and concluded:

I find [Petitioner] not credible in all respects regarding his 

description of the incidents that lead to his dismissal and the 

procedure used to terminate his employment. To the extent 

that [Petitioner’s] testimony is contradicted by students’ 

testimony at the hearing, I find the students’ statements 

credible.

Id. at 13; R.R. at 273a.

Upon review of the record and the Acting Secretary’s findings, we find 

there was ample evidence to support the conclusion that Petitioner’s conduct exhibited 

a loss of self-control or excessive use of force. Twenty-two witnesses testified that 

Petitioner choked a student, preventing him from breathing properly, and hit other 

students. Even the substitute teacher in the classroom stated that Petitioner had a 

student in a “neck hold.” That student had injuries around his neck consistent with 

being choked. Photographs established that another student had scratches on his neck. 

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

we must accept those findings on appeal.

IV. CONCLUSION

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

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

Because we do not detect any error of law or constitutional violation in the School 

District’s termination proceedings, we affirm the Acting Secretary’s June 16, 2022 

Order.

________________________________

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

James Slater, :

Petitioner :

: No. 725 C.D. 2022

v. :

:

The School District of Philadelphia :

(Department of Education), :

Respondent :

ORDER

AND NOW, this 5

th day of February, 2024, the Order and Opinion of 

the Acting Secretary of Education, Eric Hagerty, dated June 16, 2022, is hereby 

AFFIRMED. 

________________________________

PATRICIA A. McCULLOUGH, Judge