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decided: December 21, 1971.


Appeal from the Order of the Court of Common Pleas of Monroe County in case of Cheryl Cerra v. East Stroudsburg Area School District, No. 309 October Term, 1970.


Peter J. O'Brien, for appellant.

Alex L. Bensinger, with him Bensinger and Pentz, P.A., for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Opinion by Judge Wilkinson. Judge Crumlish concurs in result only. Dissenting Opinion by Judge Mencer. Dissenting Opinion by Judge Kramer.

Author: Wilkinson

[ 3 Pa. Commw. Page 667]

Appellant, a tenured teacher in appellee school system, was dismissed because she failed to resign her position when she passed the end of her fifth month of pregnancy. Such resignation was required by a regulation of appellee. Appellant challenged the dismissal and had a hearing before the Board. The dismissal was sustained by the Board and appellant filed a Petition for Appeal with the Secretary of Education. With the exception of a brief stipulation, the case was submitted to the Secretary of Education on the record of the hearing before the Board. The Secretary of Education sustained the dismissal on the grounds that the regulation requiring resignation at the end of the fifth month of pregnancy was not unreasonable and, therefore, was valid under Section 510 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, 24 P.S. ยง 5-510.

Appellant filed a Petition for Appeal to the Court of Common Pleas of Monroe County and again relied on the testimony of the hearing before the Board. After a well-reasoned opinion which dealt in detail with all the arguments of the appellant, the court below affirmed the decision of the Secretary of Education. This court must do the same.

The Board, the Secretary of Education, and the court below, relying on the testimony offered at the Board hearing and an analysis of the decided cases, as well as the School Code, all found that the regulation of the Board requiring resignation after the end of the fifth month of pregnancy was reasonable. We concur. Indeed, in the record before this Court there is no evidence to the contrary. Appellant relies on the argument that pregnancy is an illness, the same as any other illness, and it is, therefore, discriminatory to classify it otherwise. However, appellant's own medical expert testified exactly to the contrary:

[ 3 Pa. Commw. Page 668]

"A. Well, the current thinking is that pregnancy is a physiological condition and not an illness, and we encourage patients to carry on their normal activities throughout the entire pregnancy.

"Q. Is this your personal viewpoint?

"A. This is not only my viewpoint, but the viewpoint in the field of Obstetrics and Gynecology in general." Record at 66a. The factual basis used by the Board to support a separate regulation for pregnancy was the testimony of its Elementary Principal and its School Superintendent. Both testified that their experience granting maternity leaves in the case of pregnancy was unsatisfactory. Indeed, in one year when appellee expected four teachers who had been on maternity leave to return, all four decided, within a week before school opened, not to return, thereby creating a critical shortage of teachers. Appellant offered no testimony to contradict this evidence, nor did she offer any evidence that good management called for treatment other than this regulation.

Appellant has not directed our attention to any Pennsylvania decisions requiring pregnancy to be treated as any other illness and we have found none. On the other hand, appellee, the Secretary, and the court below relied on the decision of our Supreme Court, affirming the Superior Court's reversal of the lower court and the Superintendent of Public Instruction, in Brown Case, 347 Pa. 418, 32 A.2d 565 (1943), squarely holding that a teacher who is incapacitated by virtue of pregnancy is not entitled to a sick leave and may be required to resign. See also Ambridge Borough School District's Board of School Directors v. Snyder, 346 Pa. 103, 29 A.2d 34 (1942), where the court affirmed the dismissal of a teacher for refusing to abide by a Board regulation that all pregnant teachers take a maternity leave even though the pregnant teacher there involved

[ 3 Pa. Commw. Page 669]

    was on a year's sabbatical leave of absence and, therefore, no question of competency was involved.

Our attention has been drawn to two conflicting U.S. District Court cases, one holding that a pregnant teacher could not be required to take a maternity leave, Cohen v. Chesterfield County School Board, 326 F. Supp. 1159 (D.C.E.D. Va. 1971), and another holding to the contrary, LaFleur v. Cleveland Board of Education, 326 F. Supp. 1208 (D.C.N.D. Ohio 1971). In view of the decisions of our Supreme Court, neither of these cases is persuasive.

It is interesting that in this case, where the appellant would have the school administrators make an individual judgment on the physical capacity and competence of each pregnant teacher, her physician admitted in his testimony at the hearing before the Board that he had knowingly submitted a false statement as to the term of her pregnancy in order to persuade the school administrators to keep her on.

In view of our conclusion that the regulation is reasonable, it is not necessary to consider the question of whether the fact of six months' pregnancy in itself is sufficient to constitute incompetency, i.e., physical incapacity to perform properly all the duties incumbent on a teacher.

The very able Secretary of Education, with many years of distinguished service in the administration of the Department of Education, a great institution of higher learning, and state government in general, after a thorough discussion of the testimony, very properly did not express his opinion on the wisdom of the regulation, but decided it was a reasonable one and within the Board's authority. He concluded his discussion with the following statement: "In view of the number of appeals received by the Secretary of Education based on discharge because of violation of maternity and other regulations, the following general observation is made.

[ 3 Pa. Commw. Page 670]

We note the lack of uniformity in the regulations as adopted by the many school boards. We do not suggest or urge the adoption of uniform school regulations throughout the Commonwealth, because we realize that each board adopts rules based on the problems peculiar to its own district. We suggest, however, conferences between boards that might produce a meeting of the minds. Such meetings could effectuate uniform changes and amendments for all the boards functioning in any one of the new intermediate units that will be created in the near future. We have heard argument presented on the concept of equality of the sexes, the policies of the Human Relations Commission relevant thereto, and the new Women's Liberation Movement. These are worthy of consideration in the deliberations of the school boards as hereinbefore recommended. Our ...

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