          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen T. Furst,                         :
                    Appellant             :
                                          :
             v.                           :
                                          :
Easton Area School District and           :   No. 54 C.D. 2019
Easton Area Board of Education            :   Argued: December 10, 2019


BEFORE:      HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                       FILED: January 30, 2020


             Stephen T. Furst (Furst) appeals from an order of the Court of Common
Pleas of Northampton County (trial court), dated December 28, 2018, dismissing his
civil complaint in mandamus (mandamus action) upon preliminary objections filed
by the Easton Area School District and the Easton Area Board of Education
(together, District). Furst contends the trial court erred in failing to follow the
findings made in a separate matter in which he asserts a different trial court judge
found the District constructively discharged him and denied his right of due process.
Upon review, we affirm the trial court’s dismissal of Furst’s mandamus action.
             Furst was an employee of the District from January 1985 to December
2015. Trial Court Opinion (Tr. Ct. Op.) 12/28/18 at 1. In 2012, he filed a complaint
with the District against a colleague, alleging improper computer access to private
materials. Id. Dissatisfied with the District’s handling of the matter, Furst reported
the colleague’s conduct to the police. Complaint (Compl.) Exhibit (Ex.) D, Tr. Ct.
Op. 3/2/18 (Ex. D) at 4, Reproduced Record (R.R.) at 42a. The colleague was later
indicted on criminal charges. See id. at 4-5, R.R. at 42a-43a.
                In 2013, the District hired a new superintendent. Ex. D at 5, R.R. at
43a. With the District’s approval, the new superintendent repositioned several
administrators, including Furst. Id. Furst filed an administrative complaint alleging
the District demoted him in retaliation for his police report concerning his
colleague’s illegal computer activity. Tr. Ct. Op. 12/28/18 at 2; see Ex. D at 5-6,
R.R. at 43a-44a. The District, and subsequently the Commonwealth’s Secretary of
Education (Secretary), determined Furst’s repositioning was neither unlawful nor
retaliatory. Ex. D at 5-6, R.R. at 43a-44a.
                Furst had also filed a civil action, in or about November 2013, against
the District in the trial court under the Whistleblower Law1 (whistleblower action).
Ex. D at 1, R.R. at 39a; see Complaint ¶ 15. In the whistleblower action, Furst
essentially repeated his claims of unlawful retaliation by the District. See Ex. D at
1-2, R.R. at 39a-40a.
                In 2015, while the whistleblower action was pending, Furst reported
problems sending some emails from his work computer. Ex. D at 6, R.R. at 44a.
The District’s ensuing investigation revealed some photographs stored in Furst’s
computer that the District believed were in violation of District policy. Id.
                In December 2015, the District held a Loudermill hearing2 concerning
the photographs found in Furst’s work computer and his alleged violations of District

       1
           Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421 – 1428.
       2
         “A Loudermill hearing is a pre-termination hearing given to a public employee that is
required by due process, as established in Cleveland Board of Education v. Loudermill, 470 U.S.
532 [(1985)].” New Kensington-Arnold Sch. Dist. v. New Kensington-Arnold Educ. Ass’n,
                                               2
policy. Ex. D at 6, R.R. at 44a. Furst attended with legal counsel. Id. He stated the
photographs were not his and he had never seen them. Ex. D at 6-7, R.R. at 44a-
45a. Furst claimed at least one image belonged to another District employee who
had the computer before the District issued it to Furst. Ex. D at 7, R.R. at 45a.
However, some images were also found in Furst’s own iPhoto library and Dropbox
in the computer. Id. Further, Furst could not explain how some images first
appeared on his hard drive after the laptop had been issued to him. Id.
              After the Loudermill hearing, the District’s superintendent and solicitor
considered whether to bring formal charges for dismissal against Furst. Ex. D at 7,
R.R. at 45a. Before any formal charges were presented, however, Furst and the
District entered into a Separation Agreement, and Furst resigned in December 2015.
Id.
              In January 2016, Furst amended his complaint in the whistleblower
action, alleging his resignation was not voluntary and constituted a retaliatory
constructive discharge by the District. Ex. D at 2, R.R. at 40a. In March 2018, the
trial court issued an opinion and order in the whistleblower action. R.R. at 37a-58a.
While the trial court found Furst established that his 2015 resignation was the result

PSEA/NEA., 140 A.3d 726, 728 n.6 (Pa. Cmwlth. 2016). In Loudermill, the United States Supreme
Court explained the due process required prior to termination:

       The essential requirements of due process . . . are notice and an opportunity to
       respond. The opportunity to present reasons, either in person or in writing, why
       proposed action should not be taken is a fundamental due process requirement. The
       tenured public employee is entitled to oral or written notice of the charges against
       him, an explanation of the employer’s evidence, and an opportunity to present his
       side of the story. To require more than this prior to termination would intrude to
       an unwarranted extent on the government’s interest in quickly removing an
       unsatisfactory employee.

Loudermill, 470 U.S. at 546 (citations omitted); see also Metz v. Bethlehem Area Sch. Dist., 177
A.3d 384, 388 (Pa. Cmwlth. 2018) (quoting Loudermill).

                                                3
of constructive discharge, it also found Furst had failed to establish a causal nexus
between his resignation and his alleged whistleblower activities. See Compl., Ex.
C, Tr. Ct. Order 3/2/18, R.R. at 37a. Accordingly, the trial court entered judgment
in favor of the District in the whistleblower action. Id. On appeal, this Court
affirmed the trial court’s decision. Furst v. Easton Area Sch. Dist. (Pa. Cmwlth.,
No. 702 C.D. 2018, filed July 9, 2019), 2019 WL 2932308 (unreported), appeal
denied (Pa., No. 450 MAL 2019, filed Dec. 17, 2019), 2019 WL 6872991
(unreported).
             In August 2018, while his appeal of the whistleblower action was still
pending in this Court, Furst filed the instant mandamus action in the trial court. R.R.
at 1a-9a. Furst contended the trial court’s March 2018 decision in the whistleblower
action conclusively established both his constructive discharge and a denial of his
due process rights. See Compl. ¶¶ 15-17, R.R. at 5a-6a. Accordingly, he asserted
he was entitled to immediate reinstatement with back pay and benefits. Compl. ¶ 26
& Wherefore Clause.
             In response, the District filed preliminary objections. R.R. at 60a-69a.
By order dated December 28, 2018, the trial court sustained the preliminary
objections and dismissed the complaint. Tr. Ct. Order 12/28/18, R.R. at 257a. The
trial court declined to adhere to the purported findings in the whistleblower action
concerning constructive discharge and denial of due process. Tr. Ct. Op. at 5-6, R.R.
at 262a-63a. Further, the trial court found mandamus would not lie because alternate
remedies were available. See Tr. Ct. Op. at 6-8, R.R. at 262a-64a. The trial court
concluded Furst could not establish a clear right to relief, because he failed to pursue
his administrative remedies. See id. This appeal by Furst followed.




                                           4
             On appeal, Furst asserts two main arguments, both of which are based
on his contention that the trial court in the mandamus action was bound by findings
in the earlier whistleblower action. First, he argues the trial court should have
overruled the District’s preliminary objections because the judge in the
whistleblower action had already determined Furst was constructively discharged.
Furst’s Brief at 4. Second, he contends the trial court in the mandamus action erred
in finding alternate remedies were available to Furst, because the judge in the
whistleblower action had already determined Furst had been denied due process and
was precluded from pursuing those remedies. Id.
             In reviewing a trial court’s decision dismissing a mandamus complaint
on preliminary objections, this Court’s review is limited to determining whether the
trial court committed an error of law or an abuse of discretion. Dotterer v. Sch. Dist.
of Allentown, 92 A.3d 875, 880 (Pa. Cmwlth. 2014). “When considering preliminary
objections, we must consider as true all well-pled material facts set forth in the
complaint and all reasonable inferences that may be drawn from those facts.” Id.
However, we need not accept legal conclusions. Id. “Preliminary objections should
be sustained only in cases where it is clear and free from doubt that the facts pled
are legally insufficient to establish a right to relief.” Id. As such review raises a
question of law, our scope of review is plenary. Id.
             “Mandamus is an extraordinary writ which will only issue to compel
performance of a ministerial act or mandatory duty where there exists a clear legal
right in the plaintiff, a corresponding duty in the defendant, and want of any other
adequate and appropriate remedy.” Dotterer, 92 A.3d at 880 (internal quotation
marks omitted). “If any one of the foregoing elements is absent, mandamus does
not lie.” Id. at 881.


                                          5
               Here, Furst pled that the District constructively discharged him and
that, as a professional employee, the District was required to comply with tenure and
due process requirements relating to his involuntary termination. See Compl. ¶¶ 10
& 18-20. Assuming those facts to be true, as we must on preliminary objections,
Furst had available to him administrative remedies under the Public School Code of
1949 (School Code).3 See Sections 1127 to 1131 of the School Code, 24 P.S. §§ 11–
1127 – 11–1131.
               The case of Black v. Board of Directors of West Chester Area School
District, 510 A.2d 912 (Pa. Cmwlth. 1986), is analogous. Similar to the present
controversy, that case involved a mandamus action in a court of common pleas by a
professional school employee seeking reinstatement and back pay. Id. at 914. The
professional school employee claimed he was denied due process because he was
denied a hearing following a challenged demotion. Id. Ultimately, the court of
common pleas sustained a preliminary objection for lack of jurisdiction for failure
to exhaust remedies under the School Code. Id. On appeal, this Court affirmed on
the basis that the remedy for the school board’s refusal of the professional
employee’s hearing request was an appeal to the Secretary. Id. at 915. Further, the
professional employee’s remedy for the underlying claim of wrongful demotion was
also an appeal to the Secretary, which he failed to timely pursue. Id. Accordingly,
this Court affirmed the dismissal of the common pleas court action, leaving the
allegedly void demotion in place. Id. at 915-16 (alleged invalidity of demotion does
not render School Code provision requiring appeal to Secretary inapplicable).
               Accepting, as pled, that Furst was constructively discharged and was
deprived of due process, the proper remedy is to appeal to the Secretary, who can


      3
          Act of March 10, 1949. P.L. 30, as amended, 24 P.S. §§ 1–101–27–2702.
                                              6
order reinstatement with back pay. See Black. Similarly, this Court has previously
noted that a person who resigns involuntarily under a constructive discharge
situation has available School Code remedies. Dotterer, 92 A.3d at 883 (citing
Arnold v. Pittsburgh Bd. of Pub. Educ., 415 A.2d 985 (Pa. Cmwlth. 1980), and
Migliore v. Sch. Dist. of Phila. (Pa. Cmwlth., No. 1663 C.D. 2012, filed June 18,
2013)); see 24 P.S. § 11-1131 (stating where professional employee considers
himself aggrieved by action of board of directors, he may appeal to the Secretary).
“[O]ur Supreme Court has ruled that the exclusivity of the procedural remedies
provided by Sections 1127 to 1131 of the School Code, 24 P.S. §§ 11–1127–11–
1131, precludes abandonment of statutory procedures in favor of an action in the
court of common pleas.” Dotterer, 92 A.3d at 882. Thus, “mandamus cannot lie
where a professional employee fails to pursue the statutory remedy provided by the
School Code.” Id. at 881.
              Accordingly, we affirm the trial court’s decision sustaining the
District’s preliminary objections and dismissing the complaint on the basis of the
existence of an adequate administrative remedy under the School Code.4



                                           __________________________________
                                           CHRISTINE FIZZANO CANNON, Judge




       4
         Because of our disposition, we need not reach Furst’s remaining argument regarding the
effect of the trial court judge’s determination in the whistleblower action that Furst was
constructively discharged.
                                              7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen T. Furst,                     :
                    Appellant         :
                                      :
            v.                        :
                                      :
Easton Area School District and       :   No. 54 C.D. 2019
Easton Area Board of Education        :



                                  ORDER

            AND NOW, this 30th day of January, 2020, the order of the Court of
Common Pleas of Northampton County, dated December 28, 2018, is AFFIRMED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen T. Furst,                       :
                    Appellant           :
                                        :
      v.                                : No. 54 C.D. 2019
                                        : ARGUED: December 10, 2019
Easton Area School District and         :
Easton Area Board of Education          :

BEFORE:      HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE CEISLER                                           FILED: January 30, 2020

      I concur fully in the majority’s analysis and conclusion. I write separately
because I believe this Court should also affirm the trial court’s dismissal of Stephen
T. Furst’s (Furst’s) mandamus action against the Easton Area School District and
the Easton Area Board of Education (jointly, District) on additional, alternate
grounds.
      Furst bases his arguments on his contention that the Northampton County
Court of Common Pleas (trial court) in the mandamus action was bound by findings
in the earlier whistleblower action. He argues the judge in the whistleblower action
validly determined that (1) he had been constructively discharged, and (2) he had
been precluded from pursuing alternate, administrative remedies. Both arguments
are incorrect as a matter of law.
                                Constructive Discharge
      The trial court in this mandamus action declined to be bound by the finding
of constructive discharge in the whistleblower action. Although the judge in the
whistleblower action stated there was sufficient evidence to support a finding of
constructive discharge, the ultimate conclusion in that action was that Furst did not
establish a causal connection between his resignation and his earlier complaint
concerning a colleague. Thus, the trial court in the mandamus action determined the
constructive discharge analysis in the whistleblower action did not control the
outcome of the mandamus action.1 Br. for Appellant, Appendix A at 6.
       For mandamus relief, “[t]he petitioner’s right to performance of a mandatory
duty must be well-defined, clear, and specific; where any doubt exists, mandamus
will not lie.” Kegerise v. Delgrande, 183 A.3d 997, 1004 (Pa. 2018) (citing
Equitable Gas Co. v. City of Pittsburgh, 488 A.2d 270 (Pa. 1985)). Here, the parties
point to different portions of the judge’s analysis in the whistleblower action that
support their respective positions. Taken as a whole, the judge’s opinion in the
whistleblower action is inconsistent, and therefore unclear.
       Furst points to the judge’s statements in the whistleblower action that the
evidence was “insufficient to find that Furst and his counsel had the opportunity to
negotiate terms that were unfair to the District or [terms] that he would not otherwise
have received had he resigned under alternative circumstances.”                         Reproduced

       1
          To the extent Furst contends the trial court’s decision in the whistleblower action
collaterally estopped the Easton Area School District and the Easton Area Board of Education
from disputing his alleged constructive discharge in the mandamus action, he is incorrect.
Collateral estoppel precludes relitigation of an issue in a subsequent suit where a prior suit involved
the same issue and the same parties (or parties in privity with them), the court’s ruling on that issue
in the prior action was necessary to the judgment, and the party to be estopped had a full and fair
opportunity to litigate the issue in the prior action. Robinson v. Fye, 192 A.3d 1225 (Pa. Cmwlth.
2018).
        Here, at least one element of collateral estoppel is missing. The trial court in the
whistleblower action held Furst failed to establish a causal nexus between his whistleblower
activity and his resignation. Whether that resignation constituted a constructive discharge was not
necessary to the trial court’s judgment in the whistleblower action. Therefore, collateral estoppel
does not apply.


                                                EC-2
Record (R.R.) at 56a. Further, the judge determined “it is abundantly clear Furst had
no ability to negotiate” and “had no other option but [to] accept the terms of the
[Separation Agreement] and resign from employment with the District.” Id.
       However, the judge also acknowledged that Furst was represented by legal
counsel in negotiating with the District, and “the Separation Agreement contains
certain provisions that are favorable to Furst and that certain Board members found
displeasing.” Id. The inconsistent elements of the judge’s analysis concerning this
issue in the whistleblower action supported the trial court’s refusal to be bound by
that opinion in the mandamus action. The inconsistencies prevented the findings in
the whistleblower action from conveying to Furst a right that was clear and well-
defined, as required to support mandamus relief under Kegerise.
       Moreover, Furst’s assertion of constructive discharge is precluded as a matter
of law.2 Furst bases his argument on his contention that he signed the Separation
Agreement involuntarily in order to avoid termination and harm to his reputation.
Thus, Furst’s argument amounts to a claim of duress.
       Duress is “‘that degree of restraint or danger, either actually inflicted or
threatened and impending, which is sufficient in severity or apprehension to
overcome the mind of a person of ordinary firmness . . . .’” Sofronski v. Civil Serv.
Comm’n, 695 A.2d 921, 925-26 (Pa. Cmwlth. 1997) (quoting Carrier v. William
Penn Broad. Co., 233 A.2d 519, 521 (Pa. 1967)) (additional citation omitted). The
law presumes that the person alleging duress possesses ordinary firmness. Id.




       2
         Although this issue was not raised by the parties or the trial court, this Court may affirm
on different grounds from those relied on by the trial court, where grounds for affirmance exist.
City of Pittsburgh v. Logan, 780 A.2d 870 (Pa. 2001) (citing Belitskus v. Hamlin Twp., 764 A.2d
669 (Pa. Cmwlth. 2000)).


                                              EC-3
Accordingly, “‘in the absence of threats of actual bodily harm, there can be no duress
where the contracting party is free to consult with counsel.’” Id.
      Further, settlement agreements are favored in the law. Therefore, they will be
upheld in the absence of fraud or mistake. “‘Otherwise any settlement agreement
will serve no useful purpose.’” Id. at 926 (quoting Greentree Cinemas, Inc. v.
Hakim, 432 A.2d 1039, 1041 (Pa. Super. 1981)).
      In Sofronski, the plaintiff resigned pursuant to a settlement agreement and
then brought a civil action alleging he did so involuntarily. This Court explained
that “[s]ince [the plaintiff] consulted his attorney, weighed his options and decided
to enter into the settlement agreement, his claim that his resignation pursuant to the
agreement was involuntary is without merit.” Id. (citing Hamilton v. Hamilton, 591
A.2d 720 (Pa. Super. 1991) (unemployed, pregnant 18-year-old woman could not
claim duress in the execution of a prenuptial agreement, where she had the ability to
consult with legal counsel concerning the agreement)).
      This Court’s reasoning in Sofronski is applicable here. It is undisputed that
Furst was represented by legal counsel in deciding to enter into the Separation
Agreement. He has not alleged fraud, mistake, or a threat of actual bodily harm.
Therefore, he is precluded from asserting a claim of duress. Inasmuch as his
assertion of duress is the sole basis for his constructive discharge claim, that claim
fails as a matter of law. Accordingly, the trial court in this action properly declined
to be bound by any suggestion of constructive discharge made by the judge in the
whistleblower action.
                                Alternate Remedies
      Like his constructive discharge argument, Furst’s argument that he lacked
remedies other than mandamus depends on his assertion that the trial court judge’s



                                        EC-4
opinion in the whistleblower action concerning lack of due process was binding on
the trial court in the mandamus action. There is no merit in that assertion.
      Furst points out that the judge in the whistleblower action stated “the evidence
supports a finding that during the course of his separation from the District, Furst
was not offered the opportunity to exercise his right to due process.” R.R. at 57a.
Observing that Furst received a Loudermill3 hearing, the judge in the whistleblower
action stated “there is no substantial reason for this [c]ourt to conclude that had Furst
not resigned he would have been granted an opportunity for a full hearing before the
Board.” R.R. at 55a. However, the judge went on to find “there is no reason to
conclude that Furst would not have been afforded the opportunity to take a de novo
appeal before the Secretary of Education.” Id. (emphasis added).
      These statements by the trial judge were inconsistent. Therefore, the trial
court in the mandamus action was not required to find absence of due process as a
matter of law; the analysis of the trial judge in the whistleblower action was not clear
and well-defined as required for a mandamus claim to lie.4 Kegerise.
      Further, like his constructive discharge claim, Furst’s due process argument
fails as a matter of law. Notably, Furst’s hearing rights were not waivable. Indeed,
Section 1121(c) of the Public School Code of 1949 (School Code),5 24 P.S. § 11-
1121(c), expressly requires every employment contract with a school district to
contain language recognizing that the School Code’s provisions cannot be waived,
either verbally or in writing. Section 1127 of the School Code, 24 P.S. § 11-1127,
provides hearing rights related to termination of an employee. Thus, Furst could

      3
          Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).

      4
          Collateral estoppel is also inapplicable, for the same reason discussed in note 1 above.

      5
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 – 27-2702.


                                               EC-5
have refused to execute the Separation Agreement, and if the District had then
moved forward with dismissal, Furst could have pursued his hearing rights under the
School Code before the District, the Secretary of Education, and then this Court if
necessary.
      Moreover, having received a Loudermill hearing, and having thereafter
resigned pursuant to the Separation Agreement, Furst was not entitled to any further
due process. In Kegerise, our Supreme Court found that the termination hearing
requirement of Section 1080 of the School Code, 24 P.S. § 10-1080, relating to
superintendents, was inapplicable where a superintendent alleging constructive
discharge had previously resigned pursuant to a negotiated severance provision in
her employment contract with the district. The Court found it would be “an exercise
in futility” and an “empty formality” to require compliance with statutory removal
requirements where the parties had agreed to severance procedures and the
superintendent had already resigned. Kegerise, 181 A.3d at 1006-07. The Court
further observed, “Section 1080 does not speak of ‘resignation,’ nor does it require
that the removal procedure apply to circumstances where a school board accepts a
superintendent’s resignation. We cannot impose a duty upon the Board to provide
notice and a hearing to a resigning superintendent absent any language in the statute
that directs us to do so.” Id. at 1005.
      Here, because Furst was not the District’s superintendent, the applicable
removal provision is Section 1127 of the School Code, 24 P.S. § 11-1127, not
Section 1080. However, like the plaintiff in Kegerise, Furst resigned pursuant to the
terms of a negotiated agreement. Section 1127 of the School Code, like Section
1080, does not mention resignation. By analogy to Kegerise, the School Code did
not require any hearing in connection with Furst’s resignation, even where he alleged



                                          EC-6
a constructive discharge. Therefore, his due process argument fails. Accordingly,
the trial court in this action properly declined to be bound by any suggestion of lack
of due process made by the judge in the whistleblower action.
                                    Conclusion
      For the foregoing reasons, I would affirm the trial court’s order on the above
additional, alternate grounds.




                                       __________________________________
                                       ELLEN CEISLER, Judge




                                        EC-7
