Dallap v. Sharon City School District

Opinion by

Senior Judge Kalish,

These are consolidated appeals from an order of the Court of Common Pleas of Mercer County which reversed the Sharon City School Boards (Board) suspension of Michele Grunenwald and affirmed the Sharon City School Districts (School District) decision to retain Vicky Lingner. These actions were taken under a program of realignment of schoolteachers pursuant to sections 1124 and 1125.1 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§11-1124 and 11-1125.1. Also before this court is the School Districts motion to strike appeal of record. We deny the School Districts motion and affirm the trial courts decision on the merits.

The trial courts opinion and order, entered on July 10, 1985, reflected two distinct issues which were decided by the court, one regarding the retention of Lingner and the other regarding the suspension of Grunenwald. On August 9, 1985, appellants, Jan Dallap et al., filed an appeal which was docketed at No. 2184 C.D. 1985. Also on that date, Grunenwald filed a petition for reconsideration and clarification as to the second part of the courts order, questioning the courts meaning of its use of the word “reinstatement.” The trial court granted the petition on August 9, 1985, and on November 4, 1985, the court entered an order clarifying the July 10, 1985 order and awarding back pay to Grunenwald. On December 2, 1985, the School District filed a notice of appeal which was docketed at No. 3244 C.D. 1985. On January 24, 1986, the School District filed a motion to strike appeal of record in No. 2184 C.D. 1985. That same day, Grunenwalds attorney filed an answer to the motion to strike. On January 27, 1986, this court ordered the consolidation of these two cases and that the motion to strike be listed with the merits.

The School District asserts that the appeal of August 9, 1985 (No. 2184 C.D. 1985) be stricken under Pa. R.A.P. 1701(b)(3), because the trial court granted Grunenwalds motion for reconsideration. The motion, however, was granted only as to Grunenwald and not as to Lingner. Accordingly, the motion to strike the appeal in No. 2184 C. D. 1985 should be denied in light of the narrow grant of the motion for reconsideration.

Although appeal No. 2184 C.D. 1985 involves the Lingner situation only and appeal No. 3244 C.D. 1985 involves the Grunenwald case, we will discuss the two appeals together. The facts are undisputed. Following a decline in enrollment throughout the Sharon City School District, a hearing was held on August 16, 1982, at which the Board determined that certain positions of schoolteachers should be eliminated. Grunenwald had been certified by the Board of Education, and taught chemistry for about ten years. During this period of time, she had fulfilled all of the requirements for an Instructional II Reading Specialist certification from the Department of Education; however, she was not teaching reading in the school. Although the School District had received notification of this certification, her file did not contain the actual certification.

Grunenwald contends that she was suspended despite the fact that she could have been realigned into a reading teacher position held by a less senior teacher, and that this suspension violates section 1125.1 of the Code, 24 P.S. §11-1125.1.

Lingner, certified as an English teacher, was retained as a coordinator of a gifted program, although she was less senior than, several of the other teachers who were suspended. No special certification for this position is required.

The Board found that it would be educationally unsound to put Grunenwald into the English teaching position of another who had less seniority, because even though certified in English, her experience was teaching chemistry and science for several years. As to Lingner, the Board found that even though she was certified as an English teacher, it would have been disruptive to the gifted program to replace her with another who had more seniority.

On review, where a full and complete record was made, we must sustain the local agency adjudication unless any finding of fact necessary to support its adjudication is not supported by substantial evidence, constitutional rights were violated, an error of law was committed, or the procedure before the agency was contrary to statute. Appeal of Suspension of McClellan, 82 Pa. Commonwealth Ct. 75, 475 A.2d 867 (1984).

Section 1125.1(c) of the Code, 24 P.S. §11-1125.1(c), provides:

(c) A school entity shall realign its professional staff so as to insure that more senior employes are provided with the opportunity to fill positions for which they are certificated and which are being filled by less senior employes.

While our courts have recognized that it was the intent of the legislature to make seniority the sole criterion for determining which teachers are to be suspended when staff cuts are necessary, this court has continued to recognize the propriety of considering the practicability of staff assignments and have examined realignment plans to determine whether the exercise of the Boards discretion was unreasonable in its impact on the educational process. Thus, in Godfrey v. Penns Valley Area School District, 68 Pa. Commonwealth Ct. 166, 449 A.2d 765 (1982), the court limited staff cuts to members of an area of certification of a particular department, such as the music department, where the teacher who was certified to teach only music and who had the least seniority in the music department was suspended. The court refused to move senior members of the music department who had multiple certification into other departments to replace those with less seniority than the teacher who was suspended. The court recognized that to realign all staff members to insure that the least senior member of the entire staff is suspended would require an examination of its effect on the educational process.

In Platko v. Laurel Highlands School District, 49 Pa. Commonwealth Ct. 210, 410 A.2d 960 (1980), while the suspended teacher may have had more seniority than the retained teacher, we held pursuant to section 1124(1) of the Code, 24 P.S. §11-1124(1), that the suspension was not an abuse of discretion where there was a substantial decrease in enrollment, and that any cause, under these circumstances, would be sufficient to suspend a professional employee. Furthermore, in Platko, where the suspended teacher, having more seniority, was certified as an elementary education teacher and the retained teacher was certified to teach music in the junior high school, the record showed that to ignore the Boards plan would require moving two other teachers from their present positions. The school district did not abuse its discretion in considering the educational impact of such a move.

At the hearing on August 16, 1982, Robert La Penna, superintendent of schools, testified that although Lingner is certified as an English teacher, she currently holds the position of coordinator of the gifted program, and that as part of her duties she implements that program both on the junior and senior high school levels. He stated that she has developed an expertise in this field, including contacts with members of the community. The record shows that to order a suspension on the basis of seniority would require a shuffling of the faculty to replace Lingner. It would be disruptive to the gifted program and would be impractical to place inexperienced teachers in this coordinators position. Furthermore, since no special certification is necessary for this position, section 1125.1(c) of the Code, §11-1125.1(c), does not apply because it has been interpreted to apply only in dealing with positions requiring certification. Gibbons v. New Castle Area School District, 93 Pa. Commonwealth Ct. 28, 500 A.2d 922 (1985).

In Board of School Directors of Chester-Upland School District v. Ashby, 90 Pa. Commonwealth Ct. 405, 495 A.2d 665 (1985), this court held that the sole criterion for suspensions in a realignment case is seniority within the school district, not experience in a given class or level of education, provided that all the employees possess the same certification. A review of the facts in Ashby showed that the school district closed three elementary schools (first through fifth grades) and one middle school (sixth through eighth grades). No special certification was necessary for the middle class teachers other than that required for elementary schoolteachers. Despite the Boards conclusion that a chaotic condition would result if seniority were the sole criterion, this court held that where all the teachers possessed the same certification, suspension of a professional employee should be based upon seniority only.

As to Grunenwald, the fact that there were delays in processing her actual certificate as an Instructional II Reading Specialist will not affect her substantive rights. Department of Education v. Great Valley School District, 23 Pa. Commonwealth Ct. 423, 352 A.2d 252 (1976). A review of the record shows that Grunenwald had fulfilled all the requirements for certification as a reading teacher in 1977. The Boards finding that it would be “educationally unsound” for Grunenwald to teach a reading class because her experience had been in teaching science is not supported by substantial evidence. It is not required that she have recent experience. All that is required is certification. To suspend her would violate the statutes mandatory realignment on the basis of seniority.

Accordingly, the School Districts motion to strike appeal of record is denied and the decision of the trial court is affirmed.

Order

Now, April 21, 1987, the Sharon City School Districts motion to strike appeal of record is denied. The order of the Court of Common Pleas of Mercer County, No. 1083 C.D. 1982, dated July 10, 1985, is affirmed. Furthermore, the order of the Court of Common Pleas of Mercer County, No. 1083 C.D. 1982, dated .November 4, 1985, setting forth damages awarded to Michele Grunenwald, is affirmed.