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COMMONWEALTH EX REL. WAYCHOFF v. TEKAVEC (04/23/74)

decided: April 23, 1974.

COMMONWEALTH EX REL. WAYCHOFF
v.
TEKAVEC, APPELLANT



Appeal from order of Court of Common Pleas, of Greene County, May T., 1972, No. 151, in case of Commonwealth ex rel. W. Bertram Waychoff v. Edward T. Tekavec.

COUNSEL

David E. Cohen, for appellant.

A. J. Kuzdenyi, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Concurring Opinion by Mr. Justice Pomeroy. Mr. Justice Nix joins in this concurring opinion. Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones and Mr. Justice O'Brien join in this dissenting opinion.

Author: Manderino

[ 456 Pa. Page 522]

The sole issue involved in this appeal is whether two positions held by the appellant, Edward T. Tekavec, are compatible under the Public School Code of 1949, Act of March 10, 1949, P. L. 30, arts. I-XXVII, §§ 101-2702, as amended, 24 P.S. §§ 1-101 to 27-2702. The Commonwealth of Pennsylvania is divided into twenty-nine regions called intermediate units under the Public School Code, Act of March 10, 1949, P. L. 30, art. IX-A,

[ 456 Pa. Page 523]

§ 902-A, as amended, 24 P.S. § 9-952. The intermediate units were established as successors to the County Boards of School Directors. Each intermediate unit has been established to provide on a regional basis certain educational services to school districts assigned to each intermediate unit.

The appellant, Edward T. Tekavec, is an employee of Intermediate Unit No. 1. He is employed as a supervisor of special classes. He is also an elected member of the Board of School Directors of the Carmichaels Area School District, one of the school districts assigned to Intermediate Unit No. 1 by the Public School Code.

The District Attorney of Greene County brought an action in quo warrantor contending that the appellant could not simultaneously serve as an employee of Intermediate Unit No. 1 and as an elected school director of the Carmichaels Area School District. The trial court held that the appellant's employment position and his elected position were incompatible under the Public School Code, Act of March 10, 1949, P. L. 30, art. III, § 322, as amended, 24 P.S. § 3-322. The trial court, therefore, ordered the appellant to choose between the two positions. This appeal followed in which the appellant argues that his employment position and his elected position are not incompatible under the Public School Code. We agree and reverse.

The relevant section of the Public School Code provides: "Any citizen of this Commonwealth, having a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: Provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of mayor, chief burgess, county commissioner, district attorney, city, borough, or township treasurer, member of council

[ 456 Pa. Page 524]

    in any municipality, township commissioner, township supervisor, tax collector, assessor, assistant assessor, any comptroller, auditor, constable, executive director or assistant executive director of an intermediate unit, supervisor, principal, teacher, or employe of any school district, shall not be eligible as a school director in this Commonwealth. This section shall not prevent any district superintendent, assistant district superintendent, supervisor, teacher, or employe of any school district, from being a school director in a district other than the one in which he is so employed, and other than in a district with which the district in which he is employed operates a joint school or department. A ...


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