*1 930 Conference, 834 A.2d
caster Mennonite Dr. Susan KEGERISE 1185, (Pa.Super.2003) (“Expert n. 3 1189 testimony necessary establish medical v. actually- suffered the plaintiff that a DELGRANDE, Kathy F. Diet- L. John distress.”); v. emotional PG claimed Wecht Edwards, L. rich, D. Carol Clifton (Pa.Su- Co., A.2d 791 Pub. Rawls, Sr., Karl, Dr. Peter J. Jesse (“The Kazatsky] held per.1999) [in Court Sakol, Spence, Y. Helen D. and Mark not succeed absent plaintiffs that could Sussman, Capacity, In their Official they actually that medical confirmation Appellants distress.”); emotional the claimed suffered Moriarty, 706 A.2d v. No. 232 C.D. 2015 Shiner (“Expert testimo- (Pa.Super.1998) medical Pennsylvania. of Commonwealth Court a claim for ny required establish of infliction emotional dis- intentional 7, 2016 Argued March College, tress.”); v. Britt Chestnut Hill 13, 2016 September Decided (1993) Pa.Super. 632 A.2d 9, 2016 Reargument Denied November (“In requiring plaintiff addition that complained the conduct that establish Pennsylvania Su- outrageous,
was required plaintiff
preme Court has evidence to
present competent medical claim.”).
support the Gray have determined
Because we for IIED based recover
was entitled presented lack of evidence
on the medical trial, need the remain- we address claims. Appellants’
der of
Judgment reversed.
discharged
brought
question
of whether
emotional
an action
severe
humiliation,
IIED, claiming
jury
she suffered from
existed could be decided
distress
self-esteem, nightmares,
by expert testimony.
and insomnia.
loss
unaided
despite
appeal,
On allowance of
evi-
Following
jury verdict in
favor
physical impact by
the defendant
dence
granted
plaintiff, the
defendant’s
trial court
Court, citing
upon
plaintiff,
Supreme
our
ground
plaintiff
motion for JNOV on the
order,
per
Kazatsky in
curiam
reversed this
expert
had failed to introduce
medical testi-
reinstating
holding,
the trial
mony.
Court’s
thus
appeal
On
this Court held
"[w]e
Thus,
apparent
grant of
it is
expert testimony
court’s
JNOV.
conclude that
was not re-
that,
presence
physical
regardless of
quired
under the facts and circumstances
case,”
requires
present
grant
impact,
unequivocally
ex-
Kazatsky
and reversed
pert
testimony
precondition
Woodring,
medical
as a
Hackney
Pa.Super.
JNOV.
v.
(1993).
recovery
IIED.
Michael McAuliffe appellants. Muir, Wyomissing, ap- Andrew W. pellee.
BEFORE: HONORABLE PATRICIA McCullough, Judge, a. COVEY, Judge, ANNE E.
HONORABLE PELLEGRINI, HONORABLE DAN Judge Senior BY OPINION JUDGE 1 McCullough (the The of School Directors Board)2 Susquehanna Town- (District) ship appeal School District from 5, 2014 the November order the Court (trial Dauphin County of Common Pleas court), essentially granted Dr. which Susan (Dr. Kegerise) Kegerise’s Com- mandamus plaint and directed the superintendent her as reinstate District. History
Facts and Procedural 2010, January Dr. was hired superintendent of as the the District. In 2013, January the School Board voted to and, 2013, in April extend her contract majority of the School Board ratified contract, expire which was set to finalized on June 2017. 25, 2014,
On March Dr. ad- vised School Board cur- was rently per under medical care instruction, physician’s would be out through April work 2014.3(Reproduced 578a-79a.) (R.R.) Record at 16, 2014, April On in response to several Kegerise’s from Dr. letters counsel to the alleging District that she had been con- opinion reassigned 3.By April Keger- This was letter dated 1. : author Dr. April physician Kegerise , ise's advised that Dr. "is to be off of work until further notice due appellants 2. The are mem- named individual (R.R. 556a.) work related medical issues.” at bers of the School Board. structively discharged, the District’s coun- implicit ise that is responded stating sel with a letter that: the term discharge,[’] ‘constructive effec- (R.R. tive 2014.” at The Super- is and remains the passed votes, motion Susquehanna with five affirmative intendent Schools Township pursuant objections, District zero three abstentions. abstaining the contract between she and the Board. School Board members cited a Her recent absence from work was lack non-partic- information their physician’s based on a ipation. note received present Kegerise. away from Dr. 50a-51a, Her time from meeting. 249a-55a.) District day since that has been By April 22, letter dated the Dis- recorded sick leave derived trict’s counsel advised coun- Kegerise’s pre-existing sick leave accu- sel the School Board had voted *4 mulation. formally accept Kegerise’s resignation, Dr. n n n 17, 2014, April effective upon based her the District Finally, understands filing of the federal The letter complaint. Kegerise’s physician’s Dr. current note Kegerise also Dr. had stated breached precluded indicates that she is from employment her contract because she working April until 2014. If she is provide failed to sixty days’ notice of her work, to cleared return to then the Dis- resignation. Accordingly, Kegerise’s Dr. hopes trict to expects and her to return benefits, care, emoluments, pay, health and Superintendent. her duties as If she is any terms of her contract to ceased not, the District will continue to debit (R.R. 25a.) on April effective at sick pro- leave time and continue 24, 2014, Kegerise On Dr. April filed a compensation cess her workers!’] claim. complaint in mandamus the trial court (R.R. 71a-72a.) at and motion emergency peremptory 17, 2014, April Kegerise On Dr. filed a judgment pursuant Pennsylvania Rule complaint against the District and individ- requesting Civil Procedure No. (federal ual School Board members com- it order Board to the School reinstate plaint) the United States District Court compensate April her from Pennsylvania, for the District of Middle 2014, to the date reinstatement. The alia, alleging, inter that the District had preliminary objections School Board filed working caused become conditions complaint response to the a opposing so intolerable that constituted a con- (R.R. Kegerise’s emergency Dr. motion. discharge, structive although she acknowl- 19a-30a.) edged that not formally she had been ter- At parties’ request, trial As part complaint,
minated. of her federal preliminarily determined whether verification, Dr. submitted af- emergency existed sufficient to have Dr. firming that the statements contained on Kegerise’s complaint considered an ex- therein were true and correct best 2, 2014, pedited May basis (R.R. 74a-116a.) knowledge. of her joint parties stipulations By filed of fact. 21, 2014, On met the School Board 14, 2014, May the trial court order dated session, properly public advertised not determined that the matter did consti- mid-meeting its agenda amended add a 48a, emergency. tute an resignation motion to of Dr. Kegerise, 16, 2014, approve motion Dr. filed an May voted On mandamus, “[a]ccept resignation Keger- complaint seeking Dr. amended resignation; discharge constituted compensation.
reinstatement duty to its legal no reverse District had preliminary objections Board filed super- Dr. vote and reinstate complaint, ar- Kegerise’s amended intendent; stipulated that the parties must fail she guing that her claim because used to ac- procedures School Board legal right to the not a clear does have resignation Kergerise’s were cept accep- Board’s retraction the School entitled proper; has an resignation and she tance of her resigned and was hearing,because to a she By adequate remedy at law. order dated removed cause. trial court denied June objections. preliminary Discussion Thereafter, Board filed an an- matter, alleging that Dr. swer and new Complaint Impact of Federal estopped asserting Kegerise was argues that Dr. The School she submitted a resign she did not because filing complaint Kegerise’s her federal com- signed with her federal verification resignation. According to the constituted a indicating that the con- plaint statements Board, fed verified true, including tained therein were alleging constructive eral dis constructively discharged, been had inherently charge constitutes requires resignation as a necessary which necessary prereq is a because *5 to of action. prerequisite the cause action. uisite the cause of 261a-322a.) discharge occurs “Constructive 16, 2014, court con- On the trial October knowingly permit when an employer evidentiary hearing an to ducted limited employ ted conditions of discrimination Kegerise Dr. had intended to re- whether per that a ment so intolerable reasonable as the sign position her District’s resign.” subject Raya to son them would superintendent she filed her federal when Pennsylvania v. Haig Hair Salon 5, 2014, the trial complaint. On November Commission, Relations 915 A.2d Human directing an court issued order (Pa.Cmwlth.2007) (internal quota 733 Board to reinstate Dr. as the omitted). Clearly, tion a constructive dis District’s and restore all charge objective action is an assessed pay employ- and benefits as if her back Chrysler v. Financial standard. Connors interrupted. The School ment had been (3d Corporation, F.3d Cir. motion for pro filed nunc tunc (“The Í998) applied to test constructive post-trial February relief discharge objective claims is whether a denying trial court an issued order conclude that jury reasonable could [the same. unpleas so employer] permitted conditions Court,4 person ant or that a appeal On to this difficult reasonable compelled resign.”). felt to On argues the trial would have School Board face, reinstating discharge Dr. its the constructive stan erred in because: contemplates termination complaint alleging her constructive dard without federal Board, Zoning Hearing reviewing 289-90 scope Our in a mandamus ac- 32 A.3d (Pa.Cmwlth.2011). determining Our of review of tion to whether the standard is limited (cid:127) grant of is discretion or committed a trial mandamus trial court abused its court’s de novo. Valley County evi- an error of law and whether sufficient Carbon v. Panther District, (Pa.Cmwlth. support the trial court’s find- 61 A.3d n. dence exists to 2013). Reading, ings. Orange City Stones Co. v. resignation, long leging discharge as a actual constructive constituted a plaintiffs resignation unpersuasive. would have felt com- person reasonable is resign, plaintiff to did pelled even .if ofWrit Mandamus actually resign. The test whether
hypothetical, employee would reasonable argues The School Board next resigned, employee alleging have not the reinstating the trial Keg- court’s order discharge.' constructive erise it was erroneous because directs the to School Board reverse its exercise of n Additionally, “[e]mployee resigna discretion in accepting her com federal presumed voluntary.” tions ... are to be plaint as a The School Board Leheny City Pittsburgh, v. 188 F.3d argues also that the trial court erred be (3d Cir.1999). However, employee’s cause failed sustain her involuntary will be deemed establishing right burden a clear employer where the forces relief a corresponding duty in the Here, by coercion or duress. at 228. Id. super reinstate to. Kegerise alleged person that a reasonable position. Conversely, intendent Keger position compelled feel would . argues ise that Section 1080 of the Public Thus, resign. alleged she that the School (School Code)5 of 1949 pro Code Board’s conduct would force a reasonable vides the exclusive mechanism for remov person involuntarily resign. It would be ing superintendents and the School inexplicable to hold that the School Board failure to follow the enumerated as if Dr. authorized act procedures provided therein establishes resigned voluntarily alleged when right clear reinstatement.. compelled created circumstances extraordinary is an Mandamus involuntary resignation. As the trial court remedy designed compel perform noted, Assembly pro aptly “the General mandatory ance of a ministerial act or a very methodology for vided a re limited *6 may duty only granted and the be where moving superintendents and assistant su plaintiff legal right, has a clear established perintendents in to order insulate them defendant, corresponding duty a the and arbitrary capricious from activities of and that no appropriate remedy other avail the School its individual mem Board and Co., Orange able. Slones at 290. 32 A.3d (Trial 4.) To op. bers.” endorse the purpose “The of a mandamus is not to argument essentially School Board’s would legal rights establish but to enforce a school board to create a authorize condi legal rights already that have been- those tion as that would constitute a termination However, may established.” Id. mandamus i.e., law, working a matter of intolerable judg used to “direct the of exercise compel a reasonable conditions would way, or in a or particular ment discretion proceed person resign, permit to but to of an to direct the or reversal retraction employee voluntary as if" an executed already Avia action taken.” Chanceford resignation. The Board’s School assertion v. Properties, tion L.L.P. Chanceford Assembly’s thwart the de would General Township Supervisors, 592 Pa. of superinten liberate for procedure removal 1099,1108 (2007). 100, 923 A.2d and, therefore, According must fail. dents ly, pro- of the argument the Section 1080 School Code Kegerise’s filing of a federal al- vides that: amended, §
5. Act of March P.L. as 24 P.S. 10-1080. authorizing (a) statutory provisions removal. superintendents assis- District may be re- to superintendents According plaintiff, district the tant mandamus con- and have their hon- appropriate compel moved office to the district “to terminated, hearing, by a tracts after' Superintendent the election of or due of school majority vote of board Id. at 1266. provisions of contract.” his district, of neglect of the directors acknowledged plaintiff We had intemperance, duty, incompetency, remedy action an available via a contract of immorality, hearing which notice to repair plain- to harm the contractual mail to has sent week been least one But, recognized tiff. As- we General accused, member well-as each as sembly’s special superin- to the attention directors, the board school position: tendent 10-1080(a). 24 P.S. A does not tenure superintendent have v. decision Bums
This Court’s professional e.g., employees, Directors Area like the Unioniown (Pa.Cmwlth.2000), District, teachers, 748 A.2d A superinten etc. principals, Bums, plaintiff was a is instructive. In is not bar protected by dent collective duly-elected superintendent serving five- 195[6] Act nor is under he includ gaining expired year term that in June 1998. are, 93,[7] Act under ed administrators their lost May three board members rights certain meet discuss. elections; ex- respective before their terms have, however, Superintendents obvious school elect- pired, majority board ly been select consideration given for an ed the plaintiff Gode, Legislature which five-year July term from 1998 to additional gives non-voting unique them status as a July compensation approved his being member as well board the chief and other terms conditions Long officer of the District. executive However, same. December before job security pro term for that office plaintiffs existing expired, by mandating vided a minimum contract newly-elected his voted rescind board length years, by of at three least re upcoming Accordingly, contract. 1998-2003 stricting specific four rea removal action plaintiff filed a mandamus seek- sons, forcing the school boards [and] compel school rein- district to on retention at make a decision least duly-elected superintendent him state as. expiration months five before pursuant Code. The trial ” *7 .... contract granted preliminary the district’s ob- jections plaintiffs the dismissed and com- By mandating procedure expressly plaint. plaintiff] of for the for [the re-election expressly of his contract renewal Court, plaintiff appealed to this ar-
The thereafter, providing for removal lawfully guing prior that the school board Legislature implication any elected-him, and, such, excluded salary, as his set procedure exception to prevented him from election new school board members, i.e., bypassed years for school fulfilling his duties board Act, July the School Code was 6. Public Act of 7. Section 1164 of added Relations Employe 438, amended, the Act of P.L. as June 43 P.S. P.L. amended, - 24 P.S. 11-1164. Section 1164 of §§ 1101.2301. 1101.101 commonly the School is known as Code "Act 93." him expression provide unium est alteri- reinstate him exclusion with the um. However, agreed-upon compensation. we clarified not appropri- mandamus was Id. at 1266-67. remaining provisions ate to enforce the of that the school noted board’s We deci- plaintiffs employment contract be- plaintiff to sion to elect the an additional cause the regarding School Code silent five-year prior expiration to the of term any other of a employment conditions su- members’ terms was “a law- individual perintendent than the length of other fulfilling of its duty ful and mandated un- term, compensation, a recital of ánd cer- upon to act plain- der the School Code [the statutorily tain mandated duties. See also tenure” expiring tiffs] and reasoned that Code, of Section 1081 24 P.S. triggered the school board’s lawful election § 10-1081. statutory imposition duties obligation per- and an The case of Antonini v. Western Beaver such, form those Id. at 1270. As we duties. District, (Pa. Area School A.2d 679 relationship that “[t]he stated between a Cmwlth.2005), is also In An- .instructive. superintendent, a school board and a tonini, superintendent plaintiff is, therefore, merely school district suspended following pay allegations contractual, statutory.” but also Id. at that, alia, inter he had authorized I[8] Consequently, we determined transfer Title funds use for tuition sought the harm to be remedied was studying for teachers reimbursement two contract; rather, merely for a breach principal certificates in excess of the statutory was for a breach “to enforce the provided amount for in relevant collec provisions regarding School Code’s elec- bargaining agreement and tive' failed to tion, setting compensation and enforce- give requisite the school board the five duly super- ment of the duties of a elected days’ interviewing notice a prospec when Id. intendent.” employee. plaintiff tive The filed a com
Moreover,
pro-
seeking
because the School Code
plaint,
reinstatement until formal
election, tenure,
plaintiffs
charges
vides
had been filed
statutorily
and a
duties,
compensation,
hearing
or,
we determined mandated
had been held
alter
any potential
damages
natively,
were
"for
damages
contractual
unilater
remedy
statutory-
insufficient to
al
granted
termination. The trial court
harm
by the plaintiffs improper
plaintiffs
committed
re- mandamus and ordered the
rein
statement,
plaintiff
moval. We reasoned that
had a
distinguishing
Supreme
legal right
performance
clear
Burger
his Court’s decision
v.
and, therefore,
statutory
a corre-
McGuffey
duties
School Directors
School Dis
trict,
sponding duty
(2003),9
existed in the school board
576 Pa.
A.2d
Elementary
Secondary
8. Part A of the
court granted
trial
mandamus and direct-
amended,
Education Act of
20 U.S.C.
plaintiff's
ed the
reinstatement. The school
6301-6339,
§§
6571-6578.
Coprt
appealed to this
in a divid-
district
*8
reversed,
opinion,
reasoning
en
we
ed
banc
Burger,
superintendent plaintiff
9.
the
was
plaintiff
to
that
had failed
establish the
suspended
pay pending investigation
without
because,
remedy
lack
an alternative
ulti-
allegations
sexually
he
that
had
harassed a
mately,
appeal
could
adverse
he
removal
employee.
school district
to a
Prior
removal
pursuant
of the
decision
to section 752
Local
hearing,
plaintiff
filed a
seek-
Law,
Agency
Act of
alia,
P.L.
ing,
position
reinstatement
to
inter
his
However,
amended,
§
we
Pa.C.S.
752.
the School
not
because
Code did
authorize a
superintendent's
suspension
hearing.
absent
of the School Code
that section 1080
noted
inadequate
there-
able remedies were
allegations
did not constitute
because
fore,
proper.
mandamus was
to
misconduct” sufficient warrant
“serious
of the
noncompliance with section 1080
and Antonini
facts Bums
While the
school
not
and the
board did
School Code
pres-
from the
readily distinguishable
are
sufficiently
plaintiffs proce
observe the
because the
Board did
ent matter
School
Antonini,
process rights.
against
dural due
initiate action
reasons,
analysis
is
disciplinary
therein
A.2d
682.
Although
Code
applicable here.
the School
Court,
appeal
to this
distin-
On
we
author-
regarding a school board’s
is silent
allegations presented from
guished the
superintendent’s resigna-
ity
Burger
rejected
in
“the School
those
tion,
Board’s action had the
‘managerial
assumption its
school
effect as that of the
boards
identical
gener-
with
prerogative’
suspend
pay
Antonini-, a superintendent’s
in Bums Id. at 683.
Instead,
ally
stat-
available.”
we
However, as we
in
removal.10
articulated
beyond
procedures
that “resort to
those
ed
Bums, because the
Board had
School
excep-
in the
Code is the
specified
School
to a
employ-
valid
elected
....
rather
than the rule
It
tion
Code,
pursuant
to the
ment term
School
alleged that
of the misconduct
seriousness
subject
statutorily-mandated
she was
necessity
implied power.”
forms
and has a clear
superintendent
duties as
Id.
suspension
Accordingly,
because
same. See
legal right
perform
compliance
executed
with sec-
Bums,
1270;
§
10-
748 A.2d
P.S.
Code,
we concluded
tion 1080
Bums
Additionally,
instructs that
right
plaintiff
established “a clear
duty
has a corresponding
the School Board
to be
accordance with those
treated
provide
to reinstate
statutory provisions.” Id.
explicit
More-
agreed-upon compensation. More-
with the
we find Antonini
over, considering
over,
the factors
persuasive
articulated
Burger,
“manageri-
school
any
other avail-
it advises that a
board’s
we reasoned
suspension,
remedy. Notwithstanding
ap-
regarding
but
the different test
was silent
conclud-
order,
pending
plied,
Supreme
affirmed
suspension
is an
Court
our
ed that
removal
noting
Code
managerial prerogative
that the School
"vests school
when serious
inherent
w¿
levied; however,
districts in
with ‘all nec-
charges
this Commonwealth
are
misconduct
essary powers
carry
to enable them-
out
suspension pre-
school
noted that the
board’s
”
provisions’
reason-
[the
Code’s]
rogative
by procedural
pro-
was limited
due
provision
“the School
removal
Code’s
cess.
pertaining
superintendents
does not divest
Supreme
rejected any
appeal,
On
our
Court
implied authority
school boards of their
categorical
availability
rule that "the
of a
suspend such officials accused of serious mis-
post-termination
necessarily
appeal
consti-
proce-
conduct
...
constraints of
within the
respect
adequate remedy
tutes
to a
an
(citing
process.”
dural due
Id. at 1061
Section
prior,
deprivation
pre-hearing
in the nature of
Code,
2-211).
of the School
24 P.S.
interim, uncompensated suspension
of a
public employee.” Burger,
pendent inquiry, 2-211, as well as more §§ circum- P.S. 10-1079. as articu- above, spect approach part reviewing Kegerise’s filing on the of tire of a lated federal court, particularly impact complaint alleging discharge in view of the constructive did and, therefore, employee’s livelihood” and articulated a not constitute a no vacancy list of must when factors that be considered existed for the School Board to take evaluating adequacy any to fill. alternative action *9 (Tri- prerogative” mid-meeting al is not unlimited and a re- at the executive session. n.6.) op. al court at 11 procedures beyond specified those sort exception in the School Code is the rather The School Board is correct that the Although than rule. this is a fact- the parties stipulated that “[t]he Board did not implicates intensive case that conduct the poli- violate the or any School Code Assembly not con- apparently General did cy practice by Agenda adding i.e., template, superintendent’s a accepting However, contrary Motion.” resignation, im- we decline endorse an assertion, to the School Board’s the trial procedure plied that could circumvent the proce- did not. court determine that limited removal mechanism. School Code’s instead, improper; only dures were ac- it Therefore, because Dr. a Kegerise has knowledged how the vote occurred. The legal right perform clear duties stipulation prohibit not the trial does superintendent under the School Code and from recognizing the unusual nature a corresponding duty School Board has School Board’s conduct. As the record indi- her, to reinstate the trial court’s issuance cates, used, procedures that were al- proper. of mandamus was lawful, Therefore, though were novel. we no discern error the trial court’s consid- The School Board’s Procedures procedures eration culminated argues The School Board next in the accept School Board’s vote to in finding that the trial court erred Kegerise’s alleged resignation. procedures Board used to accept Kegerise’s alleged resignation Hearing improper parties stipu were because the Finally, argues the School Board procedures proper. lated that those were the trial court it erred when deter stated, opinion, In its trial court mined that entitled to a pertinent part: hearing under the School. Code when she At regularly the next scheduled Board request hearing did not one and-a is not 21, 2014, meeting on executive required superintendent’s a the event of session was called the middle public session the Board deter- wherein above, fil- As articulated mined to take a vote whether to the federal did consti- “resignation” Plaintiff’s in the tute School Board’s a form of Complaint. During the Federal argument regard in that must fail. Similar- hearing on October Defen- ly, section School Code does Kathy dant that in DelGrande testified require superintendent request that a history a as Board member Rather, it hearing. “superin- states Board, whole, aas had never amended may tendents be removed office and meeting. in the of a agenda its middle terminated, have their contracts after (N.T. BB). Further, p. the Board had hearing, by majority of the board of vote accepted never from an ” 24 school of the district .... directors (N.T. employee writing. not in that was added). 10-1080(a) (emphasis P.S. The 33). p. Assembly not include a General did statu-
(Trial 11) (internal op. court’s footnote tory requirement that a re- omitted). thus, quest hearing would improper impose trial one. court also noted that six Court Therefore, trial no error in the present the nine board members were we discern *10 proper if
court’s conclusion that event the Code would be the School Board “[i]n the superintendent.11 chooses to her as remove Keger- Board has a basis terminate Dr. ise, proceed provision it should under Wojcik not Judge participate did in this (Trial op. at of P.S. 10-1080.” decision. 14.) ORDER .
Conclusion NOW, day September, AND this 13th of argument The that Dr. School Board’s of the November order Kegerise’s filing of the federal Dauphin Court of of Pleas Coun Common resignation resigna- a because constituted ty affirmed. necessary predicate tion is a of the cause BY OPINION SENIOR DISSENTING unpersuasive. Additionally,
of "action is JUDGE PELLEGRINI School assertion mandamus is improper Kegerise' because failed appeal by This case involves an right establish clear to relief a corre- (Board) Board School Directors sponding duty Board to rein- Susquehanna Township School District Moreover, her must fail. discern state we (School District) from a order mandamus court’s, no error in the trial consideration Dauphin the Court of Common Pleas of novel, lawful, procedures but (trial tlie court) County directing the Board voting Keger- (Dr. School Board used Dr. Susan Keger- reinstate alleged resignation ise) ise’s and its conclusion Superintendent of the School Dis- that, resign, hearing because she did not illegally trict because she had been re- pursuant to section 1080 I respectfully moved office. dissent Keger- 11. The Dissent asserts that issuance of man- the School Board has averred that Dr. constructively discharged. improper Kegerise's ise was not damus is because Dr. More- over, letter, employment provision in its contained a District’s contract counsel advised Dr. that she stating provide had notice of her need employment breached her contract resignation because she constructively she is in the event provide requisite sixty days’ Dissent, notice discharged. According to the failed (R.R. 25k.) Finally, there right pur- her contractual exercised contractual, authority, statutory, nois or oth- resigned pursuant provision, suant to this erwise, indicating that the School Board has same, and the School within acted any discretion in this matter. The Dissent's its that decision. The Dis- discretion to essentially rationale would authorize the purely sent would on con- resolve this matter advantage to take a contrac- grounds. tractual provision disputes tual that it ever occurred. provision the Dissent identifies Rather, pick the School Board “has to shall states notice whatsoever be “[n]o 946.) option Op. ... but not both.” required ... be should ... Bums, Importantly, we stated in “[t]he by caused constructive termination relationship superintendent, between Therefore, for this Board.” is, school board and a school district there- provision implicated, to be res- fore, contractual, merely but is also statu- ignation must be caused constructive ter- Therefore, tory.” contrary Id. at 1269. If, pursuant mination Board. position, merely Dissent's this is not a con- position, purely this is a contrac- the Dissent's attempt tractual matter and to reduce it to matter, that, by argued tual could ac- statutory such is This is a matter erroneous. cepting pursuant to the con- governed by the School Code and section provision, tract School Board conceded provides 1080 of School Code exclu- that Dr. dis- superintendent's sive mechanism for a remov- However, charged. throughout litigation, al. *11 14, 2014, 21, 2014, Kegerise through April Dr. was not removed but because due to resigned, does not lie to stress from employment. physi- and mandamus her Her cian whether later her to determine advised extend her medi- District actions properly indefinitely determined cal leave she School Dis- resignation took within trict was constituted notified.
meaning employment of her contract with Kegerise Dr. then legal had her counsel the School District. to send several letters the School District stating constructively that she had been
I. discharged. response, the School Dis- Kegerise’s Superinten- Dr. contract trict’s solicitor- sent a April letter on expired the School District June Kegerise’s dent to Dr. addressing counsel separate included termination her employment Specifically, status. 8.03, resignation per- clauses. Section School District solicitor’s letter asserted taining resignation, that, to provided: although Dr. Kegerise’s counsel indi- cated in previous Keger- letters that “Dr. RESIGNATION.[1] In the event
8.03 terminated,” ise has constructively been1 that Superintendent to or resign seeks not, stating: had separate employment her Dr, death, illness, any reason other or than and remains Super- disability, Superintendent give shall Dis intendent Schools at School Dis- [the (60) trict sixty days’ least written pursuant to trict] the contract between employment notice in advance her Board. and the Her recent absence severance of Superin date. failure from on physician’s work was based give required tendent to such notice note Kegerise. received from Dr. Her Superintendent shall cause to any away lose time from the District [School] to any entitlement unused but accrued day has since that been recorded as sick payments may pursuant be offered Kegerise’s preex- leave derived from Dr. fringe to isting benefits under sick leave accumulation.
AGREEMENT, No notice whatsoever 10, 2014, April On filed a required shall by Superintendent report compensation ben- workers[’] by should her be caused report That efits. has been forwarded breach of this AGREEMENT District’s com- [School] Workers[’] or caused constructive termination pensation processed carrier and will be any the Board or of its members. in the normal course of business. Her n Resignation jeopardize any shall not application granted either or will be de- prior Superinten benefits earned to the investigation following nied dent’s compensation carrier. Accord- workers[’] ingly, the determination of 133a). (em- whether (R.R.) (Reproduced Record added). suffered a work-related phasis injury depend will on the outcome of this The facts that con- up led the Board process. cluding resigned that she had under this 24, 2014, provision began when March informed the District District Finally, understands per Kegerise’s physician’s
that she Dr: needed take medical leave current note n precluded physician’s from March indicates that she is recommendation newly provi- 1. The 2013 contract added this sion. attorneys’ other damages, fees and plary 2014. If she is April
working until work, (Id. then relief. cleared return expects her hopes District [School] accepted On duties, Superinten- return to her resignation per 8.03 Section not, If District [School] dent. she is pertain- Superintendent’s her time will continue to debit sick leave repeated because process workers!’] and continue she was dis- assertions that *12 compensation claim. charged, including those filed under oath added). 71a-72a) (Id. (emphasis complaint. in her federal 17, 2014, Dr. day, April The next on (federal complaint civil Kegerise filed a II. and complaint) against the School District appeal on The central whether issue (Mr. (Ms. Karl), L. Karl Jesse Carol Rawls of com- filing the federal Kegerise’s Dr. (Mr. Rawls),2 Y. Sussman Suss- Mark position her plaint was a Board, man),3 all of the elected members District as with the School envisioned , for the in Court the United States District Superintendent’s con- of her Section 8.03 Pennsylvania, alleging, of Middle District tract, thereby mandamus relief. precluding alia, of her inter constructive termination of the federal com- part As employment.4 A. Kegerise signed a. plaint, verification 2014, 10, affirming dated discharge occurs Constructive when com- contained her statements federal knowingly permits conditions employer true correct to best of plaint were employment so of intoler- discrimination knowledge. person subject to able that a reasonable resign. Raya Haig them Hair would complaint, the federal Pennsylvania v. Relations Salon Human things, alleged, among other 728, (Pa. Commission, 915 733 A.2d constructively terminated School District omitted). Cmwlth.2007) (citation In deter- sought damages employment. She mining that term dis- dollars, what “constructive including of million excess six charge” meaning of Dr. means within “for compensatory damages and economic complaint, in Pennsyl- federal salary of emolu- loss contractual and other Suders, 129, vania State Police v. U.S. consequential employment,”, ments (2004), damages “damage professional rep- S.Ct. L.Ed.2d for Court salary Supreme as an ed- United States found utation and loss of future administrator,” plaintiff punitive ucational exem- establish “constructive naming only as the defendant. In 2. Mr. Rawls was Board from President December 2011 to December 2012. March Mr. Rawls and Mr. Sussman type any without discontinued their lawsuit Mr, 3. In November Rawls and Mr. ' settlement. civil in the United Sussman filed a for the States District Court Middle District allegations Kegerise's 4.Dr. other included: Board, against Pennsylvania violation, contract, process breach of due tor- enjoin District and Dr. them from contract, tious with a racial dis- interference violating'Mr. and Mr. Sussman’s con- Rawls’s crimination, discrimination, age discrimi- sex rights nullify employ- stitutional and to nation, defamation, intentional infliction of ment between the Board and Dr. distress, wrongful use of civil emotional January Kegerise. On Mr. Rawls proceedings. complaint, and Mr. Sussman amended their show that discharge,” plaintiff Superintendent “must School District’s and reit- working erating became “hope[d] the abusive environment the School District resignation quali- expect[ed] so intolerable that her her to return her duties Superintendent” response.” longer Id. at 124 as she was no fitting fied as a once 72a.) However, sick leave. S.Ct. The Court added under doctrine, complaint, her federal employee’s “an reasonable main- tained resign that she was termi- decision because unendurable working working to a for- nated due intolerable condi- conditions assimilated tions. also discharge purposes.” requested damages mal Id. She for loss remedial salary, including contractual future sala- S.Ct. 2342. Court conclud- ry, thereby acknowledging ed that her em- that: ployment passed ended before termination, Unlike actual which is “resignation.” the motion to act always through effected an official company, discharge a constructive The term “constructive termination” was *13 A discharge need not be. constructive contract, in Kegerise’s used Dr. spe- employee’s involves both an decision to cifically Resignation under Section 8.03’s leave and precipitating conduct: The stated, provision,' in pertinent part: action; no former involves official ... required by “No notice shall be latter, like a harassment claim without Superintendent should her be assertion, any discharge constructive caused ... constructive termination may may or not official involve action. (Id. any the Board its members.” (emphasis Id at Dr. S.Ct. 2342 add- testified that she un- ed). derstood “constructive termination” to es- sentially that working mean conditions Pennsylvania have courts also federal might become so intolerable due to the that an employee’s maintained constructive actions that she would be Board’s forced discharge predicated employee’s is on the resign. She testified the term “con- that Darman, resignation. McCarthy See v. structive in termination” used her 2013 (3d Cir.2010) Fed.Appx. (refusing meaning contract had same as the to recognize employee’s constructive “constructive termination” term she used , discharge arising claim the employ- Moreover, in her complaint. federal suspension employee ee’s because the did Kegerise signed the on verification actually resign not on of suspen- date 10, 2014, on complaint federal April before sion); Pennsylva- McWilliams v. Western receiving the School District let- .solicitor’s Hospital, F.Supp. nia 355-56 vote, stipulating ter and before the Board’s (W.D.Pa.1989) (holding that “there must that stood all of she behind the averments be least some relation the oc- between complaint, thereby made the federal discriminatory currence conduct and indicating that the use of the “con- term employee’s resignation” a construc- was, essence, structive termination” claim). discharge tive
resignation. IB. Dr. Kegerise right exercised her to re- sign filed federal under Section 8.03 of the Contract. day Kegerise alleged working one after her attor- Dr. intolerable conditions, ney denying including specifically harassing received a letter conduct causing that she had been terminat- Board members be unable ed, satisfy confirming Superintendent that she remained the her duties as of the School capricious is activities causing her
possibly
health issues. She
(Tri-
members.”
its individual
right to
one that has the
exercise
4.)
op.
To endorse the School
provision,
resign under this
al
right'to
essentially au-
argument
Board’s
would
it
one that asked that
she
a school
to create a
thorize
board
condi-
in the contract.
included
Whether
tion that
a termination
would constitute
thinks she
been con-
has
i.e.,
law,
as a matter
intolerable work-
be-
structively
is irrelevant
terminated
compel
that
rea-
would
conditions
right
gave her the
provision
cause this
resign,
person
permit
but
sonable
ability to
resign
make
claim for
employee
if
proceed as
executed
damages which
would be
contractual
she
resignation.
voluntary
Keg-
just resigned.
if
unable
do
she
thwart the Gen-
Board’s assertion would
not
been able
erise
have
to make
would
been,
Assembly’s
pro-
eral
deliberate removal
constructive-
claim
she had
out.
for superintendents
cedure
there-
effectively
if
ly
she had not
terminated
fore,
Accordingly,
must
fail.
is
resigned,
termination
as constructive
argument
predicated
employee’s
on the
complaint alleging
con-
filing
a federal
I
would hold
no reasonable
While
discharge
resig-
constituted a
structive
person
effec-
could find
did
unpersuasive.
nation is
tively resign,
dispute,
if that matter is
935.)
(Majority Opinion at
not lie
still
because it
mandamus would
majority
claims
While
dispute.
to resolve a contract
available
*14
inexplicable,
par-
this “can be”
the
because
University
421
Pittsburgh,
Kaelin v.
Pa.
to it in
v,
agreed
ties
8.03
the
Section
(1966);
Mercy
220, 218 A.2d
Shrank
798
Moreover,
way
in
contract.
this
no
Johnstown,
54,
Hospital
Pa.
Assembly’s
the
“thwart[s]
General
deliber-
(1955).
A.2d 697
procedure,” Majority Opinion
ate removal
III.
7,
nothing in
at
there is
because
superinten-
Code that limits how a school
analy-
this
majority
accept
The
does
right
can exercise his or her
to re-
dent
by
Dis-
simply
finding
sis
that the School
Dr,
sign.
case,
In
in
this
that
set
Section
out
Kegerise
posi-
trict
from her
removed
contract,
spe-
of Dr. Kegerise’s
8.03
which
tion,
resigned
she
rather
than that
had
resignation
cifically deals with
caused
position
she
her
from her
when
exercised
discharge.
constructive
right
“resign”
8.03
to
under Section
discharge. In
claiming constructive
arriv-
gave
op-
Section 8.03
the
adopts
position,
majority
this
the
at
resign
tion to
without advance notice
just
by stating
be” rationale
the “this
can’t
claiming
discharge, presum-
constructive
n
that:
ably
remedy
took—filing
with the
that she
inexplicable to
that the
It
hold
would
action that
million
in
claims
dollars
if
Board is
to act as
School
authorized
damages;
option
exercised that
She
Kegerise resigned voluntarily
when
nothing the
District did
indicated
alleged
she
that it created circumstances
any
that
intent
to remove her as
had
resigna-
fact,
compelled
involuntary
that
Superintendent. In
she exercised that
noted,
aptly
As
trial court
“the
tion.
the
the
option after
School District
informed
Assembly
very
limit-
provided
constructively
that she had not been
General
her
methodology
removing superin-
discharged
ed
“the
District
[School]
that
hopes
expects her
return
her
superintendents
to
to
tendents
assistant
arbitrary
Superintendent”
in
duties
after her
order
insulate them
recognize
being
superin-
issues were
I
medical
re-
that
school
stress-related
job subject
at
tendent
difficult
stress
solved.5
dissenting opinion,
provision
response
[Section
the
a contractual
8.03]
5.
In its
the
ize
disputes
that the School District
majority
[School
first claims
ever oc-
District]
has
accept
resignation based on con-
did not
her
curred.”"
and, second,
that a
paragraph
termination
us take a
structive
Let
at
full
look
only accept
resignation
majority selectively quotes:
school
can
district
you
Susquehanna
in the contract in
with
authorized
accordance
As
know the
Township
provisions
set forth in Section
night’s meeting
removal
School Board voted at last
formally accept
resignation
1080 of
School Code. 24 P.S.
10-1080.
of Dr.
(School
17,
Pennsylvania
Public
Code
April
Susan
effective
2014.
10,
Code)
1949,
filing
of 1949 is the Act of
upon
March
This
her
is based
recent
most
30,
amended,
§§
P.L.
24 P.S.
1-101—27-
the Federal Middle District
Court
docket
l:14-cv-00747-WWC,
of those
2702. Let us examine each
issues.
no
in which she
"constructively
claimed that she was
nated,”
In
mention of Section
termi-
its first
8.03
contract,
you
et
I
Superintendent’s
majority
al.
note that
received a
does
your
April
on
dispute
this-provision
Keg-
behalf of
client on
allows Dr.
letter
Michael
resign
which
Miller advised that
erise to
Instead,
termination.”
"constructive
suggest
Superin-
"Dr.
majority
is and remains the
seems
Susquehanna
of School
applicable
tendent
provision
[s]
is not
because the
Township
pursuant
accept
School District somehow did not
her
District
School.
Board,” (See
However,
contract
she and the
between
based on Section 8.03.
your
provision,
copy
ence).
no
letter
hereto for
refer-
requirement
there is
under this
attached
advice,
Despite this
formal
School District
her
be-
'
gives
signed
April
on
verification
cause
the unilateral
-
April
and the
on
right
provision.
suit
filed
2014.
exercise
event,
Accordingly, pursuant
any
majority
argu-
to the contract
bases that
Board,
quoted
she breached the terms of the
April
pre-
2014 letter
ment
(60)
provide sixty
viously
dissenting opinion
contract and failed to
in which the
notice, (See
days
counsel,
paragraph 8.03 of her con-
response to let-
School District’s
hereto).
benefits,
pay,
tract
Her
from Dr.
counsel that she had
attached
ters
care,
any
discharged,
health
emoluments
terms of
been
stated "Dr.
ceased effective
Superintendent
contract have
remains the
is and
pursuant
[the
District]
Schools
*15
paragraph,
From
the School District
the
the contract between her and
Board.”
accepting
resignation
71a.)
her
stated that it was
This
was the
Dis-
letter
School
of
termi-
on her
constructive
position prior
her
based
claim
sworn federal
trict's
Whether
8.03.
the
nation under Section
she swore under
in which
oath
in what emolu-
discharged,
District
correct
was
was
that she
lead-
is
to as
result of the
she
entitled
accept
ments
her
to its decision to
resignation
acceptance
for her
of her
con-
also claims
School District did
It
that the
not
would be
in the
decided
resignation
structive
accept
8.03
termination
her
under Section
federal
quote
litigation,
from an
based on a selective
majority
with the
gives-
The other basis the
from
District’s
the School
counsel
letter
Dr,
8.03,
seems to
that Section
while
dissent
be
counsel that "she
breached
for
termi-
constructive
employment
allows-
nation,
her
because she failed
superseded by
is
Section
days-notice
is that it
provide
of
requisite
Code,
10-1080,
1080 of the School
24 P.S.
resignation," which
indicate
seems to
that
provides
of
for the
accepted
resigna-
which
removal
School District never
so,
(R.R,
doing
majority
Superintendents.
on
tion based
constructive termination.
so,
only way
seemingly
position that the
majority
takes
saying
Without
accept
by is
can
district
saying
Section
school
seems to be
that since
8.03
removing
superintendent.
It arrives at
resign
provides
she
that
could
without notice
termination,
position
on the last
based
sentence
that it
not
constructive
following quote from
v. Board Di-
invoking
provision.
on those
Bums
Based
two
District,
reasons,
majority
Uniontown Area School
concluded
“the
rectors of
n
A,2d 1263,
(Pa.Cmwlth.2000):
essentially
rationale would
author-
Dissent’s
and,
only
statutorily
parents,
yes,
from
teachers
from
for narrow
defined rea-
Moreover,
superintendent
school
sons.
if a school
attempt
members of the
board who
being
pursuing
is
from
his or
precluded
day-to-day operation
to interfere with the
board,
statutory
by a
out,
school
majority
duties
points
of schools. But as the
bring
then he or
an action in
she can
only
can
superintendent
a school
be re-
stop
mandamus to
the school board
Being a
moved in limited circumstances.
Pittenger
v. Union Area School
doing
so.
board, though, is also
member of a school'
Board, 24 Pa.Cmwlth.
conduct some members the school
board, knowing only that he or can up
removed his or her contract before case, Somehow, although majority leap In the instant there is a takes the relationship, just contractual there is also a because Section 1080 of the Code mentioned, duty duly provisions clear for a of those Code one that the only way resig- district elected be elected a school district can Board, compensation his superin- to have set nation under the terms set forth in a elected, by the provision. once there are contract is under that tendent's It statutory imposed upon simply clear apply. duties the su does not Section 1080 deals perintendent responsible per superintendents, to be for the with removals of who can statutory neglect duty, formance of duties. relation be removed "for incom- ship superintendent, petency, intemperance, immorality.” between a a school *16 is, therefore, and school district board P.S. 10-1080. School District never contractual, merely statutory.[16] but is also mentioned that it intended to remove Dr. provides provi- Kegerise, statutory only Footnote 16 those accepting resig- that it was through sions as: "Sections 1071 nation under Section 8.03 of the contract. Code, Remember, §§ through moving par- P.S. 10- 10-1071 was the While, admittedly, relationship ty: initially 1081." be- she was the one that maintained tenninated; superintendent tween the school dis- that she was merely trict is not rejected contractual but is also was the one that the School District’s statutory, statutory provision position there has to be a Superintendent; that she remain the that, provision notwithstanding is in conflict. None all of she filed an provisions of those of the School Code deal action in federal court wherein she swore that Then, accepted constructively discharged. with how a is to be she was then, option by deal with the did the School District resign by claiming discharge. constructive