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SMETHPORT AREA SCHOOL DISTRICT v. BOWERS (06/22/71)

decided: June 22, 1971.

SMETHPORT AREA SCHOOL DISTRICT
v.
BOWERS, APPELLANT



Appeals from judgments of Court of Common Pleas of McKean County, June T., 1969, No. 274, and Court of Common Pleas of Dauphin County, Commonwealth Docket, 1969, No. 437. Remitted by the Supreme Court, March T., 1969, No. 254, and May T., 1970, No. 18, in case of Smethport Area School District v. Harry L. Bowers, Jr.

COUNSEL

Norman I. White, with him McNees, Wallace & Nurick, for appellant.

Ralph N. DeCamp, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 219 Pa. Super. Page 270]

The Board of School Directors of the Smethport Area School District, McKean County, Pennsylvania, after a hearing as provided by the School Code discharged Harry L. Bowers, Jr., the appellant, from his position as District Superintendent on February 10, 1969.

An appeal was taken from this action of the Board by the appellant to the Court of Common Pleas of McKean County. Jurisdiction was asserted under the Local Agency Law, Act of 1968, December 2, P. L. [ILLEGIBLE WORD], No. 353, 53 P.S. § 11301 to § 11311. The Court of Common Pleas dismissed the appeal for lack of jurisdiction holding that the school board was not "a local agency" within the scope of the Local Agency Law, supra, and that the appeal should have been properly taken to the Court of Common Pleas of Dauphin County under the terms of the Administrative Agency Law, Act of June 4, P. L. 1388, as amended, 71 P.S. § 1710.1 to § 1710.51.

An appeal was then taken to the Court of Common Pleas of Dauphin County, but it also was dismissed for lack of jurisdiction in that the school district was not an agency having statewide jurisdiction nor an agency specifically enumerated in the Administrative Agency Law, supra. Direct appeals were then taken from both judgments below denying jurisdiction, to the Supreme Court.

The Supreme Court after full discussion of the questions involved remanded the appeals to this Court for disposition.

The first question to be decided by this Court is the timeliness of these appeals. The school district contends the timeliness as well as jurisdiction should be the subject of our appellate jurisdiction. We do not

[ 219 Pa. Super. Page 271]

    agree and believe that the Supreme Court extended the time for appeal.

As Mr. Justice Pomeroy states in his opinion in Smethport Area School District v. Bowers, 440 Pa. 310, 269 A.2d 712 (1970), at pp. 320-21: "Normally this Court quashes an untimely appeal. In this case, however, we find overriding and unique considerations which convince us that we should not quash. As what has been said above makes clear, the essential issue both at the lower court level and on appeal was whether the Bowers' complaint was within the purview of the Local Agency Law or of the Administrative Agency Law, or neither of them. The McKean County Court held that the Local Agency Law did not apply and appellant followed that court's suggestion to seek relief in the Dauphin County Court, a procedure which was not completed until 67 days after the McKean County Court dismissal. As stated above, both appeals would have been timely had the Act of 1897, supra, been applicable, and, as indicated in footnote 14, it is not certain that that Act might not yet apply. Moreover, the appeals are not from a decision on the merits of Bowers' dismissal, but are simply preliminary to getting a decision on the merits. Finally, as we have had recent occasion to point out, there has been understandable uncertainty in the profession as to the interrelationship of the several acts which implement Section 9, Article V of the new Constitution and the relationship of those acts to the pre-existing statutes regulating appellate review. In several similar situations which have recently been before us under Act ...


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