4 A.2d 601 | Pa. Super. Ct. | 1938
Argued December 16, 1938. Appellant was dismissed as a teacher by the Board of School Directors of the School District of the Township of Mount Pleasant, Wayne County, after hearing on October 22, 1937. She appealed by petition to the court of common pleas, and requested in her petition a hearing de novo. After such hearing the court of common pleas affirmed the action of the board, and *105 stated that appellant was to be discharged as teacher in the said school district. An appeal was then taken to this court.
Appellant was employed as a teacher by appellee on August 14, 1935, under a written contract. She was so employed when the Teachers' Tenure Act of 1937, P.L. 213, 24 P. S. § 1121 and note, 1126, 1128(a), 1161, 1201, 1202, was passed and became effective. See Teachers' Tenure Act Cases,
Appellant attended the hearing on the date fixed.
Section 1205(a) of the School Code, Act of May 18, 1911, P.L. 309, as amended by the Act of May 29, 1931, P.L. 243, § 26, and as further amended by the Act of April 6, 1937, P.L. 213, § 2, 24 P. S. § 1126(a), provides as follows: "The only valid causes for termination of a contract in accordance with the provisions of this section shall be — Immorality, incompetency, intemperance, cruelty, wilful and persistent negligence, mental derangement, persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe, or substantial decrease in the number of pupils or students due to natural causes."
Prior to the notice of October 9th appellee had given to appellant a notice dated October 5th to the effect that her contract had been "terminated upon the grounds of incompetency, wilful and persistent negligence and wilful and persistent violation of the school laws of the Commonwealth of Pennsylvania." Appellant then requested a hearing and a written statement of the charges. This request was followed by the notice of October 9th. In justification of the procedure followed *106
by appellee, counsel argues that the Act of April 6, 1937, P.L. 213, § 2, 24 P. S. § 1126, makes a distinction between the dismissal and the termination of contracts of professional employees. It is true that prior to the Act of April 6, 1937, P.L. 213, sections 403, 1208, and 1205 (as amended by the Act of May 7, 1929, P.L. 1576, and Act of May 29, 1931, P.L. 243, § 26), of the School Code of May 18, 1911, P.L. 309, when read together made a distinction between dismissing a teacher and terminating a teaching contract at the end of a term. See Gerlach v. SchoolDistrict of Little Beaver Township et al.,
It would seem that the Act of April 6, 1937, P.L. 213, § 2, 24 P. S. § 1126, provides for the termination of a contract by refusal of reelection or by dismissal during the term. In Walker'sAppeal,
Appellee presented evidence at the hearing before the court below to support the charges of appellant's incompetency, intemperance, and wilful and persistent negligence. The court below has summarized the evidence as follows: "(1) While Miss Horosko used and was known by the name of Evelyn Horosko she was in fact married to one William Connors and lived with him as his wife; (2) That the said Connors was the proprietor of a lunch room and beer garden in which Evelyn Horosko acted as waitress and, on occasion, as bartender, such services being performed after school hours and during the summer vacation; (3) That in this beer garden and in the presence of several of her pupils whom she was tutoring, she (a) took an occasional drink of beer; (b) served beer to customers; (c) shook dice with customers for drinks; (d) played, and showed customers how to play a pin-ball machine on the premises. And further, that she was rated by A.H. Howell, County Superintendent of Schools, under the rating card provided by the Department of Education, as 43% competent, a rating of 50% being the `passing' or average rating.
"Is such a course of conduct immoral or intemperate, *108 and does it — in connection with her scholastic and efficiency rating — amount to incompetency?"
If the evidence supports the order of the court below it must be affirmed, as "the findings of fact by a judge, which involve the credibility of witnesses and the weight to be given their testimony, will be given the effect of a verdict of a jury and they will not be disturbed where there is testimony to support them": Eppsteiner v. Isman,
A careful examination of the evidence requires us to differ with the conclusion of the court below. The valid causes for which a teacher may be dismissed are set forth in the Act of April 6, 1937, P.L. 213, which is "intended to provide the greatest measure of protection possible against dismissal of employees": Teachers' Tenure Act Cases, supra,
By the evidence the charge of incompetency is clearly not sustained. Appellant was graduated from a teachers' college in 1935, and received her temporary teacher's certificate. During her four years at college she had in her courses 23 As, 17 Bs, and 3 Cs. The passing *109
mark of the institution was D. At the beginning of the school year 1935-1936, she assumed her duties as teacher under a written contract with appellee, and continued until dismissed on October 22, 1937. A.H. Howell, superintendent of schools of Wayne County, a witness for appellee on the charge of incompetency, testified that on April 6, 1937, he made a rating of appellant, which, upon the basis of 100, was fixed at 43. The rating was apparently made in accordance with the plan furnished by the Department of Public Instruction, and for the purpose of determining the teacher's fitness or competency to eventually receive a permanent certificate. On the test set up by the Department of Public Instruction, and according to the testimony of this witness, appellant was qualified to teach. This evidence of a rating of 43 could not in itself establish incompetency. It is true that appellant's rating was 7 points below the rating necessary for a permanent certificate, but her temporary certificate authorized her to teach for three years, in the public schools of this Commonwealth, the subjects prescribed for the curriculum of an elementary school. This certificate was issued by the Department of Public Instruction to appellant upon satisfactory evidence of the requisite qualifications, and was duly registered on September 27, 1935. See Act of May 29, 1931, P.L. 210,
Bearing on the charge of wilful and persistent negligence *111 but one incident appears in the record. It was testified that appellant went to church on Ascension Thursday of 1937, and left some of the children unattended in the school, who had not been called for by their parents. The other children were taken by their parents to church. If this was an act of negligence, it cannot be said that it was both wilful and persistent, as persistent means continuing or constant. A single act, as described, of no serious nature and without injury to any one cannot be construed as "wilful and persistent negligence." Prior to the Act of 1937, P.L. 213, negligence and the violation of any of the provisions of the School Code were grounds for dismissal after hearing. Since the Act of 1937, P.L. 213, the negligence must be "wilful and persistent," and the violation of the school laws on the part of a professional employee must be "persistent and wilful." The change is obvious.
By virtue of section 404 of the School Code, Act of May 18, 1911, P.L. 309, as amended by the Act of May 29, 1931, P.L. 243, § 9,
The action which the board has taken, and which the court below has approved, may be desirable for many reasons, but the legislature, by the Act of April 6, 1937, P.L. 213, has greatly limited the discretionary *112 power of school boards. We find no evidence in the record to sustain any of the charges against appellant. The action of the court below must therefore be reversed.
The order of the court below is reversed, and the Board of School Directors of the School District of the Township of Mount Pleasant, Wayne County, is directed to reinstate appellant in accordance with the terms of her contract.