Appeal from the Order of the Department of Education in case of In the Matter of Veronica Marie George, No. 232.
Ronald N. Watzman, with him Watzman, Levenson & Snyder, P.A., for appellant.
Edward A. Miller, Assistant Attorney General, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 15 Pa. Commw. Page 240]
The narrow but important issue presented by this case is whether the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 1-101, permits a school district to grant a teacher professional employe status before the teacher has served a two-year probationary period in any school district in the Commonwealth. It would appear to be a case of first impression in the appellate courts of Pennsylvania. The Secretary of Education, albeit reluctantly, has ruled in this case that the School District is without such authority. We must affirm.
Appellant was graduated from Slippery Rock State College in January, 1970, and immediately began substituting in area schools including New Castle Area Schools, where she had attended high school. On October 10, 1972, appellant signed a contract with the School District of Union Area, Lawrence County, New Castle, Pennsylvania, to serve as a professional employe for a term of 183 days at an annual compensation of $6,700.00. The contract was expressly made subject to the provisions of the "Public School Code," expressly provided that none of the provisions of the Code could be waived orally or in writing, and expressly provided that it would renew itself from year to year unless terminated by resignation or by notice of the Board designating the cause for the termination and providing an opportunity to be heard upon request. This was the standard form of contract used for a professional employe after serving a two-year probationary period. It is uncontradicted that this form of contract, rather than the one used for a temporary professional employe, was used as a result of a clerical error. The appellant had not served a two-year probationary period.
[ 15 Pa. Commw. Page 241]
Appellant received a satisfactory rating for her work in 1972-1973. Nevertheless, on July 18, 1973, following an oral notification, appellant was notified by letter that the contract was terminated because a tenured employe was returning from military leave. The letter stated: "I write this letter with regret, but as we just have the one job I have no choice. Your teaching in our district has been satisfactory and I would be most happy to recommend you for other positions."
Appellant requested and was granted a hearing before the Board which resulted in the termination being upheld. An appeal was filed, both in the appropriate Common Pleas Court of Lawrence County on the theory that appellant was a temporary professional employe, and to the Secretary of Education on the theory that appellant was a professional employe. The appeal in the Court of Common Pleas of Lawrence County has been held in abeyance pending disposition of the appeal to the Secretary of Education.
The classification of temporary professional employe was created by an amendment in 1939, Act of June 20, 1939, P.L. 482, to the Teacher Tenure Act of 1937, Act of April 6, 1937, P.L. 213.*fn1 Prior to this amendment, the Act provided that the district shall enter into a contract with each professional employe at or before the time of first entering the service of the district. The 1939 amendment changed this to provide that the district shall enter into the contract with each professional employe who has satisfactorily completed two years' service in any school district in this Commonwealth.*fn2 Appellant would have us hold that the amendment resulted in the school district having authority to enter into a professional employe contract at any time prior to the
[ 15 Pa. Commw. Page 242]
two-year satisfactory probationary service and being required to do so after two years. In other words, appellant asserts that the amendment merely created an ...