         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Kinavey,                         :
                                       : No. 1081 C.D. 2015
                         Appellant     : Argued: April 11, 2016
                                       :
                   v.                  :
                                       :
West Jefferson Hills School District   :
and Board of Directors of              :
West Jefferson Hills School District   :

BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                        FILED: June 15, 2016

            Terry Kinavey (Kinavey) appeals from an order of the Court of
Common Pleas of Allegheny County (trial court) that denied her statutory appeal
from a determination of the Board of Directors (Board) of West Jefferson School
District (District) to remove her from the position of superintendent. The trial
court determined there was no impermissible commingling conduct between
prosecutorial and adjudicatory functions and that substantial evidence supported
the Board’s determination that Kinavey failed to comport herself consistent with
the requirements of the position of superintendent. Kinavey contends the trial
court erred by: concluding that there was no impermissible commingling; not
making findings of fact in support of this conclusion; and, upholding the Board’s
dismissal of her. Upon review, we affirm.
                                      I. Background
              Kinavey held the position of superintendent of the District for a five-
year term, which she began in July 2008. On November 17, 2009, the Board
suspended Kinavey without pay. By letter dated November 20, 2009, the District’s
Solicitor, Ira Weiss (Solicitor), sent Kinavey a formal statement of charges and
notice of hearing pursuant to Section 1080 of the Public School Code of 1949
(School Code).1 The statement of charges contained 15 enumerated charges for
conduct the Board deemed “incompetence, neglect of duty, intemperance, and
immorality” in violation the School Code. Reproduced Record (R.R.) at 14a. The
Board cited a lack of candor and dishonesty to the Board, as well as a pattern of
plagiarism in carrying out her duties as superintendent.
              The Board hired Michael Palumbo to serve as both special counsel to
the Board and hearing officer (Hearing Officer) for the hearing. Solicitor’s office
prosecuted the charges. Because Solicitor was a witness in the case, his colleague,
Al Lubelski, acted as lead prosecutor. Midway through the hearing, the Board
replaced Lubelski with an outside law firm. Certified Record (C.R.), Vol. IV, at
991.
              Hearing Officer held 15 public hearings to determine whether
Kinavey should be dismissed from employment. The District presented evidence

       1
         Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §10-1080. This section provides:
               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.

                                              2
and witness testimony in support of the charges. In turn, Kinavey presented
evidence and witness testimony on her behalf, including her own testimony. At the
close of the hearings, both parties presented proposed findings of fact and
conclusions of law. Based on the evidence presented, Hearing Officer issued a
decision, containing 198 findings of fact and 37 conclusions of law, recommending
Kinavey’s dismissal.
             The Board met in executive sessions in August and September 2010
to deliberate and adjudicate the charges. Present at the sessions were Hearing
Officer and most members of the Board,2 except for David Graham and Shauna
D’Alessandro who served as witnesses and recused themselves from participation
in the deliberations and adjudication. Board’s Adjudication, 9/29/10, Findings of
Fact (F.F.) Nos. 4, 15; see C.R., Vol. I, at 7; C.R., Vol. IX, at 2263-64. The Board
then issued an adjudication in which it adopted the findings and conclusions of
Hearing Officer, which are summarized as follows.
             In the summer of 2009, the District posted a vacancy for an English
Teacher/Reading Specialist, a dual certification position, for the 2009-2010 school
year at Thomas Jefferson High School. Kinavey was involved in the interview and
hiring process. Six candidates applied for the position. Following first-level
interviews, two candidates did not advance, two candidates withdrew, and two
candidates advanced to the second level. Denise Breisinger (Breisinger), who was
a resident of and a substitute teacher for the District, was one of the two candidates
that advanced. F.F. Nos. 25, 27, 31, 33, 35, 36.

      2
         Throughout the original hearing, the Board members were Deborah Pozycki, Marianne
Neel, Anthony Angotti, Alan Caponi, Anna Louise Lilley, Carolyn Bourgeois, Anthony Rash,
Shauna D’Alessandro, and David Graham. F.F. No. 3; see C.R., Vol. IX, at 2257-2261
(Verifications); C.R., Vol. II, at 703.

                                            3
             A five-person interview team, which included Kinavey, Hamsini
Rajgopal (Rajgopal), human relations director, Timothy Hasselhoff, principal at
the high school, Paul Ware, associate principal at the high school, and Suzan
Petersen, assistant to the superintendent, conducted second-level interviews of the
two remaining candidates. Breisinger garnered no negative comments. Standard
practice is for the interview team to reach a consensus as to the candidate to
recommend to the Board by presenting a personnel sheet, commonly referred to as
a “blue” sheet. However, the team could not reach a consensus on the candidate
for the position. Kinavey did not tell the interview team she could not recommend
Breisinger. F.F. Nos. 23, 24, 32, 39, 45, 46.
             Rajgopal sought advice from Solicitor, who advised her to select the
best candidate. However, Rajgopal understood Solicitor’s advice to be that if the
team offered the job to “Candidate A” and she turned it down, the job should go to
“Candidate B,” which was Breisinger, and she relayed this information to the team.
The team offered the position to Candidate A, but she declined. F.F. Nos. 47-50.
             At a meeting held July 21, 2009, Kinavey stated Breisinger would be
the candidate recommended to the Board based on Solicitor’s advice that the
District “had to hire” Breisinger. F.F. Nos. 54. The team reached a consensus that
Breisinger would be the candidate recommended for the position to the Board. At
the July 24th meeting, Kinavey reiterated that Breisinger would be the
recommended candidate. Kinavey did not indicate to the interview team that she
was withdrawing the recommendation. While Kinavey was on vacation, team
members acted on the assumption that Breisinger was going to be hired for the
position, and they prepared a blue sheet containing Breisinger’s name for the

                                          4
Board’s approval and assigned Breisinger a teacher mentor. F.F. Nos. 24, 56, 57,
61-66.
             However, when Kinavey returned from vacation and discovered
Breisinger’s name on the blue sheet, she met with Solicitor and expressed her view
that she did not recommend Breisinger. Kinavey informed Solicitor that, when
Breisinger previously substituted for the District, she requested to have her hours
of work altered. Kinavey also relayed that, prior to serving as superintendent, she
served on a second-level team when Breisinger unsuccessfully applied for a
teaching position; Breisinger and her husband complained to the then-
superintendent that Kinavey did not hire Breisinger because of personal animus.
Solicitor advised Kinavey it was her prerogative as superintendent not to
recommend a candidate, but he warned of a “real risk” of litigation if the District
did not hire Breisinger because she had the requisite certifications and was
qualified for the position. On August 13, 2009, Kinavey directed the removal of
Breisinger’s name as well as the English Teacher/Reading Specialist position from
the blue sheet. After the meeting, the position was reposted as an English-only
position. F.F. Nos. 72, 75, 78-80, 84, 85, 88, 89, 129.
             At the Board meeting on August 18, 2009, the Board reviewed the
blue sheets, which did not contain Breisinger’s name or the position of English
Teacher/Reading Specialist. Kinavey did not inform the Board that Breisinger’s
name appeared on and was removed from the blue sheet, that she removed the
English Teacher/Reading Specialist position from the blue sheet, or that Solicitor
warned her of the risk of litigation if the District did not hire Breisinger. F.F. Nos.
92-94.

                                          5
             A week later, at a public meeting of the Board, supporters of
Breisinger questioned the Board’s decision not to hire Breisinger and spoke in
favor of her candidacy. Although Kinavey attended the meeting, she did not offer
any explanation regarding the removal of Breisinger’s name from the blue sheet.
She also offered no explanation as to why the position was changed from English
Teacher/Reading Specialist, a dual certification position, to English Teacher, a
single certification position. She did not inform the Board that the interview team
had formed a consensus to recommend Breisinger for the position. F.F. Nos. 97-
102.
             At an executive session, the Board3 asked Kinavey whether
Breisinger’s name appeared on a blue sheet. Kinavey initially responded it had
not. She then explained Breisinger’s name was placed on a blue sheet by Rajgopal
by default because she was the last candidate standing when Candidate A
withdrew.     Kinavey led the Board to believe Candidate A withdrew from
consideration while she was on vacation. However, Kinavey knew Candidate A
declined the position prior to leaving for vacation. Kinavey did not tell the Board
that she advised the interview team that Breisinger would be the recommended
candidate. F.F. No. 112, 113, 116, 117, 119, 126.
             The Board directed its Solicitor to conduct an investigation of
Kinavey and the events surrounding the interview and hiring process. Solicitor
advised the Board that his initial investigation revealed no wrongdoing and that

       3
          All members of the Board, except for Bourgeois and Rash who were not Board
members in 2009, participated in the executive sessions held in August and September 2009.
See C.R., Vol. I, at 278; see also R.R. at 184a.

                                            6
Kinavey acted within the scope of her authority when she did not recommend
Breisinger for the position. F.F. Nos. 121, 122.
            After Solicitor made his initial report, the Board directed Solicitor to
conduct a second investigation in response to new information. Significantly,
Solicitor’s second investigation uncovered additional facts regarding the
circumstances surrounding the interview team’s consensus and that not all of the
team shared Kinavey’s negative assessment of Breisinger’s capabilities. Solicitor
also uncovered alleged acts of plagiarism unrelated to Breisinger’s hiring.
Solicitor determined cause existed to remove her. F.F. Nos. 123-125, 167, 168.
            Ultimately, the Board found Kinavey was not truthful or forthright in
her representations to the Board about the hiring process. The Board rejected
Kinavey’s sworn testimony as “untruthful” because it was contradicted by District
administrators. F.F. No. 157; see Board’s Adjudication, Conclusion of Law No.
35.   Specifically, Kinavey did not inform the Board of:         the consensus to
recommend Breisinger for hire; the removal of Breisinger’s name from the blue
sheet prior to the Board meeting; the known risk of litigation if Breisinger was not
hired; or that she removed the English Teacher/Reading Specialist position from
the blue sheet and posted it as English-only position. F.F. Nos. 92-94, 100-105.
            Moreover, Kinavey led the Board to believe that Candidate A
withdrew from consideration while she was on vacation when she knew prior to
leaving for vacation that Candidate A declined the position, leaving Breisinger as
the last candidate. F.F. No. 116, 117. Kinavey also misrepresented a lesson plan
that Breisinger presented during the second-level interview and led the Board to
believe the entire interview team held a negative assessment of Breisinger, which
was not so. F.F. No. 137.

                                         7
             The Board found Kinavey was motivated by personal bias against
Breisinger based on prior interactions. Kinavey used the pretenses such as an
undersized interview pool and the need to repost the position as an English position
as a ruse to avoid recommending Breisinger for hire. Although Breisinger was
qualified for the position, Kinavey allowed her personal bias against Breisinger to
adversely impact her decision-making and her communications with the Board
about the hiring process. F.F. Nos. 129, 130, 133.
             In addition, the Board found four specific instances of plagiarism.
Specifically, in the summer of 2009, Kinavey distributed written materials to the
District without offering attribution to the original source of the material. Three of
the plagiarized items were submitted by Kinavey to her secretary as handwritten
items for typing. Kinavey copied these letters in her own handwriting to make it
appear that she wrote the text herself. The plagiarized materials offended the
morals of the District and set a bad example for the youth served by the District.
F.F. Nos. 162-165, 181, 182.
             In short, the Board found that many of the charges against Kinavey
were proven. Namely, Kinavey displayed a lack of candor and dishonesty to the
Board, and she engaged in plagiarism. The Board determined Kinavey’s conduct
constituted neglect of duty and immorality under Section 1080 of the School Code,
and it voted to dismiss her as superintendent of the District.
             From this decision, Kinavey filed a statutory appeal with the trial
court.   Kinavey argued, among other things, that the record was incomplete
because she was denied access to certain evidence. The trial court agreed and
remanded the matter to the Board to make a full and complete record. Specifically,
the trial court ordered:       the production of extensive electronically-stored

                                          8
information; the recusal of two Board members (D’Alessandro and Graham) from
the remand hearing; and authorization to recall D’Alessandro as a witness. The
trial court further directed Hearing Officer to exercise his discretion in determining
whether Hearing Officer or District’s counsel should conduct voir dire of the
Board members.
              On remand, Hearing Officer conducted six days of public hearings,
took additional testimony, admitted voluminous electronic evidence, and
conducted voir dire of the Board members. Based on the additional evidence
adduced, the Board4 again determined Kinavey was unfit to serve as superintendent
by resolution dated August 20, 2013. R.R. at 105a-112a.
              Kinavey again appealed to the trial court. She claimed the Board
violated her due process rights because Solicitor and members of the Board
engaged in impermissible commingling conduct between the prosecutorial and
adjudicatory functions.      She also challenged the sufficiency of the evidence
supporting her termination from employment.
              The trial court bifurcated the appeal, at Kinavey’s request, to first
consider the issue of whether Kinavey’s due process rights were violated by the
alleged impermissible commingling. The trial court heard oral argument on the
issue and afforded the parties the opportunity to supplement the record with
additional evidence. By order dated October 17, 2014, the trial court found there
was no impermissible commingling conduct on the part of the Board or Solicitor.
              Thereafter, the trial court proceeded on the underlying merits of the
appeal. The trial court found that the Board created a full and complete record and

       4
         Rash did not participate in the deliberations or adjudication of the remand hearing
because he was no longer a member of the Board. See R.R. at 184a, 554a.

                                             9
that the Board’s necessary findings of fact were supported by substantial evidence.
By final order dated June 5, 2015, the trial court affirmed the determination of the
Board to remove Kinavey.
               Kinavey filed an appeal to this Court challenging both orders.5 At the
direction of the trial court, Kinavey filed a concise statement of errors complained
of on appeal pursuant to Pa. R.A.P. 1925(b). The trial court filed an opinion in
support of its orders.
                                            II. Issues
               On appeal, Kinavey presents three issues. First, she contends the trial
court erred by not making findings of fact in relation to the impermissible
commingling issue, even though it took additional evidence and conducted a de
novo hearing on the issue. Second, she claims the trial court erred in concluding
that neither the Solicitor nor Board members engaged in impermissible
commingling conduct such that Kinavey’s constitutional rights were violated.
Finally, she contends substantial evidence does not support the Board’s dismissal.
                                       III. Discussion
                                     A. Findings of Fact
               First, Kinavey contends the trial court erred by failing to make any
findings of fact to support its October 17, 2014, order disposing of the
commingling issue. The trial court accepted supplemental evidence and conducted

       5
          When a trial court does not take additional evidence, our review of a local agency’s
adjudication is limited to determining whether constitutional rights were violated, whether errors
of law were committed or whether the decision is not supported by substantial evidence.
2 Pa. C.S. §754(b); Spencer v. City of Reading Charter Board, 97 A.3d 834, 839 (Pa. Cmwlth.
2014). Where the trial court considers additional evidence or conducts de novo review on a
particular issue, our review is whether the trial court abused its discretion, committed an error of
law or violated constitutional rights. Mento v. Board of School Directors of Montour School
District, 35 A.3d 66, 68 n.3 (Pa. Cmwlth. 2011).

                                                10
a de novo review on the commingling issue. Consequently, she claims the trial
court was required to make detailed findings of fact on the commingling issue as if
it were an agency.     Kinavey asserts the trial court merely entered an order
declaring there was no impermissible commingling without making any findings in
support. The trial court compounded this error when it did not include sufficient
findings in its Rule 1925(a) opinion.
             Section 754 of Local Agency Law provides:

             In the event a full and complete record of the proceedings
             before the local agency was not made, the court may hear
             the appeal de novo, or may remand the proceedings to the
             agency for the purpose of making a full and complete
             record or for further disposition in accordance with the
             order of the court.
2 Pa. C.S. §754(a). “All adjudications of a local agency shall be in writing, shall
contain findings and the reasons for the adjudication, and shall be served upon all
parties or their counsel personally, or by mail.” Section 555 of Local Agency Law,
2 Pa. C.S. §555.
             Generally, a local agency must render an opinion delineating
sufficient findings to support its conclusions in order to provide for meaningful
judicial review. Borough of Youngsville v. Zoning Hearing Board of Youngsville,
450 A.2d 1086, 1089 (Pa. Cmwlth. 1982). However, “specific findings of fact are
not required” if the opinion provides “an adequate explanation” for the resolution
of the issues involved. Id. Moreover, “[a] court, acting de novo, has full fact
finding functions and it is implicit in Section 754(a) that a court acting de novo is
not restricted in its fact finding function.” Pittsburgh Board of Public Education v.
MJN by NJN, 524 A.2d 1385, 1388 (Pa. Cmwlth. 1987), appeal denied, 541 A.2d
1392 (Pa. 1988).

                                         11
                Here, upon determining the Board did not make a full and complete
record on the issue of impermissible commingling, the trial court conducted de
novo review pursuant to Section 754 of Local Agency Law. In furtherance of that
review, the trial court accepted additional evidence and acted as the factfinder,
rather than as an appellate court. See Leasure v. Borough of Trafford, 531 A.2d
559, 560 (Pa. Cmwlth. 1987). The trial court issued an opinion with findings of
fact.
                Specifically, the trial court found there was no impermissible
commingling conduct on the part of the Board or Solicitor. With respect to the
Board, it found:

                [Kinavey] alleges that members of the school board
                conducted their own investigation of [Kinavey] and the
                hiring process for the English/Reading position by
                discussing the situation with administrators. [Kinavey]
                also alleges that the school board commingled their [sic]
                prosecutory and adjudicatory functions by providing
                information to [Solicitor] during his investigation of
                [Kinavey]. I do not find that these actions rise to the
                level of impermissible commingling and I committed no
                error in finding so.

Trial Court Opinion, 8/17/15, at 4; R.R. at 1265a.
                With respect to Solicitor, it found: the Board was represented by and
advised by Hearing Officer, not by Solicitor; there was no allegation that Solicitor
was involved in the adjudication in any way; the Board retained separate counsel to
represent it during the deliberations and in the decision-making process; and,
Solicitor did not preside at the hearing or make evidentiary rulings, nor did he
participate in the deliberations to terminate Kinavey. Trial Court Opinion, at 5;
R.R. at 1266a. The trial court further found Kinavey’s due process rights were not
violated. Id.
                                           12
             Although the trial court set forth its findings in narrative form as
opposed to enumerated form, we are aware of no authority specifying the stylist
form. Upon review, the trial court’s Rule 1925(b) opinion comports with the
requirements under Local Agency Law and provides an adequate explanation for
the resolution of the commingling issue for appellate review.

                                 B. Commingling
             Next, Kinavey contends her due process rights were violated because
the Board and Solicitor engaged in impermissible commingling of investigatory,
prosecutorial, and adjudicatory functions. According to Kinavey, the law requires
a rigid separation between those who investigate and prosecute and those who act
as the tribunal in an employee disciplinary case. Board members and Solicitor
ignored the required separation of roles throughout the second investigation and
during the original hearing when the record and findings were made.
             More    particularly,   Kinavey    claims    Board    members     were
impermissibly involved in the investigation and prosecution. With regard to the
investigation, she claims Board members not only provided information used by
Solicitor in his investigation, but they conducted their own investigations. Board
members directed and supervised Solicitor during the investigation. They also
requested and received details of the investigation as well as legal advice regarding
the potential discharge of Kinavey from Solicitor during the investigation.
Kinavey also claims Board members were committed to the position that she
should be discharged throughout the investigation.
             In addition, Kinavey contends that Board members: strategized with
Solicitor to limit witnesses to be called at the hearing; engaged in ex parte
communications with District administrators, who were called as prosecution

                                         13
witnesses; and used their own recollection of events to evaluate the testimony.
According to Kinavey, Board members communicated with and received advice
from Solicitor, not Hearing Officer, after Hearing Officer was hired as counsel for
the Board. Although the Board hired another attorney to prosecute, the Board
allowed Solicitor to serve as a co-prosecutor throughout the original hearing and to
testify in that hearing as one of the main prosecutorial witnesses regarding his
communications with Kinavey.
            Due process is violated by impermissible commingling at the hearing
or during the decision-making process. Harmon v. Mifflin County School District,
651 A.2d 681, 684 (Pa. Cmwlth. 1994). “However, beyond the limits of the
hearing or the decision-making process, the solicitor may act on the school board's
behalf.” Id. The law is clear that “when a solicitor either prosecutes a case or
conducts the hearing as an advisor to the school board, but not both, there is no
impermissible commingling.” Behm v. Wilmington Area School District, 996 A.2d
60, 66 (Pa. Cmwlth. 2010), appeal denied, 23 A.3d 1057 (Pa. 2011); accord
Harmon, 651 A.2d at 684; Brown v. School District of Cheltenham Township, 417
A.2d 1337, 1340 (Pa. Cmwlth. 1980).
            In Behm, an attorney represented the administration in the
prosecutorial function, but he did not serve as the hearing officer, rule on
objections to testimony or admissibility of evidence. Rather, the district solicitor
conducted the hearing on behalf of the school board and made evidentiary rulings.
The school board rendered the ultimate determination.        As there was a clear
distinction between prosecutorial and adjudicatory roles, we concluded there was
no impermissible commingling. 996 A.2d at 66.

                                        14
              Likewise, in Harmon, the solicitor fulfilled the prosecutorial function
by presenting the administration's case against a suspended custodian, while
counsel from the Pennsylvania School Board's Association advised the school
board in its adjudication. There was no allegation that the solicitor was involved in
the adjudication in any way. The mere existence of a continuing relationship
between the solicitor and the school board did not create the appearance of
impropriety at the hearing or during the school board's termination deliberations.
We explained the solicitor did not act on behalf of the school board at the hearing
by “either advising them or ruling on objections or evidentiary questions and [did]
not advise them during those deliberations.”6 651 A.2d at 685. Thus, we found no
constitutional violation by the solicitor's representation of the school district
administration at the hearing on custodian’s termination. Id.
              Similarly, in Brown, a principal who was demoted, contended that it
was improper for the solicitor of the school board to act as prosecutor and for a
school board member to act as a legal advisor to the school board during the
demotion hearing. We held that there was no impermissible commingling of
functions where the solicitor only presented evidence and questioned witnesses on
behalf of the school district and did not advise the board during the hearings or
deliberation. 417 A.2d at 1340.
              However, in Department of Education v. Oxford Area School District,
356 A.2d 857 (Pa. Cmwlth. 1976), we found impermissible commingling occurred.

       6
          In Harmon, this Court specifically rejected application of Lyness v. Commonwealth,
State Board of Medicine, 605 A.2d 1204 (Pa. 1992), because “the ‘interests’ involved in the
employment relationships are totally different than an independent agency actions regulating
individuals.” 651 A.2d at 686. Thus, the same type of rigid due process requirements do not
apply to school boards as they do other independent administrative agencies. Id.

                                            15
There, a school superintendent investigated a teacher's involvement in a shoplifting
incident.   Based upon the superintendent's recommendation, the school board
decided to charge the teacher with incompetency and immorality. Id. at 859. At
the dismissal hearing, the superintendent testified as an adverse witness against the
teacher and then participated in the board's deliberations, which resulted in
dismissal of the teacher. We concluded that the superintendent's actions did not
reasonably safeguard the teacher's statutory right to an impartial and unbiased
decision.   Id. at 861.     However, we specifically emphasized “that it is the
[s]uperintendent's role as an adverse witness that is crucial to this case; the fact that
he initially investigated the shoplifting incident and recommended a hearing is not,
in our view, sufficient to indicate any bias that would render his participation in the
adjudicatory phase objectionable.” Id.

             In essence, the following principles can be gleaned from this case law:

             1. An individual or [b]oard may conduct a general
             probable cause investigation and still adjudicate the case.
             2. An individual may as a pro forma matter sign a
             suspension or removal letter and still adjudicate the case.
             3. An individual may prepare charges and still adjudicate
             the case.
             4. An individual may not prefer charges or actively
             participate in the investigation and still adjudicate the
             case.
Scalzi v. City of Altoona, 533 A.2d 1150, 1153 (Pa. Cmwlth. 1987), appeal denied,
551 A.2d 218 (Pa. 1988); accord Behm, 996 A.2d at 67.
             Applying these principles here, the trial court did not err in
determining no impermissible commingling occurred.               As the employer of
Kinavey, the Board followed its statutory duties by conducting a probable cause

                                           16
investigation regarding the charges against Kinavey, holding a hearing on those
charges, and then terminating Kinavey based on the evidence.
            The evidence Solicitor gathered in his second investigation is that
which would be expected to be collected in a general probable cause investigation.
To the extent Board members participated in the investigation, such is not
prohibited by the Board in making a probable cause determination. See Scalzi, 533
A.2d at 1153; Lower Providence Township v. Nagle, 469 A.2d 338, 343
(Pa. Cmwlth. 1984); Lomas v. Board of School Directors of Northwestern Lehigh
School District, 444 A.2d 1319, 1324 (Pa. Cmwlth. 1982). To make an informed
decision, each Board member was required to have sufficient knowledge of the
facts surrounding each of the charges. Indeed, as this Court explained in Lomas:

            The making of the charges presupposes that the members
            of the board had some knowledge of the facts upon
            which the charges were based. Unless they had an
            opinion that the charges, if sustained, would warrant
            dismissal, they should never have been made. That a
            member of the board had an opinion at the time the
            charges were preferred against appellant would not
            disqualify him from participating in a hearing on those
            charges, or invalidate the proceedings. We do not think
            that anything more was required of the members of the
            board than that they could hear and determine the charges
            against appellant on the evidence given before them,
            uninfluenced by other previous impressions.

444 A.2d at 1325 (quoting Flannery Appeal, 178 A.2d 751, 754 (Pa. 1962)).
            Contrary to Kinavey’s assertions, there is no evidence to support that
the Board members who adjudicated the case were committed to the position that
Kinavey was guilty as charged throughout the investigation. The Hearing Officer
conducted extensive voir dire of the Board members. See R.R. at 1238a-1246.

                                        17
Through this process, the Board members involved in the deliberative process and
adjudication avowed they were uninfluenced by the previous impressions, and that
they were not pre-committed to the position of Kinavey’s wrongdoing. To the
extent some Board members witnessed some of the factual events, they testified
they did not harbor any bias against Kinavey that would preclude them from fairly
deciding the case. Id. Specifically, the Board members testified they did not
prejudge the case, kept an open mind during the hearing, and limited their
deliberations to the evidence presented at the hearings. Id. Although Kinavey
attacks the testimony elicited at voir dire as “self-serving” and “unbelievable,”
Appellant’s Brief at 43-44, determinations as to weight of evidence and credibility
are for the factfinder, not this Court. See East Coast Paving & Sealcoating, Inc. v.
North Allegheny School District, 111 A.3d 220, 234 (Pa. Cmwlth. 2015).
            With regard to the alleged commingling conduct by Solicitor, the
Board hired new counsel to serve as lead prosecutor and hearing examiner.
Although Solicitor conducted the probable cause investigation and served as co-
prosecutor throughout the original hearing, he did not participate in the
adjudicatory process. See Brown. While some Board members communicated
with and received advice from Solicitor, such communication was not
impermissible. A solicitor may continue to advise the Board and even prosecute
the case as long as he is not presenting evidence in the case while at the same time
ruling on the admissibility of that evidence. See Human Relations Commission v.
Feeser, 364 A.2d 1324, 1327 (Pa. 1976) (finding no impermissible commingling
where there was no evidence to support contention that counsel advised the hearing
panel at the hearing and in the decisional process); see also Brown. Although
Solicitor presented evidence, including his own testimony, he did not rule on the

                                        18
admissibility of evidence, act as the hearing officer, or otherwise participate in the
adjudication of the case.
             Upon further review, we note that many of the Kinavey’s allegations
of impermissible commingling involve the conduct of one Board member,
D’Alessandro. Kinavey contends D’Alessandro commingled prosecutorial and
adjudicatory functions when she conducted her own investigation, which led to the
plagiarism charges; strategized with Solicitor regarding prosecution witnesses to be
called and questions to be asked at the hearing; and engaged in ex parte
communications with counsel and third parties about the case. Although we are
troubled by D’Alessandro’s actions, she did not participate in the deliberations or
adjudication. D’Alessandro recused herself during the original hearing. C.R., Vol.
IX, at 2263-64. The trial court directed her continued recusal in the remand
proceeding. Consequently, she was not involved in the deliberative or adjudicative
process in the initial hearing or the remand hearing.
             For these reasons, we conclude the trial court did not err in
determining there was no impermissible commingling of the prosecutorial and
adjudicatory functions by Solicitor or Board.

                             C. Substantial Evidence
             Lastly, Kinavey contends the Board’s adjudication is not supported by
substantial evidence and must be overturned. She claims the Board’s findings
regarding the interview process were arbitrary and capricious, and the result of a
deliberate disregard of competent testimony and evidence. Specifically, she takes
issue with the Board’s findings nos. 123-125 regarding “new information”
discovered after Solicitor made his initial report to the Board. The Board found
Solicitor learned there was a consensus among the interview team that Breisinger

                                         19
would be the candidate recommended for the position and that not all of the team
shared Kinavey’s negative assessment of Breisinger’s capabilities; the Board was
not advised that the interview team reached a consensus that Breisinger would be
the recommended candidate for the English teacher position; and, this new
information changed the complexion of how the hiring situation was handled.
             According to Kinavey, this was not “new information.” Solicitor
interviewed all members of the interview team in his initial investigation. Based
on their statements to him, Solicitor concluded all members of the team agreed
Breisinger performed poorly during her interview. The consensus that Breisinger
would be recommended to the Board was based solely on the fact that she was the
sole remaining candidate for the position and they operated under the belief that
she had to be hired. Kinavey claims the Board knew of this “consensus” when
Solicitor made his initial report.     See R.R. at 245a-247a.       This knowledge
contradicts and renders unreliable any testimony to the contrary.
             In addition, Kinavey challenges numerous other findings on the
ground that the Board capriciously disregarded evidence, namely her own
unrefuted testimony. She also maintains the Board ignored the testimony of the
District’s witness, Carl DeJulio, Ed. D., who testified Kinavey did not violate
District policy.
             With regard to the plagiarism charges, she claims the conduct proved
was not plagiarism as a matter of law because she did not deliberately and
knowingly present another person’s original ideas or creative expressions as her
own. Even if she made a mistake by not referencing the sources of her welcome
letters, the Board presented no policy that plagiarism was prohibited by the
District. Therefore, this cannot serve as a basis for discharge.

                                          20
             It is well settled that findings of fact must be supported by substantial
evidence. Bonatesta v. Northern Cambria School District, 48 A.3d 552, 558
(Pa. Cmwlth. 2012).      Substantial evidence is such relevant evidence that a
reasonable mind might accept as adequate to support a conclusion. Id. When
performing a substantial evidence analysis, the court must view the evidence in the
light most favorable to the party that prevailed before the fact finder. Id. It is for
the school board, not the court, to assess the credibility of the witnesses. Id. This
Court may not reweigh the evidence or make its own credibility determinations.
Spencer v. City of Reading Charter Board, 97 A.3d 834, 842 (Pa. Cmwlth. 2014).
However, a court will “overturn a credibility determination if it is arbitrary and
capricious or so fundamentally dependent on a misapprehension of material facts,
or so otherwise flawed, as to render it irrational.” Bonatesta, 48 A.3d at 558
(quoting Agostino v. Township of Collier, 968 A.2d 258, 263-264 (Pa. Cmwlth.
2009)). “A capricious disregard of evidence exists only when there is a willful and
deliberate disregard of competent testimony and relevant evidence which one of
ordinary intelligence could not possibly have avoided in reaching a result.” Id. at
559 (quoting Agostino, 968 A.2d at 264).
             Here, Kinavey challenges the Board’s findings Nos. 123-125 as
unsupported by substantial evidence. These findings provide:

             123. After [Solicitor] made his report to the Board on
             September 15, the Board was later advised that there had
             been a consensus among the interview team at the end of
             July that Breisinger would be the candidate for the
             position and that this explained why others on the
             administrative team (i.e., Ms. Rajgopal, Mr. Haselhoff)
             operated as though Breisinger was going to be hired, and
             that not all of the administrative team shared Kinavey's
             negative assessment of Breisinger capabilities. N.T. pp.
             878 -879.

                                         21
             124. [Solicitor] was first informed by Rajgopal of the
             circumstances surrounding the interview team's
             consensus regarding the hiring of Breisinger the day after
             he delivered his report to the Board. N.T. p. 682. This
             new information ‘materially changed the complexion’ of
             how the Breisinger hiring situation was handled, and was
             brought to the Board's attention. N.T. p. 682.

             125. The Board was not advised that the interview team
             had come to a consensus that Breisinger would be the
             candidate recommended for the English/Reading
             Specialist position until September 16, 2009. N.T. p.
             979.
R.R. at 36a-37a.
             Our review of Solicitor’s first report to the Board confirms Kinavey’s
assertion that Solicitor apprised the Board of the “consensus” to hire Breisinger.
R.R. at 245a-246a. Specifically, Solicitor reported to the Board: “The consensus,
which was not objected to, was that [Breisinger] was to be recommended to the
Board.” Id. at 246a (emphasis added). As a result, the Board’s finding that it was
not aware of a consensus until after the Solicitor’s report is not supported by
substantial evidence.
             Notwithstanding, the circumstances surrounding the interview team's
consensus was new information. When the Solicitor first reported to the Board, the
nature of the consensus was that Breisinger was merely the candidate by default.
See C.R., Vol. II, at 642-643. Solicitor’s initial report reflected the team’s negative
assessment of Breisinger.          Specifically, Solicitor reported “there was
dissatisfaction with the lesson [Breisinger] used as a demonstration.” R.R. at 245a.
He continued:
            The opinion was shared that the lesson was below the
            grade level for 12th grade, using the Three Little Pigs
            story as a model with an Hispanic based comparison and
            a Venn diagram which measure the area(s) of
                                          22
             commonality between the stories. The notes also reveal
             that [Breisinger] knew little about [response to
             intervention] as well as differentiated instruction which
             the Committee deemed to be important. She also had no
             suggestions for reading assessment models.
Id.
             Kinavey herself testified she believed the lesson plan was “not grade
appropriate, even for remediation, and the vocabalary [sic] words were not grade
appropriate, they were vocabalary [sic] words you would use for 3rd grade . . . .”
C.R., Vol. IV, at 1169. According to Kinavey, everyone agreed the lesson plan
was not grade appropriate. Id. at 1179.
             Solicitor testified, “it appeared that there were these issues of this
lesson and that the recommendation and the non-hiring of ... Breisinger was
basically the result of that.” C.R., Vol. II, at 575. He thought Breisinger “had not
performed as she should have in the process” and that there were “issues with her
interview.” Id. at 642. The interview team was told it had to hire Breisinger. Id.
at 643.
             However, after Solicitor presented his report, he received a call from
Rajgopal, who advised him regarding the circumstances surrounding the consensus
to recommend Breisinger. C.R., Vol. II, at 575. Solicitor learned there was a
consensus to hire Breisinger, not because the team had to hire her, but because she
was “generally confirmed.” Id. at 575, 643. When Solicitor conducted his second
investigation, he discovered not all team members shared Kinavey’s negative
assessment of Breisinger’s capabilities or agreed her lesson plan was not grade
appropriate or lacked rigor.
             At the hearing, Haselhoff credibly testified Breisinger’s lesson plan
was satisfactory and the team did not express agreement that the plan was not

                                          23
grade-appropriate. F.F. No. 137; C.R., Vol. II, at 500. Ware, who was an English
teacher himself as well as the Associate Principal responsible for oversight of the
high school’s English department, testified Breisinger’s lesson plan was grade-
appropriate.    Ware further testified her plan was “loaded with rigor,” “very
thorough,” and included “rationale,” “objectives” and “standards.” F.F. No. 44;
C.R. Vol. II, at 487-488. Petersen referred to Breisinger as “very strong English
candidate[]” and did not recall any objection to her candidacy. C.R., Vol. I, at 198-
199.   Substantial evidence supports the Board’s findings that the information
regarding the circumstances surrounding the consensus to recommend Breisinger
was new and undermined Kinavey’s position that Breisinger was not
recommended.
               As for Kinavey’s assertions that the Board ignored or capriciously
disregarded her testimony, the Board considered her testimony.           The Board
determined her testimony was directly contradicted by the sworn testimony of the
District’s administrators.   See F.F. Nos. 131-156.      Although portions of her
testimony were unrefuted, the Board specifically rejected her testimony as
“untruthful.” F.F. No. 157; Conclusion of Law No. 35. Contrary to Kinavey’s
assertions, the Board’s credibility determinations were not arbitrary or capricious.
See Bonatesta. Thus, we will not disturb them on appeal.
               Kinavey also contends the Board willfully disregarded testimony from
the District’s expert witness, Dr. DeJulio. Dr. DeJulio testified that Kinavey did
not violate any District policy in the hiring process. C.R., Vol. III, at 902, 919,
981; C.R., Vol. IV, at 1096. He further testified that the District’s professional
employee hiring policy does not require the superintendent to inform the Board
about a candidate the superintendent is not recommending to be hired. C.R., Vol.

                                         24
IV, at 1096. According to Kinavey, this testimony contradicts any evidence of any
wrongdoing.
              However, the Board did not remove Kinavey for violating District
policy. Rather, it removed her from office for engaging in conduct that constituted
neglect of duty and immorality under Section 1080 of the Public School Code.
The Board cited Kinavey’s lack of candor and dishonesty to the Board as well as
personal bias as bases for its decision.
              In that regard, Dr. DeJulio testified that Kinavey, as superintendent,
owed the Board a duty of candor and full disclosure. C.R., Vol. III, at 930. He
testified the charges against Kinavey, if proven, exhibited a breakdown in
communication and represented a pattern of behavior that he considered neglect of
duty. Id. at 902, 910, 927, 932-33. While recognizing it is a superintendent’s
prerogative not to recommend a candidate to the Board, Dr. DeJulio questioned
Kinavey’s action of circumventing the hiring process and unilaterally removing
Breisinger’s name from consideration without involving the team. C.R., Vol. III,
at 909, 928. Regarding the lesson plan, Dr. DeJulio testified the information
obtained “from one 15 minute presentation is extremely limited.” Id. at 934. He
was confused why anyone would put so much credence on a 15 minute lesson plan
as opposed to Breisinger’s seven-year history working as a substitute in the
District. Id. Contrary to Kinavey’s assertions, Dr. DeJulio’s testimony does not
support her position.
              Finally, Kinavey’s argument that the verbatim copying of written
works, without attribution, and passing them off as her own did not constitute
plagiarism as a matter of law is unavailing. Plagiarism is generally defined as:
             The act of appropriating the literary composition of
             another, or parts or passages of his writings, or the ideas
             or language of the same, and passing them off as the
                                           25
             product of one’s own mind. If the material is protected
             by copyright, such act may constitute an offense of
             copyright infringement.
BLACK’S LAW DICTIONARY 1150 (6th ed. 1990).
             Kinavey does not deny she copied the materials in the letters without
proper attribution. To the extent Kinavey alternatively claims her use of the
material without attribution was an innocent mistake, the Board found her intention
was to mislead and deceive because she copied three of the letters in her own hand
and provided them to her secretary for typing. The Board found that she did this to
make it appear that she drafted the text herself.
             Although the District did not have a formal policy prohibiting
plagiarism, plagiarism clearly constitutes academic dishonesty that is both immoral
and incompetent for a school superintendent to engage in. On this basis alone, the
Board was justified in removing Kinavey from employment.
             Although the record may contain evidence that would support
findings other than those made, the proper inquiry is whether the evidence supports
the findings actually made.       See Ductmate Industries, Inc. v. Unemployment
Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Upon
review, the Board’s necessary findings are supported by substantial evidence and
support the Board’s determination that Kinavey was not fit to serve as
superintendent of the District.

                                   IV. Conclusion
             In sum, the trial court did not err or abuse its discretion in affirming
the removal of Kinavey as superintendent of the District. The trial court’s opinion
consisted of general findings and disposed of all claims for relief on the
impermissible commingling issue in accordance with the rules.             Kinavey’s
                                          26
constitutional rights were not violated as neither the Solicitor nor Board members
engaged in impermissible commingling conduct. Finally, substantial evidence
supported the Board’s grounds for removal of Kinavey as superintendent of the
District based on Kinavey’s dishonesty and lack of candor to the Board
surrounding Breisinger’s candidacy as well as acts of plagiarism.
            Accordingly, we affirm.

                                      MICHAEL H. WOJCIK, Judge

                                        27
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Kinavey,                            :
                                          : No. 1081 C.D. 2015
                         Appellant        :
                                          :
                   v.                     :
                                          :
West Jefferson Hills School District      :
and Board of Directors of                 :
West Jefferson Hills School District      :

                                       ORDER

            AND NOW, this 15th day of June, 2016, the order of the Court of
Common Pleas of Allegheny County, dated June 5, 2015, is AFFIRMED.

                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge


959 So.2d 1120 (2006)
David Leon WILLIAMS
v.
FOX TELEVISION STATIONS OF BIRMINGHAM, INC.
2050205.
Court of Civil Appeals of Alabama.
October 20, 2006.
Certiorari Denied January 12, 2007.
*1121 David Leon Williams, pro se.
Gilbert E. Johnston, Jr., James P. Pewitt, S. Shelton Foss, and Lee Elebash of Johnston Barton Proctor & Powell, L.L.P., Birmingham, for appellee.
Alabama Supreme Court 1060209.

On Application for Rehearing
CRAWLEY, Presiding Judge.
The opinion of August 11, 2006, is withdrawn, and the following is substituted therefor.
David Leon Williams sued Fox Television Stations of Birmingham, Inc. ("Fox6"), and Fox6 employees Janet Hall and Rick Journey, alleging that he had been defamed in newscasts broadcast by Fox6. Williams originally attempted to serve Hall and Journey through Fox6's authorized agent; Hall and Journey successfully moved to strike that attempted service. Cf. Rules 4(c)(1) and 4(c)(6), Ala. R. Civ. P., regarding methods of serving individuals and corporations, respectively. Hall and Journey were never properly served. Fox6 moved for a summary judgment, which Williams opposed. Williams also moved for a summary judgment, which Fox6 opposed. The trial court rendered a written judgment on October 3, 2005, in which it granted Fox6's motion for a summary judgment.
The judgment was stamped as filed in the Jefferson circuit clerk's office on October 4, 2005. The computerized case-action-summary sheet reflects the filing date of the judgment on separate paper; however, the typewritten case-action-summary sheet does not contain an entry reflecting the filing of the October 4, 2005, judgment on separate paper. The computerized case-action-summary sheet contains a notation indicating that a clerk's office employee returned the October 4, 2005, judgment by separate paper to the court with a question regarding whether the other two defendants remained in the case. The trial court then entered an order, by placing it on the typewritten case-action-summary sheet, that reads:
"Claims against the Defendant Fox Television Station, were dismissed on October 4, 2005, by separate order. The other two (2) Defendants, Janet Hall and Rick Journey, have not been served since claims against them were filed on October 20, 2004. Due to non-service on the remaining Defendants in this case, all claims against them are dismissed. This Judgment is made final. Costs are taxed to the Plaintiff as previously taxed.
"DONE AND ORDERED on this the 19th day of October, 2005."
Williams filed a postjudgment motion on November 22, 2005.[1] He filed a notice of appeal on November 30, 2005.
*1122 Although neither party raises the issue of jurisdiction to this court, we take notice of the lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003) (discussing the general rule that this court notices the lack of jurisdiction ex mero motu and citing to several cases noting that rule). The trial court's October 3, 2005, rendition of a judgment in favor of Fox6 was filed in the clerk's office on October 4, 2005. Pursuant to Rule 58(a), Ala. R. Civ. P., a judge may render a judgment in four ways, including executing a separate written document, as the trial court did in the present case. At all times pertinent to this case, Rule 58(c), Ala. R. Civ. P., stated that "[n]otation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order."[2] (Emphasis added.) "When a separate judgment is filed, the filing thereof constitutes the entry of the judgment. . . ." Lacks v. Stribling, 406 So.2d 926, 930 (Ala.Civ.App.1981). The October 4, 2005, judgment on separate paper bears a stamp indicating that it was "filed in open court" on October 3, 2005, and a date stamp indicating that it was filed in the clerk's office on October 4, 2005. Thus, the judgment was entered, at the latest, as indicated by the date stamp, on October 4, 2005.
Because the only defendant who had been served at the time the judgment was entered was Fox6, the summary judgment in favor of Fox6 was a final judgment on October 4, 2005. Rule 4(f), Ala. R. Civ. P. ("When there are multiple defendants and the summons . . . and complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment."); see Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1388 n. 2 (Ala.1984) (denying, pursuant to Rule 4(f), a motion to dismiss an appeal on the basis that the judgment appealed from was not final because there remained unserved defendants below); Harris v. Preskitt, 911 So.2d 8, 14 (Ala.Civ.App.2005) (stating that an unserved defendant had never been a party to the action and that the judgment was final as to the served defendants without need for a judgment dismissing the unserved defendant). The October 19, 2005, order purporting to dismiss the claims against Hall and Journey was mere surplusage. Dolgencorp, Inc. v. Pounders, 912 So.2d 523, 525 (Ala.Civ.App.2005) (stating that a trial court's purported certification of a judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., was surplusage because the judgment was otherwise made final by entry of a judgment dismissing the plaintiff's remaining claims against the remaining defendant and, therefore, all claims against all parties had been adjudicated). A trial court cannot divest a final judgment of its finality by taking subsequent *1123 action on the case. Horn v. Dunn Bros., Inc., 262 Ala. 404, 408, 79 So.2d 11, 15 (1955); Nichols v. Ingram Plumbing, 710 So.2d 454, 456 (Ala.Civ.App.1998); and Mingledorff v. Falkville Downtown Redev. Auth., 641 So.2d 830, 832 (Ala.Civ.App. 1994). Thus, the October 4, 2005, judgment was final at the time it was entered despite the fact that two unserved defendants remained.
Although we note the discrepancy between the typewritten and the computerized case-action-summary sheets, we do not believe that the holding of Sparks v. Alabama Power Co., 679 So.2d 678, 681 (Ala.1996), in which our supreme court decided that "where there is a material discrepancy between the information contained on the formal case action summary sheet in a case and the information contained in the circuit clerk's computerized docket, a litigant should not be penalized by relying in good faith on the information contained in either `document,'" would assist Williams. Williams clearly received a copy of both the October 4, 2005, judgment and the October 19, 2005, order. The arguments in Williams's postjudgment motion concern the trial court's conclusions of law contained in the October 4, 2005, judgment. Thus, even if Williams had noticed that the October 4, 2005, judgment had not been entered on the typewritten case-action-summary sheet, he had a copy of that judgment, indicating that it had been filed in open court on October 3, 2005, in his possession; Williams, in both his postjudgment motion and his notice of appeal referred to the date of the judgment granting Fox6's summary-judgment motion as "October 3, 2005." Although he relied on the trial court's erroneous conclusion that the summary judgment in favor of Fox6 was not final until the unserved defendants were "dismissed" from the action, Williams was not misled by the conflict in the case-action-summary sheets as the plaintiff in Sparks was.
Williams's postjudgment motion was untimely, coming as it did more than 30 days after the entry of the October 4, 2005, judgment. Rule 59(b), Ala. R. Civ. P. (stating that postjudgment motions must be filed within 30 days of the entry of the judgment to which they are directed). Thus, Williams's untimely postjudgment motion did not toll the time for taking an appeal. Gary Powers Dev., Inc. v. State Home Bldrs. Licensure Bd., 852 So.2d 778, 782 (Ala.Civ.App.2002). Williams's notice of appeal, which he filed on November 30, 2005, was also untimely because it was filed more than 42 days after the entry of the summary judgment in favor of Fox6. Rule 4(a)(1), Ala. R.App. P. (providing that, in most cases, an appeal must be taken within 42 days of the judgment being appealed from). We therefore dismiss Williams's appeal as being untimely. See Holmes v. Powell, 363 So.2d 760, 762 (Ala. 1978) ("A timely filing of the notice of appeal is jurisdictional, . . . the sanction to be applied for an untimely filing being dismissal.").
APPLICATION OVERRULED; OPINION OF AUGUST 11, 2006, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.
THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.
NOTES
[1]  Williams, who is incarcerated in an Alabama prison, argues on rehearing that he actually filed his postjudgment motion on November 17, 2005, the date he handed the motion to prison authorities for mailing, based on the application of the "mailbox rule." See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (setting out the "mailbox rule"). Although the "mailbox rule" governs the timeliness of most filings in criminal cases and the timeliness of notices of appeals in both criminal and civil cases, see Rule 4(c), Ala. R.App. P., the rule has not been extended to other filings in civil cases. See N.H. v. Vickers, 865 So.2d 452, 455 (Ala.Civ.App.2003) (affirming a trial court's dismissal of an incarcerated litigant's motion for a default judgment as being untimely filed because no caselaw had extended the "mailbox rule" to filings in civil cases). In this particular case, the application of the "mailbox rule" would be unavailing to Williams, so we will not reconsider the issue of whether to extend that rule to filings in civil cases. Thus, we consider Williams's postjudgment motion as having been filed on November 22, 2005.
[2]  Rule 58 was amended effective September 19, 2006. The new rule significantly differs from the prior rule, especially in regard to subsection (c), which now reads:

"(c) Entry of Order or Judgment. Upon rendition of an order or judgment as provided in subdivision (a) of this rule, the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deemed `entered' within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System. The entry of the judgment or order shall not be delayed for the taxing of costs. Interest upon a judgment runs from the date the court renders the judgment."


977 S.W.2d 869 (1998)
Charles Elvin WHITAKER, Appellant,
v.
The STATE of Texas, Appellee.
No. 09-97-046 CR.
Court of Appeals of Texas, Beaumont.
Submitted October 1, 1998.
Decided November 4, 1998.
*871 John D. MacDonald, II, Conroe, for appellant.
John S. Hollemand, Dist. Atty., William Lee Hon, Asst. Dist. Atty., Livingston, for state.
Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION
STOVER, Justice.
A jury found appellant Charles Whitaker guilty of capital murder. The trial court sentenced him to life imprisonment in the Texas Department of Criminal JusticeInstitutional Division. Whitaker brings five points of error on appeal.

FACTS
Charles Whitaker, Fred McGregor, and Danny Hill conspired for several hours to rob seventy-six year old Aline Berry, the owner and manager of the Berry Motel in Corrigan, Texas. In the middle of the night, they entered Ms. Berry's residence at the motel through an unlocked patio, found her in bed, and held her down while they tied her feet with electrical cord and her hands with pantyhose. Searching for money, they ransacked her home while she lay bound on her bed. The men took a money bag found at the residence and then fled the scene. McGregor left first to get the car. After McGregor brought the car around to the motel, Hill exited the residence and got into the car where he and McGregor waited for one or two minutes for Whitaker to come out of the residence. McGregor testified that when Whitaker reached the car, he (Whitaker) stated he had struck Ms. Berry and "laid the bitch to rest." The three men then drove to Hill's residence where they split the money.
James Riley, chief of police in Corrigan, Texas, arrived at the scene and found Ms. Berry, tied hand and feet, lying dead on her bed. He testified that her residence was in total disarray. He also stated it was known in the community that Ms. Berry kept large sums of money at her home; for that reason, Riley had previously advised her to make regular deposits rather than keep the money at her residence.
Investigator B.W. Emmons of the Montgomery County Sheriff's Department testified the cabinets had been opened in Ms. Berry's home, almost all the drawers in the home had been dumped to the floor, and the freezer was left open. The door to her safe was also standing open. On the bed next to Ms. Berry's body was a .22 pump rifle. The stock on the weapon was broken, and two large wooden splinters, which appeared to have come from the rifle's broken stock, were also found on the bed.
Vladimir Parungao, the assistant medical examiner of Harris County who performed the autopsy on Ms. Berry's body, stated Ms. Berry died from a blow to the right side of her head. He testified the cause of Ms. Berry's death was "suppressed head due to blunt trauma to the head." The dimensions of the end of the rifle butt were consistent with the dimensions of the depressed area on Ms. Berry's skull. Parungao further testified he observed contusions on the left upper *872 and lower lip, a contusion on the left side of the jaw, a faint linear abrasion on the left side of the face, and imprints where the wrists and ankles were tied.

LEGAL AND FACTUAL SUFFICIENCY
In his first two points of error, Whitaker alleges the evidence is legally and factually insufficient to sustain the jury verdict finding appellant guilty of capital murder. He specifically argues the State failed to prove beyond a reasonable doubt there was a "nexus" between the murder of the victim and the taking of her property.
A person commits the offense of capital murder if he intentionally and knowingly causes the death of an individual while in the course of committing or attempting to commit certain delineated felonies, including robbery. TEX. PEN.CODE ANN. §§ 19.02(b)(1), 19.03 (Vernon 1994). The Penal Code provides a person commits robbery if, in the course of committing theft, and with intent to obtain or maintain control of the property, "he intentionally, knowingly, or recklessly causes bodily injury to another." Tex. Pen. Code Ann. § 29.02 (Vernon 1994). Tracking the language in the Texas Penal Code, the jury charge defines "in the course of committing theft" to mean "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." See TEX. PEN.CODE ANN. 29.01(1) (Vernon 1994).
In reviewing the legal sufficiency of the evidence, we determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979). The standard of review is the same for both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991).
In considering factual sufficiency, we view all the evidence without the prism of "in the light most favorable to the prosecution" and, thus, consider the testimony of defense witnesses and the existence of alternative hypothesis. See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996) and Stone v. State, 823 S.W.2d 375, 381 (Tex. App.Austin 1992, pet. ref'd, untimely filed). The verdict is set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129. Our review must be "appropriately deferential" to the factfinder's determination to avoid substituting our judgment for that of the trier of fact. Id. at 133.
Citing TEX.CODE CRIM. PROC. ANN. art. 38.14, appellant first claims that a "conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Without McGregor's testimony, appellant contends the State fails to establish a nexus between the murder and the robbery. In Knox v. State, 934 S.W.2d 678, 686 (Tex.Crim.App.1996), the Court of Criminal Appeals explained the accomplice witness rule:
To determine whether an accomplice's testimony is corroborated, we eliminate the accomplice testimony and review the remaining evidence to determine whether it tends to connect appellant to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim.App.1993). Further, we have stated:
Corroborative evidence need not establish appellant's guilt of the charged offense nor directly link appellant to the offense, but is sufficient if it "tends to connect" appellant to the offense. Each case must be considered on its own facts and circumstanceson its own merit. Apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration.
Id. (citations omitted).
Because a killing and an unrelated taking of property do not constitute capital murder under § 19.03(a)(2), to obtain a conviction for capital murder, the State "must prove a nexus between the murder and the theft, i.e. that the murder occurred in order to facilitate the taking of the property." Ibanez v. State, 749 S.W.2d 804, 807 (Tex.Crim. *873 App.1986); Hernandez v. State, 969 S.W.2d 440, 444 (Tex.App.San Antonio 1998, pet. ref'd). In order for the killing of Aline Berry to qualify as a capital murder under § 19.03(a)(2), the intent to rob must be formed prior to or concurrently with the murder. Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App.1993); Schexnider v. State, 943 S.W.2d 194, 198 (Tex.App.Beaumont 1997, no pet). Therefore, the State was required to prove beyond a reasonable doubt that Whitaker committed the murder during the commission of the underlying theft, or while in immediate flight, with intent to obtain or maintain control of the property. Hernandez, 969 S.W.2d at 444. If a jury could rationally conclude that Whitaker formed the intent to obtain control of the victim's property before or during the commission of the murder, then the evidence would support a conclusion that the murder occurred in the course of robbery. Dillard v. State, 931 S.W.2d 689, 696 (Tex.App.Dallas 1996, pet. ref'd, untimely filed).
In addition to the accomplice McGregor's testimony concerning Whitaker's involvement in the planning of the robbery, the robbery itself, and the murder, the record also contains additional evidence showing the formation of Whitaker's intent to rob Aline Berry prior to the murder, along with other evidence connecting Whitaker to the charged offense. LaTonya Washington, who lived with Hill and claimed to be his wife, testified Hill told her in the early morning hours of April 9, 1995, that they (Whitaker, Hill, and McGregor) were going to rob the motel. According to LaTonya, she told him, "You're crazy." She also told Hill immediately before he went out the door that he needed to sit himself down before he ended up in a lot of trouble. The next time LaTonya saw the three men, they were in her bedroom passing out money; they gave her approximately $300, which she gave to the authorities. She knew what they had done.
Also testifying for the State was Billy Joe McCullar, an inmate at the Polk County Jail, who, for a time, shared a cell with Whitaker. McCullar stated that Whitaker told him they planned the robbery, wore stockings over their faces and socks over their hands, went to Berry's house, entered the house, tied her feet and hands, and found the safe. According to McCullar, appellant related to him that he (Whitaker) hit Berry with a gun on the head to quiet her. Whitaker also told McCullar he and his accomplices then split the money at Hill's place.
Appellant points to the testimony of jail nurse Connie Franklin who was present during a conversation between Whitaker and McCullar. According to Franklin, Whitaker asked McCullar if he (Whitaker) had ever told McCullar that he had killed or hurt anyone. McCullar responded to Whitaker by stating that Whitaker had not told him anythingthat Whitaker had, in fact, told McCullar that he was innocent.
In viewing the direct and circumstantial evidence in the light most favorable to the prosecution, we find a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. There is evidence not only from the accomplice McGregor, but also from LaTonya Washington and Billy McCullar, that connects Whitaker with the crime. Both Washington and McCullar expressly testified that Whitaker and his co-conspirators planned the robbery of Aline Berry beforehand. McCullar further testified Whitaker told him the three men went to her residence, ransacked her house looking for money, stole a bag of money, and killed her in the process. Since the record establishes a "nexus" between the robbery of Aline Berry and her murder, the evidence is legally sufficient to sustain the verdict. We also find the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Points of error one and two are overruled.

BATSON POINTS
In points of error three and four, Whitaker contends the trial court erroneously denied his Batson objection to the State's use of peremptory challenges upon two prospective black jurors,[1] Ollie Mae Punch and Carol McGowen. In Purkett v. Elem, the United States Supreme Court employed a *874 three-step process to determine whether race-based strikes were exercised:
(1) The opponent of a peremptory challenge must make out a prima facie case of racial discrimination;
(2) The burden then shifts to the proponent of the strike to come forward with a race-neutral explanation; and
(3) If a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.
Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834, 839 (1995) (per curiam). In evaluating the race-neutrality of a prosecutor's explanation, an appellate court must determine whether, assuming the reasons given are true, the use of the peremptory challenge violated the Equal Protection Clause as a matter of law. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion). A neutral explanation means an explanation based on something other than the race of a juror. Id. 500 U.S. at 360, 111 S.Ct. 1859. At this step, the issue is the facial validity of the prosecutor's explanation. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Id. "The second step of this process does not demand an explanation that is persuasive, or even plausible." Purkett, 514 U.S. at 767-68, 115 S.Ct. 1769. Indeed, the answer can be silly, superstitious, fantastic, or implausible and need not be even minimally persuasive. Id. at 768, 115 S.Ct. 1769. In the third step, the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. Id.
We review the record of the Batson hearing and voir dire examination in the light most favorable to the trial court's ruling. Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim.App.1996), cert. denied, ___ U.S. ___, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997). A trial court's finding that peremptory strikes were not racially motivated will be upheld on appeal so long as the finding is not "clearly erroneous." Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989). Under the "clearly erroneous" standard, this court may only reverse the trial court's ruling if a review of the voir dire record, the State's explanations, the composition of the jury panel, and the appellant's rebuttal and impeachment evidence leaves us with the definite and firm conviction that a mistake has been made. Lamons v. State, 938 S.W.2d 774, 776 (Tex.App.Houston [14th Dist.] 1997, pet. ref'd); see also Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992). We accord great deference to the trial judge who was present to assess the credibility of the prosecutor and his explanations.
Venireperson Ollie Mae Punch was one of ten persons who responded affirmatively to the State's question asking whether or not any venire person, "a close friend or relative [had] ever been arrested, charged with or convicted of a crime." Ms. Punch stated she had a niece and in-laws who were in jail charged with theft; she agreed they were "close." She also stated she had not discussed their cases with them, she did not believe they had been mistreated, and their arrests would not affect her verdict. Although the prosecutor struck Ms. Punch, he did not strike four white jurors who had also indicated they had relatives or friends arrested, charged, or convicted of a crime.
Appellant argues the State failed to articulate a race-neutral reason for striking prospective juror Punch. The reasons articulated by the State for striking Ms. Punch are:
(a) She had two in-laws charged with theft.
(b) The State had information that Ms. Punch was a reference for a felony DWI probationer who was on probation in San Jacinto County.
(c) The District Attorney told him (the prosecutor) there were a number of Punches in San Jacinto County [where the case was tried] whose felony cases the District Attorney was familiar with.
(d) Ms. Punch was from Shepherd as was Kenneth Punch who had been prosecuted by neighboring Polk County and sent to prison.
Along with other courts, we find the reason proffered by the State regarding relatives *875 with criminal backgrounds to be race-neutral on its face. As noted by one court, "[k]inship to a person who has had trouble with the law is a racially neutral reason for striking a juror." Young v. State, 848 S.W.2d 203, 209 (Tex.App.Dallas 1992), pet. ref'd, 856 S.W.2d 175 (Tex.Crim.App.1993).
Whitaker further directs us, however, to the alleged discriminatory manner in which the State exercised a peremptory challenge on Ms. Punch. While disparate treatment of veniremembers with similar characteristics may indicate a racial bias, the record must reflect more than the mere fact that the objectionable characteristic of a stricken juror was also possessed by accepted jurors of a different racial background. Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App. 1992); Lamons, 938 S.W.2d at 778. Although the prosecutor in the instant case admitted he did not strike some whites who also had family members with criminal records, he denied treating prospective white jurors differently from prospective black jurors.
We recognize that potential jurors commonly possess similar objectionable characteristics, but in varying degrees. As a result, jury selection often hinges on the interaction of a number of variables and permutations. Lamons, 938 S.W.2d at 778.
"Disparate treatment," as such, cannot automatically be imputed in every situation where one of the State's reasons for striking a venireperson would technically apply to another venireperson whom the State found acceptable. The decision to strike a particular venireperson is not susceptible to rigid quantification; rather, it is a fluid process, often hinging on the interaction of a number of variables and permutations. For example, it is unlikely that two venirepersons on one panel will possess the same objectionable attribute or character trait in precisely the same degree. Such qualitative distinctions may cause a prosecutor to challenge one venireperson and not the other.
Thus, when the State has offered more than one plausible reason for striking a venireperson, it is proper to review these reasons in their entirety in order to assess whether the State's explanation was valid or merely pretextual.
Cantu, 842 S.W.2d at 689 (citations omitted). The State's reasons for striking Ms. Punch included the fact that she had two in-laws charged with theft. Her voir dire testimony, which we also consider in our review, reveals that she also had a niece charged with theft. The fact that she has three relatives in trouble with the law is a difference in degree from the four white venirepersons whom the State did not strike. Each of the four testified to having a single relative charged or convicted of a crime.
The prosecutor also based his strike of Ms. Punch on information he received from the San Jacinto District Attorney's office. According to that information, there were other persons in the county with the name of Punch, who were charged with felonies, and one Kenneth Punch from the Shepherd area who had been sent to prison.[2] Venireperson Punch was likewise from the Shepherd area. In Lopez v. State, 940 S.W.2d 388, 391 (Tex. App.Austin 1997, pet. ref'd), the prosecutor's strike was similarly based on information from law enforcement officers who stated that a particular panel member would not make a good juror. The Austin court held that "[m]erely identifying the source of the information did not provide the district court with a legitimate, race-neutral reason for the State's strike." Id. (emphasis added) In the instant case, the prosecutor not only provided *876 the source but also the specific information on which he based his strike. We find that the information is race neutral, and that Whitaker did not meet his burden of showing that any disparate treatment was racially motivated.
In addition to his claim of a race-based strike, Whitaker points to the perfunctory nature of the State's examination of Ms. Punch and the fact that the State never questioned her about how her name came to be used as a reference for a probationer or if she had even consented to the use of that name for that purpose. "While it is true that a lack of questioning might expose the weakness of the State's explanation, the State is not required to ask a specified rubric of questions." Tate v. State, 939 S.W.2d 738, 745 (Tex.App.Houston [14th Dist.] 1997, pet. ref'd) (citing Chambers v. State, 866 S.W.2d 9, 24 (Tex.Crim.App.1993)). The trial court was in the best position to observe the prospective juror's demeanor in responding to the State's questioning and to determine the credibility of the prosecutor's explanation. We conclude the questions the prosecutor did ask, in conjunction with the additional information he received from the District Attorney's office, were sufficient. Appellant's contention that the State did not question the potential juror, without more, does not convince this court that the trial court's decision was "clearly erroneous."
After examining the record, we find appellant's rebuttal of the race-neutral reasons offered by the State insufficient to establish that the State's reasons were a pretext for the peremptory strikes. We, therefore, find the trial court's finding was not clearly erroneous; we are not left with a firm conviction that a mistake has been made. Point of error three is overruled.
Whitaker also challenges the State's peremptory strike of venireperson Carol McGowen in point of error four. Incorporating his arguments from point of error three, he again alleges Batson violations. During the Batson hearing, the prosecutor gave the following reasons for striking McGowen:
1. She wore a nose ring.
2. She was inattentive (appeared to close her eyes and nod) during the prosecutor's voir dire.
3. When the panel was asked by defense counsel if anyone had ever been falsely accused of anything, she responded by raising her hand.
4. The prosecutor stated he had been informed by the San Jacinto District Attorney that a "McGowen" was recently charged with a felony offense in San Jacinto County.
In light of the United State Supreme Court's analysis in Purkett, we conclude the State proffered race neutral reasons for striking McGowen. A nose ring, which no other juror wore and which appellant did not establish was characteristic of any particular racial group, is a race neutral reason, as is juror inattentiveness. See Dorsey v. State, 940 S.W.2d 169, 175 (Tex.App.Dallas 1996, pet. ref'd) (sleeping or inattentiveness); Lamons, 938 S.W.2d at 778 (inattentiveness); Bryant v. State, 923 S.W.2d 199, 209 (Tex.App. Waco 1996, pet. ref'd) (earrings). These, coupled with the prosecutor's testimony that McGowen raised her hand when asked if anyone had ever been falsely accused, represent multiple race neutral reasons for the peremptory strike. When the State has offered more than one plausible reason for striking a venireperson, it is proper to review these reasons in their entirety in order to assess whether the State's explanation was valid or merely pretextual. Cantu, 842 S.W.2d at 689. Where, as here, the State has offered multiple race neutral reasons for its peremptory strike, we cannot say that the fact that there were other acceptable jurors possessing one or more of these objectionable attributes is sufficient to establish disparate treatment. We again conclude the State offered race neutral reasons for striking McGowen, and appellant did not rebut those proffered reasons with evidence of discriminatory intent. Point of error four is overruled.
In point of error five, Whitaker contends the "trial court committed reversible error when it proceeded with a hearing on the appellant's motion for new trial without the appellant being present." It is undisputed Whitaker was not present at the hearing on the motion for new trial.

*877 COURT: Let the Record reflect that Mr. Whitaker is not present at the hearing due to no fault of Mr. Jefferson or Mr. Holleman. He was not bench warranted over by the Court to be present for this hearing.
[DEFENSE COUNSEL]: On the Record, I'm not making a point of that. I believe it's a critical stage, but I think it's a matter subject to any, subject to waiver, and I'm, the 75th day is fast approaching. I need the Court to act on the Motion for New Trial and I have, as I said, filed a notice of appeal.
There is no evidence in the record that appellant's counsel at the motion for new trial had requested a bench warrant for his client to be present at the hearing. Although the trial judge specifically stated he did not issue a bench warrant for Whitaker, through no fault of either appellant's counsel or the State, Whitaker's counsel specifically stated he (counsel) did not choose to make an issue of it. Since the seventy-fifth day was approaching when the motion for new trial would be overruled by operation of law if not heard by the trial court, the defendant's trial counsel indicated he wanted to have the hearing even if appellant was not present. Trial counsel made no objection to the fact that Whitaker was not present. As a result, we conclude that appellant's right to be present at the hearing on the motion for new trial was waived. See Coons v. State, 758 S.W.2d 330, 339 (Tex.App.Houston [14th Dist.] 1988, pet. ref'd); Escarcega v. State, 711 S.W.2d 400, 402 (Tex.App.El Paso 1986) pet. dism'd, improvidently granted, 767 S.W.2d 806 (Tex.Crim.App.1989); TEX.R.APP. P. 33.1(a). Furthermore, there was no error in conducting the hearing without Whitaker, since all questions raised by the motion were determinable from the evidence already before the court. See Bumpus v. State, 509 S.W.2d 359, 363 (Tex.Crim.App.1974). Point of error five is overruled.
We affirm the judgment and sentence of the trial court.
AFFIRMED.
NOTES
[1]  Two black jurors sat on the jury.
[2]  In an effort to show disparate treatment, Whitaker contends that San Jacinto County authorities did not run background checks on all the white prospective jurors. The prosecutor stated that he "sat down with the District Attorney of San Jacinto County and went over the individuals that were on the jury list to get whatever information he had concerning them. And one of the things he told me about, we got to Ms. Punch, he had prosecuted a number of individuals or a number of individuals that had been charged with felonies by the name of Punch that were from the Shepherd area where she lived." When asked if he learned someone had run all the names of the jury panel for background checks, the prosecutor responded, "I don't know." The record does not establish whether background checks were run on all the jurors. The prosecutor's testimony simply indicates he went over the individuals on the jury list with the District Attorney.