*1 PETRON, Petitioner, Joseph M. EDUCATION,

DEPARTMENT OF

Respondent. Pennsylvania.

Commonwealth Court

Argued Dec. 1998.

Decided Feb. Bacharach, Pittsburgh, peti- for

John A. tioner. McKay, Harrisburg, respon- for

Linda A. dent. COLINS, Judge, President

Before SMITH, PELLEGRINI, McGINLEY, FLAHERTY, FRIEDMAN, KELLEY and JJ.

FRIEDMAN, Judge. (Petron) appeals from Joseph M. Petron of the Professional Standards (Commission) granting Practices Commission Pennsylvania, Depart- the Commonwealth motion to (Department) ment of Education’s teaching certi- professional fication.1 reverse. We on Petron arrested April On simple assault and charges of the fact of children.2 Based on the welfare involving these were for crimes a No- filed turpitude, Charges and a motion for tice of seeking the the Commission judgment with teaching certificate of Petron’s 5(a)(ll) of the Teacher pursuant to section 6a-13a.) (Law).3 (R.R. at Law Certification as amend- certif- 3.Act of December 1. Petron holds an Instructional II 1), 2070.5(a)(l icate, in relevant Department, endorsed in the issued added): a.) (R.R. part (emphasis area of Music. at 1 (a) power shall have the The [Commission] grabbing duty be: shall Specifically, was accused of neck, any pro- banging ... year an 11 old student throwing a crime or misde- educator indicted and then the stu- student into locker fessional (R.R. 12a.) turpitude ... and to at meanor dent into a chair. *2 charge against him that would response, asserting Petron filed a that the is no charge for the of chil- suspension welfare warrant of his teacher’s certifica- charge tion, prossed dren had been nolle and the that without a and such by simple disposed for assault had been of hearing process rights.5 violates his 33a-34a.) acceptance' (R.R. his into the Accelerated Rehabili- 10, 1997, at November On (ARD) (R.R. at Disposition Program.4 tative following argument on the the Com- 17a-23a.) (1) Petron maintained that: the granted Department’s mission the motion for his Commission could teacher’s summary judgment.6 because, by accep- certification virtue of his timely application for Petron filed a recon- program simple tance into the ARD for the sideration, arguing that Commission the charge no chárge, assault a criminal was failing by abused its discretion to consider him; longer pending against and the sus- 1,1997 July response Depart- Petron’s to the pension of his certification violates teacher’s summary judgment motion and ment’s process rights. his constitutional due (R.R. 26a-28a.) Charges. Notice of at reply response, In a letter to Petron’s the present- Commission reconsidered the issue that, Department despite asserted Petron’s ed, rejected argument Petron’s the acceptance program, into the ARD the sim- charge simple disposed of been of assault had ple charge still pending assault acceptance into the virtue of Petron’s that, Department Petron. The reasoned instead, and, program ARD determined prior Petron violated the ARD conditions charge simple pend- the of remained assault program, completion his Petron could ing against his successful com- Petron until prosecuted charge. still be on that Because pletion program. Accordingly, of the ARD prosecution turpi- for a crime upon Department’s consideration of the mo- possibility, Department tude remained a the summary judgment, responses tion for the maintained that the Commission had the au- request for thereto and Petron’s reconsidera- thority certifi- tion, of the Commission vacated its order cation, and that such a did not suspen- the November 1997 and ordered (R.R. process rights. violate at Petron’s due certification, sion of Petron’s teacher’s with 24a-25a.) automatic reinstatement of the certification 1, 1997, July On re- Petron filed a letter upon successful letter; sponding Department’s in that letter, that, position reiterated his appeals Petron now from that prosecuted because he cannot be on the sim- court,7 charge repeating arguments that: ple assault and until he vio- unless (1) by into program, lates a condition of the ARD there virtue of his tuting cruelty, intemperance negligence. revoke the same conviction when- and thereof judgment copy Petron filed an answer to the amended Notice of ever certified of the verdict or Charges denying allegations, requesting a or sentence of the court shall have been filed requesting [Cjommission, dismissal the amended with the and to direct reinstate- on the matter. [DJepartment ment of such certificate [Cjommission any case after where just proper. shall deem the same rendering its decision of November specifically indicated 4. The rules for the ARD are set forth in allega- opinion expressing it was not Pennsylvania Rules 176-86 of the Rules of Crimi- Department's tions contained in the amended Procedure, nal Our su- Pa.R.Crim.P. 176-86. Department Charges Notice of and that the preme court has held that admission to the ARD pursue those in due course. lies within the discretion the District Attorney, participants ac- who is free choose scope Our of review is limited to a determina cording to his of the best interests determination whether were violat tion of constitutional society. defendant and Commonwealth was committed or whether an error of law Lutz, (1985). 508 Pa. 495 A.2d 928 necessary findings supported are of fact whether v. Common substantial evidence. Startzel wealth, August Department filed an 128 Pa. 5. On Charges with the Commission Cmwlth. nied, de amended Notice (1990). engaged A.2d 76 alleging conduct consti- that Petron charge against Although prosecution program, simple assault and, him is unless violates will not be dis- charge assault program, his instruc- condition of the ARD successfully unless and until Petron missed

tional not be sus- Therefore, because completes program.9 pended pursuant to section pending, charge against Petron remains 2070.5(a)(ll); *3 required is section the Commission the section of the Law mandates of the Law to his teacher’s teaching suspension of his certification based Thus, question us is certification. the before solely on the existence of the indictment and the of Petron’s teacher’s whether him, charges against the of the the nature Petron’s constitutional certification violates process statute violates his constitutional due by depriving him of rights process of due rights by depriving property him of a inter- property providing interest without a that providing meaningful pre-depri- est without a pre-deprivation post-deprivation or post-deprivation hearing.8 vation or On the Here, Department the concedes that Pe- hand, Department other the reasserts constitutionally teaching tron’s certificate is a that, simple contention because the assault right protected property pro entitled to due charge precipitating entry into the Bradley Pittsburgh protection. cess See only is dismissed after Petron (3rd 1064 Board 913 F.2d Cir. of successfully completes the program, 1990) (holding that tenured teachers have a charge that pending completion remains until property positions interest in their which thus, program, the Commission away process cannot be taken without due of may suspend Petron’s certification law). However, argues the that during only there is a minimal of an erro likelihood We that section of deprivation of an property neous educator’s applied, the to Petron under these the interest because circumstances, denied Petron of his constitu- “hearing” the with a to determine educator rights tional process. to due charged whether offense involves Medicine, implicates v. State 697 Firman Board A.2d the two basic' elements of notice and of (Pa.Cmwlth. 1997), denied, 291 550 Pa. opportunity an to be heard and to defend one 722, quoted we from the self). Supreme decision of the United States Cleveland Board Education v. Court in Loudermill, added) of (emphasis provides, 9. Pa.R.Crim.P. 181 U.S. 105 S.Ct. 84 L.Ed.2d 494 part, accepted in relevant a "[w]hen defendant is (1985), and stated: program] filing into the information, after the of an [ARD principle process [A]n essential of due a judge shall order that further life, deprivation liberty, property or [inter- proceedings on shall be preceded by opportunity be notice ests] and an program." accepted Once term the hearing appropriate for a to the nature of the program, may pros- a into the ARD defendant require- case. We have described "the root charges only a ecuted on the he violates condi- if being ment" of the Due Process Clause as 182; program, if a de- tion Pa.R.Crim.P. given opportunity “that an individual be a fendant violates condition of the ARD deprived any signifi- before he is may attorney only the district file motion property principal cant interest.” This re- brought to be court for the defendant before the quires hearing” prior "some kind of a proceed ultimately for the matter to to a trial on discharge employee of an who has a constitu- original charge. the merits of the Pa.R.Crim.P. tionally protected property interest in his em- However, successfully if the defendant ployment. completes program, may the ARD file a mo- Firman, (citations omitted). 697 A.2d at 295 dismissing charges against tion for an order procedural process requirement This due is codi and, any objection him monwealth, from the Com- absent Pennsylvania Agency fied in the Law, Administrative judge must dismiss the provides, adju 2 Pa.C.S. which "No expunge- order the defendant and agency dication of Commonwealth shall be of the arrest record. Pa.R.Crim.P. 185-86. ment Here, any party as to unless he valid have been shall into the ARD afforded reasonable notice of a and an proceedings all assault opportunity to be heard.” See Commonwealth however, charge Randle, charge; remained Ryan v. ex. rel. 192 A.2d two until Petron’s successful cert. 375 U.S. 84 S.Ct. 1 1 (1963) (stating year program. process due L.Ed.2d 277

turpitude. however, Department, filing fails virtue of the of an indictment for a to address Petron’s contention that turpitude. crime Although “hearing” fails to meet the mandates of due specifically not providing pre-depriva for a process. tion post-deprivation hearing or at which facts relevant to that determination determining When particu whether a 5(a)(11) considered, section of the Law never procedure lar satisfies the mandates theless does prohibit such due (1) process, we must private consider: protection. recognize While we the impor interest will be affected the official tance of the preserving state’s interest in action; the likelihood of an erroneous integrity of its profession, staff and deprivation of such consequence interest as a ignore we cannot of individual procedure used probable and the val teachers, particularly prompt, post- where a ue, any, procedural additional safe deprivation hearing satisfy would the re guards; balancing of the state *4 quirements process addressing due while by interest served use of a the concerns of the state.10 See Federal procedure against the burden that be would Deposit Mallen, Corporation Insurance additional, imposed by an substitute or more 230, 108 1780, 486 U.S. S.Ct. 100 L.Ed.2d 265 rigorous procedure. Firman v. State Board (1988). These Medicine, particularly concerns are rele (Pa.Cmwlth.1997), 697 A.2d 291 vant here where the existence of the charge against deprive Petron (citing would Petron Eldridge, Mathews v. 424 U.S. 319, 335, (1976)). his livelihood even though, ultimately, 96 S.Ct. L.Ed.2d 18 charge may prosecuted. never be Because dispute Petron does not may that there Petron was not process afforded minimal due objective valid state removing teachers protection and, result, presumed as a was from the classroom when those teachers 5(a)(ll) unfit to teach based on section health, constitute a threat safety or Law, statute, Petron, applied as to vio students, welfare of the the teachers or the lates the proc constitutional mandates of due school; however, Petron maintains that the ess.11 importance of justifies only this interest temporary suspension prior to a to basis, On this we reverse the order of the determine if the threat is real. Petron ar- Commission. 5(a)(ll) gues that because section of the Law only

mandates a based on the fact ORDER of an indictment filed him for a crime NOW, AND day February, this 22nd involving turpitude, moral the statute creates 1999,the order of the Professional Standards an presumption irrebuttable that he is unfit Commission, and Practices dated December teach, to and Petron maintains that such an DI-97-21, hereby at No. reversed. presumption irrebuttable violates his due process rights presumption where the is not

always correct. Accordingly, Petron main- Concurring opinion by Judge process requires tains that due that the Com- PELLEGRINI. meaningful

mission hold a hearing to consid- PELLEGRINI, Judge, concurring. conduct, er whether Petron’s when measured teachers, applicable the standards to all I majority While with the that Pe- disciplinary warrants action. teaching tron’s certificate should reinstat- 5(a)(ll) Law, Under section I edu- would not address the issue of whether essentially cator is deemed unfit to teach he deprived process was of due when his certification, claiming suspend a violation of a teacher’s this is not to process, challenge procedure Petron does not say Department may that the not achieve the afforded pre- him here based on the of a lack by resorting appropriate same result sections deprivation hearing. of the Public School Code of Act of March amended, §§ 24 P.S. 1-101- 2070.5(a)(l 1) was While intended to 27-2702. provide quick, easy and convenient method to teaching ity suspended goes certificate was once he on to determine that Petron probable was indicted either after cause was improperly suspended when he was sus- 5(a)(ll) preliminary hearing found at a or pended pursuant to Section without waived deprived of his due rights. disagree majority I with the was arrested on required Section assault and the welfare of chil- 5(a)(ll) and because it was not dren. Because were for crimes required, I would reach the issue of involving turpitude, moral deprivation process rights. of due (Department) Education filed a Notice of Charges summary judg- and a motion for of the Law ment with the Professional Standards and part: relevant (Commission) Practices Commission seeking (a) The ... Commission shall have the suspend pur- power duty and its shall be: suant to Section of the Teacher Cer- any the certificate of (Law).1 section, tification Law Under that professional educator indicted for a the Commission has the power involving crime turpitude ... and any professional certificate of revoke same conviction educator indicted for a crime thereof... turpitude. Because Petron accept- had been ed into the Dispo- Accelerated Rehabilitative purpose of Section of the Law is *5 (ARD sition Program Program), respond- he protect alleged children from the perpe- by arguing ed charges against that the him pendency trator litigation disposed had been his into subject so as not to allow them to be Program, the ARD suspension and that the crimes involved. his certificate violated his due majority points The although out process rights because he suspend- had been prosecution against Petron is ed without a The filed he participates while in the ARD motion for judgment which the Program, charges against him are not granted. appli- Petron filed an successfully completes dismissed until he cation for reconsideration which the Commis- However, I do not believe that is sion but it previous vacated its type of “indictment” envisioned Sec- suspension and ordered the his 5(a)(ll) tion of the Law because the certification with automatic reinstatement for all purposes, intents and been re- has his successful of the ARD solved. Program. Petron then appealed to this Court arguing that accepted because he was authority The Program for the ARD comes into Program, the ARD charges against which, Supreme from pursuant our Court him were unless he courts, violated a authority supervise the trial and, therefore, program condition of that his consisting created the ARD rules in 1972 teaching certificate suspended. could not be Pa.R.Crim.P. 175-186. Commonwealth v. argued He also (1985). Lutz, of the Law suspension Lutz, mandated the based Supreme explained our Court that the solely indictment, upon the it violated his due Program:

process rights by depriving of him of either a pretrial eases, disposition is a of certain pre-or post-deprivation hearing. attorney which the for the Commonwealth issue,

Addressing the first majority agrees prosecution for an disagrees with Petron agreed and instead upon period exchange concludes of time in that even while in the ARD Program, participation the defendant’s successful charges against him remained and a rehabilitation the content of proper pursuant to Sec- which is be determined the court and However, major- tion of the Law. applicable statutes. 2070.5(a)(1 1). 1. Act of December as amend- 1096

Under the ARD rules ... the district local school district that a believes teacher’s attorney action, has the discretion to refuse to nothing conduct warrants disciplinary ARD, submit a case for precludes the case is taking it from such action as it ARD, submitted for ap- removal, court-must appropriate, including deems but prove the defendant’s admission. into, These once ARD is entered auto- provide rules ... also that the defendant longer applies. matic no ARD, must to the terms of the Because we can on a non- resolve this case completed he has after basis, constitutional not I would address the successfully, charges against him will issue.2 dismissed, upon order of court. If he complete does not successfully, the ARD prosecuted for the offense with charged.

which he was The district attor-

ney’s utilization of ARD optional under

the rules.

Id. at 495 A.2d at 931. purpose Program previ ously explained by our Superior Court in CORPORATION, Petitioner, UNISYS Krall, Commonwealth v. Pa.Super. d : A.2d 99 it when state thrust of the Program [T]he A.R.D. is to Pennsylvania, COMMONWEALTH of defendant,

enable a before he has been (Three Cases). Respondent crime, convicted of a pro- enter into a gram hopefully which will result in his Pennsylvania. Commonwealth Court of necessity rehabilitation without the of trial Argued May conviction. If the does *6 pro- succeed the Commonwealth Decided March 1999. charges. effect, ceed admission As Amended March Program into the A.R.D. the crimi- places proceedings abeyance, subject nal

being reactivated under certain conditions. Essentially,

Id. 434 A.2d at 100-101. Program is utilized to resolve cases having

without proceedings, additional court say judicial

but that is not to that there is no

resolution of a case. an individual When

participates Program, in an ARD the matter way

is resolved one or the other —either the successfully completes pro-

individual

gram dropped, are or he subsequent

doesn’t and there is a conviction. technically,

While there is still an outstand-

ing process, prac- indictment as a per-

tical it is “deactivated” while a result, Program.

son is in th'e As it is type

not the of active indictment Assembly

General meant nothing Law because there is further

that the court has to do at that time. If a issue, (Pa.Cmwlth. 1999). of the due 725 A.2d For resolution see Pennsylvania Department Slater v.