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APPEAL INGEBORG THWING v. OTTO-ELDRED SCHOOL DISTRICT (01/19/76)

decided: January 19, 1976.

APPEAL OF INGEBORG THWING
v.
OTTO-ELDRED SCHOOL DISTRICT, APPELLANT



Appeal from the Order of the Court of Common Pleas of McKean County in case of Appeal of Ingeborg Thwing, No. 217 December Term, 1974.

COUNSEL

Anthony H. Chambers, with him Chambers & Crisman, for appellant.

John H. Yoder, with him Apple and Yoder, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer. Dissenting Opinion by Judge Blatt.

Author: Crumlish

[ 23 Pa. Commw. Page 33]

Otto Eldred School District (Appellant) filed this appeal from an order of the Court of Common Pleas of McKean County which denied Appellee's petition to dismiss Ingeborg Thwing's (Appellee) appeal from an action of the Board of Directors of Appellant, and which ordered them to give her a hearing and written adjudication

[ 23 Pa. Commw. Page 34]

    in accordance with the provisions of the Local Agency Law.*fn1 We affirm.

Appellant, who owns no school buses, has provided the required transportation for its students by contracting, using a standard contract form provided and approved by the Department of Education, with Herman Marrone and Drexel Moses, an independent contractor, for such service. Among the provisions of the contract is the requirements that the contractor submit a list of proposed drivers annually for approval by the Appellant's Board. Such a list was submitted for the 1974-75 school year and included the name of Appellee, Ingeborg Thwing. This entire list was approved at a meeting of the Board prior to the opening of the school year. However, during the month of October both at the regular and a special meeting of the School Board, questions were raised as to the competency of Appellee to remain as an approved school bus driver.

During the latter meeting, the only one of which Appellee had notice and attended, after hearing evidence, argument and discussion of her qualifications, the Board withdrew her name from the approved school bus driver list. Because of this, she was dismissed from her employment without prejudice. She then filed an appeal in the court of common pleas challenging the action taken by Board. Appellant resisted by filing a motion to dismiss alleging that she is not a "party" and therefore is not entitled to relief under the Local Agency Law. Appellant appeals the denial of the motion by the court below together with the order remanding the case to it for a hearing.

The resolution of this appeal centers on the sole question of whether the definition of "party" in Section 2 of

[ 23 Pa. Commw. Page 35]

    the Local Agency Law*fn2 encompasses Appellee, an employee of an independent contractor who agreed to permit the Appellant to set ...


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