*1 the errors counsel to be In alleged, perceived unattainable. however, doing, so counsel presumed know what effect would be of the jury evidence which he refrained from presenting, thereby denying appellant benefit of having considered This testimony jury. evidence, not although perhaps determinative of would guilt, nevertheless have contributed to the defense’s Tri- position. al counsel articulated no legitimate tactical reason for the failure to present in question, and counsel testimony provided ineffective representation effect, it by, taking upon himself to terminate the trial while his elevating judgment to that of an appellate court evaluating ramifications of the errors alleged.1 PHILADELPHIA, Appellant, SCHOOL DISTRICT OF TWER, al., Appellees.
Harris et Supreme Court of Pennsylvania.
Argued Jan. 1982.
Decided March 1982.
Reargument July Denied 1982. presented counsel, 1. The situation in this case is not one where after alternatives, recognized consideration tactical determined that testify. certain witnesses not should be called to Counsel’s realm of employed broad, discretion over the choice of tactics and that necessarily judgment discretion includes the exercise of about wheth presentation particular would, er testimony witnesses’ con sidering factors, all relevant be beneficial to the client’s case. See Spells, Commonwealth v. 416 A.2d 473-474 *3 Salandria, Brazil, Vincent J. F. for Eugene Philadelphia, appellant. Cohen, Philadelphia,
Gene D. for Harris Twer. Wohlman, B. for Barry Philadelphia, Altschuler. Henry Binns, James J. Thomas W. Lawrence J. Ri- Jennings, chette, Fed. of Teachers. Philadelphia, Philadelphia O’BRIEN, J., ROBERTS, NIX, LARSEN,
Before C. FLAHERTY, and HUTCHINSON, McDERMOTT JJ. THE
OPINION OF COURT NIX, Justice. allowance,
This is an from the order of the appeal, by Commonwealth Court1 affirming order of the Pennsyl- vania of Education’s Secretary (Secretary) with- reinstating out loss of pay approximately professional employees who had been demoted the Board of Education of the Philadelphia (Board School District of or Board) 3d, pursuant adopted to a Board resolution June 1977.2 The held that the professional Commonwealth Court employees were demoted in violation Public School Code of 1949.3 the Commonwealth Court found the Specifically, Board had failed to each demoted provide em- professional individualized to section ployee pursuant *4 11-1127 and thus failed to with the re- allegedly comply under quirements for demotions section 11-1151 of the We disagree. School Code. (1979) (per Rogers,
1. 41 Pa.Commonwealth Ct. J.). addition, 10,000 employees proceedings 2. In were laid off in unrelat- ed to instant case. seq. 10, 1949, I, 1-101 et 3. Act of March P.L. art. 24 P.S. §§
433 The can be controversy facts rise to the instant giving 31,1977, the District summarized as follows. On May a which substantial Philadelphia adopted budget required reductions by Superintend- from the submitted budget ent of reduced adoption Schools.4 As result of the of this inter alia to demote budget, approxi- the Board was required 240 of an effort to cut mately part as professional employees notices, 9, 1977, June were expenditures. Demotion dated sent advising out to the affected professional employees them scheduled for June that demotion would be hearings 20,1977. rescheduled for These were hearings subsequently June 1977 because of the death of a member of the Board of Education. 30,1977,
On June conducted one massive the School Board for all During hearing the demoted employees. the Board from the administra- presented general testimony tion forth the financial situation of the setting system establishing the need for the cuts. All proposed budgetary persons demoted, who were at the present June meeting, were counsel. for individ- represented Requests by ual hearings were denied the Board. for a Requests continuance of the were denied the Board. The to opportunity questions cross-examine was limited about the general guidelines followed. Counsel were not permit- ted to ask questions relating to their clients’ individual or rights to address the as to the question arbitrariness or capriciousness of the demotion as it have related to a particular permanent professional employee.
present witnesses was limited to the of evi- presentation dence related to the or general criteria guidelines employed to select those individuals who were to be demoted. The Board indicated its intention to future provide hearings wherein the due process requirements and 1151 §§ of the Code would be met. description budgetary procedures
4. For required by generally: Philadelphia Supplement School District see Educational Philadelphia (Act 9, 1963, August Home Rule Charter P.L. seq., seq.), Pa.Code, 1 et 13201 et §§ P.S. § 12.12-303. *5 The question one; to be in this is a narrow decided whether under the the facts demotion of could appellees occur to prior a before the proper hearing Board of School Directors. It is conceded that were entitled to an appellees individual to establish that the hearing action was neither nor arbitrary It is further discriminatory. agreed that the held proceeding prior to the demotion did not satisfy required It is also statutorily hearing. agreed that Board, faith, in good intended to for provide a full hearing and, if the result was favorable to the demoted employee, reinstatement and reimbursement for loss in would be pay appropriate. Appellees argue requirement for prior to a demotion is an absolute and inflexible mandate. The Board where argues faith, it is in acting good to attempting that which it was accomplish com- legally to do and pelled of a granting would be impossible provide, procedures to be sought employed here satisfied the statutory requirements involved. A reso- lution of the requires an controversy analysis the relevant to ascertain statutory provisions the controlling legislative intent.
By way preface, the dilemma of the Board is virtually conceded. In the spring Board asserted that it was confronted with entering 1977-78 school with year million deficit of dollars. Under the Educational $173 Sup- plement Home Rule Philadelphia Charter, the Board charged a balanced provide budget each school year.
.... The total amount of proposed shall not expenditures exceed the amount of funds available for School District purposes. Pa.Code, 12-303(a).5 § 12-303(e) provides pertinent part:
5. Section
... Under no other circumstances
the Board increase the
aggregate
budget appropriations
appropriated
total of
unless
reve-
budget
nues become available in sufficient amount
to maintain the
balance,____
Code,
(Supp.1981-82),
Section 6-609 of the School
24 P.S.
6-609
provides
pertinent part:
done,
purchased,
... No work shall be hired to be
no materials
by any
no contracts made
board of school directors which will
also,
See
Danson
To meet these
was required
constraints the Board
to
reduce its labor force
reduce
of
as well as to
salaries
of
portion
its
were to be
professional staff that
retained.
These financial concerns
could not
dilute the
any way
primary
thorough
to maintain “a
and efficient
responsibility
iii,
of
system public
Pa.Const.,
(former
schools.”
Art.
14§
X,
ly
1).
Art.
observation,
obvious,
This
which should be
apparently needs
in view of the labor
restating
squabbles
and disruptions all too
occurring
Of
frequently
today.
equal
importance is the fact that
the maintenance of a public
school
and
system primarily
the education
of
training
our
youth
the incidental financial benefit of those
participating therein is of
concern. Smith v.
secondary
Dist.,
Darby
301, 130
(1957);
School
388 Pa.
A.2d 661
Walker
v.
Dist.,
Scranton
104, 12
School
338 Pa.
A.2d 46
The
(1940).
polestar in
decision
of
any
requiring
assignment
priori
ties of resources available for education must be the best
interest of the student.
Dist.,
Smith v.
School
Darby
supra;
Walker v.
Dist.,
Scranton
supra;
School
Walker’s Appeal,
We are
aware
acutely
constitution has
“[t]he
placed the educational
in the hands of the
system
legisla
ture, free from
any interference from
save as
judiciary
required
constitutional
by
limitations.” Smith v. Darby
Dist.,
School
be exceeded.
Dist.,
A.2d 262 (1975); Pittsburgh
School
461 Pa.
Case,
be
expense. Any
furnished
the school
its
district at
such
hearing may
postponed,
adjourned.
be
continued or
March
*8
10,
30,
XI,
[Emphasis
P.L.
art.
1127.
§
added.]
24 P.S. § 11-1127.
Although grammatical
statute,
7.
errors
not vitiate a
words and
phrases
legislative
contained in a
enactment must be construed
according
grammar
according
to rules of
to their
and
common and
approved usage.
Spigelmire
Dist.,
See
v. North Braddock Sch.
352
504,
(1945);
also,
553, repealed
Pa.
438 that
Nevertheless,
interpretation
accepting
does
such a conclusion
required,
hearing
generally
is
prior
intended to insist
the legislature
not
finding
justify
defeat
its
would
application
where
requirement
We have previously
the Code.
primary purposes
must be
broad discre
given
“[sjchool
stated that
authorities
for the children
a better education
to ensure
tionary powers
restrictions on the exercise
any
of this
and
Commonwealth
construed
on the basis that
strictly
of these
must be
powers
interests are
interests
and private
public
predominates
Dist.,
v. Darby
Smith
School
thereto....”
subordinate
at 668-69
314,
[emphasis
130 A.2d
supra
388 Pa. at
added].
have
demoted
would
employees
of the
rights
Here the
the procedure proposed
under
protected
been fully
determined
and,
subsequently
if it was
Board
the employee
was improper,
case
dismissal
in any given
he or she was
to which
pay
full
would have received the
that an
of the appellees
the contention
reject
entitled. We
prejudice
would
necessarily
demotion
after-the-fact
The appellees’ argu
employee.
of the demoted
rights
institutional
hearing promotes
ment
that a post-demotion
made, presupposes
already
for the decision
self-justification
record.
on this
is unwarranted
a bias that
the existence of
subject
judicial
Board was
of the
Moreover, the decision
(Supp.1981-82)9
11-1132
review
to section
pursuant
Darby
authority for the
v.
cited Smith
as
Subsequent
cases have
demotions,
any independent
without
to a
See, e.g.,
Tassone v.
proposition.
analysis
propriety
such a
of the
Dist.,
290,
(1962);
536
Twp. School
183 A.2d
Redstone
Garofalo,
Jost v.
212,
(1958);
439 there is allegation no or that a post-demotion suggestion or change require- would the substantive procedural ments otherwise contained in Code. the
It
is clear
legislature,
that
the
the
protecting
security of the professional employees, did not
intend to
create restrictions
that
upon the Board’s discretion
would
render
it
incapable
its
to ad
discharging
responsibility
See,
minister an efficient
system.
e.g.,
Darby
Smith
School Dish, supra;
Philadelphia
Dish,
Smith v.
334
Pa. 197,
We therefore require hold to a this instance full predemotion hearing unnecessarily and cir unwarrantedly cumscribed the discretion of the Board in good its faith effort to discharge its responsibilities. professional employee would have been fully protected from discrimina or tory action the arbitrary proffered. under procedure Thus, we conclude that the erred she Secretary when re quired reinstatement of and appellees rejected procedure urged the Board. by
However, passed since the school 1977-78 has and year there is nothing present this record indicating financial demotion of requires appellees, situation these it appears that act was erroneous it although Secretary’s is now a fait we remand accompli. Appellant’s request 30, direct that results be retroactive to June 1977 is impracticable. This would necessitate disgorgement approved monies from rendered employees services Court, and affirmed the Commonwealth Secretary (P.L. 442), of the act of June No. known as the Agency “Administrative Law.”1 As amended Dec. No. P.L. 1.§ 1981-82). (Supp. 24 P.S. 11-1132 171 P.S. 1710.41 to 1710.47. §§ albeit To such burden erroneously. place appel- *10 unjust. lees at this would be point clearly we reverse the Commonwealth Court and Accordingly, Board, remand the matter to the with leave to Board to if present reinstate such a demotion financial procedure conditions so dictate. J.,
ROBERTS, dissenting opinion joined filed a O’BRIEN, J., LARSEN, J. C.
ROBERTS, Justice, dissenting.
I dissent. of Mr. Justice The construction which Nix opinion places permit section 11-1151 School Code without a prior hearing demotion of appellee employees construc- principles statutory to both established contrary tion case law of this Commonwealth. longstanding and the Act 1922 of the Construction Statutory provides:
Section “In the intention of the General ascertaining Assembly in the of a statute the following presumptions, enactment others, be used: among That a court of last resort has construed the (4) when statute, Assembly used General language on the same matter intends subject statutes subsequent such language.” the same construction to be placed upon In section 3 of the Tenure Act of the Legislature provided:
“There be no demotion of em- any professional shall without the either in or in ploye, salary type position, or if such consent is not consent of the said employe, be received, subject then such demotion shall directors board (or to a before the board of school and an in the same manner as public education), hereinbefore provided the case of the dismissal aof professional employe.”
In 1939 this Court construed the of section hearing provision 3 and determined had intended that Legislature demotion like dismissal be hearings, hearings, held before the proposed effective date of the action. Smith v. Philadel- phia District, (1939). There, the Court stated:
“Section 3 of the Tenure Act
that where there
requires
is a ‘demotion in
there shall be a
salary’
in the
same manner as
in case of dismissal.
provided
Section
sets forth the
procedure
be followed in
such
conducting
It
hearings.
is there
provided
charges shall be filed
*11
against
the teacher and that at the
evidence
shall
be presented relative to those
charges.
of
purpose
the hearing under this section is to
the
protect
teachers
from
discrimination
arbitrary
being subjected to un-
founded or inadequate charges.”
Id., 334
205,
Pa. at
In the 1949, School Code of the Legislature reenacted section 3 as 11-1151, section which provides, in language virtually identical to that of 3, section that a non-consensual demotion “shall be subject to a hearing before board of school directors and an in the same manner as hereinbefore provided the case of the dismissal of a professional employe.” Subsequently, construing section 11-1151 of the 1949 Code School which reenacted the same this language, Court continued to adhere to its earlier inter pretation. See Tassone v. Redstone Township School Dis trict, 408 183 A.2d (1962); Smith v. Darby District, 301, 130 School A.2d 661 The School Code has once, been amended in 1963. At time, that the language which had been construed since 1939 as requiring hearing prior to demotion was left unchanged.
In these circumstances, the of the language hearing provi- sion of section 11-1151 is no longer ambiguous. Rather, the of construction this Court’s resolved has been
ambiguity Legislature’s Tenure Act of in the language in the Code of language of the identical reenactment that mandated presumption statutorily and the inten- the Legislature’s construed correctly Court had thus to demotion. Statutory held prior tion that a be 1922(4), formerly 1 Pa.C.S. Act § Construction 552(4). Act of P.S. See Construction Statutory 24, 27, 364 A.2d Miller, 469 Pa. Commonwealth v. in the changes to make presumed are not (1976) (“statutes law prior existing common law or rules of the principles in their provisions”). declared expressly what beyond own Nonetheless, disregard Legislature’s complete intention, of Mr. opinion of its indication statutory grammatical analysis in a de novo Justice Nix engages tó arrive at conclusion the “ambiguous” provision demotions without permit intended to Legislature individual hearings. to established princi- contrary is this conclusion only
Not construction, it also serves as the basis but ples statutory acknowledging Although unnecessary remedy. a totally the present which rise to gave situation financial Justice Nix exists, of Mr. opinion no controversy longer appellant record with directions remands the without a prior hearing demote appellees Board that it may *12 As there has so dictate.” “if financial conditions present on this record unusual set of facts been no that the showing recur, wholly advisory. is remedy likely of Mr. Justice opinion reached Because the result on the and without support in law support Nix is without as having dismiss the record, I dissent and would been improvidently granted. J., in this LARSEN, join dissenting
O’BRIEN, J., and C. opinion.