Opinion
No. 1669 C.D. 2012
03-27-2013
J.M., Petitioner v. Pennsylvania Department of Education, Respondent
SEALED CASE BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
J.M. petitions for review of the July 31, 2012 order of the Professional Standards and Practices Commission (Commission) granting the motion of the Pennsylvania Department of Education (Department) to revoke J.M.'s professional educator certification following his conviction for theft by failure to make required disposition of funds.
J.M. holds an Instructional I Pennsylvania teaching certificate in the area of Elementary K-6, issued by the Department on June 1, 1991. J.M. also holds an Administrative II Pennsylvania certificate in the area of Elementary Principal K-6, issued by the Department on December 1, 2003. J.M. was employed as an elementary principal by the Scranton School District. On March 6, 2012, J.M. pled guilty in the Lackawanna County Court of Common Pleas (trial court) to theft by failure to make required disposition of funds received in violation of section 3927(a) of the Crimes Code, 18 Pa. C.S. §3927(a). (Reproduced Record (R.R.) at 1a.)
The original record in this case indicates that J.M. was sentenced this same day to a period of incarceration of 60 days and directed to pay costs totaling $3,578.00 and restitution in the amount of $77,305.00. (Certified Record (C.R.) at Item No. 6).
On June 4, 2012, the Department filed with the Commission a notice of charges and a motion for summary judgment seeking the revocation of J.M.'s teaching certification and his eligibility to be employed in a charter or cyber charter school as a result of his conviction, which the Department alleged was for a crime involving moral turpitude. The Department attached to its notice of charges certified court documents from the trial court evidencing J.M.'s conviction. The notice of charges specifically advised J.M. that he may file a response and request for a formal hearing contesting any factual assertions within 30 days after receipt of the notice of charges. Further, this notice advised J.M. that failure to file a response or request a hearing may result in the admission of all factual assertions and the imposition of discipline without a hearing. J.M. did not file a response to the notice of charges or motion for summary judgment, nor did he request a hearing. (R.R. at 1a-4a; C.R. at Item No. 1.)
By letter dated June 20, 2012, the Commission notified J.M. that it would consider the notice and motion filed by the Department at its July 19, 2012 meeting and that he was entitled to be heard at this meeting. (C.R. at Item No. 3.) J.M. appeared and expressed remorse for his actions, but he did not dispute his conviction or contest the Department's assertion that the crime was one involving moral turpitude. (C.R. at Item No. 1.)
On July 31, 2012, the Commission issued its memorandum and order revoking J.M.'s professional educator certification and his eligibility to be employed in a charter or cyber charter school. The Commission concluded that there was no genuine issue of material fact as it has previously held that the crime of theft by failure to make required disposition of funds received was a crime involving moral turpitude. Hence, the Commission further concluded that it was required to revoke J.M.'s certification under section 9.2 of the Professional Educator Discipline Act (Act), Act of December 12, 1973, P.L. 397, added by the Act of December 20, 2000, P.L. 918, as amended, 24 P.S. §2070.9b(2), and section 237.9 of the Commission's regulations, 22 Pa. Code §237.9, both of which mandate revocation of the certification of a professional educator convicted of a crime involving moral turpitude. (C.R. at Item No. 1.)
On appeal to this Court, J.M. argues that the Commission erred in automatically revoking J.M.'s professional educator certification based solely on the fact of his conviction for theft by failure to make required disposition of funds received. However, before we reach the merits of this argument, we must address the Department's contention that J.M. waived all objections to the Commission's adjudication by failing to raise them before the Commission. We agree with the Department.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Petron v. Department of Education, 726 A.2d 1091 (Pa. Cmwlth. 1999).
J.M. also raises several ancillary arguments, including the following: (1) the Legislature's listing of 26 specific offenses requiring automatic revocation demonstrates that offenses not included within the list do not require automatic revocation; (2) the Commission's regulations do not include theft as a crime of moral turpitude per se; (3) the Commission's regulations deny due process by creating an entirely new class of offenses leading to automatic revocation and prohibiting professional educators from presenting evidence about their exact offenses; (4) virtually any crime would result in revocation as all crimes involve moral turpitude; (5) our Supreme Court's decision in Commonwealth ex rel. Kearney v. Rambler, ___ Pa. ___, 32 A.3d 658 (2011), requires an analysis of J.M.'s crime of moral turpitude rather than an automatic revocation; and (6) prior decisions classifying certain crimes as requiring per se revocation are inapplicable because they predate the relevant statutory and regulatory sections. --------
Section 703(a) of the Administrative Agency Law states that:
A party who proceeded before a Commonwealth agency under the terms of a particular statute shall not be precluded from questioning the validity of the statute in the appeal, but such party may not raise upon appeal any other question not raised before the agency (notwithstanding the fact that the agency may not be competent to resolve such question) unless allowed by the court upon due cause shown.2 Pa. C.S. §703(a). Section 1551(a) of the Pennsylvania Rules of Appellate Procedure similarly provides that:
Review of quasijudicial orders shall be conducted by the court on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit except:Pa. R.A.P. 1551(a).
(1) Questions involving the validity of a statute.
(2) Questions involving the jurisdiction of the government unit over the subject matter of the adjudication.
(3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit. If, upon hearing before the court, the court is satisfied that any such additional question within the scope of this paragraph should be so raised, it shall remand the record to the government unit for further consideration of the additional question.
The court may in any case remand the record to the government unit for further proceedings if the court deems them necessary.
In the present case, the Department's notice of charges advised J.M. of his right to respond and request a formal hearing. Specifically, the notice provided as follows:
If you contest any factual assertion made in this Notice, you have a right to request, in writing, a hearing. The proceeding shall be in the nature of a formal hearing conducted in accordance with the Professional Educator Discipline Act (24 P.S. §§2070.1a-2070.18a). Your response and request for a hearing must include specific admissions or denials of the factual assertions, as well as a concise reference to the facts and matters of law relied upon.(R.R. at 3a-4a.) (Emphasis in original). Despite this notice, J.M. neither responded to the notice of charges nor requested a hearing. Nor has J.M. set forth any good cause for failing to raise his objections before the Commission. Hence, J.M. failed to preserve any of the issues which he currently seeks to raise and, consequently, those issues are waived and will not be addressed by this Court. 2 Pa. C.S. §703(a); Pa. R.A.P. 1551(a); see also M.T. v. Department of Education, 56 A.3d 1 (Pa. Cmwlth. 2010) (failure of party to properly raise and preserve an issue before an administrative agency results in waiver of that issue before the reviewing court).
YOUR RESPONSE MUST BE RECEIVED BY THE COMMISSION WITHIN THIRTY (30) DAYS AFTER THE DATE OF YOUR RECEIPT OF THIS NOTICE OF CHARGES. IF YOU FAIL TO FILE A RESPONSE TO THIS NOTICE OR TO REQUEST A HEARING WITHIN THIRTY (30) DAYS AFTER ITS RECEIPT, ALL OF THE FACTUAL ASSERTIONS STATED IN THE ABOVE NOTICE MAY BE CONSIDERED ADMITTED AND DISCIPLINE MAY BE IMPOSED WITHOUT A HEARING. ADDITIONALLY, IF YOU FAIL TO RESPOND AND OR MAINTAIN A CURRENT ADDRESS WITH THE DEPARTMENT AND THE PROFESSIONAL STANDARDS AND PRACTICES COMMISSION, DISCIPLINE MAY BE IMPOSED BY THE PROFESSIONAL STANDARDS AND PRACTICES COMMISSION WITHOUT FURTHER NOTICE TO YOU AND WITHOUT YOUR PRESENCE.
Accordingly, the Commission's order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 27th day of March, 2013, the order of the Professional Standards and Practices Commission, dated July 31, 2012, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge