                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Serge Vladimirsky,                              :
                              Petitioner        :
                                                :
                      v.                        :
                                                :
The School District                             :
of Philadelphia,                                :    No. 2288 C.D. 2014
                              Respondent        :

The School District                             :
of Philadelphia,                                :
                              Petitioner        :
                                                :
                      v.                        :
                                                :
Serge Vladimirsky,                              :    No. 2294 C.D. 2014
                              Respondent        :    Submitted: June 3, 20161


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY
JUDGE COVEY                                          FILED: August 3, 2016

               The School District of Philadelphia (District) and Serge Vladimirsky
(Vladimirsky) petition this Court for review of Acting Secretary of Education
Carolyn C. Dumaresq’s (Acting Secretary) November 19, 2014 order reinstating
Vladimirsky to his position as a professional employee from July 20, 2011 to March
15, 2012, and sustaining Vladimirsky’s March 15, 2012 employment termination.
               Vladimirsky presents six issues for this Court’s review: (1) whether the
District and the School Reform Commission (SRC)2 failed to comply with the

       1
         This case was held in abeyance pending the outcome of other similar cases before our
Court. Thereafter, a new submission date of June 3, 2016 was issued.
       2
         “Section 696(a) of the [School Code, 24 P.S. § 6-696,] states that the School Reform
Commission is an ‘instrumentality’ of the school district with authority to exercise the powers of the
mandatory employment termination procedures set forth in the Public School Code of
1949 (School Code);3 (2) whether the District and the SRC’s failure to comply with
the School Code violated Vladimirsky’s due process rights; (3) whether the Acting
Secretary erred in sustaining Vladimirsky’s March 15, 2012 discharge; (4) whether
the District was required to impose progressive discipline before terminating
Vladimirsky’s employment; (5) whether a two-year delay in the issuance of the
Acting Secretary’s order created the appearance of impropriety; and (6) whether the
SRC’s hearing examiner’s status as a long-time District employee violated
Vladimirsky’s due process right to an impartial and unbiased tribunal.
              The District presents five additional issues: (1) whether the School Code
required the SRC to resolve that evidence existed and, if true, justified employment
termination, before issuing charges; (2) whether the District was required to prove
that the SRC read or knew about the charges or the employment termination hearing
transcript before resolving to discharge him; (3) whether the District’s July 20, 2011
letter suspended Vladimirsky without pay; (4) whether an SRC pre-charge
determination would have violated Vladimirsky’s due process rights; and (5) if the
Court rules that there were procedural defects, whether remand is the proper remedy.



                                      Background

              The District hired Vladimirsky as a professional employee on September
1, 1997 and he was employed as a tenured professional until his employment was
terminated.   Vladimirsky worked as a social studies teacher at Overbrook High
School (Overbrook). On February 17, 2011, because Overbrook’s then-principal


local school board.” Comm. to Keep Our Pub. Schs. Pub. v. Schweiker, 803 A.2d 869, 874 (Pa.
Cmwlth. 2002) (footnote omitted), aff’d, 838 A.2d 565 (Pa. 2003).
        3
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 – 27-2702.
                                            2
Payne Young (Young) observed Vladimirsky’s students disengaged from classroom
activities, she knocked on the door and asked Vladimirsky about the class.
Vladimirsky became angry and yelled at Young. Young walked away to attend a
meeting and Vladimirsky followed her, speaking in a raised voice. Vladimirsky
continued his aggressive behavior in front of Young’s meeting participants. That
day, Young issued an incident report concerning Vladimirsky’s behavior.
            On March 9, 2011, Overbrook academic leader Catherine Smith (Smith)
notified Vladimirsky that several books had been thrown out of his classroom
window, and she assisted Vladimirsky in identifying the responsible students. One of
Vladimirsky’s students made a video documenting Vladimirsky’s extremely agitated
behavior at the time. In the video, Vladimirsky shouted about the books being
thrown out of the window and yelled obscenities at the students.             He then
aggressively approached a student holding a cellphone and grabbed the student’s arm
in an attempt to take the phone. When the student resisted, Vladimirsky lost his
balance and fell on the student. The school police officer was called. Written
incident statements by students, Smith and Vladimirsky corroborated the incident and
Vladimirsky’s reaction.
            On March 11, 2011, Assistant Superintendent Linda Cliatt-Wayman
instructed Vladimirsky to report to work at the High School Academic Division on
March 14, 2011 pending an investigation. On March 23, 2011, Young conducted an
investigatory conference attended by Vladimirsky, Young, Philadelphia Federation of
Teachers (PFT) staff Jackie Dubin (Dubin) and the District’s labor relations assistant
Carole Porter (Porter). At the conference, Vladimirsky admitted to the February 17,
2011 verbal exchange and that his temper caused him problems. Vladimirsky and
Dubin also reviewed the March 9, 2011 witness statements and video. Thereafter,
Young prepared an unsatisfactory incident report (SEH-204) referencing both the
February 17 and March 9, 2011 incidents, and recommending Vladimirsky’s
                                          3
discharge. Young also recommended placement of the SEH-204 in Vladimirsky’s
personnel file, and giving him an unsatisfactory rating for the September 2010 to June
30, 2011 period. Following an April 28, 2011 conference attended by Vladimirsky,
Dubin, Porter and Young pertaining to the March 9, 2011 incident, Young issued a
May 2, 2011 conference summary, wherein, she upheld the SEH-204 because
Vladimirsky’s March 9, 2011 response was excessive and unprofessional.
              On June 8, 2011, the District’s Talent Acquisition Office’s Deputy Chief
Lissa S. Johnson (Johnson)4 held a second-level conference with Vladimirsky, Dubin
and Porter regarding the February 17 and March 9, 2011 incidents. Johnson offered
Vladimirsky an opportunity to provide additional information or comments.
Vladimirsky apologized for the February 17, 2011 incident. With respect to the
March 9, 2011 incident, Dubin, on Vladimirsky’s behalf, stated that Vladimirsky felt
that the students had betrayed his trust, and that he had acted emotionally.
Vladimirsky acknowledged that he acted inappropriately when he physically
confronted the student, and he did not deny using obscenities. Following the June 8,
2011 conference, Johnson issued a conference summary recommending that
Vladimirsky’s employment be terminated and that incident documentation be placed
in his personnel file.
              By a July 20, 2011 letter signed by SRC Chairman Robert L. Archie, Jr.,
Esquire and Deputy Superintendent Leroy D. Nunery (Nunery),5 Vladimirsky was

       4
           Lissa S. Johnson is also identified in Vladimirsky’s brief as a District labor relations
officer. See Vladimirsky’s Br. at 7.
        5
          In its brief, the District asserts:

              The Superintendent of the [District] was also the Secretary of the
              SRC, and the [SRC’s Secretary’s] signature . . . was required to
              appear on the statement of charges. [Nunery] was duly appointed as
              Deputy Superintendent of Schools for the [District] and he signed the
              statement of charges against Vladimirsky. As Deputy Superintendent,
              he had the legal authority to sign, in the absence of the
                                                4
notified that the charges against him constituted “a willful violation of or failure to
comply with the School Laws of this Commonwealth, and other improper conduct
such as to constitute cause pursuant to . . . Section [1122] of the [School Code, 24
P.S. § 11-1122].”          Reproduced Record (R.R.) at 162a.                   The letter informed
Vladimirsky that they would recommend to the SRC that his employment with the
District be terminated effective immediately, and that he had a right to request an
SRC hearing. In the same letter, Vladimirsky was told that the District’s payroll
department would be advised to make the necessary salary adjustments.
               By October 3, 2011 letter, Vladimirsky requested a hearing.                            On
November 28, 2011, a hearing was held before Jeffrey White (Hearing Officer
White), the SRC’s hearing officer for all District dismissal, demotion or suspension
cases.     At the hearing, the District contended that it would demonstrate that
Vladimirsky had willfully violated or failed to comply with Section 1122 of the
School Code in that he had “administered corporal punishment to the student.” R.R.
at 17a.6



               Superintendent, the detailed written charges in support of the
               proposed dismissal.
District’s Br. at 13 n.3 (citations omitted). In support of its statement, the District cites to the SRC’s
findings of fact and conclusions of law.
        6
          Citing to the hearing transcript, the Acting Secretary inaccurately stated:

               District Counsel stated that the dismissal of . . . Vladimirsky was
               based on the willful violation of or failure to comply with the School
               Laws of this Commonwealth, and other improper conduct such as to
               constitute cause pursuant to 24 P.S. [§] 11-1122 of the [School Code].
               Specifically, the District stated that by his intemperate actions, . . .
               Vladimirsky violated [District] Policy against the use of corporal
               punishment.
R.R. at 101a (emphasis added). In fact, the July 20, 2011 letter did not state that Vladimirsky was
being charged with intemperance, and the District did not assert at the November 28, 2011 hearing
that Vladimirsky had been so charged.
                                                    5
              By April 5, 2012 letter, Hearing Officer White notified Vladimirsky that
the SRC had recommended that Vladimirsky’s employment be terminated for
intemperance and willful violation of “the School Laws.” R.R. at 101a. The letter
also advised Vladimirsky that after full consideration of the charges, testimony,
evidence and arguments, on March 15, 2012, the SRC resolved to adopt Hearing
Officer White’s findings of fact and conclusions of law enclosed therein, and that
Vladimirsky’s employment was terminated effective July 20, 2011.
              Vladimirsky timely appealed from the SRC’s decision to the Acting
Secretary. On June 4, 2012, argument was held before Hearing Examiner Karen S.
Feuchtenberger.       On November 19, 2014, the Acting Secretary ordered that
Vladimirsky be reinstated to his position as a professional employee as of July 20,
2011, but sustained his March 15, 2012 discharge and ordered that he receive the
compensation lost between July 20, 2011 and March 15, 2012. The District and
Vladimirsky appealed to this Court.7


                                 Vladimirsky’s Arguments
              Vladimirsky first contends that the Acting Secretary erred in sustaining
the March 15, 2012 dismissal because the District did not comply with the School
Code’s mandatory discharge procedures when the District terminated his
employment as a professional employee on July 20, 2011 without a hearing, and
then, belatedly held a hearing more than four months later on November 28, 2011
which also did not comply with the School Code, and finally resolved to ratify
Vladimirsky’s illegal employment termination four months later on March 15,


       7
         “This Court’s standard of review of a decision of the Secretary of Education is limited to
[the] determination of whether substantial evidence supports necessary factual findings, and
whether an error of law or constitutional violation was committed.” Curl v. Solanco Sch. Dist., 936
A.2d 183, 185 n.1 (Pa. Cmwlth. 2007).
                                                6
2012. As a result, Vladimirsky asserts that his employment termination is void ab
initio. The District argues that it complied with Section 1127 of the School Code.8
               The District sent Vladimirsky a letter dated July 20, 2011 which stated,
in relevant part:

               This is to advise you that we shall recommend to the
               [SRC] that your employment with [the District] be
               terminated effective immediately. The [] District’s
               Payroll Department shall be advised to make the
               necessary salary adjustments. The charges against you
               constitute just cause pursuant to the collective bargaining
               agreement and, in addition, constitute a willful violation of
               or failure to comply with the School Laws of this
               Commonwealth, and other improper conduct such as to
               constitute cause pursuant to . . . Section []1122 of the
               [School Code, 24 P.S. § 11-1122].

R.R. at 162a (emphasis added). After summarizing the February 17 and March 9,
2011 incidents and the subsequent investigations and conferences, the letter
concluded:

               The Deputy Chief is recommending that the following
               consequences be applied:
                That you will be immediately terminated from
                 employment with [the District.]
                All documentation will be forwarded to your official
                 personnel file.
               You are entitled to request a hearing before the [SRC]. If it
               is your intention to appeal this recommendation, you must
               contact Michael A. Davis, General Counsel . . . in writing,
               within five (5) days of receipt of this letter. . . . Your
               hearing, if you request one, will be on July 28 at 11:30
               a[.]m[.] . . . .
               Failure to request a hearing in writing within the time stated
               will be deemed a waiver of any and all rights you may have
               to an appeal.

      8
          24 P.S. § 11-1127.
                                             7
             In the alternative, you may utilize the grievance procedure
             by requesting your union to follow the collective bargaining
             agreement grievance procedure applicable to you.
             You may elect one or the other of these two appeal
             procedures, but not both.

R.R. at 165a. Thereafter, Vladimirsky requested an SRC hearing which occurred on
November 28, 2011. Vladimirsky’s subsequent discharge did not occur until the
SRC’s March 15, 2012 resolution. Although the resolution stated that Vladimirsky’s
employment termination was effective July 20, 2011, the Acting Secretary’s
November 19, 2014 order reinstated Vladimirsky to his position as a professional
employee from July 20, 2011 to March 15, 2012.
             Section 1127 of the School Code states:

             Before any professional employe[e] 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[e] with a detailed 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[e] setting forth the time and place
             when and where such professional employe[e] 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[e] 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.




                                           8
              Our Supreme Court has held:
              The termination of the contract of a tenured professional
              school employee is controlled by the [School] Code. . . .
              The language of [S]ection 1122 [of the School Code] makes
              clear that a tenured professional employee may be
              dismissed only for the reasons set forth in that section.[9]
              In addition to the statutory limitation of the grounds for
              dismissal, the [School] Code accords the tenured
              professional       employee        explicit       procedural
                          [FN]10
              safeguards.        24 P.S. §§ 11-1126 -- 11-1131. A valid
              dismissal of a tenured professional employee can be
              effected only if the school district acts in full compliance
              with these legislatively[-]prescribed procedures.
                   [FN]10. Section 1127 [of the School Code] requires
                   the school board to serve the professional
                   employee with a detailed written statement of
                   charges and written notice to appear at a board
                   hearing.    The employee is to be given the
                   opportunity to be heard in person or by counsel, and
                   testimony is to be transcribed by an impartial
                   stenographer at school district expense. . . . After
                   ‘full, impartial and unbiased consideration’ of the
                   charges, the Board is to vote by roll-call, a vote of
                   two-thirds of its members being required to effect a
                   dismissal. 24 P.S. § 11-1129.


       9
         Section 1122(a) of the School Code provides that a professional employee’s contract may
only be terminated for:

              immorality; incompetency; unsatisfactory teaching performance . . . ;
              intemperance; cruelty; persistent negligence in the performance of
              duties; wilful neglect of duties; physical or mental disability as
              documented by competent medical evidence, which . . . substantially
              interferes with the employe[e]’s ability to perform the essential
              functions of his employment; advocation of or participating in un-
              American or subversive doctrines; conviction of a felony or
              acceptance of a guilty plea or nolo contendere therefor; 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)[.]
24 P.S. § 11-1122(a).
                                                9
Neshaminy Fed’n of Teachers v. Neshaminy Sch. Dist., 462 A.2d 629, 636 (Pa. 1983)
(citations omitted; bold emphasis added). This Court also recognized that:

             [I]t is veritably a legal maxim in this Commonwealth that
             the provisions of the teacher’s tenure, as found in the
             School Code requires strict compliance. See Swink’s Case,
             . . . 200 A. 200 ([Pa. Super.] 1938), wherein the court said:
                ‘Nevertheless, the procedure for the dismissal of a
                professional employee of a school district is
                established by statute. There may be no material
                deviation from these procedural requirements. . .
                . The burden [at the initial hearing] was on the
                board to show a proper dismissal of appellant; and
                she was entitled to the benefit of every right secured
                to her by the School Code. . . . Unless she was
                dismissed in the prescribed manner, having been
                accorded every right secured to her by statute, her
                dismissal was illegal.’ . . . [Id. at] 202[-]03.
                ‘Likewise, in dismissing a teacher, an observance of
                the procedure prescribed is mandatory.’ . . . [Id.] at
                204.
             See also Snyder v. Washington T[wp.] Sch[.] Dist[.], . . . 178
             A. 312 ([Pa. Super.] 1935). As we read the cases, where a
             school board undertakes to terminate a contract, dismiss or
             demote a professional employe[e], the procedure set forth
             in the School Code must be strictly followed, and failure
             on the part of the Board to comply therewith renders an
             attempted demotion abortive.

Abington Sch. Dist. v. Pittenger, 305 A.2d 382, 385-86 (Pa. Cmwlth. 1973) (emphasis
added); see also Sch. Dist. of Phila. v. Jones, __ A.3d __ (Pa. Cmwlth. No. 2150 C.D.
2013, filed June 2, 2016).
             As the above-quoted precedent makes clear, Vladimirsky could only be
dismissed from his employment for conduct that comes within Section 1122(a) of the
School Code. Further, before dismissing Vladimirsky, the SRC was obligated to
strictly comply with Section 1127 of the School Code “which require[d] the [SRC]


                                          10
to resolve to [dismiss] the employee and to furnish him with a written statement of
the charges prior to the hearing[,]” and to hold a hearing. Patchel v. Wilkinsburg Sch.
Dist., 400 A.2d 229, 232 (Pa. Cmwlth. 1979) (bolded emphasis added). Our Supreme
Court has held:

              The burden of complying with the statute rests with the
              school board; should they [sic] fail to conduct their [sic]
              business as required, the consequences ought to lie at their
              [sic] door, not at the door of their [sic] victims. They [sic]
              must not be permitted to advantage themselves [sic] of their
              [sic] own failures to the detriment of their [sic] employees.


Mullen v. DuBois Area Sch. Dist., 259 A.2d 877, 880-81 (Pa. 1969) (emphasis
added).
              In the instant case, there is no record evidence that the July 20, 2011
letter was the result of the board of school directors (in this case, the SRC)
“[r]esolv[ing] to [dismiss Vladimirsky] and to furnish him with a written statement of
the charges prior to the hearing.”10 Patchel, 400 A.2d at 232. In fact, the District
admits that the July 20, 2011 letter was not sent on the SRC’s behalf as required by
Section 1127 of the School Code but, as explicitly admitted in the District’s brief,
was “[t]he administration[’s] . . . recommend[ation for] termination[.]”11 District’s
Br. at 25 (emphasis added). Importantly, the July 20, 2011 letter also stated that the
recommended employment termination was to be effective immediately, and that the
payroll department would be so advised. Because Vladimirsky was paid for the

       10
           The Acting Secretary’s Opinion and Order states, “[t]here is no evidence in the record
that, prior to the hearing on November 28, 2011, the SRC had resolved to dismiss . . . Vladimirsky
and that it had directed the Chairman and Secretary of the SRC to advise . . . Vladimirsky of his
right to a hearing.” R.R. at 102a ¶ 33. Further, “[t]he only evidence of the SRC’s knowledge of the
charges against . . . Vladimirsky and of the hearing was when the SRC resolved on March 15, 2012,
to dismiss . . . Vladimirsky, effective July 20, 2011.” Id. ¶ 35.
        11
            The District also admits that in the July 20, 2011 letter, “[t]he administration was
recommending termination, and it recognized that the SRC (and not the administration) would
decide if termination [was] appropriate.” District’s Br. at 25 (emphasis added).
                                                11
2010-2011 school year, but not thereafter, it would appear that his employment was
terminated as of the date of the letter – July 20, 2011. The SRC resolution did not
occur until March 15, 2012, but retroactively set Vladimirsky’s dismissal date as July
20, 2011. Clearly, the November 28, 2011 SRC hearing and the March 15, 2012
resolution do not pre-date Vladimirsky’s discharge.            Accordingly, the Acting
Secretary concluded:

             The record evidences that . . . Vladimirsky was paid for his
             employment with the District through the 2010-2011 school
             year but was no longer employed by the District beyond
             that school year. Thus, . . . Vladimirsky was dismissed as
             of, at least, July 20, 2011, without any action by the SRC.
             The dismissal was a dismissal by administrative action, not
             by action of the SRC.
R.R. at 108a.

             This Court rejected a school district’s similar conduct in Pittenger.12
The Pittenger Court explained:

             In this case, the administrative staff of the school district
             had already accomplished the demotion before the Board
             had any notice or knowledge of same. To permit the Board
             to follow the procedure it utilized in this case, is to permit
             the Board to circumvent the very intent of the teacher tenure
             provisions of the School Code. It certainly could not be
             argued that the legislative intent permits the school
             district to demote teachers without Board action, so long
             as the teacher does not ask for a hearing. Quite to the
             contrary, the statute evidences a legislative intent for
             Board action, even where there is consent by the
             professional employe[e]. Further, if there is no consent,
             then perforce the Legislature has required Board action.
             We find no specific provision, or even implied provision,
             which would permit ratification by the Board of
             administrative staff[-]directed demotions.


      12
          Although Pittenger involved a demotion rather than an employment termination, this
Court’s reasoning is nevertheless applicable.
                                            12
Pittenger, 305 A.2d at 386 (emphasis added). Here, as the Acting Secretary found,
the District terminated Vladimirsky’s employment before the SRC had any
knowledge of the matter. Accordingly, we hold that the District failed to comply
with the School Code’s mandatory employment termination procedures.13


                                          Due Process
              Vladimirsky next argues that when the District terminated his
employment by the July 20, 2011 letter, its failure to comply with the School Code’s
procedural safeguards denied him due process.                      The District rejoins that
Vladimirsky’s employment was not terminated until after an SRC hearing “and a


       13
          Further, the record evidence does not demonstrate that the District complied with Section
1129 of the School Code, which states:

              After fully hearing the charges or complaints and hearing all
              witnesses produced by the board 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 two-
              thirds 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[e]. If less than two-thirds of all of the
              members of the board vote in favor of discharge, the professional
              employe[e] shall be retained and the complaint shall be dismissed.
24 P.S. § 11-1129 (bold and italic emphasis added). There is no record evidence that the March 15,
2012 vote was recorded by roll call or that any members of the SRC read the hearing transcript prior
to the SRC resolution. Instead, the SRC’s resolution is a list of numerous employee appointments
and employment terminations, and with respect to Vladimirsky, merely states:

              RESOLVED, That . . . Vladimirsky be dismissed from the position of
              Teacher with the [District] effective July 20, 2011, and be it

              FURTHER RESOLVED, That the Findings of Fact and Conclusions
              of Law on file with the minutes of the [SRC] be adopted.
R.R. at 3a. Based upon this record, it appears the District may have violated Section 1129 of the
School Code.
                                                13
public vote to terminate on March 15, 2012” and, thus, the July 20, 2011 letter merely
suspended Vladimirsky without pay pending a hearing and/or discharge. District’s
Br. at 14; see also District’s Br. at 23-24.
              As a tenured professional employee, Vladimirsky has a property
interest in continued employment. Andresky v. W. Allegheny Sch. Dist., 437 A.2d
1075 (Pa. Cmwlth. 1981). The United States (U.S.) Supreme Court has explained:

              Property interests, of course, are not created by the [U.S.]
              Constitution. Rather they are created and their dimensions
              are defined by existing rules or understandings that stem
              from an independent source such as state law—rules or
              understandings that secure certain benefits and that support
              claims of entitlement to those benefits.

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). The U.S. Supreme
Court expounded in Cleveland Board of Education v. Loudermill, 470 U.S.
532 (1985):

            If a clearer holding is needed, we provide it today. The
            point is straightforward: the Due Process Clause [of the
            U.S. Constitution] provides that certain substantive rights—
            life, liberty, and property—cannot be deprived except
            pursuant to constitutionally[-]adequate procedures. The
            categories of substance and procedure are distinct. Were
            the rule otherwise, the Clause would be reduced to a mere
            tautology. ‘Property’ cannot be defined by the procedures
            provided for its deprivation any more than can life or
            liberty. The right to due process ‘is conferred, not by
            legislative grace, but by constitutional guarantee. While the
            legislature may elect not to confer a property interest in
            [public] employment, it may not constitutionally
            authorize the deprivation of such an interest, once
            conferred, without appropriate procedural safeguards.’
            Arnett v. Kennedy, . . . 416 U.S. [134,] 167 . . . [(1974)]
            (POWELL, J., concurring in part and concurring in result in
            part); see id., at 185 . . . (WHITE, J., concurring in part and
            dissenting in part).
Loudermill, 470 U.S. at 541 (emphasis added).


                                               14
            Vladimirsky has a legitimate claim to continued employment secured by
state statute. Specifically, Section 1122 of the School Code provides that the contract
of a professional employee may only be terminated for immorality, incompetency,
unsatisfactory teaching performance, intemperance, cruelty, persistent negligence,
wilful neglect of duties, physical or mental disability which substantially interferes
with an employee’s ability to perform essential job functions, advocation of un-
American activities, conviction of a felony or acceptance of a guilty plea, or
persistent and wilful violation of or failure to comply with school laws. See 24 P.S. §
11-1122.

            Pennsylvania courts have construed Section 1127 [of the
            School Code] to mean that a tenured teacher can only be
            dismissed by a school district’s board, not its
            administrative staff. In no case can the effective date of
            the dismissal be earlier than the date of the school
            board’s resolution. Further, the statutory procedures for
            dismissal must be strictly followed and . . . no material
            deviation therefrom is permissible. A deviation from these
            procedures constitutes a denial of due process.

Neshaminy Sch. Dist. v. Neshaminy Fed’n of Teachers, 84 A.3d 391, 397 (Pa.
Cmwlth. 2014) (citations and quotation marks omitted; emphasis added).
            In this case, the District’s position that the July 20, 2011 letter was
merely a suspension without pay pending hearing and/or discharge is perplexing.
The District admits in its brief that “[u]nder Pennsylvania law, school administrators
do not have authority to terminate tenured professional employees[’ employment]. In
the [District], only the SRC has that authority. Just as plainly, school administration
may suspend a tenured professional employee without pay pending discharge.”
District’s Br. at 23. However, the District’s position contradicts its earlier argument
that the July 20, 2011 letter was the result of SRC action, rather than administrative
District action.     These irreconcilable positions demonstrate the District’s


                                          15
disingenuous attempt to justify its School Code violation. The July 20, 2011 letter
does not lend itself to informing Vladimirsky that his employment with the District
has been suspended. If that is what the District intended then it could have so
communicated. Rather, the unambiguous words reveal finality and the District’s
intent to immediately discharge Vladimirsky.              Moreover, the District’s actions
immediately after issuance of the letter in stopping Vladimirsky’s pay with no
statement beyond the words that the District recommends his immediate discharge
further evidences a termination, not a suspension. “[A]ssuming arguendo that there
was ambiguity, doubtful language is construed most strongly against the drafter
thereof.” Rusiski v. Pribonic, 515 A.2d 507, 510 (Pa. 1986). Thus, the letter cannot
be construed as suspending Vladimirsky’s employment.
              Vladimirsky was dismissed as of July 20, 2011, the date his pay was
officially stopped.     Further, on March 15, 2012, the SRC made Vladimirsky’s
dismissal effective July 20, 2011. The Acting Secretary subsequently revised the
termination date to March 15, 2012, the date of the SRC resolution, and ordered back
pay for the time in between. However, this Court has explained that “[i]n no case can
the effective date of the dismissal be earlier than the date of the school board’s
resolution.” Neshaminy Sch. Dist., 84 A.3d at 397. Moreover, a retroactive order
does not cure the defect.14 See Pittenger, 305 A.2d at 386 (“We find no specific
provision, or even implied provision, which would permit ratification by the Board of
administrative staff[-]directed [employment action].”).           As explained above, the
District did not comply with the School Code. Because “[a] deviation from these
procedures constitutes a denial of due process[,]” we hold that the District violated
Vladimirsky’s due process rights and, therefore, the Acting Secretary erred in

       14
          Our conclusion that the retroactive order changing the date of Vladimirsky’s employment
termination to the date of the SRC resolution cannot cure the District’s failure to adhere to the
mandatory statutory provisions is discussed more fully below.


                                               16
upholding Vladimirsky’s dismissal effective March 15, 2012. Neshaminy Sch. Dist.,
84 A.3d at 397.



   Appearance of Impropriety; Prosecutorial and Adjudicative Commingling

             Finally, Vladimirsky argues that the two-year delay in the Acting
Secretary’s issuance of the decision raises an appearance of impropriety.
Vladimirsky also contends that because Hearing Officer White was a long-time
District employee, his hearing officer role commingled prosecutorial and adjudicatory
functions and denied Vladimirsky due process.
             In Kinniry v. Abington School District, 673 A.2d 429 (Pa. Cmwlth.
1996), this Court stated:

             We have previously held that a petitioner seeking to
             establish that his or her due process rights have been
             violated bears the burden of proving that some harm or
             prejudice to his or her interests was caused by the delay.
             Here, [the petitioner] alleges only that the passage of time
             between hearing and final adjudication was too long; he has
             not alleged that he was harmed or prejudiced in any way as
             a result of the delay. Although we do not condone
             unnecessary delay in adjudicating the fate of a person’s
             livelihood, without evidence that [the petitioner] suffered
             any prejudice or harm as a result of the delay, we cannot
             conclude that [the petitioner’s] due process rights were
             violated.

Id. at 433 (citation omitted; emphasis added). Because Vladimirsky has not offered
any evidence of prejudice or harm to his interests from the Acting Secretary’s delay,
we cannot conclude that his due process rights were violated on that basis.
             Vladimirsky contends, based on Lyness v. State Board of Medicine, 605
A.2d 1204 (Pa. 1992), that Hearing Officer White’s involvement violated his due
process rights. We recognize that, in Lyness, our Pennsylvania Supreme Court held:


                                          17
“[W]here the very entity or individuals involved in the decision to prosecute are
significantly involved in the adjudicatory phase of the proceedings, a violation of due
process occurs.” Id. at 1210 (quotation marks omitted). The Lyness Court further
stated: “Whether or not any actual bias existed as a result of the [b]oard acting as
both prosecutor and judge is inconsequential; the potential for bias and the
appearance of non-objectivity is sufficient to create a fatal defect under the
Pennsylvania Constitution.” Id. (emphasis added).
            Here, Hearing Officer White admitted at the hearing that he is “a hearing
officer for the [District] both as a grievance hearing officer and as a hearing officer
for the [SRC], which [he] ha[s] also been doing for seven years.” R.R. at 9a.
However, there is simply no evidence, nor has Vladimirsky cited to any, that Hearing
Officer White engaged in any prosecutorial functions pertaining to Vladimirsky’s
case.
            Further, in Harmon v. Mifflin County School District, 651 A.2d 681 (Pa.
Cmwlth. 1994), rev’d on other grounds, 713 A.2d 620 (Pa. 1998), this Court
expressly held that “[e]ven though [the School Code] requires a school board to
terminate an employee and hear the challenge to that termination, Lyness simply
doesn’t apply because the ‘interests’ involved in the employment relationships are
totally different than an independent agency[‘s] actions regulating individuals.”
Harmon, 651 A.2d at 686.
            Finally, even if we found that Hearing Officer White had commingled
prosecutorial and adjudicative functions, that commingling would not necessarily
result in a due process violation. Our Supreme Court has recognized that:

            [T]he Secretary of Education’s de novo review of the
            decision of a school board ensures that the requirements of
            due process are satisfied. The determination to be reviewed
            on appeal to the Commonwealth Court is that of the


                                          18
              impartial factfinder, the Secretary of Education, rather than
              that of the school board.

Katruska v. Bethlehem Ctr. Sch. Dist., 767 A.2d 1051, 1056 (Pa. 2001) (italics
added). Thus, Vladimirsky’s delay and commingling arguments are meritless.15


                                The District’s Arguments
              After addressing Vladimirsky’s arguments, three of the District’s issues
remain which are summarized as follows: (1) whether the Acting Secretary
misinterpreted Patchel and Pittenger when she determined that a pre-charge
resolution in favor of dismissal was required prior to holding Vladimirsky’s hearing;
(2) whether the SRC would have violated Vladimirsky’s due process rights if it made
a pre-charge determination; and (3) if the Court finds that there were procedural
defects, whether the proper remedy is remand.


                                   Patchel and Pittenger
              The District argues that the Acting Secretary misinterpreted Patchel and
Pittenger when she determined that a pre-charge resolution in favor of dismissal was
required prior to Vladimirsky’s November 28, 2011 hearing.
              The Patchel Court explained that in Pittenger, the Court

              held that in the case of a professional employee who had
              been demoted without a hearing, the later decision of the
              [school b]oard to ratify the improper administrative action
              was void.       The facts here, however, are easily
       15
           Vladimirsky also asserts that although the Acting Secretary properly found that the
District failed to sustain the corporal punishment charge, the Acting Secretary erred when she
sustained Vladimirsky’s dismissal on intemperance grounds, since Vladimirsky had never been
advised that his dismissal was being based on those grounds. Vladimirsky also contends that he
was never afforded progressive discipline in violation of his contract. However, because we have
concluded that the District failed to comply with the School Code and violated Vladimirsky’s due
process rights, we need not address these issues.


                                              19
            distinguishable.    In [Pittenger], the hearing was not
            scheduled by the [school b]oard until months after the
            employee’s demand for it, and the [school b]oard never saw
            the charges until the hearing began. There was a clear
            violation of Section 1127 of the School Code, 24 P.S. §
            11-1127, which requires the [school b]oard to resolve to
            demote the employee and to furnish him with a written
            statement of the charges prior to the hearing. More
            importantly, in [Pittenger] we explicitly stated the manner
            in which the school board could have cured the defects in
            its procedure:
                The [school b]oard only needed to have passed a
                resolution that it had sufficient evidence to support
                its belief, to demote . . . [the professional employee]
                by some given date, and therein direct the Secretary
                and President of the [school b]oard to serve notice
                upon [the professional employee] of this fact and to
                advise him of his right to a hearing.

Patchel, 400 A.2d at 231-32 (bold emphasis added) (quoting Pittenger, 305 A.2d at
387). The District asserts that “[t]hose cases do not require the SRC or any other
school board in the first instance to resolve, before the issuance of charges, that
evidence exists that supports charges that, if true, would support dismissal.”
District’s Br. at 19. Rather, the District maintains that “the Court simply explained
how a school board might remedy a procedurally[-]defective demotion, which occurs
when the administration of a school district - as opposed to the school board - ‘had
already accomplished the demotion’ before the board had any notice or knowledge.”
Id.
            The District cites Clark v. Colonial School District, 387 A.2d 1027 (Pa.
Cmwlth. 1978), to support its position. The Clark Court held that “[t]he School Code
clearly does not require formal school board action authorizing the initiation of
charges and the sending of notice of hearing.” Id. at 1029. Notwithstanding, after
Clark, this Court expressly interpreted otherwise in Patchel. The Patchel Court
opined that it: “was [] clear . . . Section 1127 of the School Code . . . requires the

                                          20
[school b]oard to resolve to demote the employee and to furnish him with a written
statement of the charges prior to the hearing.” Patchel, 400 A.2d at 232; see also
Jones.
            Moreover, Section 1127 of the School Code specifically requires that

            [b]efore any professional employe[e] 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[e] with a detailed 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[e] setting forth the time and place when and where
            such employe[e] 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.

24 P.S. § 11-1127 (emphasis added). Here, the District has admitted that the July 20,
2011 letter, signed by the Deputy Superintendent and the SRC Chairman, was not
furnished on the SRC’s behalf, but was “[t]he administration[’s] . . .
recommend[ation for] termination[.]” District’s Br. at 25. Thus, even if we were to
ignore this Court’s clear mandate in Patchel, and more recently in Jones, and
conclude that a resolution was not expressly required under Section 1127 of the
School Code, that section still explicitly requires that the board of school directors
issue a statement of charges. The July 20, 2011 letter does not demonstrate that the
charges were brought on the SRC’s behalf. Rather, the letter and the District’s
admission reflect just the opposite. In fact, as the Acting Secretary stated: “The only
evidence in the record of the SRC’s knowledge concerning . . . Vladimirsky’s
dismissal is the March 15, 2012 resolution dismissing him from employment with the




                                          21
District, effective July 20, 2011.” R.R. at 107a. Accordingly, we discern no error in
the Acting Secretary’s interpretation of Patchel and Pittenger.16


                                Pre-Charge Determination
              The District maintains that it would have violated Vladimirsky’s due
process rights if it in fact had made a pre-charge determination. Specifically, the
District cites Lyness to support its contention that if the SRC had resolved to dismiss
Vladimirsky prior to Vladimirsky’s notice of charges it would have been mixing
prosecutorial and adjudicatory functions, thus, at least by the appearance of
impropriety, violating Vladimirsky’s due process rights.
              As this Court discussed in Jones, the Harmon Court expressly rejected
Lyness’ applicability to School Code employment actions “because the ‘interests’
involved in the employment relationships are totally different than an independent
agency[‘s] actions regulating individuals.”17 Harmon, 651 A.2d at 686. The Jones
Court quoted Harmon, stating:

                     We have recognized this distinction and
                     determined that the same type of due process
                     requirements do not apply to school boards as
                     they do to other independent administrative
                     agencies. In Covert v. Bensalem Township
                     School District, . . . 522 A.2d 129 ([Pa.
                     Cmwlth.] 1987), this [C]ourt held that the
                     inherent potential for bias on the part of school
                     boards has long been recognized.              We
                     continued:


       16
          Even if the Deputy Superintendent had the SRC Secretary’s authority, as discussed above,
the District still did not fully comply with the requirements of Section 1127 of the School Code
because the notice and the hearing were required before Vladimirsky’s dismissal and here,
Vladimirsky’s employment termination was effective the date of the purported notice.
       17
          Lyness involved the State Board of Medicine.


                                               22
                       The making of the charges presupposes
                       that the members of the board had
                       some knowledge of the facts upon
                       which the charges were based. Unless
                       they had an opinion that the charges, if
                       sustained, would warrant dismissal,
                       they should never have been made . . . .
                       We do not think that anything more
                       was required of the members of the
                       board than that they could hear and
                       determine the charges against appellant
                       on the evidence given before them,
                       uninfluenced by other previous
                       impressions.
                   [Covert], 522 A.2d at 131 (quoting Lomas v.
                   [Bd.] of [Sch.] Dir[s.] of [Nw.] Lehigh [Sch.]
                   [Dist.], . . . 444 A.2d 1319, 1325 ([Pa.
                   Cmwlth.] 1982)).

             Harmon, 651 A.2d at 686-87.
Jones, ___ A.3d at ___, slip op. at 23. Accordingly, this argument is without support.



                                       Remand

             Finally, the District argues that if this Court finds that there is a
procedural defect, the proper remedy is remand not reinstatement and compensation.
Specifically, the District contends that: “Here, and only here, is where [Pittenger] is
relevant, because the Court stated in that case that a school board might remedy a
procedural defect by resolving that evidence existed as of a certain date that justified
termination.” District’s Br. at 32-33. In Jones, this Court rejected this argument,
opining:

             The District misconstrues the holding in Pittenger. The
             Pittenger Court held:


                                          23
                   It would have been a simple matter for the
                   [school b]oard to have cured the defects at
                   the outset. The [school b]oard only needed to
                   have passed a resolution that it had sufficient
                   evidence to support its belief, to demote [the
                   petitioner] by some given date, and therein
                   direct the Secretary and President of the
                   [school b]oard to serve notice upon [the
                   petitioner] of this fact and to advise him of his
                   right to a hearing.        At this point, [the
                   petitioner] would have had a decision to make:
                   whether to request the hearing or consent to the
                   demotion. The [school b]oard did not follow
                   this procedure. Instead, it permitted its
                   administrative staff to demote [the
                   petitioner] without [school b]oard action,
                   and only after [the petitioner’s] demand for a
                   hearing, set the wheels in motion for a hearing
                   several months later.           As alluded to
                   hereinbefore, the [school b]oard did not know
                   the contents of the charges which had been
                   promulgated by the Principal until the first day
                   of hearing. This was improper.
            Id. at 387 (emphasis added). Clearly, the Court is referring
            to what could have been done prior to the hearing, not
            after the fact as the District purports.

Jones, __ A.3d at ___, slip op. at 24. The Jones Court quoted from this Court’s
decision in Neshaminy, further explaining:

                   [T]he statutory procedures for dismissal ‘must
                   be strictly followed and . . . no material
                   deviation therefrom is permissible.’ [Dep’t] of
                   [Educ.] v. Oxford Area [Sch.] [Dist.], . . . 356
                   A.2d 857, 860 (Pa. Cmwlth. 1976).              A
                   deviation from these procedures constitutes a
                   denial of due process. Id. at 860-61.
                   In Oxford, the district superintendent
                   recommended that a teacher who had been
                   arrested for shoplifting be dismissed for
                   immorality. The superintendent testified as a

                                          24
                   witness at the school board hearing and
                   participated in the school board’s post-hearing
                   deliberations. The school board voted to
                   dismiss the teacher. This Court held that the
                   School Code’s requirement of ‘impartial and
                   unbiased’ consideration had been violated,
                   although inadvertently, and remanded to the
                   school board for a new hearing. Id. at 861.
                   In In re Swink, . . . 200 A. 200 (Pa. Super.
                   1938), a school board voted to dismiss a
                   teacher for immorality. Thereafter, it sent her
                   a notice stating that she could attend a hearing
                   to convince the board of the reasons she should
                   be reinstated. The Superior Court held that
                   dismissing the teacher without a prior hearing
                   violated the statutory procedure in effect at that
                   time. These deviations from the statutory
                   procedures constituted ‘fatal defects,’ making
                   the school board’s dismissal an ‘illegal’ act.
                   Id. at 203. Accordingly, the Superior Court
                   reversed the school board’s decision.
             Neshaminy [], 84 A.3d at 397-98 (footnote omitted;
             emphasis added). This distinction between the violations in
             Oxford and Swink demonstrates the proper manner of
             disposition in such circumstances. In Oxford, the due
             process violation occurred when the board failed to provide
             an impartial and unbiased hearing and thus, the violation
             could be cured with a remand for a new hearing. In
             contrast, the Superior Court in Swink found that the school
             board’s action in employer dismissing a tenured teacher
             without following the statutory procedure for employment
             termination constituted a fatal defect.

Jones, __ A.3d at ___, slip op. at 24-25.
             The facts in the instant matter are similar to those of Swink. Notably, the
Swink Court stated:

             Our appellate courts have frequently held that a valid and
             enforceable contract between a teacher and a school district
             could be created only by compliance with the strict
             requirements of the statute. Likewise, in dismissing a
             teacher, an observance of the procedure prescribed is
                                            25
            mandatory. The board of school directors cannot be
            relieved of the consequences of its failure to observe the
            essential statutory requirements in dismissing a teacher any
            more than a teacher can be relieved from showing the vital
            and essential elements required to make a valid and
            enforceable contract between the teacher and the school
            district when such teacher seeks to enforce such contractual
            obligation. The procedure which the board adopted was
            irregular and fatally defective. There was no required
            statement of charges before dismissal, no proper notice
            of hearing before dismissal, and no recording on the
            minutes how each member voted after such hearing. The
            action of the board, and the affirmance of such action by
            the court below, must be reversed for want of compliance
            with the provisions . . . .

Id. at 204 (citations omitted; emphasis added).     Failure to follow the statutory
mandatory termination procedures requires reversal of the District’s action as
opposed to remanding (as in Oxford which involved the denial of an impartial and
unbiased hearing).
            Here, the specific procedural defects are as follows. Pursuant to well-
established case law, the District was required to pass a resolution that it had
sufficient evidence to support Vladimirsky’s employment termination before sending
him a notice of charges and intent to terminate his employment. No resolution was
passed, and no notice was sent before Vladimirsky’s employment termination.
Instead, the District sent Vladimirsky a termination letter. In addition, the date of
Vladimirsky’s notice of charges and hearing was actually the effective date of his
employment termination which is directly contrary to the School Code’s requirement
that a hearing pre-date the employment termination. Indeed, the required resolution
took place after the hearing. Further, the SRC did not record the vote “by roll call
[and] determine whether such charges or complaints have been sustained and whether
the evidence substantiates such charges and complaints[.]” 24 P.S. § 11-1129.



                                         26
             A remand cannot cure the egregious failure of the District to comply
with these procedural safeguards. As in Swink, we find the District’s failure to follow
Section 1127 of the School Code before terminating Vladimirsky’s employment a
fatal defect mandating reversal.

             When the District discharges a professional employee
             without full compliance with the School Code, ‘the
             employee is entitled to reinstatement.’ West Shore Sch.
             Dist. [v. Bowman], 409 A.2d [474,] 480 [(Pa. Cmwlth.
             1979)] (emphasis added). ‘We have repeatedly held that
             no dismissal of a tenured professional employee can be
             valid unless the dismissing school district acts in full
             compliance with the Code.’ Id. ‘The only conclusion we
             can reach on these facts is that [Vladimirsky’s] dismissal
             was a nullity and that []he must be treated as if h[is]
             employment [was] never terminated.’          Id.    Thus,
             [Vladimirsky] is entitled to be reinstated to his former
             position with back pay, minus his obligation to mitigate
             damages, until the District properly terminates his
             employment in conformity with the procedural due process
             requirements set forth in the School Code.

Jones, __ A.3d at __, slip op. at 27.

             Due to the District’s violation of Section 1127 of the School Code,
and its consequential denial of Vladimirsky’s due process rights, this Court is
duty-bound to reverse the Acting Secretary’s November 19, 2014 order
discharging Vladimirsky as of March 15, 2012.           Accordingly, Vladimirsky is
reinstated to his position as a professional employee until the District properly
terminates his employment in accordance with the School Code and shall be
entitled to the amount of compensation he is due as a result of his dismissal.




                                          27
                         Damages
With respect to Vladimirsky’s damages:

the law is well established that ‘[a] school teacher is not a
public officer, but is an employe[e] of the school district,
and the ordinary rules relating to damages for breach of
contract of employment apply.’ Coble v. Sch. Dist. of Metal
Twp., 116 A.2d 113, 115 (Pa. Super. 1955) (citation
omitted). ‘Where a teacher is wrongfully discharged, he is
to be compensated for loss of salary during such period, but
there is no requirement that the school district pay the
compensation provided in the contract regardless of set-off
or the amount of damages the employe[e] has suffered.’ Id.
      [W]e find no apparent reason why the ordinary
      rules relating to damages for breach of contract
      of employment should not be applied. As
      stated in 47 Am.Jur., Schools, § 145, p. 402: . .
      . [I]n an action for breach of contract by one
      employed as a teacher, the measure of damages
      is the wages which were to be paid, less any
      sum actually earned, or which might have been
      earned, by the plaintiff by the exercise of
      reasonable diligence in seeking other similar
      employment.

Id. at 116. More recently, this Court held in Merrell v.
Chartiers Valley School District, 51 A.3d 286 (Pa.
Cmwlth. 2012):

      A plaintiff has a duty to mitigate damages.
      Circle Bolt & Nut Co. v. Pa. Human Relations
      Comm’n, 954 A.2d 1265 (Pa. Cmwlth. 2008).
      The duty to mitigate damages, however, ‘is not
      onerous and does not require success.’ Id. at
      1270. All that is required to mitigate damages
      is to make ‘an honest, good-faith effort.’ Id. at
      1271. The employer has the burden of proving
      that substantially comparable work was
      available and that the plaintiff failed to
      exercise reasonable due diligence in seeking

                             28
                   alternative employment. The substantially
                   comparable or equivalent work refers to
                   employment which affords virtually identical
                   opportunities for a promotion, compensation
                   and responsibilities. Whether the plaintiff
                   properly mitigated damages is a factual
                   determination to be made by the fact-finder.
            Merrell, 51 A.3d at 298 (citations omitted).

Jones, ___ A.3d at ___, slip op. at 28-29. Accordingly, we remand this matter to the
Secretary to determine the amount of compensation due Vladimirsky.


                                     Conclusion
            This Court does not condone Vladimirsky’s conduct. However, “we
resist the urge to permit ‘bad facts [to] make bad law.’” Jones, __ A.3d at __, slip
op. at 29 (quoting Doggett v. United States, 505 U.S. 647, 659 (1992) (Thomas, J.,
dissenting) (emphasis added)); Berg v. Nationwide Mut. Ins. Co., 6 A.3d 1002, 1017
n.3 (Pa. 2010) (Baer, J., concurring and dissenting); see also Commonwealth v.
States, 938 A.2d 1016, 1028 (Pa. 2007) (Castille, J., dissenting).         Given our
conclusion that the District failed to adhere to the mandatory provisions of the School
Code when it terminated Vladimirsky’s employment, we are constrained to reverse
the Acting Secretary’s decision.
            The admonishments this Court gave the District in Jones are equally
applicable here and worthy of repeating:

            The Legislature enacted the School Code and provided
            ‘explicit procedural safeguards’ that it required school
            boards to use when terminating the employment of a
            tenured professional. Neshaminy Fed’n v. Neshaminy Sch.
            Dist., 462 A.2d 629, 636 (Pa. 1983). Our Supreme Court
            clearly and unambiguously stated that there must be full
            compliance with the provisions of the School Code in order
            to effectuate employment termination of a tenured

                                           29
             professional. Were we to affirm the Acting Secretary’s
             order, allowing her review to cure the District’s non-
             compliance with the School Code, we would eviscerate the
             very statutory protections that the Legislature afforded
             tenured professionals, thereby contravening legislative
             intent. In essence, we would be amending the statute. This
             we may not do. See Mohamed v. Dep’t of Transp.[,]
             Bureau of Motor Vehicles, 40 A.3d 1186 (Pa. 2012). We
             may not, and will not encourage school boards and other
             government entities whose decisions are subject to review
             to disregard their mandatory statutory duties based on the
             belief that their malfeasance will be cured.

Jones, __ A.3d at __, slip op. at 29-30.
             For all of the above reasons, the Acting Secretary’s Order is reversed,
and the matter is remanded to the Secretary with the direction to reinstate
Vladimirsky and to calculate the compensation which he is due taking into
consideration Vladimirsky’s obligations to mitigate his damages.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           30
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Serge Vladimirsky,                          :
                         Petitioner         :
                                            :
                   v.                       :
                                            :
The School District                         :
of Philadelphia,                            :   No. 2288 C.D. 2014
                         Respondent         :

The School District                         :
of Philadelphia,                            :
                         Petitioner         :
                                            :
                   v.                       :
                                            :
Serge Vladimirsky,                          :   No. 2294 C.D. 2014
                         Respondent         :


                                      ORDER

            AND NOW, this 3rd day of August, 2016, the Acting Secretary of
Education’s November 19, 2014 order is REVERSED. Serge Vladimirsky is hereby
reinstated to his position as a professional employee of the School District of
Philadelphia and the matter is REMANDED to the Secretary of Education for further
proceedings consistent with this Opinion.
            Jurisdiction is relinquished.


                                       ___________________________
                                       ANNE E. COVEY, Judge
