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March 25, 1957


Appeal, No. 282, Jan. T., 1955, form judgment of Superior Court, Oct. T., 1954, No. 220, reversing judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1953, No. 6111, in case of Samuel M. Kaplan v. School District of Philadelphia. Judgment affirmed.


Henry W. Sawyer, III, with him Drinker, Biddle & Reath, for appellant.

C. Brewster Rhoads, with him Edward B. Soken and Sidney L. Wickenhaver, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 388 Pa. Page 214]


On July 12, 1948, Samuel M. Kaplan, the plaintiff in this case, entered into a contract with the School District of Pennsylvania, the defendant, to teach English in the public schools of Philadelphia on a salary basis. So far as the record shows, he demonstrated himself to be a competent teacher in his field, but it was reported to the Superintendent of Philadelphia Schools that while Kaplan was instructing of children in his classes how to express themselves in English he was devoting time to an organization which, if successful in its plans, would eventually have those children or their children's children speaking Russian in a Russian state. The organization was the Communist Party of Eastern Pennsylvania and Delaware, an

[ 388 Pa. Page 215]

    integral part of the Communist Party of the United States, a branch of the international Communist conspiracy committed to world revolution in overturning democratic government and installing in its stead the so-called dictatorship of the proletariat.

On October 21, 1952, the Superintendent, Dr. Louis F. Hoyer, asked Samuel Kaplan if he was or had been an organizer of Section 12 of the Communist Party of Eastern Pennsylvania and Delaware. Kaplan replied: "I can't discuss that with you." The question was repeated several times and to each inquiry Kaplan parroted the same answer. On November 19, 1952, Kaplan was again summoned to the Superintendent's office and once more questioned on the subject which had been the subject of their exchange a year before. Kaplan continued to refuse to enlighten the Superintendent in the matter, adding that he was acting under advice of counsel. In the meantime Kaplan had been called before a Congressional investigating committee where he declined to respond to questions put to him in the field of subversive activities. This persistent taciturnity on the part of Kaplan culminated in his suspension from duty on November 20, 1953, when he was informed that recommendation was being made to the Board of Education for his dismissal. A formal hearing followed, and, on January 7, 1954, the Board of Education permanently separated him from his teacher's position. He appealed to the State Superintendent of Public Instruction who affirmed the dismissal and he then appealed to the Court of Common Pleas. The issue raised in that appeal is not before us.

On February 4, 1954, the plaintiff Kaplan filed a complaint in assumpsit against the School District of Philadelphia, averring that he was entitled to his salary from November 20, 1953, the date of suspension,

[ 388 Pa. Page 216]

    to January 7, 1954, the date of dismissal. The defendant denied liability, and the plaintiff moved for judgment on the pleadings. The Court below granted the motion and entered judgment in the amount of $914.74. The School District appealed to the Superior Court which reversed the judgment, and, on petition for allocatur, we allowed appeal to this Court. The importance of the question raised here, involving as it does an interpretation of the School Code, takes on additional significance in view of the fact that the claims of 30 other teachers, who were dismissed under circumstances similar to those which obtained in Kaplan's case, will be decided by this "test" case.

The appellant, Samuel Kaplan, maintains that the Board of Education had no authority to suspend him, because Section 1124 of the Public School Code of 1949 (Act of March 10, 1949, P.L. 30, 24 P.S. 11-1124 et seq.) enumerates causes for suspension and his case does not come within any of them. In entering judgment for the appellant, the lower Court said: "Under the code suspension is permissible 'only when there is (1) substantial decrease in pupil enrollment, (2) curtailment or alteration of the educational program, or (3) consolidation of schools, which makes it unnecessary to retain all of the professional employees. Act of 1949, supra, ยง 1124, 24 P.S 11-1124.'"

But Section 1124 does not contain the limiting adverb of "only." Nor does the Act in any way limit the authority of the School Board to suspend for cause. It would be most extraordinary if it did. The lower Court cites the case of Intille v. Hoyer, 88 D. & C. 512. In that very case, Court of Common Pleas No. 5 of Philadelphia County, in rejecting the argument which is also being made by the appellant in this case, said: "But the act does not lend itself to the tortured construction advanced by plaintiff. Because a teacher

[ 388 Pa. Page 217]

    passes certain qualifying grades, she is not automatically so secure in her position that if she commits some act detrimental to society or to the children placed in her charge, the superintendent of schools is powerless to dismiss the teacher pending a final hearing by the board of education. The act contains as a matter of course certain implied powers to control the activities of a member of the teaching staff in or out of the school itself."

It must be as obvious as print can make it that Section 1124 of the School Code has absolutely no relevancy whatsoever to the circle of controversy of which the plaintiff here is the center. Section 1124 is confined to pedagogical overstaffing in schools, which of course is as far removed from the situation in this case as Budapest is from Leningrad. The suspension contemplated in Section 1124 is in the nature of an impermanent separation, it is in reality simply a furlough, it is a laying-off, it is a temporary discontinuance until conditions readjust. Suspension under Section 1124 envisages a re-hiring. The suspended teacher is released with no stigma, dishonor, or discredit. He is sent home with regret and with the anticipation of an early return.

But the Kaplan suspension is so utterly something that comparison with Sction 1124 is almost embarrassing. The suspension here involves incompetency, unfitness, and a disregard of the responsibility the plaintiff owed to his profession and the school system. Kaplan's suspension has nothing to do with overstaffing of teachers, curtailment of educational program, or consolidation of schools. Kaplan's suspension was one for cause, a cause which he, and he alone, created. Kaplan was suspended because of his refusal to cooperate with the school authorities, an offense which can only be productive of harm, disorganization,

[ 388 Pa. Page 218]

    and chaos in any highly efficient enterprise employing multiple persons.

As we have seen, the teacher suspended under Section 1124 is expected to return, but the suspension predicated on unfitness is a one-way ticket. It is the prelude to permanent separation from service. It is a notice of dismissal proceedings. Furthermore, under Section 1124 the suspended employee still remains aboard the ship of professional status, but where unfitness is proved the employee is taken off the ship entirely.

The plaintiff maintains that the school authorities had no right to take him off the ship, arguing that the only force available to put him ashore lies under Section 1124 which concededly gives no such power under the facts of this case. But the plaintiff's argument runs fallacy from every porthole. It overlooks entirely the employer-employee relationship which exists between the school district and the plaintiff. The contract which he signed with the school district on July 12, 1948, assured him a salary provided he worked. It did not guarantee compensation if he was idle as the result of a situation which he voluntarily brought about. The law of contracts is as constant as the law of gravitation. No one is entitled to anything from anybody without consideration. One may obtain gratuities, he may be favored with special attention, but when he goes to law to collect money he must prove that he gave something for that money or that he forewent some advantage which enured to the benefit of the person from whom he claims money.

The plaintiff not only did not work for the period between November 30, 1953 and January 7, 1954. A substitute was employed in his place. There is no authority under the School Code which permits payment to two persons for one position when the employment

[ 388 Pa. Page 219]

    of the substitute was made necessary because of the misbehavior of the original employee.

The question as to whether a suspended teacher is entitled to salary for the period between suspension and dismissal was considered in a California case, which we cite with approval. (Gentner v. Board of Education of Los Angeles, 219 Cal. 135.) There, as here, the teacher argued that under the teacher's tenure law he could not be deprived of his salary until the final date of dismissal, even though he did not teach between suspension and dismissal. The Supreme Court of California held: "But in our view it is not an incident of such tenure that a teacher must be given active employment pending the conclusion of dismissal proceeding against him, or paid his full salary when it is determined upon hearing held that cause for removal existed ... The welfare of the children is the paramount consideration. It follows from the fact that the authorities are not required to give active employment to a teacher pending his removal hearing, that, when his removal is subsequently ordered, he is not entitled to receive salary for the period during which he has not taught. The law does not contemplate that public funds shall be expended where no services are performed, and where not only is there no duty to accept services tendered, but the welfare of the children may require that they be dispensed with until a hearing can be held." (Emphasis supplied)

The Superintendent of Philadelphia Schools had not only the right but the duty to ask himself whether or not the welfare of the children in Kaplan's classes would suffer from his continuing tutorship. When the Superintendent conscientiously answered that question in the affirmative he had no course open but to suspend Kaplan.

[ 388 Pa. Page 220]

Of course, the plaintiff maintains that he was ready, able, and willing to work, and that it was not he who walked away from the school but that it was the Board of Education which closed the schoolhouse to him. In this respect the plaintiff devotes a great deal of argument to a proposition that no one disputes, namely, that the Superintendent of Schools may not suspend employees arbitrarily. The Superintendent did not suspend arbitrarily. He suspended because, according to his official cognizance, the plaintiff had become unfit and could become an influence inimical to the best welfare of the children. In the case of Walker v. Scranton School District, 338 Pa. 104, 109, this Court said: "The aim and object of our school system is to provide the best education for the children of the Commonwealth. It cannot be doubted that it was the intention of the Legislature to subordinate all other considerations."

Anyone whose conduct is opposed to the aim and object of our school system in providing the best education for the children of the Commonwealth cannot possibly expect to remain employed as their teacher. Certainly, if it were established that a teacher had burned school books or had attempted to set fire to the schoolhouse itself, it could not be argued that he was immune from immediate suspension. Suppose it came to light that a teacher sold narcotics, could it be maintained with any semblance of reason and conscience that the school ...

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