*1 Brown, supra. argue monwealth v. the Appellees or- court division did phans’ judge have additional evidence at disposal, his which was contained in the record of the prior estate was litigation, arguably readily which “not so in the available civil division where the within action was However, filed.” neither Opinion Mеmorandum nor the Order filed the orphans’ division, court transferring the case division, back the civil indicates that the orphans’ court judge his actually based decision on evidence which was not considered judge the civil division. In- deed, clear it is orphans’ decision court division judge based upon was purely analysis controlling law, and not upon additional evidence which had not been considered during disposition of the preliminary objec- tions in the filed civil division. As the decision of the orphans’ judge court not upon any based additional evidence, it would be inappropriate orphans’ for the court judge to reverse the order previous entered the civil view, division. in my the order orphans’ court judge retransferring the case to the ought civil division reversed, and the should proceed orphans’ case court division. POOKMAN, Eisenreich,
Rona Frank C. G. and Janis Muraca, Appellees,
M. v. SCHOOL DISTRICT OF TOWNSHIP OF UPPER CLAIR, Appellant. ST. Supreme of Pennsylvania. Court Sept. 12, Argued 1984. Decided Nov. 1984. Reargument Dеnied Jan. *2 DiSalle, Smith, Richard L. Douglass, Templeton Samuel Jr., Rose, Schmidt, Dixon & Hasley, Pittsburgh, appel- lant. Kushner, Jordan, Backer,
Louis B. H. Stephen Ronald G. Rothman, Gordon, P.A., Groudine, Foreman Pittsburgh, & for appellees. NIX, C.J., LARSEN, FLAHERTY,
Before McDER MOTT, ZAPPALA, HUTCHINSON and JJ.
OPINION OF THE COURT LARSEN, Justice.
The issue this case is certain teach- presented by whether employees (appellees) er were tenured or non-tenurеd Upper (appellant’s) relation to the St. Clair school district’s *3 decision not to renew these teacher contracts. employees’ Pookman, Rona Frank Eisenreich and
Appellees, Janis Muraca, in by Upper were hired St. Clair school district August, During appellees’ teaching, 1979. second year 30, 1981, April on the district decided not to renew their contracts, significant due to a decline in student enrollment in the district.1 The district’s decision take effect on was 12, 1981, appellees’ June which was to be the last day year. contracts for that employees, employees
Unlike non-tenured are entitlеd to considerations of It is not dis seniority.2 on the date that school district’s decision puted that made, not appellees Appellees argue, tenured. how ever, since, Code, under the School a teacher who has unsatisfactory of service and has not been rated tenure, and, receives since the district’s deci automatically not to take effect until the last of their second day sion was furlough necessary A school board is authorized to number of 1. employees pupil when there is a substantial decrease in enrollment 11-1124(1). district. 24 P.S. § Phillippi Springfield Township, v. School District 28 Pa.Commw. (1977). A.2d service, they should be considered tenured employ- conclude, they ees. should have retained (who teaching positions their and other had employees less who were tenured of their seniority but because service district) school should furloughed another have been in- stead. board,
After a St. hearing Upper before Clair school the board affirmed the district’s non-renewal decision. On appeal, the Court of Common Pleas of Allegheny County reversed, also affirmed. The Commonwealth Court how- ever, holding that appellees employees were tenured when the district’s decision took effect. Poоkman v. School Clair, Township Upper District St. 80 Pa. Commw. granted We the school district’s petition appeal, allowance of and we now reverse.
The standard of review this case is defined by local 754(b) law. Section of the Code agency of Administrative provides, pertinent part: Procedure (b) reviеwing] court shall affirm the adjudication [A [of a local unless it shall find that the agency] adjudication is in violation of the constitutional rights appellant, or law, is not in accordance with or that the provisions of B Subchapter Chapter (relating to practice and of local procedure agеncies) have been violated in the proceedings agency, any finding before the or that of fact made agency necessary support adjudi- its cation supported by is not substantial evidence. *4 754(b). Pa.C.S.A. this standard to the instant Applying §
case, we note that do not claim that their constitu- appellеes violated, tional rights they complain were nor do about Furthermore, of the school hearing procedures. board’s task, therefore, dispute. facts of the case are not in Our is an error simply determine whether the board committed and, so, of law if to correct that error. Pease v. Millcreek District, 412 Pa. Township School
The of of our acquisition by employees public tenure Code, schools is governed by the Public School P.S. 1-101, issue and the of whether seq., et § district’s or non-tenured relation to school con- solely statutory nonrenewal decision is a matter of struction.
, tenure are relating аcquisition to the provisions The Code, provides, 1108 of the which set out Section pertinent part: employees] [Non-tenured 11-1108.
§ (a) of the district duty superintendent It shall be the at least twice each employee], each notify [non-tenured of his or her of the during period employment, year professiоnal progress, rating and professional quality, shall employee] his or her services. No be [non-tenured unsatisfactory, dismissed unless rated ...
(b) A has been employee] whose work [non-tenured superintendent secretary certified the district to the by district, (Jf) the school the last months during four service, shall being satisfactоry as second such employe a .... The employee] be [tenured thereafter shall then be tendered a contract regular forthwith ____ for provided employees] employment [tenured
(c) who is not tendered a Any employee] [non-tenured contract of at the end regular employment service, given shall a provided, rendered as herein of written secretary
statement and signed by president setting explicit- of school directors and forth board the reason for such refusal.3 ly added). 11-1108 (emphasis P.S. § all of these as we must
Giving provisions, effect to Act of 1 Pa.C.S.A. Statutory under the Construction language actually “temporary professional The used the Code is employe”, employe" "professional rather than non-tenured em- and 1108(d) ployee employee, respectively. makes it and tenured Section clear, however, only thing distinguishing temporary profes- that the employees employеes is 24 P.S. sional from tenure. 11-1108(d) employes provides “[t]emporary professional shall purposes except tenure status be viewed in law as full-time all regular employes, enjoy privileges of and shall all the added.) (Emphasis essentially employes." Since there is no full-time *5 that the intended to legislature рrovide it is clear during which an is to be year period employee for a two required The school district is not to tender a non-tenured. a “regular employment” employ contract of to non-tenured If ee at time the “end of two service.” any before not a contract” to “regular district deсides to offer such by giving the non-tenured it do so employee, may at “the end” of required employee written statement to the It is year period. apparent, two P.S. § 11-1108(c). therefore, that the intended a full legislature to establish the line of year period as demarcation between employees. and non-tenured when a district’s deci sion not to renew a non-tenured contract is to employee’s up take effect at time to and the last including day the second remains non-tenured. Both year, employee the school district and the non-tenured will thus employee in having year period have thе benefit of a full two which to performance and in which to have that observed perform and critiqued. case,
In the instant since the school district’s decision appellees’ not to renew contracts was to take effect on the service, of their second day last Therefore, non-tenured. the school board was correct upholding the district’s non-renewal decisions. the order of the Commonwealth Court is
Accordingly, and the Pleas of reversed order the Court Common Allegheny is reinstated. County
McDERMOTT, J., concurred the result. NIX, ZAPPALA, J., C.J., filed a dissenting opinion which joined.
ZAPPALA, J., filed a dissenting opinion.
PAPADAKOS, J., participate did not the considerаtion or decision of this case. meaning, difference we will use the more familiar "ten- classifications.
ured/non-tenured” *6 NIX, Justice, Chief dissenting.
At the time that
were
appellees
furloughed,
they
entitled
status,
to tenured professional
under
section
1108(b) of
Code,
1949,
the Public
Act
10,
School
of March
30,
XI,
P.L.
1108(b),
amended,
art.
24
11-
as
P.S.
§
§
1108(b) (Supp.1984-85),1and thus entitled to all appropriate
24
seniority rights.
11-1125.1(a) (Supp.1984-85);
P.S. §
Welsko v. School Board
District
Town
School
Foster
390,
383
ship,
(1956);
Pa.
I am of the
that
status at
the
appellees’
view
the time
furlough decision was to take еffect was controlling.
I
Court,
would
the order
affirm
of the Commonwealth
adopting
Judge
the
reasoned
authored
opinion
well
Doyle.
v.
Township
Pookman
School District
the
14,
80
Upper
Clair,
(1984).
St.
Pa.Commw.
I join in the Chief I dissenting opinion of Justice Nix. also write to raise separately pоints. some additional professional should be treated as
Appellees employees Code, 10, 1949, under the School of March P.L. Public Act 30, Code, seq. P.S. 11-1101 et the teachers are Under § professional with tenure employees newly unless hired, in they professional which case are em- temporary аmended, ployees, 1101, as A tempo- P.S. 11-1101. § § rary professional employee acquires status of a profes- Although rating given does not record indicate a within two-year period, undisputed last four is months of it unsatisfactory during did rating two-year period. not receive an completion unsatisfactory We have viewed the of two without an rating conferring professional Dept. as status. v. Education District, Jersey Shore Area School 481 Pa. provisions sional under the employee P.S. § 11-1108, amended, as which as provides follows: (a) It the duty shall be of the district superintendent each notify temporary professional at least employe, twice each year during period of his or her employ- ment, quality, professional progress, and of his or her rating profes- services. No temporary sional shall employe be dismissed unless rated unsatisfac- notification, in tory, writing, of such unsatisfactory rating shall have been within emplоye furnished ten such, (10) days following the date of The rating. rating of a temporary professional employe provid- shall be done *7 ed in one section thousand one hundred twenty-three of this act.
(b) A temporary professional whose work has employe been the by superintendent certified district the to sеcre- district, of tary during (4) the school the last four months service, of the second of such being as satisfactory shall thereafter be a “professional within the employe” meaning of this article. The attainment of this status shall be recorded of records the board and written notification thereof shall be sent to the The employe. employe then shall be regular tendered forthwith a con- tract of employment provided as for em- professional ployes. No professional employe who has attained tenure status in school district this Commonwealth shall thereafter required be to serve as а temporary profes- sional before employe tendered being such a contract when employed by any part other public school system of the Commonwealth.
A teacher who becomes a professional employee acquires tenure and suspended be may only specified the causes amended, 24 P.S. 11-1124: §
(1) Substantial decrease in pupil enrollment district; school
(2) or Curtailment of the pro- alteration educational gram on recommendation superintendent, con- curred in by directors, board of school approved by Instruction, Department of Public as a result of decline in class or course
substantial enrollments or to conform organization with standards of or educational required activities law or recommended by Depart- Instruction; ment of Public (3) schools, Consolidation of whether within a single district, through merger districts, a or as a result of joint agreements, board when such consolidation makes it unnecessary to retain the full professional staff of em- ployes.
(4) When new school districts are established as the result of reorganization pursuant school districts II., (i) act, Article subdivision of this and when such reorganization makes it unnecessary retain the full staff professional employes. in rights
The difference between and tempo- out in Phillipi v. rary professional employees spelled School District Springfield, Pa.Cmwlth. A.2d 1133 The court held that where a reduction of staff is necessary, seniority professional em- ployees prevail selecting those to suspended unless there is a substаntial difference in ratings. Temporary professional employees right have no of retention on the of seniority against basis or ratings professional employees or among themselves. Appellees’ rights governed will be *8 accordingly. In Department Education v. Shore Area Jersey District,
School
356,
481
(1978),
Pa.
The question to be determined is what status is to be Appellees accorded to for the purpose determining their rights to retain pоsitions their in the face of the reduction in Appellant staff. argues Appellees that should treated as be temporary professional employees, they acquired had not professional employee 1, status at the of May time notice that they would not retained. Appellees argue they that should be treated as professional employees, as they such acquired status to the school prior year during which the staff reduction was to take effect. I would hold to the Appellees latter view. acquired professional employ- ee status at the end of the 1980-81 school yeаr, having taught receiving without unsatisfactory rat- ings. That will rights status determine their in regard to suspension employees due to staff reduction that date, takes effect I after time. would hold that the suspension goes into governs, effect than rather the date of notice suspension. I permit would not Appellant Appellees’ diminish by giving early suspen- notice sion. Such result would be contrary to law.
I would affirm the Order of the Commonwealth Court. al.,
Gregg Appellants, F. BRADY et v. COMMONWEALTH STATE BOARD OF CHIROPRACTIC
EXAMINERS, Appellee. COMMONWEALTH STATE BOARD OF CHIROPRACTIC
EXAMINERS, Appellant,
v. Gregg al., F. Appellees. BRADY et
Supreme of Pennsylvania. Court
Argued June 1984.
Decided Nov.