Koren v. Board of Directors of the Jersey Shore Area School District

DELLA PORTA, Senior Judge,

dissenting.

I respectfully dissent. The majority opinion clearly and correctly sets forth the ease’s procedural history, the facts, the law pertaining to mandamus, the scope of review at a preliminary objection in the nature of a demurrer stage, the applicable sections of the Public School Code, the Statutory Construction Act of 1972, and the issues. My only quarrel is with the specific issue of the interpretation of the word “annually” in Section 11 — 1125.1(d)(3) of the Public School Code,¹ which is the heart of the case.

The arguments made by both parties on this specific issue are again well set forth by the majority. There being no definition in the Code of the word “annually”, both parties made recourse to its definition in Webster’s Dictionary:² “occurring or happening every year or once a year.” The Trial Court chose “every year” over “once a year,” and so does the majority. This is where I part company with the majority.

To begin with, the Tidal Court and the majority are in error in allocating the burden of proof to Koren instead of the School District where it belongs at this stage of the proceedings. The latter filed the preliminary objection in the nature of a demurrer. As correctly stated by the majority in footnote 4, such objection will only be sustained in cases which are clear and free of any doubt, that is, where it appeal’s with certainty that the law will not permit recovery.³ In reaching this decision, the court must consider all well-pleaded facts as true, including any inferences which are reasonably deductible therefrom.⁴

In reaching its decision, the Trial Court ignored the above and simply concluded that the language of Section 11 — 1125.1(d)(3) is clear and unambiguous. Can a reasonable mind say that this conclusion, as to the meaning of the word “annually,” is clear and free of any doubt? The majority valiantly struggles to answer this crucial question in the affirmative. I do not believe it has succeeded.

In my opinion, every reason given in support of this answer fails. The first of these is the circuitous argument of defining “available” in terms of a suspended professional employee. To be so “available” he “must annually (meaning every year) report to his school district in writing.” (Majority Slip op. at 6-7). No supporting reason given. Secondly, the majority rejects, without reason, that the legislative could have envisioned the accrual of seniority by a suspended employee without registering his availability every year. (Id. at 8).

Thirdly, the majority argues that interpreting “annually” as once a year would cause the school district to have to refrain from filling vacancies in order to see if a suspended employee, whose availability is not known by the district, comes forward to claim the job. (Id. at 9). No such preposterous interpretation is advocated by Koren, or anyone else. Once a year simply means that at the time a vacancy occurs, any suspended employee who had supplied his name and address as being interested and available not more than a year prior thereto, would have to be considered before new employees.

Fourthly, the majority is also concerned that the “once a year” interpretation somehow would work a disadvantage to other suspended employees who have chosen to register every year. (Id. at 10-11). First of all, this case does not in any way involve any priority ranking list of such employees, nor does this section of the School Code deal with such ranking. Secondly, whatever interpretation is given to “annually,” it would apply to all such employees and no one would be disadvantaged by any other employee’s conduct. If repeated registration creates a priority ranking, so be it. The “once a year” interpretation does not interfere with, such ranking. The majority concludes this argument by saying that this “objective,” of teachers knowing where they stand on the seniority list, would be defeated. The so-called “objective” is totally created by the majority without any basis of fact. This is pure factfinding by the majority.

Lastly, the majority makes short shrift of the forfeiture of seniority rights which would result from the “every year” interpretation to any suspended employee who for any reason, including reason of health, fails to report in any one year. (Id. at 10). Surely, this cannot be the intent of the legislature which spelled out its intent in the very section in question when it said: “No new appointment shall be made while there is such a suspended or demoted professional employee available who is properly certificated to fill such vacancy.”⁵

The majority even attempts, in footnote 8, to liken this situation to a license renewal case which a licensee must renew every year to keep the license. By definition, this is comparing apples with oranges. How can we compare a license which is issued for just one year with a professional employee’s certification, which is usually for life?

Clearly, none of these reasons advanced by the majority, singly or cumulatively, can meet the burden of proof in this preliminary objection in the nature of a demurrer to establish with certainty in a manner which is clear and free from doubt, that the law will not permit Koren to prevail.

On the contrary, if we were to reach the merits of this ease, it would seem to me that the interpretation of the Code as Koren maintains, is more likely to fulfill the admittedly twofold purpose of the legislature: (1) to protect the recall rights of suspended professional employees who are qualified, interested and available, before making new appointments; and, (2) to protect School Districts from claims asserted by suspended employees who have not protected their recall rights by reporting them interest, availability and a recent enough address, within the year, where they can be reached.

Accordingly, I would reverse the Order of the Trial Court sustaining the School District’s preliminary objections and dismissing Koren’s Complaint in Mandamus.

Therefore, I respectfully dissent.

1 .Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1125.1(d)(3). Section 11-1125.1(d) provides in pertinent parts:

(2) Suspended professional employes or professional employes demoted for the reasons set forth in section 1124 shall be reinstated on the basis of their seniority within the school entity. No new appointment shall be made while there is such a suspended or demoted professional employe available who is properly certificated to fill such vacancy....

(3) To be considered available a suspended professional employe must annually report to the governing board in writing his current address and his intent to accept the same or similar position when offered.

2 . Webster's Ninth New Collegiate Dictionary 88 (1989).

3 . Pennsylvania State Troopers’ Ass'n v. Commonwealth, 146 Pa.Commonwealth Ct. 467, 606 A.2d 586 (1992).

4 . Globe Disposal Co. v. Department of Environmental Resources, 105 Pa.Commonwealth Ct. 599, 525 A.2d 437 (1987).

5 . Section 11-1125.1(d)(2) of the Public School Code.