# Brentwood Borough School District Appeal > Supreme Court of Pennsylvania · July 2, 1970 · 439 Pa. 256 URL: https://www.frixlaw.com/law-library/cases/9752632 ## Case - **Full name:** Brentwood Borough School District Appeal - **Court:** Supreme Court of Pennsylvania - **Decided:** July 2, 1970 - **Citations:** 439 Pa. 256; 267 A.2d 848; 1970 Pa. LEXIS 687 - **Precedential status:** Published - **Opinion:** Dissent by Robeets - **Judges:** Robeets, Bell, Jones, Cohen, Eagen, O'Brien, Roberts, Pomeroy - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9752632 ## Opinion text *264 Dissenting Opinion by Me. Justice Robeets: I agree with the majority insofar as it holds that the appellee was a professional employee of appellant school district and that the trial court and the Superintendent of Public Instruction had jurisdiction in this case. Unfortunately, I cannot similarly concur in its conclusions with respect to the effect of Miss Spano’s failure to request a de novo hearing and with respect to the proper standard of review in the trial court. I am unable to understand how, as a matter of justice, the majority can conclude that a professional employee’s right to a hearing de novo strips that employee of any right to challenge the fundamental unfairness of the procedures conducted by the School Board. The Public School Code of 1949, 24 P.S. §1-101 et seq. (Supp. 1970), clearly requires that dismissal proceedings be conducted in accordance with certain minimum due process standards. See Public School Code of 1949, 24 P.S. §§11-1125-11-1132 (Supp. 1970). I assume that the Legislature did not intend to engage in a useless act and earnestly desired that the prescribed minimum standards be observed. It is well established, however, that when an appealing professional employee requests a hearing de novo he may not also challenge the regularity of the proceedings conducted by the School Board. E.g., Ambridge Borough School District v. Snyder, 346 Pa. 103 , 29 A. 2d 34 (1943). And the majority, by denying aggrieved professional employees who do not request a de novo hearing the right to contest the propriety of the hearing conducted by the School Board, strips the professional employees of any ability to enforce their legislatively-given due process rights. The majority forces professional employees to accept whatever kind of a “hearing” the School Board chooses to give them, and to rely on de novo proceedings in the common pleas courts for a fair hearing. *265 I must comment separately on the majority’s incredible assertion that we should not expect the School Board to offer its professional employees a truly fair hearing because of its “dual” role as “prosecutor and judge.” Almost every administrative agency in this Commonwealth acts at some time or another as “both prosecutor and judge” in the course of its proceedings; and they are all nonetheless required to conduct their proceedings in accordance with certain minimum standards of fairness. I strongly believe that one of the central principles of a democratic government is that it must provide impartial adjudication when the state and one of its citizens are opposing litigants. I do not think it is too much to ask of a public agency like a school board that it restrain its prosecutorial zeal and provide at least a modicum of procedural fairness to every citizen who appears before it. I hardly believe that the majority’s permissive decision will advance the cause of ordered liberty. I cannot assent to this judicial destruction of a legislative mandate. It is my view that a professional employee’s right to continued employment can be extinguished only if the dismissal procedure is conducted within the due process framework required by the Public School Code of 1949. I firmly believe that the required procedures are the prerequisites of a valid dismissal, and I would allow aggrieved professional employees, such as Miss Spano, to vindicate their rights. Having concluded that the nature of the proceedings conducted by the appellant School Board is a reviewable matter and having examined the record, I am convinced that the trial court was correct in stating that: “No purpose will be served by reciting all of the many instances which indicate the prejudicial atmosphere which existed at the hearings. The School Board, through its solicitor, set the stage for this atmosphere. The conduct of the hearings was of such a nature as *266 to indicate either that the School Board had prejudged Miss Spano or, in the alternative, that it could not fairly and justly decide in her case. The refusal to permit objections on the record (B. 6, 7), the comments on her attorney’s professional ability (R. 10, 16), statements on the record that the people in attendance were there in a deliberate attempt on the part of Miss Spano or her counsel to disrupt the meeting (R. 10), statements that telephone calls were received from various individuals who did not wish to testify for Miss Spano (R. 10, 11), statements that if Miss Spano wished to, she may file objections or appeal to the State Board of Education and to the County Court (R. 13, 63), threats to expel Miss Spano and her counsel from the hearing room (R. 14), and threats to complain to the Bar Association (R. 15) are all matters which we find created such an atmosphere that fair, just, impartial consideration was impossible.” I must also express my disagreement with the majority’s assertion that the trial court’s review of this type of case should be limited to an examination of the record to determine whether there was “a clear abuse of discretion or an error of law.” Neither the applicable statute nor the cases cited by the majority support this conclusion. The statute which authorizes appeals from adjudicatory decisions rendered by the 'Superintendent of Public Instruction, Public School Code of 1949, 24 P.S. §11-1132 (Supp. 1970), states that, “[u]pon the hearing of said petition, the court shall make whatever order it considers just, either affirming or reversing the action of the Superintendent of Public Instruction, and stating plainly whether the professional employee is to be discharged or is to be retained.” (Emphasis added) This statute so clearly and explicitly gives the reviewing court considerable discretion in its disposition *267 of the case that the majority’s conclusion is almost incredible. Additionally, the narrow standard of review which the majority adopts is vastly inconsistent with the statutory alternative of a de novo hearing, since it is inconceivable that an aggrieved party would ever trust to such a narrow, myopic review procedure when the available alternative is a de novo hearing. Just as the language of .the statute fails to support the majority’s conclusion, so do the cases cited. Tassone v. Redstone Township School District, 408 Pa. 290 , 183 A. 2d 536 (1962), was the first case which contained any language similar to that used by the majority, but the discussion of the proper standard of review in that case was pure dictum. The real issue in Tassone was the availability of a de novo hearing to an appealing school board, and the actual holding was that an aggrieved school board was not entitled to such a hearing. The second case is Thall Appeal, 410 Pa. 222 , 189 A. 2d 249 (1963), wherein this Court asserted that where an appeal is prosecuted by a school board from an adverse decision of the Superintendent of Public Instruction, the court of common pleas should look to see only if there was a manifest abuse of discretion or error of law. In support of this conclusion the Court did nothing more than to cite Tassone and assert that the Superintendent’s “expertise” justified the imposition of a narrow standard of review. The language of 24 P.S. §11-1132 was neither cited nor discussed and the holding was explicitly applied only to appeals prosecuted by a school board. The third relevant case, Pease v. Millcreek Township School District, 412 Pa. 378 , 195 A. 2d 104 (1963), again involving an appeal by a school board, did no more than cite Tassone and Thall without discussion before affirming the Superintendent’s determination in an exhaustive factual discussion. *268 Although some of the language in these cases superficially indicates that a narrow standard of review is appropriate in an appeal by an aggrieved professional employee from an adverse decision of the Superintendent of Public Instruction, I believe that a careful reading of the cases demonstrates that neither their holdings nor their logic, supports such a result. When the question of the proper standard of review is confronted in the context of an appeal by a professional employee, it seems evident to me that the common pleas courts were intended to have and should have a broad scope of review in order to fulfill their legislative mandate to “make whatever order it considers just.” Accordingly, I dissent. Mr. Justice Eagen joins in this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9752632. Public record. Not legal advice.