# J.J. Sweda v. Upper Bucks County Technical School (Dept. of Ed.)

> Commonwealth Court of Pennsylvania · May 20, 2024

URL: https://www.frixlaw.com/law-library/cases/9971912

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 20, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Fizzano Cannon, J.
- **Cited by:** 0 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/9971912

## How later opinions describe it (automated extraction)

- holding that “[t]he essence of persistency is repetition”
- explaining, “[t]here can be no repetition where the acts or omissions in question are unrelated to one another; the acts in question must be the same or very similar to be persistent”
- holding that failure to comply with Pa.R.A.P. 2116(a) results in waiver of the issue

## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John J. Sweda, :
Petitioner :
:
v. :
:
Upper Bucks County Technical :
School (Department of Education), : No. 282 C.D. 2023
Respondent : Argued: April 11, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 20, 2024

John J. Sweda (Sweda) petitions for review of the February 28, 2023
decision and order of the Pennsylvania Secretary of Education (Secretary) affirming
the dismissal by the Joint Operating Committee (Committee) of Sweda as Executive
Director of the Upper Bucks County Technical School (School). Sweda also seeks
review of the May 17, 2022 order issued by a hearing officer for the Secretary, which
denied Sweda’s request to provide additional testimony.1 Upon review, we affirm.

1
The hearing officer for the Secretary also denied Sweda’s request for a pre-hearing
conference. Reproduced Record (R.R.) at 978a. Sweda does not challenge this aspect of the order,
and the denial of his request to submit additional testimony is addressed infra on pages 19 to 20.

We observe that although Sweda failed to identify the May 17, 2022 order by date in his
petition for review, his petition nevertheless includes the basis of his objection to the order. See
Petition for Review at 15, ¶ 123 (asserting that “[he] should have been allowed by the [] Secretary
to pursue and make a record on the issue of ‘pretext,’ the ‘real’ reason he was fired”); Pa.R.A.P.
1513(d)(4), (5) (providing that “[a]n appellate jurisdiction petition for review shall contain . . .
reference to the order or other determination sought to be reviewed, including the date the order
I. Background
Sweda was employed by the School as a tenured professional employee
for approximately three and one-half years, during which he held the title of
Executive Director. Secretary’s Decision & Order, 2/28/23 (Secretary’s Decision),
Finding of Fact (F.F.) 1-2. The School is operated by the Committee. F.F. 4. At
some point prior to Sweda’s dismissal, the School hired William Gerhard (Gerhard)
as Building and Grounds Supervisor pursuant to Sweda’s recommendation. F.F. 9.
Gerhard failed to satisfactorily discharge various aspects of his position, and Sweda
repeatedly advised him to remedy his poor job performance. F.F. 22-23. The School
proposed demoting and/or suspending Gerhard on the basis of his poor job
performance. F.F. 24. The School ultimately issued a notice of intent to dismiss
Gerhard for neglect of duty, after Gerhard yelled profanities at Sweda. F.F. 25-26.
On November 8, 2021, Gerhard voluntarily quit his employment and submitted a
letter of resignation containing allegations against Sweda. F.F. 27 & 161-62. The
School placed Sweda on administrative leave the following day. F.F. 5 & 163.
The Committee retained special counsel to perform an independent
investigation of the allegations. F.F. 164. On or around December 16, 2021, Sweda
received a letter indicating the possibility of disciplinary measures, up to and
including discharge. F.F. 170. The letter also stated that Sweda’s initial statements
during the investigation were “not totally correct,” and Sweda conceded that his
responses were “occasionally inaccurate.” F.F. 171-72. A public statement of

or other determination was entered,” as well as “a general statement of the objections to the order
or other determination”). Further, we note that Sweda reproduced the text of the May 17, 2022
order in the “Orders in Question” section of his appellate brief and attached a copy of the order to
the brief. See Sweda’s Br. at vii; Pa.R.A.P. 2115(a) (stating that “[t]he text of the order or other
determination from which an appeal has been taken or which is otherwise sought to be reviewed
shall be set forth verbatim immediately following the statement of jurisdiction”).

2
charges was drafted on December 27, 2021, and Sweda was suspended without pay.
F.F. 6 & 173-75. On January 3, 2022, the Committee adopted the following charges:
incompetency, intemperance, persistent negligence in the performance of duties,
willful neglect of duties, and willful failure to comply with school laws (including
official directives and established policy of the Committee). F.F. 7; R.R. at 78a
(citing Section 1122 of the Pennsylvania Public School Code of 1949 (School
Code),2 24 P.S. § 11-1122). At a special meeting on January 3, 2022, members of
the public commented on Sweda’s alleged conduct. F.F. 178. The Committee
approved the statement of charges by roll call vote and directed its secretary and
president to advise Sweda of his right to a hearing. F.F. 179. Sweda thereafter
requested, and received, a private hearing pursuant to Section 1126 of the School
Code, 24 P.S. § 11-1126.3 F.F. 180-81. Testimony offered by both parties over the
course of the six-day hearing established the following facts. F.F. 182.4
In April 2021, Sweda used the “‘F-bomb’ a couple of times” in front of
students and asked “what the hell’s going on?” in the school cafeteria while
expressing his displeasure with the state of preparations for a National Technical

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

3
“All hearings, under the provisions of this article or any other provision of the school
laws pertaining to the dismissal or the termination of contracts of professional employes, shall be
public, unless otherwise requested by the party against whom the complaint is made.” Section
1126 of the School Code, 24 P.S. § 11-1126.

4
Sweda submitted a request for a pre-hearing conference and to provide additional
testimony, which a hearing officer for the office of the Secretary denied by order dated May 17,
2022. R.R. at 978a; see also Section 1131 of the School Code, 24 P.S. § 11-1131 (providing that
“[t]he Secretary . . . shall review the official transcript of the record of the hearing before the board,
and may hear and consider such additional testimony as he may deem advisable to enable him to
make a proper order”).

3
Honor Society banquet. F.F. 96, 99, 101-02 & 104. Sweda was displeased that the
tablecloths appeared to be unlaundered and that the arrangement of tables violated
restrictions in place at the time due to the COVID-19 pandemic. F.F. 97-98. Sweda
placed the tablecloths in the wash himself and declared his frustration that he had to
do “everybody’s f***ing job.” F.F. 101. The students were surprised by Sweda’s
outburst and were escorted out of the cafeteria by an administrative assistant. F.F.
103-04.
Sweda also used profane or abusive language with employees on
numerous occasions, including: talking to the assistant director in a loud and
unprofessional voice multiple times while using the “F-bomb,” yelling, for example,
“what the f*** are you doing,” “why do you have a hard-on for the culinary
instructor,” and “this is your f***ing problem”; repeatedly yelling “f*** you” at the
assistant director “on many occasions”; raising his voice with Gerhard at least once
per week and using the “F-bomb” during such conversations “from time to time”;
calling one employee a “meathead”; and referring to an unidentified individual as a
“f***ing lesbian.” See F.F. 106-09, 113, 115-16, 119 & 120-23; see also Committee
Decision at 36. On another occasion, a small engine instructor stated that he “wasn’t
feeling the love” from Sweda, intending to reference the perceived toxic work
environment. F.F. 153 & 155. Sweda responded, “What, do I have to f***ing kiss
you to show you the love?” F.F. 154 (brackets omitted).
Prior to his termination, Sweda disciplined employees for using profane
or abusive language, thereby indicating his awareness of Committee policy. For
instance, Sweda supported suspending the purchasing secretary for one day without
pay after she slammed her office door and said “f*** you” to her supervisor. F.F.
157-60; Secretary’s Decision at 26; see also Committee Decision at 36.

4
Nevertheless, Sweda insisted that as “blue collared guys,” it was appropriate for a
subordinate employee to yell at him and for Sweda to yell back. F.F.152.
Following the hearing, on or about April 20, 2022, the Committee
dismissed Sweda for dishonesty and for the persistent and willful violation of or
failure to comply with school laws, including official directives and established
policy of the Committee. F.F. 8 & 83. The Committee concluded that Sweda’s
deliberate violation of policy “over an extended period of time and through multiple
incidents” warranted dismissal. Committee Decision at 43. The Committee noted
that its “Policy 317”5 (Policy 317) specifically prohibits the use of profane language
and determined that Sweda understood that such language was forbidden at the
School. Id. Citing the lack of a “clear standard” in caselaw evaluating intemperance
under Section 1122 of the School Code, 24 P.S. § 11-1122, the Committee concluded
that while Sweda’s use of profanity, “particularly in an abusive manner toward [his
assistant director]” may have been intemperate, it was more clearly a “persistent”
and “willful” violation of Committee policy. See id. at 42-43. Further, the

5
Pursuant to Policy 317,

[w]hen engaged in assigned duties, employees shall not participate
in activities that include but are not limited to the following:

1. Physical or verbal abuse, or threat of harm, to anyone;
...

6. Use of profane or abusive language;
...

10. Violation of [Committee] policies, administrative
regulations, rules or procedures;
....

R.R. at 613a-14a.

5
Committee determined that Sweda had willfully neglected his duties. Id. The
Committee predicated Sweda’s violations of Section 1122 of the School Code, 24
P.S. § 11-1122, on his conduct in ignoring the bidding process, misappropriating
School property for personal use, directing an employee to turn off a security camera,
and his use of profanity, all of which supported his dismissal. Id. at 44.6
On May 2, 2022, Sweda appealed his dismissal to the Secretary. R.R.
at 847a. By letter dated May 13, 2022, Sweda submitted to the Secretary a request
to provide additional testimony on several issues, including his assertion of pretext.
Id. at 929a. Specifically, Sweda requested the opportunity to testify before the
Secretary regarding

the “real reason” he sees the [Committee] has targeted
him, his seeking response from the PDE[, presumably
referencing the Pennsylvania Department of Education,]
on the infirm mask compliance proposal made by
prominent [School] board members, including the now
current Board Chair, to have parents sign off on masks.
The timing of his activity was as school opened in the
2021-2022 school year. He was prevented from testifying
on pretext as it allegedly was not relevant to the
proceedings. . . . However, it explains the weakness of the
charges and the bias of the [Committee] and particularly
its Chair.

Id. at 929-30a.

6
We agree with the Committee that “Sweda’s additional argument that he only cursed in
front of ‘the guys’ was, to be generous, a curious argument. As counsel for the administration
pointed out in cross-examination, there is no such exception in Policy 317, nor would the
Committee ever endorse such a distinction.” Committee Decision at 37. Further, the Committee
noted that while it was outside the scope of charges, Sweda’s gendered distinction “raise[d] a
broader concern under Title IX,” presumably referencing Title IX of the Education Amendments
of 1972, 20 U.S.C. §§ 1681-89, asserting that “[i]t is not acceptable for an Executive Director to
explicitly impose different standards of behavior for men and women.” Id. at 37 n.7.

6
On February 28, 2023, the Secretary affirmed Sweda’s dismissal solely
on the basis of his use of profane or abusive language.7 See Secretary’s Decision at
20, Conclusion of Law (C.L.) 1-13; see also id. at 28. The Secretary determined that
the publication of Sweda’s name in connection with the statement of charges in the
School’s public agenda prior to the private hearing did not violate Sweda’s due
process rights. Id. at 24-25 (citing Highlands Sch. Dist. v. Rittmeyer, 243 A.3d 755
(Pa. Cmwlth. 2020)). Regarding Sweda’s assertion that the disclosure of his identity
generated bias, the Secretary emphasized that he conducted a de novo review of the
record. Id. at 25.
The Secretary deemed Sweda credible “in all respects” regarding his
admission to using “profane or abusive language directed to other employees.”
Secretary’s Decision at 25. The Secretary also found credible employee testimony
that Sweda yelled and addressed employees with profane or abusive language by
regularly using the “F-bomb,” and when he told employees, “What, do I have to
f***ing kiss you to show you the love?,” “what the f*** are you doing,” “this is
your f***ing problem,” and “f**k you.” Id. at 25-26 (brackets omitted). Further,
the Secretary determined that Sweda’s prior enforcement of Committee policy
against profane or abusive language indicated his awareness of thereof, citing
Sweda’s decision to warn and, thereafter, to suspend a subordinate employee who

7
Specifically, the Secretary determined that the following alleged actions did not justify
dismissal: (i) Sweda’s supervision of and actions in connection with Gerhard; (ii) Sweda’s use of
the log splitter; (iii) Sweda’s use of paver bricks; (iv) Sweda’s purported taking of School fuel for
personal use; (v) Sweda’s use of spray cleaning services; (vi) Sweda’s actions regarding the
removal and return of a stainless-steel table; (vii) Sweda’s mistake in submitting an incorrect grant
application; (viii) Sweda’s alleged request to turn off a School security camera; (ix) Sweda’s
alleged relationship with a female employee; (x) Sweda’s actions towards the purchasing
secretary; and (xi) Sweda’s contact with School employees during the pendency of the
investigation. C.L. 1-12. The Secretary also concluded that the Committee failed to establish
dishonesty as an additional basis for Sweda’s dismissal. Secretary’s Decision at 26.

7
told her supervisor, “f*** you,”8 and Sweda’s recommendation for dismissal of
another employee who had told Sweda, “f*** you.” Id. at 26.
Accordingly, the Secretary concluded that a preponderance of the
evidence established that Sweda committed the persistent and willful violation of
Committee policy “by repeatedly using profane or abusive language in the presence
of employees . . . and directed to employees,” thereby warranting his dismissal. Id.
at 26-27. The Secretary, therefore, affirmed the Committee’s decision to terminate
Sweda’s employment as a tenured professional employee pursuant to Section 1122
of the School Code, 24 P.S. § 11-1122. Id.
Sweda petitioned this Court for review.

II. Issues
Before this Court, Sweda argues9 that the Secretary erred in analyzing
his use of profanity as a persistent and willful violation of school laws, rather than
as intemperance.10 See Sweda’s Br. at 30-31 (citing Section 1122 of the School
Code, 24 P.S. § 11-1122). Further, Sweda contends that the instances of profanity
in question did not constitute intemperance, which has been defined as “a loss of

8
Notably, in an e-mail to the supervisor recommending suspension without pay of the
subordinate employee, Sweda wrote, “I am so sorry you have to go through this. I will back you
100 percent on this. No one should have to deal with this type of behavior.” R.R. at 618a.

9
“This Court must affirm the order of the Secretary unless there was a violation of
constitutional rights, an abuse of discretion, an error of law, or if a necessary finding of fact is
unsupported by substantial evidence.” Gobla v. Bd. of Sch. Dir. of Crestwood Sch. Dist., 414 A.2d
772, 774 (Pa. Cmwlth. 1980).

10
Sweda asserts that “[w]hile [he] disagrees with the findings, for the purposes of this
[a]ppeal, he does not challenge the findings themselves but whether they rise to the level of a
Section 1122 termination.” Sweda’s Br. at 35.

8
self-control or self-restraint, which may result from excessive conduct.” See id. at
31 (quoting McFerren v. Farrell Area Sch. Dist., 993 A.2d 344, 360 (Pa. Cmwlth.
2010)). Thus, Sweda maintains that the Secretary erred in affirming his termination,
as “[t]here has never been a case where this Court has upheld a dismissal on grounds
of intemperance under Section 1122.” Id. at 32 (quoting McFerren, 993 A.2d at
362).
Sweda insists that “the evidence shows that [the School] was never
troubled by [his] very rare use of public profanity and the private use of profanity,
most of it with male colleagues of executive rank in private, until [the School]
wanted to get rid of him,” highlighting his “totally clean record” prior to dismissal.
Sweda’s Br. at 32, 42 & 46 (citing McFerren). Sweda maintains that “the incidents
of public11 profanity were only on 2-3 rare occasions” and were not “directed . . . at
an individual” and that the remaining instances of profanity occurred in his office.
Id. at 32-33. Sweda claims that “[o]ther individuals used profanity too.” Id. at 34.
Sweda also asserts that the incident at the honors program banquet occurred months
before the renewal of his contract in July 2021. Id. at 34. Sweda contends that the
investigation “turned [] into a ‘get Sweda at all costs’ attack and expanded the scope
of the investigation to include profanity, the false imputation of an affair, and other
alleged issues.” Id. at 35. Insisting that his “was a pretextual termination that
occurred for another reason,” Sweda asserts that his use of profanity was merely
“one of many convenient non-existent or low-grade offenses [used] to fire [him].”
Id. at 37.12 Thus, Sweda maintains that “[p]rofanity [was] a convenient retroactive

11
Sweda presumably references instances of profanity occurring outside his office.

12
Sweda alleges:

9
gimmick to fire [him] and will be one to fire other administrators and teachers
retroactively in the future.” Id. at 38.13 Sweda urges this Court to “ardently resist
. . . opening the door to drastically lightening the burden for a terminable offense
under Section 1122 as presented by an offense of profanity where not even a warning
or counseling has occurred, much less [] discipline, particularly where the entity
involved subscribed to . . . [p]rogressive [d]iscipline.”14 Id. at 37-38.
Moreover, Sweda argues that the conduct in question did not constitute
a persistent and willful violation of school law and policy. Sweda’s Br. at 38. Sweda
posits that while “[p]rofanity[] is, regrettably something that occurs, . . . [s]ocietal
norms permit freer use in private, among a small coterie of similarly situated workers

Starting in late August[] 2021, and through October[] 2021, [the
School] was undergoing a controversy where the [Committee]
wanted to go “mask optional” which allowed parents to sign off that
masks were medically unnecessary for their children. [Sweda] was
not allowed to develop this line of questioning as he wanted to
testify that the [Committee’s] displeasure at his opposition was the
pretextual reason why he was truly being fired. It is currently at
issue in [f]ederal [c]ourt litigation, where [Sweda] recently
overcame a Motion to Dismiss. See Memorandum Opinion, John
Jeffery Sweda v. Upper Bucks County Technical School, United
States District Court for the Eastern District of Pennsylvania,
Docket 2:22-cv-1787 (filed August 21, 2023).

Sweda’s Br. at 7.

13
Sweda speculates that “[t]here [is] a subset of [] attorneys in the Commonwealth who
specialize in representing [s]chool [d]istricts,” and who “constantly advocate for lowering the
Section 1122 bar because it is a convenient way to get rid of their client’s [sic] employees who are
really being fired for other reasons.” Sweda’s Br. at 48.

14
Sweda also asserts that “[t]here is no indication in [Policy] 317 what is the penalty for
[a] violation [involving profanity]. In the exact same policy, the [Committee] announces a
Progressive Disciplinary Policy, with various gradations of penalty, the lightest being reprimand.”
Sweda’s Br. at 11-12 (citing R.R. at 613a-15a).

10
(males versus females), particularly of the same sex.” Id. at 40. Sweda also
“submit[s] that some profanity may be more prevalent in [] trade and vocational
school[s] among teachers and administrators” than in “other places.” Id. Moreover,
Sweda emphasizes that “[t]he accusations mainly involve[d] alleged profanity in
private, in his office, among two male leaders in the school, his Assistant
Superintendent and the School Principal.” Id.
Sweda cites this Court’s statement in Erdlen v. Lincoln Intermediate
Unit No. 12 (Pa. Cmwlth., No, 1435 C.D. 2016, filed July 13, 2017), that “a willful
violation of a school law can be summed up as a form of direct defiance of an
order[.]” Sweda’s Br. at 41 (quoting Erdlen, slip op. at 24). Thus, Sweda maintains
that he did not willfully defy an order, because he had no knowledge that his conduct
was prohibited, asserting that he did not receive even a “‘friendly warning’ from a
Human Resource representative.” Id. at 41-42. Sweda, therefore, insists that the
School should have subjected him to “progressive discipline” in accordance with
“Section 300, Code 326”15 (Policy 326) before terminating his employment. Id. at
43 (citing R.R. at 613a-15a). Sweda also asserts that Policy 317 establishes a system
of “progressive penalties, including verbal warning, written warning, reprimand,
suspension, demotion, or pursuit of civil and criminal sanctions.” Id. at 45. Sweda
explains that “he was not attempting to be insubordinate, but to try to make the
school run optimally.” Id. at 45. Thus, Sweda maintains that “[t]he application of
the persistent and willful violation of [s]chool laws formulation seems incredibly
harsh here and ignores the obvious factual context of the multiple, diverse, and

15
The record contains the following information pertaining to the cited portion of
Committee Policy: Book – Policy Manual, Section 300 – Employees, Title – Complaint Process,
Code – 326, Status – Active, Adopted – October, 16, 2018. R.R. at 99a.

11
ramshackle charges the Secretary dismissed as not reaching Section 1122 level.” Id.
at 44.
Next, Sweda argues that the publication of his name in connection with
the charges and on the agenda, and the allowance of public comment at the hearing
regarding charges, tarnished his right to a private hearing under Section 1126.
Sweda’s Br. at 48 (citing Highlands, 243 A.3d at 763-64). Sweda contends that “no
provision of the Sunshine Act16 mandates that [a school board resolution initiating
the disciplinary process] must entail public disclosure of the name of the employee
subject to discipline.” Id. at 50 (quoting Highlands, 243 A.3d at 764). Sweda
maintains that publishing his name in connection with the charges caused the case
to become “sensationalized” and “the talk of [the School] and the Upper Bucks
community,” thereby “unfairly prejudicing the climate for a decision.” Id. at 53.
Sweda posits that school board bias and pressure from parents and the media is “a
well-known phenomenon.” Id. at 54 n.10. Further, Sweda insists that “[t]he inherent
potential bias of School Board members has long been recognized by our courts.”
Id. (citing Vladimirsky v. School Dist. of Phila., 144 A.3d 986, 1001 (Pa. Cmwlth.
2016); Katruska v. Bethlehem Ctr. Sch. Dist., 767 A.2d 1051, 1056 (Pa. 2001);
Harmon v. Mifflin Cnty. School Dist., 651 A.2d 681, 686 (Pa. Cmwlth. 1994); Covert
v. Bensalem Twp. School Dist., 522 A.2d 129, 131 (Pa. Cmwlth. 1987)). Sweda also
asserts that the Secretary “mischaracterized” his “statutory claim of entitlement . . .
to a fair hearing” as a due process claim. Id. at 52.
Sweda also contends that he “should [have been] allowed to testify and
call witnesses on the pretextual or ‘real’ reason he believes he was fired, which was
[his] First Amendment protected public opposition to the anti-mask decisions of the

16
65 Pa.C.S. §§ 701-716.

12
[Committee],” and that the denial of this opportunity violated his due process rights.
Sweda’s Br. at 56.17 Sweda, therefore, requests a remand “with an appropriate legal
standard of test to guide the Secretary in addressing issues of low-level violations of
policy that appear to be pretextual.” Id. at 56.
Further, Sweda asserts that the Committee erred in suspending him
without pay during the pendency of disciplinary proceedings stemming from charges
that were not “serious.” Sweda’s Br. at 57 (citing Burger v. Bd. of Sch. Dirs. of
McGuffey Sch. Dist., 839 A.2d 1055, 1061 (Pa. 2003); Antonini v. W. Beaver Area
Sch. Dist., 874 A.2d 679 (Pa. Cmwlth. 2005)). Sweda maintains that “serious
misconduct” is “rare” and occurs, for instance, when a teacher engages in a physical
altercation with a student. Id. at 57-58 (citing Prieto v. The Sch. Dist. of Phila.
(Dep’t of Educ.) (Pa. Cmwlth., No. 144 C.D. 21, filed Dec. 28, 2022)).
Accordingly, Sweda requests reinstatement and the issuance of
backpay, benefits and full pension rights. Sweda’s Br. at 55. Sweda also requests a
declaration of the meaning of a “private hearing” for purposes of Section 1126 of
the School Code, 24 P.S. § 11-1126. Id. at 55. Additionally, Sweda asks this Court
to remand the matter to the Secretary to render further factual findings regarding the
“novel” issue of whether the “common human flaw of occasional use of profanity”
may constitute the persistent and willful violation of school laws under Section 1122
of the School Code, 24 P.S. § 11-1122. Id. at 55-56. As an alternative to
reinstatement, Sweda asks this Court to remand the matter for further factual
findings and testimony. Id. at 58.18

17
Sweda claims that he “sought to bring testimony on how his was a pretextual termination
that resulted from his C[OVID]-19 activities.” Sweda’s Br. at 6 (citing R.R. at 929a-31a).

18
The School also submitted an appellate brief.

13
III. Discussion
A. Persistent and Willful Violation of Committee Policy
Sweda asserts that his use of profanity did not constitute a persistent
and willful violation of Committee policy. See Sweda’s Br. at 38-45. We disagree.
“In determining whether a persistent and wil[l]ful violation of school
law has occurred, three elements must be examined: persistency, wil[l]fulness and
a violation of a school law.” Horton v. Jefferson Cnty.-Dubois Area Vocational
Tech. Sch., 630 A.2d 481, 484 (Pa. Cmwlth. 1993).
“[P]ersistency is shown where the improper conduct is repeated in a
series of separate incidents over a substantial period of time.” McFerren, 993 A.2d
at 357 (citing Horton, 630 A.2d at 484). Here, the Secretary deemed credible
employee testimony exposing Sweda’s regular use of profane or abusive language
with numerous subordinates and, on one occasion, in the presence of students.19 See
F.F. 96, 99, 101-02, 104, 106-09, 113, 115-16, 119 & 154. Sweda does not challenge
these findings. See Sweda’s Br. at 40. Further, as all of the incidents involved
Sweda’s use of profane or abusive language with employees and students, they were
sufficiently similar for purposes of the “persistency” requirement. See McFerren,
993 A.2d at 359 (explaining, “[t]here can be no repetition where the acts or
omissions in question are unrelated to one another; the acts in question must be the
same or very similar to be persistent”). Thus, Sweda’s repeated use of profane or
abusive language “over an extended period of time and through multiple incidents”
qualifies as persistent for purposes of Section 1122 of the School Code, 24 P.S.
§ 11-1122. Committee Decision at 43; see also McFerren, 993 A.2d at 359 (holding
that “[t]he essence of persistency is repetition”).

19
We note that Policy 317 “requires employees to maintain professional, moral and ethical
relationships with students at all times.” R.R. at 613a.

14
The next element of “[w]il[l]fulness requires the presence of intention
and at least some power of choice.” Horton, 630 A.2d at 484. “For a violation of a
school law to be willful, the district must show that the employee knew of the school
district’s policy in question and deliberately chose not to comply.” McFerren, 993
A.2d at 357. Here, Sweda’s habitual use of profane or abusive language was a matter
of voluntary, personal choice. See Cowdery v. Bd. of Educ. of Sch. Dist. of Phila.,
531 A.2d 1186, 1188 (Pa. Cmwlth. 1987) (reasoning that “the element of willfulness
or intent [for purposes of Section 1122 of the School Code, 24 P.S. § 11-1122,] can
often be inferred from the nature and extent of the particular violation”).
Nevertheless, Sweda maintains that the absence of any previous
disciplinary action against him and his “totally clean record” prior to dismissal
preclude finding that he had the requisite knowledge that his language violated
Committee policy. See Sweda’s Br. at 34-34 & 42 (citing McFerren). In McFerren,
we held that a school district failed to prove that a school principal had knowledge
of his infractions, and that “[i]n the absence of this knowledge, the [school d]istrict
[could not] demonstrate that his conduct constituted willful violation of school
law[.]” McFerren, 993 A.2d at 359. However, unlike the school principal in
McFerren, here, Sweda’s support for the unpaid suspension of one employee and
his recommendation for the dismissal of another on the basis of the employees’ use
of profanity evidenced his awareness of Committee policy.20 See Secretary’s
Decision at 26; F.F. 157-60; see also Committee Decision at 36. Sweda, therefore,

20
Sweda had used language identical to that which formed the basis of the employees’
discipline “on many occasions.” Compare F.F. 121 to Secretary’s Decision at 26. Notably, Policy
317 mandates that “[Committee] policies[ and] administrative regulations, rules and procedures”
shall be “applied fairly and consistently.” R.R. at 613a (emphasis added).

15
demonstrated willfulness for purposes of Section 1122 of the School Code, 24 P.S.
§ 11-1122.
Regarding the third and final element, “violation of a school law, the
school district must point to an adopted policy or order that was deliberately
violated.” McFerren, 993 A.2d at 358. Here, the Committee determined that Sweda
violated the proscription against “profane or abusive language” contained in Policy
317, and the Secretary affirmed. See R.R. at 613a-14a; Committee Decision at 43;
Secretary’s Decision at 26-28. We agree that Policy 317 clearly prohibits profane
and abusive language.
Nevertheless, Sweda insists that “[o]ther individuals used profanity
too,” that “some profanity may be more prevalent in [] trade and vocational
school[s]” than in “other places,” and that “[t]he accusations mainly involve[d]
alleged profanity in private, in his office, among two male leaders in the school[.]”
Sweda’s Br. at 32-33 & 40. This reasoning does not negate the fact that the
Committee expressly forbids the use of profane or abusive language. See R.R. at
613a-14a. As this Court has explained,

[i]t is clear that such persons (employed or seeking
employment in the public schools) have the right under our
law to assemble, speak, think and believe as they will. . . .
It is equally clear that they have no right to work for the
State in the School system on their own terms. . . . If they
do not choose to work on such terms, they are at liberty to
retain their beliefs and associations and go elsewhere.

Bovino v. Bd. of Sch. Dirs. of Indiana Area Sch. Dist., 377 A.2d 1284, 1289 (Pa.
Cmwlth. 1977) (quoting Adler v. Bd. of Educ. of City of New York, 342 U.S. 485,
492 (1952)). Thus,

16
[t]he Legislature can proscribe certain types of behavior
[among teachers] which are not conducive to a healthy
environment for the students in public school systems.
Section 1122 does not infringe on [] the right to free
speech in any protected areas. The intendment of this
section is not to curtail free speech but to protect an
extremely vulnerable and sensitive segment of our society
(students).
Id. Moreover, Sweda’s attempted normalization of profanity does not address the
abusive aspect of his violation. See Committee Decision at 42 (determining that
Sweda directed “abusive profanity” at his assistant director); Secretary’s Decision at
26 (concluding that “credible evidence” supported that Sweda “violat[ed] [] [the
Committee’s] policy against profane or abusive language”).
We, therefore, agree with the Secretary that Sweda’s use of profane or
abusive language in violation of Policy 317 constituted the “persistent and wil[l]ful
violation of . . . school laws” under Section 1122 of the School Code, 24 P.S. § 11-
1122.21

21
As Sweda fails to establish that the Secretary erred in affirming his dismissal on the basis
that he committed the persistent and willful violation of Committee policy, his insistence that his
language did not rise to the level of intemperance is immaterial. See Williams v. Joint Operating
Comm. of Clearfield Cnty. Vocational Tech. Sch., 824 A.2d 1233, 1236 (Pa. Cmwlth. 2003) (citing
Horton, 630 A.2d at 483) (explaining that this Court need address only one basis for termination
under Section 1122 of the School Code, 24 P.S. § 11-1122, to affirm the dismissal of a professional
employee). We further note that the Committee declined to opine whether Sweda’s language rose
to the level of intemperance, citing a lack of clarity in applicable caselaw, and the Secretary did
not address the issue. See Committee Decision at 42; Secretary’s Decision at 26-27.

Moreover, in light of our disposition of the present matter, we reject Sweda’s request for a remand
for further factual findings regarding whether the use of profanity may constitute the persistent and
willful violation of school law under Section 1122 of the School Code, 24 P.S. § 11-1122. See
Sweda’s Br. at 55-56.

17
B. Progressive Discipline
Sweda maintains the School should have subjected him to “progressive
discipline” in accordance with Policies 317 and 326 before instigating dismissal
proceedings. Sweda’s Br. at 37-38 & 41-43. Policy 317 provides that “[t]he
Executive Director[, i.e., Sweda,] or [his] designee shall develop and disseminate
disciplinary rules for violations of [Committee] policies, administrative regulations,
rules and procedures that provide [for] progressive penalties, including but not
limited to verbal warning, written warning, reprimand, suspension, demotion,
dismissal, or pursuit of civil and criminal sanctions.” R.R. at 614a. Significantly,
Sweda does not allege that, as Executive Director, he developed or disseminated any
system of “progressive penalties.” Id. Moreover, Policy 326 does not outline a
progressive disciplinary scheme, but rather establishes a process for the filing and
resolution of employee complaints. See R.R. at 99a-101a (expressing the
“[Committee’s] intent to establish reasonable and effective means of resolving
complaints among employees,” and to facilitate “communication between
supervisory personnel and employees for situations not covered by the terms of a
collective bargaining agreement”). Thus, we disagree that the Committee was
obligated to implement progressive discipline prior to Sweda’s dismissal.

C. Due Process
Sweda asserts that the denial of his request to offer evidence of pretext
contravened his due process rights. See Sweda’s Br. at 56. “Demonstrable prejudice
is a key factor in assessing whether procedural due process was denied.” D.Z. v.
Bethlehem Area Sch. Dist., 2 A.3d 712, 721 (Pa. Cmwlth. 2010) (citing State Dental
Council & Examining Bd. v. Pollock, 318 A.2d 910 (Pa. 1974)); see also Belle

18
Vernon Area Sch. Dist. v. Gilmer, 415 A.2d 121, 122 (Pa. Cmwlth.1980) (stating
that “[d]ue process guarantees apply to administrative as well as judicial
proceedings”). Here, Sweda baldly contends, without further elaboration or
supporting legal authority, that his “was a pretextual termination that occurred for
another reason,” and that his use of profanity was merely “one of many convenient
non-existent or low-grade offenses [used] to fire [him].” Sweda’s Br. at 37. Sweda’s
bare assertions fail to demonstrate prejudice, thereby precluding further
consideration of Sweda’s due process claims. D.Z., 2 A.3d at 733 (“reject[ing] [the
petitioner’s] bald allegations of error,” explaining that “[w]ithout a clear explanation
of what testimony [the petitioner] wished to elicit or what evidence she sought to
present, and how that evidence may have changed the result, it is impossible to
discern any prejudice resulting from the [h]earing [o]fficer’s evidentiary rulings”).
Further, the sparseness of Sweda’s due process claim renders it
vulnerable to waiver. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(citations omitted) (“[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived. It is not the obligation
of [an appellate court] . . . to formulate [a]ppellant’s arguments for him.”). Sweda’s
due process claim predicated on the denial of the opportunity to present evidence of
pretext is also waived due to its omission from the “Statement of Questions
Involved” portion of his appellate brief. See Sweda’s Br. at 1-2; Pa.R.A.P. 2116(a)
(stating, “[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”); Twp. of Concord v. Concord
Ranch, Inc., 664 A.2d 640 (Pa. Cmwlth. 1995) (holding that failure to comply with
Pa.R.A.P. 2116(a) results in waiver of the issue). Moreover, although Sweda

19
contended in the “Summary of Argument” portion of his brief in support of his
petition for appeal to the Secretary that “[t]his matter is really about pretextual firing
for other protected conduct he did in early-mid September 2021 which [he] seeks to
produce evidence on in this proceeding,” see R.R. at 947a, the remainder of Sweda’s
brief is devoid of any discussion regarding this assertion, see R.R. at 958a-69a, and
the Secretary did not address the issue, see Secretary’s Decision at 1-27.
Moreover, we disagree with Sweda that the Secretary erred in
construing as a due process claim his assertion that the disclosure of his name in
connection with the statement of charges and the allowance of public comment at
the hearing regarding the charges sensationalized proceedings and “unfairly
prejudice[ed] the climate for a decision, thereby violating his statutory right to a
private hearing. See Sweda’s Br. at 52-53; see also Muma v. Pa. Dep’t of Health,
Div. of Nursing Care Facilities, 223 A.3d 742, 749-50 (Pa. Cmwlth. 2019 (reasoning
that “[a] request for a hearing is a request for an opportunity to be heard, which
necessarily implicates due process”); Gilmer, 415 A.2d at 122 (agreeing with the
trial court that a superintendent’s specific allegations of bias against the school board
“support[ed] [a] finding of prejudice, or at least an appearance of bias,” thereby
implicating the superintendent’s right to a “due process hearing”). Thus, similar to
Sweda’s first due process claim, we conclude that Sweda’s generalized aspersions
regarding Committee bias and pressure from parents and the media fail to
demonstrate the requisite prejudice. See Sweda’s Br. at 53-54 & 54 n.10; D.Z., 2
A.3d at 722 & 733.22

22
We acknowledge Sweda’s assertion that “[t]he inherent potential bias of School Board
members has long been recognized by our courts.” Sweda’s Br. at 54 n.10 (citing Vladimirsky v.
School Dist. of Phila., 144 A.3d 986, 1001 (Pa. Cmwlth. 2016); Katruska v. Bethlehem Ctr. Sch.
Dist., 767 A.2d 1051, 1056 (Pa. 2001); Harmon v. Mifflin Cnty. School Dist., 651 A.2d 681, 686

20
D. Suspension Without Pay
Sweda contends that he was entitled to pay and benefits during the
pendency of the disciplinary proceedings absent a determination that he was faced
with “serious charges”; thus, he seeks back-payment of salary and benefits. Sweda’s
Br. at 57-58 (citing Burger; Antonini; Prieto). Sweda raised this issue on appeal to
the Secretary, see R.R. at 946a & 956a-57a, but the Secretary did not address it.
Nevertheless, as the parties have briefed this purely legal question, in the interest of
judicial economy, we will dispose of it now rather than remand to the Secretary. See
Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883 A.2d 518, 531 and 531
n.11 (Pa. 2005) (citing Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418,
435 n.12 (Pa. 2001); Danville Area Sch. Dist. v. Danville Area Educ. Ass’n, 754
A.2d 1255, 1262 (Pa. 2000); Pa. Game Com’n v. State Civ. Serv. Comm’n (Toth),
747 A.2d 887, 891-92 (Pa. 2000)); see also Baker v. Moon Area Sch. Dist., 2:15-
CV-1674, 2018 WL 4627153, at *14 (W.D. Pa. July 2, 2018), report and
recommendation adopted in part, rejected in part, CV 15-1674, 2018 WL 4057179
(W.D. Pa. Aug. 27, 2018) (stating that “[w]hether the misconduct of which [the
employee was] accused constitute[d] “serious misconduct,” thereby justifying his
suspension without pay prior to the formal hearing required for removal of

(Pa. Cmwlth. 1994); Covert v. Bensalem Twp. School Dist., 522 A.2d 129, 131 (Pa. Cmwlth.
1987)). However, Sweda fails to disclose that in each of the cited cases, the Court went on to
reject any concerns regarding bias. In Katruska, our Supreme Court acknowledged “an inherent
potential for bias on the part of school boards” due to “the dual function they serve in acting as
both prosecutor and as judge in proceedings involving professional employees,” but concluded
“that the Secretary[’s] de novo review of the decision of a school board ensures that the
requirements of due process are satisfied.” 767 A.2d at 1056; see also Covert, 522 A.2d at 131-
32 (holding that de novo review by the Secretary satisfied any due process concerns resulting from
the “inherent potential for bias on the part of school boards”). Similarly, here, in rejecting Sweda’s
assertion that the disclosure of his identity generated bias, the Secretary emphasized that he
conducted a de novo review of the record. Secretary’s Decision at 25.

21
superintendents, [was] a question of law for the Court to decide”); Penn-Delco Sch.
Dist. v. Urso, 382 A.2d 162, 168 (Pa. Cmwlth. 1978) (“consider[ing] a question
raised by the [r]espondent,” a professional employee of the school district, that “was
raised on appeal to the Secretary but was not discussed in the Secretary’s opinion,”
ultimately concluding that the record did not support the respondent’s claim).
“Pennsylvania courts have long permitted suspensions pending
dismissal for public employees, including teachers.” Slater v. Sch. Dist. of Phila.,
309 A.3d 1144, 1156 (Pa. Cmwlth. 2024) (quoting Prieto, slip op. at 14) (citing
Burger). In Burger, this Court acknowledged the “implied authority [of school
boards (in this case, the Committee)] to suspend [] officials accused of serious
misconduct, even without pay and benefits, within the constraints of procedural due
process.” 839 A.2d at 1061 (emphasis added). We clarified in Antonini that “[i]t is
the seriousness of the misconduct alleged that forms the necessity for the implied
power.” 874 A.2d at 683 (quotation marks omitted). We, therefore, held that “resort
to procedures beyond those specified in the School Code is the exception rather than
the rule, reserved for allegations of ‘serious misconduct.’” Id.23 Thus, whether
Sweda is entitled to back-payment of salary and benefits for the period of his unpaid
suspension hinges on whether he was charged with serious misconduct. See id.

23
We note that Burger and Antonini involved suspensions of superintendents, who are
governed by a separate dismissal provision. See Burger, 839 A.2d at 1056; Antonini, 874 A.2d at
680; see also Section 1080(a) of the School Code, 24 P.S. § 10-1080(a) (providing that “[d]istrict
superintendents and assistant district superintendents may be removed from office and have their
contracts terminated, after hearing, by a majority vote of the board of school directors of the
district, for neglect of duty, incompetency, intemperance, or immorality . . . .”). Nevertheless, we
note that the points of law cited above in Burger and Antonini pertain to “officials” and are not
limited to superintendents. See Burger, 839 A.2d at 1061; Antonini, 874 A.2d at 683. Moreover,
this Court has recognized the authority of school boards to suspend school employees other than
superintendents, including teachers. See, e.g., Slater, 309 A.3d 1144, 1156 (citing Burger); Prieto,
slip op. at 14 (citing Burger).

22
In Antonini, we declined to “define the phrase ‘serious misconduct’”
for purposes of whether a suspension without pay was warranted under Burger,
reasoning that “[i]t [w]as sufficient for present purposes to contrast the nature of the
misconduct alleged in Burger with that alleged here.” 874 A.2d at 683. Likewise,
here, we refrain from offering a blanket definition of the term.
Sweda insists that “serious misconduct” is “rare.” Sweda’s Br. at 57-
58 (citing Prieto). In Prieto, a teacher was suspended without pay, though with
health benefits, and was ultimately dismissed after his loss of self-control in throwing
a book at a student and participating in a fistfight in the classroom was found to
constitute intemperance under Section 1122 of the School Code, 24 P.S. § 11-1122.
See Prieto, slip op. at 6-7 & 12. We concluded that the charge of serious misconduct
warranted suspension without pay pending dismissal proceedings, emphasizing that
“[t]he welfare of the children is the paramount consideration.” Id., slip op. at 15
(quoting Kaplan v. Sch. Dist. of Phila., 130 A.2d 672, 676 (Pa. 1957)). Likewise,
here, Sweda’s habitual use of profane or abusive language constituted serious
misconduct by compromising student welfare, whether indirectly by fostering a
toxic environment at school or directly through the outburst witnessed by students.24
Moreover, although Sweda’s violations of Committee policy did not involve
physical violence, it is vital to emphasize that serious misconduct is not limited to
only the most egregious examples. See Baker, 2018 WL 4627153, at *14 (“find[ing]
that there [was] no suggestion in the Burger decision that serious misconduct [was]
limited to accusations of sexual misconduct,” and determining that the alleged

24
As noted above, the Secretary’s factual findings include an employee’s statement that
Sweda’s language created a toxic work environment and recount how an administrative assistant
escorted surprised students out of the cafeteria following Sweda’s outburst before the honors
banquet. See F.F. 103-04, 153 & 155.

23
misconduct against the superintendent, who was suspended without pay pending
dismissal proceedings, “raise[d] concerns regarding [his] fiscal accountability and
management ability, affecting the public trust,” and “should be considered serious”).

IV. Conclusion
For the foregoing reasons, we affirm the February 28, 2023 decision
and order of the Secretary.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John J. Sweda, :
Petitioner :
:
v. :
:
Upper Bucks County Technical :
School (Department of Education), : No. 282 C.D. 2023
Respondent :

ORDER

AND NOW, this 20th day of May, 2024, the May 17, 2022 and February 28,
2023 orders of the Pennsylvania Secretary of Education are AFFIRMED.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9971912. Public record. Not legal advice.