Dr. Susan Kegerise v. Kathy L. Delgrande , 147 A.3d 930 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dr. Susan Kegerise :
: No. 232 C.D. 2015
v. :
: Argued: March 7, 2016
Kathy L. Delgrande, John F. Dietrich, :
Clifton D. Edwards, Carol L. Karl, :
Jesse Rawls, Sr., Dr. Peter J. Sakol, :
Helen D. Spence, and Mark Y. :
Sussman, In their Official Capacity, :
Appellants :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
JUDGE McCULLOUGH 1 FILED: September 13, 2016
The Board of School Directors (the School Board)2 of the Susquehanna
Township School District (District) appeal from the November 5, 2014 order of the
Court of Common Pleas of Dauphin County (trial court), which essentially granted
Dr. Susan Kegerise’s (Dr. Kegerise) mandamus complaint and directed the School
Board to reinstate her as the superintendent of the District.
1
This opinion was reassigned to the author on April 28, 2016.
2
The named appellants are individual members of the School Board.
Facts and Procedural History
In January 2010, Dr. Kegerise was hired as the superintendent of the
District. In January 2013, the School Board voted to extend her contract and, in April
2013, a majority of the School Board ratified the finalized contract, which was set to
expire on June 30, 2017.
On March 25, 2014, Dr. Kegerise advised the School Board that she was
currently under medical care and, per her physician’s instruction, would be out of
work through April 21, 2014.3 (Reproduced Record (R.R.) at 578a-79a.)
On April 16, 2014, in response to several letters from Dr. Kegerise’s
counsel to the District alleging that she had been constructively discharged, the
District’s counsel responded with a letter stating that:
Dr. Kegerise is and remains the Superintendent of Schools
at Susquehanna Township School District pursuant to the
contract between she and the Board. Her recent absence
from work was based on a physician’s note received from
Dr. Kegerise. Her time away from the District since that
day has been recorded as sick leave derived from Dr.
Kegerise’s pre-existing sick leave accumulation.
* * *
Finally, the District understands that Dr. Kegerise’s current
physician’s note indicates that she is precluded from
working until April 21, 2014. If she is cleared to return to
work, then the District hopes and expects her to return to
her duties as Superintendent. If she is not, the District will
continue to debit her sick leave time and continue to process
her workers[’] compensation claim.
(R.R. at 71a-72a.)
3
By letter dated April 21, 2014, Dr. Kegerise’s physician advised that Dr. Kegerise “is to be
off of work until further notice due to work related medical issues.” (R.R. at 556a.)
2
On April 17, 2014, Dr. Kegerise filed a complaint against the District
and individual School Board members (federal complaint) in the United States
District Court for the Middle District of Pennsylvania, alleging, inter alia, that the
District had caused her working conditions to become so intolerable that it constituted
a constructive discharge, although she acknowledged that she had not been formally
terminated. As part of her federal complaint, Dr. Kegerise submitted a verification,
affirming that the statements contained therein were true and correct to the best of her
knowledge. (R.R. at 74a-116a.)
On April 21, 2014, the School Board met in a properly advertised public
session, amended its agenda mid-meeting to add a motion to accept the resignation of
Dr. Kegerise, and voted to approve the motion to “[a]ccept the resignation of Dr.
Kegerise as superintendent that is implicit with the term ‘constructive discharge,[’]
effective April 17, 2014.” (R.R. at 252a.) The motion passed with five affirmative
votes, zero objections, and three abstentions. The abstaining School Board members
cited a lack of information for their non-participation. Dr. Kegerise was not present
at the meeting. (R.R. at 50a-51a, 249a-55a.)
By letter dated April 22, 2014, the District’s counsel advised Dr.
Kegerise’s counsel that the School Board had voted to formally accept Dr. Kegerise’s
resignation, effective April 17, 2014, based upon her filing of the federal complaint.
The letter also stated that Dr. Kegerise had breached her employment contract
because she failed to provide sixty days’ notice of her resignation. Accordingly, Dr.
Kegerise’s pay, benefits, health care, emoluments, and any terms of her contract
ceased to be effective on April 17, 2014. (R.R. at 25a.)
On April 24, 2014, Dr. Kegerise filed a complaint in mandamus in the
trial court and an emergency motion for peremptory judgment pursuant to
Pennsylvania Rule of Civil Procedure No. 1098, requesting that it order the School
3
Board to reinstate her and compensate her from April 17, 2014, to the date of
reinstatement. The School Board filed preliminary objections to the complaint and a
response opposing Dr. Kegerise’s emergency motion. (R.R. at 19a-30a.)
At the parties’ request, the trial court preliminarily determined whether
an emergency existed sufficient to have Dr. Kegerise’s complaint considered on an
expedited basis and, on May 2, 2014, the parties filed joint stipulations of fact. By
order dated May 14, 2014, the trial court determined that the matter did not constitute
an emergency. (R.R. at 48a, 261a.)
On May 16, 2014, Dr. Kegerise filed an amended complaint in
mandamus, seeking reinstatement and compensation. The School Board filed
preliminary objections to Dr. Kegerise’s amended complaint, arguing that her claim
must fail because she does not have a clear legal right to the retraction of the School
Board’s acceptance of her resignation and she has an adequate remedy at law. By
order dated June 20, 2014, the trial court denied the School Board’s preliminary
objections. Thereafter, the School Board filed an answer and new matter, alleging
that Dr. Kegerise was estopped from asserting that she did not resign because she
submitted a signed verification with her federal complaint indicating that the
statements contained therein were true, including that she had been constructively
discharged, which requires resignation as a necessary prerequisite to the cause of
action. (R.R. at 261a-322a.)
On October 16, 2014, the trial court conducted an evidentiary hearing
limited to whether Dr. Kegerise had intended to resign from her position as the
District’s superintendent when she filed her federal complaint. On November 5,
2014, the trial court issued an order directing the School Board to reinstate Dr.
Kegerise as the District’s superintendent and restore all back pay and benefits as if
her employment had not been interrupted. The School Board filed a nunc pro tunc
4
motion for post-trial relief and, on February 11, 2015, the trial court issued an order
denying the same.
On appeal to this Court,4 the School Board argues that the trial court
erred in reinstating Dr. Kegerise because: her federal complaint alleging constructive
discharge constituted a resignation; the District had no legal duty to reverse its vote
and reinstate Dr. Kegerise as superintendent; the parties stipulated that the procedures
the School Board used to accept Dr. Kergerise’s resignation were proper; and Dr.
Kegerise was not entitled to a hearing because she resigned and was not removed for
cause.
Discussion
Impact of Federal Complaint
The School Board argues that Dr. Kegerise’s filing of her federal
complaint constituted a resignation. According to the School Board, Dr. Kegerise’s
verified federal complaint alleging constructive discharge inherently constitutes a
resignation because resignation is a necessary prerequisite of the cause of action.
“Constructive discharge occurs only when an employer knowingly
permitted conditions of discrimination in employment so intolerable that a reasonable
person subject to them would resign.” Reya and Haig Hair Salon v. Pennsylvania
Human Relations Commission, 915 A.2d 728, 733 (Pa. Cmwlth. 2007) (internal
4
Our scope of reviewing in a mandamus action is limited to determining whether the trial
court abused its discretion or committed an error of law and whether sufficient evidence exists to
support the trial court’s findings. Orange Stones Co. v. City of Reading, Zoning Hearing Board, 32
A.3d 287, 289-90 (Pa. Cmwlth. 2011). Our standard of review of a trial court’s grant of mandamus
is de novo. County of Carbon v. Panther Valley School District, 61 A.3d 326, 331 n.3 (Pa. Cmwlth.
2013).
5
quotation omitted). Clearly, a constructive discharge action is assessed by an
objective standard. Connors v. Chrysler Financial Corporation, 160 F.3d 971, 974
(3d Cir. 1998) (“The test applied to constructive discharge claims is objective
whether a reasonable jury could conclude that [the employer] permitted conditions so
unpleasant or difficult that a reasonable person would have felt compelled to
resign.”). On its face, the constructive discharge standard contemplates termination
without a plaintiff’s actual resignation, as long as a reasonable person would have felt
compelled to resign, even if the plaintiff did not actually resign. The test is whether a
hypothetical, reasonable employee would have resigned, not the employee alleging
constructive discharge.
Additionally, “[e]mployee resignations . . . are presumed to be
voluntary.” Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999).
However, an employee’s resignation will be deemed involuntary where the employer
forces the resignation by coercion or duress. Id. at 228. Here, Dr. Kegerise alleged
that a reasonable person in her position would feel compelled to resign. Thus, she
alleged that the School Board’s conduct would force a reasonable person to
involuntarily resign. It would be inexplicable to hold that the School Board is
authorized to act as if Dr. Kegerise resigned voluntarily when she alleged that it
created circumstances that compelled an involuntary resignation. As the trial court
aptly noted, “the General Assembly provided a very limited methodology for
removing superintendents and assistant superintendents in order to insulate them from
arbitrary and capricious activities of the School Board and its individual members.”
(Trial court op. at 4.) To endorse the School Board’s argument would essentially
authorize a school board to create a condition that would constitute a termination as a
matter of law, i.e., intolerable working conditions that would compel a reasonable
person to resign, but permit it to proceed as if an employee executed a voluntary
6
resignation. The School Board’s assertion would thwart the General Assembly’s
deliberate removal procedure for superintendents and, therefore, must fail.
Accordingly, the School Board’s argument that Dr. Kegerise’s filing of a federal
complaint alleging constructive discharge constituted a resignation is unpersuasive.
Writ of Mandamus
The School Board next argues that the trial court’s order reinstating Dr.
Kegerise was erroneous because it directs the School Board to reverse its exercise of
discretion in accepting her federal complaint as a resignation. The School Board also
argues that the trial court erred because Dr. Kegerise failed to sustain her burden of
establishing a clear right to relief and a corresponding duty in the School Board to
reinstate her to the superintendent position. Conversely, Dr. Kegerise argues that
Section 1080 of the Public School Code of 1949 (School Code)5 provides the
exclusive mechanism for removing superintendents and the School Board’s failure to
follow the enumerated procedures provided therein establishes her clear right to
reinstatement.
Mandamus is an extraordinary remedy designed to compel the
performance of a ministerial act or a mandatory duty and may only be granted where
the plaintiff has established a clear legal right, a corresponding duty in the defendant,
and that no other appropriate remedy is available. Orange Stones Co., 32 A.3d at
290. “The purpose of a mandamus is not to establish legal rights but only to enforce
those legal rights that have already been established.” Id. However, mandamus may
not be used to “direct the exercise of judgment or discretion in a particular way, or to
direct the retraction or reversal of an action already taken.” Chanceford Aviation
5
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §10-1080.
7
Properties, L.L.P. v. Chanceford Township Board of Supervisors, 923 A.2d 1099,
1108 (Pa. 2007).
Section 1080 of the School Code provides that:
(a) District superintendents and assistant district
superintendents may be removed from office and have their
contracts terminated, after hearing, by a majority vote of the
board of school directors of the district, for neglect of duty,
incompetency, intemperance, or immorality, of which
hearing notice of at least one week has been sent by mail to
the accused, as well as to each member of the board of
school directors.
24 P.S. §10-1080(a).
This Court’s decision in Burns v. Board of Directors of Uniontown Area
School District, 748 A.2d 1263 (Pa. Cmwlth. 2000), is instructive. In Burns, the
plaintiff was a duly-elected superintendent serving a five-year term that expired in
June 1998. In May 1997, three board members lost their respective elections; before
their terms expired, a majority of the school board elected the plaintiff to
superintendent for an additional five-year term from July 1998 to July 2003 and
approved his compensation and other terms and conditions for the same. However, in
December 1997, before the plaintiff’s existing contract expired, a newly-elected
board voted to rescind his upcoming 1998-2003 contract. Accordingly, the plaintiff
filed a mandamus action seeking to compel the school district to reinstate him as
duly-elected superintendent pursuant to the School Code. The trial court granted the
district’s preliminary objections and dismissed the plaintiff’s complaint.
The plaintiff appealed to this Court, arguing that the prior school board
lawfully elected him, set his salary, and, as such, the new school board prevented him
from fulfilling his duties and bypassed the only statutory provisions authorizing
removal. According to the plaintiff, mandamus was appropriate to compel the district
8
“to honor the due election of Superintendent and the provisions of his contract.” Id.
at 1266.
We acknowledged that the plaintiff had an available remedy via a
contract action to repair the contractual harm to the plaintiff. But, we recognized the
General Assembly’s special attention to the superintendent position:
A superintendent does not have tenure like the professional
employees, e.g., principals, teachers, etc. A superintendent
is not protected by collective bargaining under Act 195[6]
nor is he included under Act 93,[7] as administrators are,
with certain rights to meet and discuss. Superintendents
have, however, obviously been given select consideration
by the Legislature in the School Code, which gives them
unique status as a non-voting board member as well as
being the chief executive officer of the District. Long term
job security for that office is provided by mandating a
minimum contract length of at least three years, by
restricting removal to four specific reasons, [and] by forcing
the school boards to make a decision on retention at least
five months before the expiration of the contract . . . .”
By expressly mandating the procedure for the re-election of
[the plaintiff] for renewal of his contract and by expressly
providing for removal thereafter, the Legislature excluded
by implication any exception to that procedure in election
years for school board members, i.e., expression unium est
exclusion alterium.
Id. at 1266-67.
We noted that the school board’s decision to elect the plaintiff to an
additional five-year term prior to the expiration of the individual members’ terms was
6
Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S.
§§1101.101 – 1101.2301.
7
Section 1164 of the School Code was added by the Act of June 29, 1984, P.L. 438, as
amended, 24 P.S. §11-1164. Section 1164 of the School Code is commonly known as “Act 93.”
9
“a lawful and mandated fulfilling of its duty under the School Code to act upon [the
plaintiff’s] expiring tenure” and reasoned that the school board’s lawful election
triggered the imposition of statutory duties on the superintendent and an obligation to
perform those duties. Id. at 1270. As such, we stated that “[t]he relationship between
a superintendent, a school board and a school district is, therefore, not merely
contractual, but is also statutory.” Id. at 1269. Consequently, we determined that the
harm sought to be remedied was not merely for a breach of contract; rather, it was for
a statutory breach “to enforce the School Code’s provisions regarding election,
setting compensation and enforcement of the duties of a duly elected superintendent.”
Id.
Moreover, because the School Code provides for the plaintiff’s election,
tenure, duties, and compensation, we determined that any potential contract damages
were insufficient to remedy the statutory harm committed by the plaintiff’s improper
removal. We reasoned that the plaintiff had a clear legal right to performance of his
statutory duties and, therefore, a corresponding duty existed in the school board to
reinstate him and provide him with the agreed-upon compensation. However, we
clarified that mandamus was not appropriate to enforce the remaining provisions of
the plaintiff’s employment contract because the School Code is silent regarding any
other employment conditions of a superintendent other than the length of term,
compensation, and a recital of certain statutorily mandated duties. See also Section
1081 of the School Code, 24 P.S. §10-1081.
The case of Antonini v. Western Beaver Area School District, 874 A.2d
679 (Pa. Cmwlth. 2005), is also instructive. In Antonini, the superintendent plaintiff
was suspended with pay following allegations that, inter alia, he had authorized the
10
transfer of Title I[8] funds to use for tuition reimbursement for two teachers studying
for principal certificates in excess of the amount provided for in the relevant
collective bargaining agreement and failed to give the school board the requisite five
days’ notice when interviewing a prospective employee. The plaintiff filed a
complaint, seeking reinstatement until formal charges had been filed and a statutorily
mandated hearing had been held or, alternatively, contractual damages for unilateral
termination. The trial court granted mandamus and ordered the plaintiff’s
reinstatement, distinguishing the Supreme Court’s decision in Burger v. Board of
School Directors of McGuffey School District, 839 A.2d 1055 (Pa. 2003),9 because
8
Part A of the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C.
§§6301-6339, 6571-6578.
9
In Burger, the superintendent plaintiff was suspended without pay pending investigation of
allegations that he had sexually harassed a school district employee. Prior to a removal hearing, the
plaintiff filed a complaint seeking, inter alia, reinstatement to his position because the School Code
did not authorize a superintendent’s suspension absent a hearing. The trial court granted mandamus
and directed the plaintiff’s reinstatement. The school district appealed to this Court and, in a
divided en banc opinion, we reversed, reasoning that the plaintiff had failed to establish the lack of
an alternative remedy because, ultimately, he could appeal the adverse removal decision pursuant to
section 752 of the Local Agency Law, Act of April 28, 1978, P.L. 202, as amended, 2 Pa.C.S. §752.
However, we noted that section 1080 of the School Code was silent regarding suspension, but
concluded that suspension pending removal is an inherent managerial prerogative when serious
misconduct charges are levied; however, we noted that the school board’s suspension prerogative
was limited by procedural due process.
On appeal, our Supreme Court rejected any categorical rule that “the availability of a post-
termination appeal necessarily constitutes an adequate remedy with respect to a prior, pre-hearing
deprivation in the nature of an interim, uncompensated suspension of a public employee.” Burger,
839 A.2d at 1060. Rather, the Supreme Court stated that “the adequacy-of-remedy question as
applied to such a deprivation requires a more fact-dependent inquiry, as well as a more circumspect
approach on the part of the reviewing court, particularly in view of the impact on the employee’s
livelihood” and articulated a list of factors that must be considered when evaluating the adequacy of
any alternative remedy. Notwithstanding the different test applied, the Supreme Court affirmed our
order, noting that the School Code “vests school districts in this Commonwealth with ‘all necessary
powers to enable them to carry out [the School Code’s] provisions’” and reasoning that “the School
(Footnote continued on next page…)
11
the allegations did not constitute “serious misconduct” sufficient to warrant non-
compliance with section 1080 of the School Code and the school board did not
sufficiently observe the plaintiff’s procedural due process rights. Antonini, 874 A.2d
at 682.
On appeal to this Court, we distinguished the allegations presented from
those in Burger and rejected “the School Board’s assumption that its ‘managerial
prerogative’ to suspend with pay is generally available.” Id. at 683. Instead, we
stated that “resort to procedures beyond those specified in the School Code is the
exception rather than the rule . . . . It is the seriousness of the misconduct alleged that
forms the necessity for the implied power.” Id. Accordingly, because the suspension
was not executed in compliance with section 1080 of the School Code, we concluded
that the plaintiff established “a clear right to be treated in accordance with those
explicit statutory provisions.” Id. Moreover, considering the factors articulated in
Burger, we reasoned that any other available remedies were inadequate and,
therefore, mandamus was proper.
While the facts of Burns and Antonini are readily distinguishable from
the present matter because the School Board did not initiate action against Dr.
Kegerise for disciplinary reasons, the analysis therein is applicable here. Although
the School Code is silent regarding a school board’s authority to accept a
superintendent’s resignation, the School Board’s action had the identical effect as that
(continued…)
Code’s removal provision pertaining to superintendents does not divest school boards of their
implied authority to suspend such officials accused of serious misconduct . . . within the constraints
of procedural due process.” Id. at 1061 (citing Section 211 of the School Code, 24 P.S. §2-211).
12
of the school boards in Burns and Antonini; a superintendent’s removal.10 However,
as we articulated in Burns, because the School Board had elected Dr. Kegerise to a
valid employment term pursuant to the School Code, she was subject to statutorily-
mandated duties as superintendent and has a clear legal right to perform the same.
See Burns, 748 A.2d at 1270; 24 P.S. §10-1081. Additionally, Burns instructs that
the School Board has a corresponding duty to reinstate Dr. Kegerise and provide her
with the agreed-upon compensation. Moreover, we find Antonini persuasive in that it
advises that a school board’s “managerial prerogative” is not unlimited and a resort to
procedures beyond those specified in the School Code is the exception rather than the
rule. Although this is a fact-intensive case that implicates conduct the General
Assembly did not apparently contemplate, i.e., accepting a superintendent’s
resignation, we decline to endorse an implied procedure that could circumvent the
School Code’s limited removal mechanism. Therefore, because Dr. Kegerise has a
clear legal right to perform her duties as superintendent under the School Code and
the School Board has a corresponding duty to reinstate her, the trial court’s issuance
of mandamus was proper.
The School Board’s Procedures
10
The School Code vests school boards with all necessary powers to appoint an acting
superintendent to fill any vacancy. See Sections 211 and 1079 of the School Code, 24 P.S. §§2-211,
10-1079. However, as articulated above, Dr. Kegerise’s filing of a federal complaint alleging
constructive discharge did not constitute a resignation and, therefore, no vacancy existed for the
School Board to take action to fill.
13
The School Board next argues that the trial court erred in finding that the
procedures the School Board used to accept Dr. Kegerise’s alleged resignation were
improper because the parties stipulated that those procedures were proper.
In its opinion, the trial court stated, in pertinent part:
At the next regularly scheduled Board meeting on April 21,
2014, an executive session was called in the middle of the
public session wherein the Board determined to take a vote
on whether to accept Plaintiff’s “resignation” in the form of
the Federal Complaint. During the hearing on October 16,
2014, Defendant Kathy DelGrande testified that in her
history as a Board member that the Board, as a whole, had
never amended its agenda in the middle of a meeting. (N.T.
p. 33). Further, the Board had never accepted a resignation
from an employee that was not in writing. (N.T. p. 33).
(Trial court’s op. at 11) (internal footnote omitted).
The trial court also noted that only six of the nine board members were
present at the mid-meeting executive session. (Trial court op. at 11 n.6.)
The School Board is correct that the parties stipulated that “[t]he Board
did not violate the School Code or any Board policy or practice by adding to the
Agenda the Motion.” (R.R. at 51a.) However, contrary to the School Board’s
assertion, the trial court did not determine that the procedures were improper; instead,
it only acknowledged how the vote occurred. The stipulation does not prohibit the
trial court from recognizing the unusual nature of the School Board’s conduct. As the
record indicates, the procedures that were used, although lawful, were novel.
Therefore, we discern no error in the trial court’s consideration of the procedures that
culminated in the School Board’s vote to accept Dr. Kegerise’s alleged resignation.
Hearing
14
Finally, the School Board argues that the trial court erred when it
determined that Dr. Kegerise was entitled to a hearing under the School Code when
she did not request one and a hearing is not required in the event of a superintendent’s
resignation.
As articulated above, Dr. Kegerise’s filing of the federal complaint did
not constitute a resignation and the School Board’s argument in that regard must fail.
Similarly, section 1080 of the School Code does not require that a superintendent
request a hearing. Rather, it states that “superintendents may be removed from office
and have their contracts terminated, after hearing, by a majority vote of the board of
school directors of the district . . . .” 24 P.S. §10-1080(a) (emphasis added). The
General Assembly did not include a statutory requirement that a superintendent
request a hearing and, thus, it would be improper for this Court to impose one.
Therefore, we discern no error in the trial court’s conclusion that “[i]n the event the
Board has a basis to terminate Dr. Kegerise, it should proceed under the provision of
24 P.S. § 10-1080.” (Trial court op. at 14.)
Conclusion
The School Board’s argument that Dr. Kegerise’s filing of the federal
complaint constituted a resignation because resignation is a necessary predicate of the
cause of action is unpersuasive. Additionally, the School Board’s assertion that
mandamus is improper because Dr. Kegerise failed to establish a clear right to relief
and a corresponding duty in the School Board to reinstate her must fail. Moreover,
we discern no error in the trial court’s consideration of the novel, but lawful,
procedures the School Board used in voting on Dr. Kegerise’s alleged resignation and
its conclusion that, because she did not resign, a hearing pursuant to section 1080 of
15
the School Code would be proper if the School Board chooses to remove her as
superintendent.11
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Wojcik did not participate in this decision.
11
The Dissent asserts that issuance of mandamus is improper because Dr. Kegerise’s
employment contract contained a provision stating that she need not provide notice of her
resignation in the event she is constructively discharged. According to the Dissent, Dr. Kegerise
exercised her contractual right pursuant to this provision, resigned pursuant to the same, and the
School Board acted within its discretion to accept that decision. The Dissent would resolve this
matter purely on contractual grounds.
The contract provision the Dissent identifies states that “[n]o notice whatsoever shall be
required . . . should her resignation be . . . caused by constructive termination by the Board.” (R.R.
at 133a.) Therefore, for this provision to be implicated, Dr. Kegerise’s resignation must be caused
by constructive termination by the School Board. If, pursuant to the Dissent’s position, this is
purely a contractual matter, it could be argued that, by accepting her resignation pursuant to the
contract provision, the School Board conceded that Dr. Kegerise was constructively discharged.
However, throughout this litigation, the School Board has averred that Dr. Kegerise was not
constructively discharged. Moreover, in its April 22, 2014 letter, the District’s counsel advised Dr.
Kegerise that she had breached her employment contract because she failed to provide the requisite
sixty days’ notice of her resignation. (R.R. at 25a.) Finally, there is no authority, statutory,
contractual, or otherwise, indicating that the School Board has any discretion in this matter. The
Dissent’s rationale would essentially authorize the School Board to take advantage of a contractual
provision that it disputes ever occurred. Rather, the School Board “has to pick an option . . . but not
both.” (Slip op. at 11.)
Importantly, as we stated in Burns, “[t]he relationship between a superintendent, a school
board and a school district is, therefore, not merely contractual, but is also statutory.” Id. at 1269.
Therefore, contrary to the Dissent’s position, this is not merely a contractual matter and an attempt
to reduce it to such is erroneous. This is a statutory matter governed by the School Code and
section 1080 of the School Code provides the exclusive mechanism for a superintendent’s removal.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dr. Susan Kegerise :
: No. 232 C.D. 2015
v. :
:
Kathy L. Delgrande, John F. Dietrich, :
Clifton D. Edwards, Carol L. Karl, :
Jesse Rawls, Sr., Dr. Peter J. Sakol, :
Helen D. Spence, and Mark Y. :
Sussman, In their Official Capacity, :
Appellants :
ORDER
AND NOW, this 13th day of September, 2016, the November 5, 2014
order of the Court of Common Pleas of Dauphin County is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dr. Susan Kegerise :
:
v. : No. 232 C.D. 2015
: Argued: March 7, 2016
Kathy L. Delgrande, John F. Dietrich, :
Clifton D. Edwards, Carol L. Karl, :
Jesse Rawls, Sr., Dr. Peter J. Sakol, :
Helen D. Spence, and Mark Y. :
Sussman, In their Official Capacity, :
Appellants :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
DISSENTING OPINION BY
SENIOR JUDGE PELLEGRINI FILED: September 13, 2016
This case involves an appeal by the Board of School Directors (Board)
of the Susquehanna Township School District (School District) from a mandamus
order of the Court of Common Pleas of Dauphin County (trial court) directing the
Board to reinstate Dr. Susan Kegerise (Dr. Kegerise) as Superintendent of the School
District because she had been illegally removed from office. I respectfully dissent
because Dr. Kegerise was not removed but resigned, and mandamus does not lie to
determine whether the School District properly determined that the actions she took
constituted a resignation within the meaning of her employment contract with the
School District.
I.
Dr. Kegerise’s contract as Superintendent of the School District expired
in June 2017 and included separate termination and resignation clauses. Section 8.03,
pertaining to resignation, provided:
8.03 RESIGNATION.[1] In the event that Superintendent
seeks to resign or separate her employment with Board for
any reason other than death, illness, or disability,
Superintendent shall give District at least sixty (60) days’
written notice in advance of the employment severance
date. The failure of Superintendent to give such required
notice shall cause Superintendent to lose any entitlement to
any unused but accrued payments that may be offered
pursuant to the fringe benefits under this AGREEMENT.
No notice whatsoever shall be required by the
Superintendent should her resignation be caused by the
Board’s breach of this AGREEMENT or caused by
constructive termination by the Board or any of its
members. Resignation shall not jeopardize any benefits
earned prior to the Superintendent’s resignation.
(Reproduced Record (R.R.) at 133a) (emphasis added).
The facts that led up to the Board concluding that she had resigned under
this provision began on March 24, 2014, when Dr. Kegerise informed the School
District that she needed to take medical leave per a physician’s recommendation from
March 14, 2014, through April 21, 2014, due to stress from her employment. Her
physician later advised her to extend her medical leave indefinitely and the School
District was notified.
1
The 2013 contract newly added this provision.
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Dr. Kegerise then had her legal counsel send several letters to the School
District stating that she had been constructively discharged. In response, the School
District’s solicitor sent a letter on April 16, 2014, to Dr. Kegerise’s counsel
addressing her employment status. Specifically, the School District solicitor’s letter
asserted that, although Dr. Kegerise’s counsel indicated in previous letters that “Dr.
Kegerise has been constructively terminated,” she had not, stating:
Dr. Kegerise is and remains the Superintendent of Schools
at [the School District] pursuant to the contract between her
and the Board. Her recent absence from work was based on
a physician’s note received from Dr. Kegerise. Her time
away from the [School] District since that day has been
recorded as sick leave derived from Dr. Kegerise’s pre-
existing sick leave accumulation.
On April 10, 2014, Dr. Kegerise filed a report for
workers[’] compensation benefits. That report has been
forwarded to the [School] District’s workers[’]
compensation carrier and will be processed in the normal
course of business. Her application will be either granted or
denied following an investigation by the workers[’]
compensation carrier. Accordingly, the determination of
whether or not Dr. Kegerise suffered a work-related injury
will depend on the outcome of this process.
***
Finally, the District understands that Dr. Kegerise’s current
physician’s note indicates that she is precluded from
working until April 21, 2014. If she is cleared to return to
work, then the [School] District hopes and expects her to
return to her duties as Superintendent. If she is not, the
[School] District will continue to debit her sick leave time
and continue to process her workers[’] compensation claim.
(Id. at 71a-72a) (emphasis added).
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The next day, on April 17, 2014, Dr. Kegerise filed a civil complaint
(federal complaint) against the School District and Carol L. Karl (Ms. Karl), Jesse
Rawls (Mr. Rawls),2 and Mark Y. Sussman (Mr. Sussman),3 all elected members of
the Board, in the United States District Court for the Middle District of Pennsylvania,
alleging, inter alia, constructive termination of her employment.4 As part of the
federal complaint, Dr. Kegerise signed a verification dated April 10, 2014, affirming
that the statements contained in her federal complaint were true and correct to the
best of her knowledge.
In the federal complaint, Dr. Kegerise alleged, among other things, that
the School District constructively terminated her employment. She sought damages
in excess of six million dollars, including compensatory and economic damages “for
loss of contractual salary and other emoluments of employment,” consequential
damages for “damage to professional reputation and loss of future salary as an
educational administrator,” punitive or exemplary damages, attorneys’ fees and other
relief. (Id. at 93a.)
2
Mr. Rawls was President of the Board from December 2011 to December 2012.
3
In November 2013, Mr. Rawls and Mr. Sussman filed a civil complaint in the United
States District Court for the Middle District of Pennsylvania against the Board, the School District
and Dr. Kegerise to enjoin them from violating Mr. Rawls’s and Mr. Sussman’s constitutional rights
and to nullify the employment contract between the Board and Dr. Kegerise. On January 21, 2014,
Mr. Rawls and Mr. Sussman amended their complaint, naming only Dr. Kegerise as the defendant.
In March 2014, Mr. Rawls and Mr. Sussman discontinued their lawsuit without any type of
settlement.
4
Dr. Kegerise’s other allegations included: a due process violation, breach of contract,
tortious interference with a contract, racial discrimination, sex discrimination, age discrimination,
defamation, intentional infliction of emotional distress, and wrongful use of civil proceedings.
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On April 21, 2014, the Board accepted Dr. Kegerise’s resignation per
Section 8.03 of her Superintendent’s contract pertaining to resignation because of her
repeated assertions that she was constructively discharged, including those filed
under oath in her federal complaint.
II.
The central issue on appeal is whether Dr. Kegerise’s filing of the
federal complaint was a resignation from her position with the School District as
envisioned by Section 8.03 of her Superintendent’s contract, thereby precluding
mandamus relief.
A.
Constructive discharge occurs only when an employer knowingly
permits conditions of discrimination in employment so intolerable that a reasonable
person subject to them would resign. Raya and Haig Hair Salon v. Pennsylvania
Human Relations Commission, 915 A.2d 728, 733 (Pa. Cmwlth. 2007) (citation
omitted). In determining what that term “constructive discharge” means within the
meaning of Dr. Kegerise’s federal complaint, in Pennsylvania State Police v. Suders,
542 U.S. 129 (2004), the United States Supreme Court found that for a plaintiff to
establish “constructive discharge,” the plaintiff “must show that the abusive working
environment became so intolerable that her resignation qualified as a fitting
response.” Id. at 134. The Court added that under this doctrine, “an employee’s
reasonable decision to resign because of unendurable working conditions is
assimilated to a formal discharge for remedial purposes.” Id. at 141. The Court
concluded that:
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Unlike an actual termination, which is always effected
through an official act of the company, a constructive
discharge need not be. A constructive discharge involves
both an employee’s decision to leave and precipitating
conduct: The former involves no official action; the latter,
like a harassment claim without any constructive discharge
assertion, may or may not involve official action.
Id. at 148 (emphasis added).
Pennsylvania federal courts have also maintained that an employee’s
constructive discharge is predicated on the employee’s resignation. See McCarthy v.
Darman, 372 F. App’x 346, 349 (3d Cir. 2010) (refusing to recognize an employee’s
constructive discharge claim arising from the employee’s suspension because the
employee did not actually resign on the date of suspension); McWilliams v. Western
Pennsylvania Hospital, 717 F. Supp. 351, 355-56 (W.D. Pa. 1989) (holding that
“there must be at least some relation between the occurrence of the discriminatory
conduct and the employee’s resignation” in a constructive discharge claim).
B.
Dr. Kegerise filed her federal complaint on April 17, 2014, one day after
her attorney received a letter specifically denying that she had been constructively
terminated, confirming that she remained the School District’s Superintendent and
reiterating that the School District “hope[d] and expect[ed] her to return to her duties
as Superintendent” once she was no longer on sick leave. (R.R. at 72a.) However, in
her federal complaint, Dr. Kegerise maintained that she was constructively terminated
due to intolerable working conditions. She also requested damages for loss of
DRP - 6
contractual salary, including future salary, thereby acknowledging that her
employment ended before the Board passed the motion to accept her “resignation.”
The term “constructive termination” was used in Dr. Kegerise’s 2013
contract, specifically under Section 8.03’s Resignation provision, and stated, in
pertinent part: “No notice … shall be required by the Superintendent should her
resignation be caused by … constructive termination by the Board or any of its
members.” (Id. at 133a.) Dr. Kegerise testified that she understood “constructive
termination” to essentially mean that the working conditions might become so
intolerable due to the Board’s actions that she would be forced to resign. She
testified that the term “constructive termination” used in her 2013 contract had the
same meaning as the “constructive termination” term she used in her federal
complaint. Moreover, Dr. Kegerise signed the verification on the federal complaint
on April 10, 2014, before receiving the School District solicitor’s letter and before the
Board’s vote, stipulating that she stood behind all of the averments made in the
federal complaint, thereby indicating that the use of the term “constructive
termination” was, in essence, her resignation.
Dr. Kegerise exercised her right to resign under Section 8.03 of the
Contract. Dr. Kegerise alleged intolerable working conditions, including harassing
conduct by Board members causing her to be unable to satisfy her duties as
Superintendent and possibly causing her health issues. She is the one that has the
right to exercise the right to resign under this provision, and she was the one that
asked that it be included in the contract. Whether the School Board thinks she has
been constructively terminated is irrelevant because this provision gave her the right
DRP - 7
to resign with the ability to make a claim for contractual damages which she would
be unable to do if she just resigned. Dr. Kegerise would not have been able to make
out a claim that she had been constructively terminated if she had not effectively
resigned, as constructive termination is predicated on the employee’s resignation.
While I would hold that no reasonable person could find that she did not
effectively resign, if that matter is in dispute, mandamus would still not lie because it
is not available to resolve a contract dispute. Kaelin v. University of Pittsburgh, 218
A.2d 798 (Pa. 1966); Strank v. Mercy Hospital of Johnstown, 117 A.2d 697 (Pa.
1955).
III.
The majority does not accept this analysis simply by finding that the
School District removed Dr. Kegerise from her position, rather than that she had
resigned from her position when she exercised her right to “resign” under Section
8.03 by claiming constructive discharge. In arriving at this position, the majority
adopts the “this just can’t be” rationale by stating that:
It would be inexplicable to hold that the School Board is
authorized to act as if Dr. Kegerise resigned voluntarily
when she alleged that it created circumstances that
compelled an involuntary resignation. As the trial court
aptly noted, “the General Assembly provided a very limited
methodology for removing superintendents and assistant
superintendents in order to insulate them from arbitrary and
capricious activities of the School Board and its individual
members.” (Trial court op. at 4.) To endorse the School
Board’s argument would essentially authorize a school
board to create a condition that would constitute a
termination as a matter of law, i.e., intolerable working
conditions that would compel a reasonable person to resign,
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but permit it to proceed as if an employee executed a
voluntary resignation. The School Board’s assertion would
thwart the General Assembly’s deliberate removal
procedure for superintendents and, therefore, must fail.
Accordingly, the School Board’s argument that Dr.
Kegerise’s filing of a federal complaint alleging
constructive discharge constituted a resignation is
unpersuasive.
(Majority Opinion at 6-7.)
While the majority claims that this is inexplicable, this “can be” because
the parties agreed to it in Section 8.03 of the contract. Moreover, this in no way
“thwart[s] the General Assembly’s deliberate removal procedure,” Majority Opinion
at 7, because there is nothing in the School Code that limits how a school
superintendent can exercise his or her right to resign. In this case, that is set out in
Section 8.03 of Dr. Kegerise’s contract, which specifically deals with resignation
caused by constructive discharge.
Section 8.03 gave Dr. Kegerise the option to resign without advance
notice by claiming constructive discharge, presumably with the remedy that she took
– filing an action that claims 6 million dollars in damages. She exercised that option
and nothing the School District did indicated that it had any intent to remove her as
Superintendent. In fact, she exercised that option after the School District informed
her that she had not been constructively discharged and that “the [School] District
DRP - 9
hopes and expects her to return to her duties as Superintendent” after her stress-
related medical issues were resolved.5 (R.R. at 72a.)
5
In its response to the dissenting opinion, the majority first claims that the School District
did not accept her resignation based on constructive termination and, second, that a school district
can only accept a resignation authorized in the contract in accordance with the removal provisions
set forth in Section 1080 of the School Code. 24 P.S. §10-1080. The Pennsylvania Public School
Code (School Code) of 1949 is the Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 –
27-2702. Let us examine each of those issues.
In its first mention of Section 8.03 of the Superintendent’s contract, the majority does not
dispute that this provision allows Dr. Kegerise to resign for “constructive termination.” Instead, the
majority seems to suggest that this provision is not applicable because the School District somehow
did not accept her resignation based on Section 8.03. However, there is no requirement under this
provision, the School District accept her resignation because the contract gives her the unilateral
right to exercise that provision.
In any event, the majority bases that argument on the April 16, 2014 letter quoted previously
in the dissenting opinion in which the School District’s counsel, in response to letters from Dr.
Kegerise’s counsel that she had been constructively discharged, stated “Dr. Kegerise is and remains
the Superintendent of Schools at [the School District] pursuant to the contract between her and the
Board.” (R.R. at 71a.) This letter was the School District’s position prior to her sworn federal
complaint in which she swore under oath that she was constructively discharged, leading to its
decision to accept her resignation. It also claims that the School District did not accept her
resignation under Section 8.03 based on a selective quote from an April 22, 2014 letter from the
School District’s counsel to Dr. Kegerise’s counsel that “she breached her employment contract
because she failed to provide the requisite 60 days-notice of her resignation,” which seems to
indicate that the School District never accepted her resignation based on constructive termination.
(R.R. at 257a.) Without saying so, the majority seems to be saying that since Section 8.03 provides
that she could resign without notice for constructive termination, that it was not invoking that
provision. Based on those two reasons, the majority concluded that “the Dissent’s rationale would
essentially authorize a contractual provision [Section 8.03] that the [School District] disputes has
ever occurred.”
Let us take a look at the full paragraph that the majority selectively quotes:
As you know the Susquehanna Township School Board voted
at last night’s meeting to formally accept the resignation of Dr. Susan
Kegerise effective April 17, 2014. This is based upon her most recent
filing in the Federal Middle District Court at docket no 1:14-cv-
(Footnote continued on next page…)
DRP - 10
(continued…)
00747-WWC, in which she claimed that she was “constructively
terminated,” et al.. I note that you received a letter on behalf of your
client on April 14, 2014 in which Michael Miller advised that “Dr.
Kegerise is and remains the Superintendent of School [s] at
Susquehanna Township School District pursuant to the contract
between she and the Board.” (See copy of letter attached hereto for
your reference). Despite this formal advice, she signed her
verification on April 10, 2014 and the suit was filed on April 17,
2014. Accordingly, pursuant to the contract with the Board, she
breached the terms of the contract and failed to provide sixty (60)
days notice. (See paragraph 8.03 of her contract attached hereto).
Her pay, benefits, health care, emoluments and any terms of her
contract have ceased effective April 17, 1014.
From this paragraph, the School District stated that it was accepting her resignation based on
her claim of constructive termination under Section 8.03. Whether the School District was correct
in what emoluments she is entitled to as the result of the acceptance of her resignation for her
constructive termination would be decided in the federal litigation.
The other basis the majority gives with the dissent seems to be that Section 8.03, while it
allows a resignation for constructive termination, is that it is superseded by Section 1080 of the
School Code, 24 P.S. §10-1080, which provides for the removal of School Superintendents. In
doing so, the majority seemingly takes the position that the only way a school district can accept a
resignation is by removing the superintendent. It arrives at that position based on the last sentence
of the following quote from Burns v. Board of Directors of Uniontown Area School District, 748
A.2d 1263, 1279 (Pa. Cmwlth. 2000):
In the instant case, although there is a contractual relationship, there is
also a clear duty in the School Code for a duly elected district
superintendent to be elected by the Board, to have his compensation
set by the Board and, once elected, there are clear statutory duties
imposed upon the superintendent to be responsible for the
performance of statutory duties. The relationship between a
superintendent, a school board and a school district is, therefore, not
merely contractual, but is also statutory.[16]
Footnote 16 provides those statutory provisions as: “Sections 1071 through 1081 of the
School Code, 24 P.S. §§10-1071 through 10-1081.” While, admittedly, the relationship between the
superintendent and the school district is not merely contractual but is also statutory, there has to be a
(Footnote continued on next page…)
DRP - 11
I recognize that being a school superintendent is a difficult job subject to
stress from parents, teachers and, yes, from members of the school board who attempt
to interfere with the day-to-day operation of schools. But as the majority points out, a
school superintendent can only be removed in limited circumstances. Being a
member of a school board, though, is also difficult. Unpaid, the school board is
required to spend an enormous amount of time and be subject to enormous stress
attempting to address concerns of parents and the people that elected them, other
Board members who may not agree with their position, and, yes, from the school
superintendent, who may not agree with the school board or one of its member’s
positions.
If a school superintendent has conflict with a school board, a school
superintendent can either resign or attempt to accommodate those elected officials
and stay on suffering from what he or she considers ill-conceived positons or the ill-
(continued…)
statutory provision that the contract provision is in conflict. None of those provisions of the School
Code deal with how a resignation is to be accepted or deal with the option by a superintendent to
resign by claiming constructive discharge.
Somehow, the majority takes the leap that just because Section 1080 of the School Code is
one of those provisions mentioned, that the only way a school district can accept a resignation under
the terms set forth in a superintendent’s contract is under that provision. It simply does not apply.
Section 1080 deals with removals of superintendents, who can only be removed “for neglect of
duty, incompetency, intemperance, or immorality.” 24 P.S. §10-1080. The School District never
mentioned that it intended to remove Dr. Kegerise, only that it was accepting her resignation under
Section 8.03 of the contract. Remember, Dr. Kegerise was the moving party: she was the one that
initially maintained that she was constructively terminated; she was the one that rejected the School
District’s position that she remain the Superintendent; and, notwithstanding all of that, she filed an
action in federal court wherein she swore that she was constructively discharged. Then, and only
then, did the School District accept her resignation.
DRP - 12
tempered conduct of some members of the school board, knowing that he or she can
only be removed before his or her contract is up only for narrow statutorily defined
reasons. Moreover, if a school superintendent is being precluded from pursuing his
or her statutory duties by a school board, then he or she can bring an action in
mandamus to stop the school board from doing so. Pittenger v. Union Area School
Board, 356 A.2d 866 (Pa. Cmwlth. 1976). Or, as here, Dr. Kegerise can avoid that
purported stress and conflict by exercising her contractual option and say “enough is
enough” to the Board – “you have caused me so much stress that I am no longer
capable of performing my job and I resign and I will sue you for damages.” Dr.
Kegerise, by the terms of her contract, has to pick an option – stay and tough it out or,
as here, resign and sue – but not both.
Once she elected to resign and sue, the Board acted within its discretion
to accept that decision and mandamus does not lie.
__________________________________
DAN PELLEGRINI, Senior Judge
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