Appeal from the Order of the Court of Common Pleas of Clearfield County in cases of Joanne Smith, Sandra Woods and Joseph Smiley v. Board of School Directors of the Harmony Area School District, No. 1054 May Term, 1972.
William A. Hebe, for appellants.
Paul Silberblatt, with him Bell, Silberblatt & Swoope, for appellee.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 16 Pa. Commw. Page 176]
Appellants,*fn1 teachers in the appellee school district, were notified on or about August 24, 1972, that due to a substantial decrease in student enrollment, they were being suspended pursuant to Section 1124 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1124 (Supp. 1974-1975) (Code).
[ 16 Pa. Commw. Page 177]
Appellants then filed a complaint in mandamus in the Court of Common Pleas of Clearfield County seeking reinstatement. A hearing was held on December 21, 1972, and on October 19, 1973, the court filed an opinion dismissing appellants' complaint. This appeal followed.
Initially we note that the procedure followed by appellants was not the proper procedure to contest their suspension. Prior to the enactment of the Local Agency Law, Act of December 2, 1968, P.L. 1133, 53 P.S. § 11301, implementing Section 9 of Article V of the Pennsylvania Constitution of 1968, a mandamus action may have been proper because appellants here would have had no right of appeal. School boards are outside the scope of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.1 and, therefore, appellants would have had no appeal rights under that Act. Smethport Area School District v. Bowers, 219 Pa. Superior Ct. 269, 280 A.2d 632 (1971). Sections 1127 through 1132 of the Public School Code of 1949, 24 P.S. §§ 11-1127 through 11-1132, do not apply to suspensions under Section 1124 but rather to dismissals, and further, only apply to professional employees. Since it would appear from the testimony at the hearing below that appellants are temporary professional employees rather than professional employees, and since appellants were suspended from their positions and not dismissed, they would not have had, and do not have, any appeal rights under that Act. The Local Agency Law was enacted to remedy such situations. Appellants should have proceeded in accordance with the appeal procedures set forth in the Local Agency Law rather than instituting this action in mandamus. See Smethport Area School District v. Bowers, supra, and LaPorta v. Bucks County Public Schools Intermediate Unit No. 22, 15 Pa. Commonwealth Ct. 566, 327 A.2d 655 (1974). This alone would
[ 16 Pa. Commw. Page 178]
be sufficient for us to dismiss the appeal; but because of the nature of this case and because of the confusion that has existed in this area of the law as to the correct procedure, we will decide this appeal in its present posture.
Appellants first claim that a decrease in enrollment from 724 students to 610 students over a 10-year period is not a "substantial" decrease. We disagree. While a decrease of 114 students might not be "substantial" as a percentage of the total pupil population in some school districts, it is certainly substantial enough to justify the suspension of two or three teachers who are no longer necessary due to that decrease. Appellants then claim that because the school district hired two additional teachers immediately subsequent to appellants' suspension, the suspension was improper. This argument overlooks the fact that the two additional teachers were hired to teach physical education and were not certified to teach in appellants' area of education, nor were the appellants certified to teach physical education. The law does not require a school district to retain unneeded teachers in one area of education at the expense of not hiring needed teachers in another area. See Jones v. Holes, 334 Pa. 538, 6 A.2d 102 (1939). No teachers possessing the same teaching certificates as appellants have been hired.
Appellants' contention that the hiring of the two additional teachers violates Section 1125(b) of the Code, in that employees with less seniority than appellants are now being employed, must fail for similar reasons. When appellants were suspended, they had less seniority than any other employee -- neither appellant had been employed for more than one and a half school years. The only present faculty members with less service ...