            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen T. Furst,                          :
                      Appellant            :
                                           :
      v.                                   : No. 702 C.D. 2018
                                           : ARGUED: June 3, 2019
Easton Area School District and            :
Easton Area Board of Education             :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                 FILED: July 9, 2019

      Stephen T. Furst (Furst) appeals from a judgment entered following a non-
jury trial in the Court of Common Pleas of Northampton County (trial court).1 Furst
alleges he was constructively discharged from his employment by the Easton Area
School District (District) in retaliation for reporting another employee’s wrongful
conduct, contrary to the safeguards of the Whistleblower Law.2 He asserts numerous
errors in the trial court’s findings of fact, legal analysis, and evidentiary rulings.
After thorough review, we affirm.




      1
          The Honorable Emil Giordano presided.

      2
          Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421-1428.
                                        I. Background
       Furst was employed by the District from January 1985 to December 2015. He
served first as a music teacher and orchestra director and later in a variety of
administrative positions.
       In October 2012, Furst learned Tom Drago (Drago), the District’s Director of
Information Technology, was accessing Furst’s work computer remotely.
Suspecting the access was unauthorized by the District, Furst reported it to the
District’s Superintendent. After an investigation, the District instituted termination
proceedings against Drago, who resigned prior to his termination hearing.
       In January 2013, Furst and several other District administrators reported
Drago’s conduct to local police, who conducted a criminal investigation. A grand
jury ultimately concluded Drago had abused his authority by surreptitiously
accessing computers of District administrators, had violated the District’s
Acceptable Use Policy (AUP) relating to computers by downloading and storing
nude photographs on his District computer, and had violated the Wiretapping and
Electronic Surveillance Control Act.3
       In 2013, the District hired a new Superintendent, John Reinhart (Reinhart).
Reinhart instituted a reorganization plan for the District’s administration. It involved
repositioning nine employees. As part of the plan, Furst’s position, then Director of
Teaching and Learning, was divided into separate positions for grades K-6 and 7-
12. Furst was not retained in either position, but instead was reassigned with the
title of 7/8 Building Principal.4


       3
           18 Pa. C.S. §§ 5701-5782.

       4
         The record does not explain the meaning of this title. We infer that it refers to a school
building for grades 7 and 8.


                                                2
       Furst complained to Reinhart, challenged his demotion before the District’s
Board of Education (Board), and appealed the Board’s decision to the Secretary of
Education (Secretary). In January 2016, the Secretary issued a decision concluding
that Furst’s demotion was lawful and not in retaliation for his report of Drago’s
conduct.
       Meanwhile, in July 2015, Furst was promoted to a newly created position,
Director of Assessment and Accountability. After Furst reported a concern that his
computer might not be properly transmitting his outgoing emails, the District’s
ensuing investigation revealed photographs stored in Furst’s work computer that
potentially violated the AUP. At an initial hearing attended by Furst, his attorney,
Reinhart, and the District’s solicitor, Furst stated the photographs were not his and
must have been placed in the computer by some other employee to whom the
computer was previously assigned. However, the computer’s hard drive contained
a photograph stored there after Furst took possession of the computer, and his iPhoto
library and Dropbox5 also contained photographs allegedly violative of the AUP.
       After the initial hearing, the District began the process of considering whether
to bring formal charges for termination against Furst. However, before presentment
of any charges, Furst executed a separation agreement with the District in December
2015 providing for his resignation and retirement. Had Furst not chosen to enter
into the separation agreement, and had the District ultimately decided to pursue
termination, Furst would have been entitled to a de novo hearing before the Board,
and if the outcome was unfavorable, another de novo hearing before the Department
of Education.


       5
          Dropbox is a personal online backup storage service which can be accessed remotely.
https://searchmobilecomputing.techtarget.com/definition/Dropbox (last visited July 8, 2019).


                                             3
       Following his agreed resignation and retirement, Furst filed a civil complaint
against the District and the Board. After several amendments, Furst’s third amended
complaint, filed solely against the District, alleged that the District constructively
discharged Furst and discriminated against him in retaliation for his reporting of
Drago’s misconduct, in violation of the Whistleblower Law.                        The trial court
conducted a non-jury trial that took place over several days. The parties then
submitted proposed findings and conclusions and supporting briefs. The trial court
determined that Furst was constructively discharged, but that he failed to produce
sufficient evidence of a causal connection between the discharge and his report of
Drago’s misconduct to support a finding of retaliation. The trial court therefore
denied relief. Furst filed a motion for post-trial relief, which the trial court denied.
This appeal followed.
                                             II. Issues
       On appeal,6 Furst presents six issues, which he frames as follows:

       A.      Whether the trial court erred in finding that [Furst] failed to
               present sufficient evidence to establish that his 2013 demotion
               and 2015 resignation were the result of retaliation in violation of
               the [Whistleblower Law] due to his reporting the wrongdoing of
               [Drago].
       B.      Whether the trial court erred in finding that [Furst] [was] unable
               to present evidence sufficient to establish a causal connection
               between his report and his demotion.

       6
          Our review on appeal following a non-jury trial is limited to determining whether,
considering the evidence in the light most favorable to the verdict winner, the trial court’s findings
are supported by competent evidence, or whether there was an error of law. James Corp. v. N.
Allegheny Sch. Dist., 938 A.2d 474 (Pa. Cmwlth. 2007) (citing Nevyas v. Morgan, 921 A.2d 8 (Pa.
Super. 2007)). The trial court’s findings of fact have the same weight and effect on appeal as a
jury verdict. Id. This Court will not disturb the trial court’s credibility determinations or reweigh
the evidence. Bd. of Supervisors v. Main Line Gardens, Inc., 184 A.3d 615 (Pa. Cmwlth.), appeal
denied, 196 A.3d 614 (Pa. 2018) (citing Swift v. Dep’t of Transp., 937 A.2d 1162 (Pa. Cmwlth.
2007)).

                                                  4
      C.      Whether the trial court erred in finding that [Furst] failed to
              establish the requisite causal connection between his reporting of
              Drago and his 2015 resignation in light of its finding that Furst
              had presented sufficient evidence to establish that his 2015
              resignation was the result of constructive discharge.
      D.      Whether the trial court erred in denying [Furst’s] claim for relief
              as no new evidence was presented after the [trial] court found
              that the District was liable for its retaliatory actions to Furst in its
              decision denying the District’s motion for a nonsuit.
      E.      Whether the trial court erred in admitting into evidence and
              basing its opinion upon the order and opinion of the Secretary of
              Education when it had previously ruled the same inadmissible.
      F.      Whether the trial court erred in permitting John Freund, Esquire,
              trial counsel for the [District] to testify contrary to Rule 3.7 of
              the Pennsylvania Rules of Professional Conduct [Pa. R.P.C. 3.7]
              and over the objection of [Furst].

We address each issue in turn.
                                     III. Discussion
                    A. Sufficiency of the Evidence of Retaliation
      The Whistleblower Law proscribes discriminatory or retaliatory conduct
against an employee for reporting wrongdoing by a public body. Section 3 of the
Whistleblower Law, 43 P.S. § 1423(a). Here, the trial court determined Furst was
an “employee,” Drago was deemed a “public body,” and Drago’s conduct
constituted “wrongdoing” as those terms are defined in the Whistleblower Law.
Section 2 of the Whistleblower Law, 43 P.S. § 1422. Thus, Furst asserted, and the
trial court agreed, that the Whistleblower Law applied to Furst’s report of Drago’s
misconduct.
      Nonetheless, the trial court concluded Furst had failed to sustain his burden
of proving the District retaliated against him based on his report concerning Drago.




                                             5
Furst argues the trial court committed reversible error in both its factual findings and
its legal analysis. We disagree.
                           1. Trial Court’s Findings of Fact
       Furst contends the trial court committed errors of fact that made its analysis
of the Whistleblower Law “confusing and contradictory.” Br. for Appellant at 23.
This assertion by Furst lacks merit.
       Furst suggests the trial court erred in stating that Dr. Susan McGinley (Dr.
McGinley), the District’s former superintendent, did not testify. Furst infers that as
a result, the trial court failed to consider Dr. McGinley’s testimony. However, the
trial court was correct. Dr. McGinley did not testify at the trial in this case due to ill
health. Instead, the trial court allowed into evidence a transcript of her prior
testimony in the proceeding before the Department of Education.
       Moreover, the relevant fact for which Furst relied on Dr. McGinley’s prior
testimony was that she did not authorize Drago to access computers assigned to
District administrators.     The trial court ultimately concluded Drago’s conduct
constituted wrongdoing under the Whistleblower Law, so the trial court evidently
determined Drago’s access of the administrators’ computers was unauthorized.
Even assuming the trial court erred in stating Dr. McGinley never testified, or that it
failed to consider her testimony, any such error was harmless.
       Furst’s other assertions of inconsistencies in the trial court’s factual findings
are similarly without merit. Assuming there was any ambivalence in the trial court’s
analysis concerning wrongdoing by Drago7 as Furst contends, the trial court
ultimately concluded there was wrongdoing, thus bringing Furst’s reporting within

       7
       No wrongdoing by the District in 2012 is at issue. The trial court found there was no
wrongdoing by the District in conducting its investigation and action to terminate Drago’s
employment following Furst’s report.


                                             6
the protection of the Whistleblower Law. Accordingly, the trial court’s error in this
regard, if any, was harmless.
                           2. Applicable Burdens of Proof
      Citing Golaschevsky v. Department of Environmental Protection, 720 A.2d
757 (Pa. 1998), the trial court observed that Furst was required to demonstrate
retaliatory conduct on the part of the District, by concrete facts or surrounding
circumstances establishing that his report concerning Drago led to his demotion and
subsequent resignation. The trial court concluded Furst failed to sustain this burden
because he was unable to demonstrate the requisite causal connection between
Furst’s report and his subsequent demotion and resignation.
      Furst argues that Golaschevsky imposes a framework of shifting burdens. The
employee must initially produce evidence of a causal connection between his report
of wrongdoing and the employer’s alleged retaliatory acts. The burden then shifts
to the employer to establish a legitimate reason for the adverse action. Finally, the
employee must prove the employer’s proffered reason was a pretext for retaliation.
      Furst contends the trial court failed to apply the correct legal analysis on this
issue. We discern no merit in this contention.8 The trial court applied the correct
burden of proof. The ultimate burden was Furst’s, and the trial court was within its
discretion in finding he failed to sustain that burden.
      The trial court concluded Furst failed to demonstrate that the District acted in
retaliation for his report concerning Drago. Although several Board members were
upset by the 2012 report and resulting police investigation, and one or more
expressed personal opinions that Furst and other administrators should be fired, the
Board never took any action in that regard. The trial court credited evidence that

      8
         We note with disapproval Furst’s reliance on a concurring opinion in Golaschevsky,
without identifying it as such.


                                            7
Furst’s 2013 demotion was part of a District-wide administrative reorganization plan
created by Reinhart, who was not employed by the District at the time of the Drago
report. The trial court further cited the Secretary’s adjudication and conclusion that
Furst’s demotion was lawful and not retaliatory.9
       Moreover, by the time the District investigated and considered terminating
Furst in 2015, only three of the members from the 2012 Board remained, which the
trial court found was not a sufficient number to take adverse action against Furst
based on his 2012 report. Further, Furst received a promotion in July 2015.
Although he argued this was merely part of a scheme to force him out, the trial court
evidently did not credit that assertion. The trial court also observed that the three-
year time lag between Furst’s report of Drago and the District’s investigation of
Furst supported the District’s position that the 2015 investigation and hearing were
unrelated to the 2012 report.
       Although Furst insists the trial court ignored contrary evidence, the record
reveals ample support for the trial court’s factual findings. The trial court did not
abuse its discretion in concluding Furst failed to sustain his burden of demonstrating
that the District demoted, then investigated and considered terminating him, in
retaliation for his 2012 report concerning Drago.
                                 B. Weight of the Evidence
       In a related argument, Furst strenuously asserts that the trial court’s findings
of fact were against the weight of the evidence. This argument is likewise without
merit. The trial court in a non-jury trial functions as the trier of fact, and as noted
above, its findings are entitled to the same effect as a jury verdict. See James Corp.


       9
        Furst’s argument that the trial court improperly admitted the Secretary’s adjudication into
evidence is addressed in Section E below.


                                                8
v. N. Allegheny Sch. Dist., 938 A.2d 474 (Pa. Cmwlth. 2007). Viewing the evidence
in the light most favorable to the District as the verdict winner, as we must, id., we
find the trial court’s decision was supported by competent evidence. This Court will
not reweigh the evidence.
                                   C. Causal Connection
       In his next argument, Furst insists the trial court, having found he was
constructively discharged10 in 2015, reasoned inconsistently by failing to find a
causal connection between that discharge and his 2012 report concerning Drago. We
disagree. Contrary to Furst’s suggestion, there is nothing inherently inconsistent in
the trial court’s conclusion that Furst’s constructive discharge in 2015 was
unconnected to his 2012 report. 11 As discussed above, the trial court pointed out
that three years elapsed between those events, during which most of the Board
members changed and Furst received a promotion. Like Furst’s prior arguments,
this is mainly a challenge to the factual evidence, which we decline to reweigh.




       10
          We note that Furst later filed a separate mandamus action against the District and the
Board, seeking reinstatement of his employment based on the trial court’s earlier finding of
constructive discharge in this action. The trial court dismissed that action upon the District’s
preliminary objections. Furst’s appeal of that dismissal is presently pending before this Court at
Docket No. 54 C.D. 2019.

       11
           The trial court’s reasoning concerning constructive discharge may be flawed, in that its
determination was based on a finding that the District failed to offer Furst sufficient due process
and that he had no ability to refuse the separation agreement. Furst was represented by counsel,
and the trial court found he had ample time to consider the separation agreement. Moreover, the
trial court specifically acknowledged that Furst could have availed himself of de novo hearings
both before the Board and before the Department of Education, had he chosen to resist termination.
Finally, the record does not indicate whether the District ever actually made a formal decision to
pursue termination.
        However, in light of our disposition of this appeal, any potential error in this regard is
harmless.


                                                9
                     D. Trial Court’s Denial of Nonsuit at Trial
      Furst next contends the trial court was inconsistent in entering a verdict in
favor of the District after denying the District’s motion for nonsuit at the conclusion
of Furst’s case-in-chief. Furst reasons that because the District presented little new
evidence in its own case, the trial court improperly reversed its previous position.
Furst cites no supporting authority for the proposition that denying a nonsuit is
tantamount to a verdict for the plaintiff. Indeed, this argument has no basis in law.
      In denying the motion for nonsuit, the trial court correctly observed that it was
required to consider only Furst’s evidence and any evidence from the District that
was favorable to Furst, and to consider that evidence in the light most favorable to
Furst. See Pa. R.C.P. No. 230.1(a)(2). The trial court correctly stated that it could
not grant a nonsuit unless the evidence and any reasonable inferences from it,
considered in the light most favorable to Furst, compelled the conclusion that the
District was not liable to Furst. See Barnes v. Alcoa, 145 A.3d 730 (Pa. Super. 2016).
Denial of the nonsuit was merely an acknowledgment that a verdict for Furst would
not be impossible.
      In short, the trial court was not weighing the evidence as the finder of fact
when it ruled on the motion for nonsuit. There was nothing inconsistent in the
court’s subsequent verdict in favor of the District. Carrying Furst’s argument to its
logical conclusion, a jury could never render a verdict for a defendant in a case where
the trial court denied a nonsuit motion at the end of the plaintiff’s case. That is
simply not the law.
          E. Evidence of Hearing before the Department of Education
      Next, Furst points out that the trial court issued a pretrial ruling excluding all
evidence concerning the hearing before the Department of Education and the



                                          10
Secretary’s subsequent determination concerning Furst’s demotion. Furst claims to
have relied on the pretrial ruling in preparing for the trial in this case. Thus, Furst
asserts the trial court erred in admitting and relying on that evidence at trial. This
argument is meritless. Furst consented on the record to the admission of that
evidence.
      The record reveals that after the conclusion of the live testimony at trial, the
trial court had a discussion with counsel concerning Dr. McGinley’s inability to
appear at trial and the possible admission of her testimony before the Department of
Education in lieu of live testimony. The following colloquy occurred:

             THE COURT: . . . So do you object to her testimony coming in?
            [District Counsel]: Your Honor, what we previously offered
      was, if that testimony was coming in, the full record would come in.
      What they are talking about is the testimony from the demotion hearing.
             * * *
            [Furst Counsel]: Your Honor, if by full record, they mean the
      testimony of all witnesses, we don’t have an objection to that.
             THE COURT: Fine. It is in.
             * * *
           [District Counsel]: Your Honor, with regard to the testimony of
      Dr. McGinley, it is our position that if her testimony comes in, we
      would want the rebuttal testimony of Mr. Simonetta.
            THE COURT: Did he testify at the demotion? Yes, everything
      from that demotion hearing is in. Everything. I will review it all.

Reproduced Record (R.R.) at 1438a-40a (emphasis added). Although Furst may
have preferred to limit admission of the demotion hearing record to the testimony of
the witnesses, the trial court plainly stated it would consider “everything” from the
demotion hearing, and Furst raised no objection. He chose to let in the full record


                                          11
from that hearing in order to submit the testimony of Dr. McGinley. Furst must
abide by that choice.
                         F. Testimony of District Counsel
      At trial, the District called John Freund, Esquire (Freund), the District’s
solicitor, to provide fact testimony. The trial court had denied a pretrial motion to
preclude that testimony. The testimony was admitted at trial over Furst’s renewed
objection. In his final argument, Furst contends the trial court erred by allowing
Freund to testify at trial. Furst suggests that because Freund was the District’s
lawyer, his testimony as a witness violated the Pennsylvania Rules of Professional
Conduct. We disagree.
      Rule 3.7(a) of the Pennsylvania Rules of Professional Conduct provides, in
pertinent part: “A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness unless: . . . disqualification of the lawyer would work
substantial hardship on the client.” Pa. R.P.C. 3.7(a)(3). Citing the Explanatory
Comment to Rule 3.7 and Commonwealth v. Gibson, 670 A.2d 680 (Pa. Super.
1996), Furst argues that allowing an advocate to testify at trial may blur the line
between testimony and advocacy, creating confusion as to whether the testimony
“should be taken as proof or as an analysis of the proof.” Br. for Appellant at 60-
61.
      As the District’s trial counsel aptly pointed out to the trial court, the risk of
such confusion is absent in a bench trial: “[I]n a bench trial, you don’t have that
same risk of confusion because a jurist is more than adept at discerning . . . when a
witness is being an advocate or a witness.” R.R. at 1300a.
      Indeed, Gibson expressly supports that principle. In Gibson, the trial court in
a bench trial refused to allow the defendant’s attorney to provide fact testimony



                                          12
concerning his conversation with a co-defendant.           The Superior Court found
precluding that testimony was reversible error. In so holding, the court observed
that a trial attorney is competent to testify on his client’s behalf. Id. (citing Com. v.
Willis, 552 A.2d 682 (Pa. Super. 1988), superseded in part by statute on other
grounds, 42 Pa. C.S. § 5985.1, as recognized in Com. v. Bond, 190 A.3d 664 (Pa.
Super. 2018)). The court also concluded that any possibility of undue weight given
to counsel’s testimony was minimized in a bench trial. Id.
       Here, as in Gibson, Rule 3.7 did not preclude the trial court’s admission of
testimony by counsel for a party in a non-jury trial.
       Moreover, the only supposed prejudice to which Furst points as arising from
Freund’s testimony is that the trial court denied a nonsuit before Freund testified,
then entered a verdict in the District’s favor after Freund’s testimony. As discussed
in Section D above, denial of a nonsuit is no indication that the final verdict will
favor the plaintiff.
       Furst does not point to anything in Freund’s testimony that would have been
dispositive of the case. Indeed, in asserting that denial of the nonsuit entitled him to
a favorable verdict, Furst specifically suggested the District presented nothing
further of any moment during its defense after denial of the nonsuit.
       We find the trial court did not err in admitting Freund’s testimony.
                                   IV. Conclusion
       Based on the foregoing discussion, we affirm the decision of the trial court.



                                         __________________________________
                                         ELLEN CEISLER, Judge




                                           13
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen T. Furst,                  :
                    Appellant      :
                                   :
      v.                           : No. 702 C.D. 2018
                                   :
Easton Area School District and    :
Easton Area Board of Education     :


                                  ORDER


      AND NOW, this 9th day of July, 2019, the order of the Court of Common
Pleas of Northampton County is AFFIRMED.




                                   __________________________________
                                   ELLEN CEISLER, Judge
