Appeal from the Order of the Court of Common Pleas of Adams County in case of Linda C. Young v. Littlestown Area School District, No. 26 February Term 1974.
Gerald E. Ruth, for appellant.
John W. Phillips, with him Pyle and Phillips, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr., and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers. Dissenting Opinion by Judge Wilkinson.
[ 24 Pa. Commw. Page 623]
We are concerned in this matter with the already much litigated subjects of the rights of temporary professional employees of public school districts upon the completion of two years of service and of the means provided by law for determining the facts necessary for the determination of those rights.
The case is here on the appeal of Linda Young from an order of the Court of Common Pleas of Adams County, by Judge MacPhail, sustaining the preliminary objections of the Littlestown Area School District to, and dismissing, Ms. Young's amended complaint in mandamus. Ms. Young alleges in that complaint that she was employed by the appellee school district as a temporary professional employee and worked as such during the school years 1970-71, 1971-72 and 1972-73; that the district failed to give her a regular professional employee's contract or provide its reason for such failure although retaining her in employment for a third year; and that "[t]he [appellant] has not received a rating in accordance with Sections 1108 and 1123 of the Pennsylvania School Code, 24 P.S. §§ 11-1108 and 11-1124 (sic);*fn1 ratings received were arbitrary and capricious and included improper criteria not required by law." Ms. Young sought an order compelling the school district to tender her a regular professional employee's contract. The court below dismissed the amended complaint because it inconsistently averred by the language above quoted that the plaintiff had not been rated and, in the alternative, that ratings given were arbitrary and capricious. Judge MacPhail depended in
[ 24 Pa. Commw. Page 624]
his ruling on a proper reading of the Supreme Court cases, which we refer to herein, holding that a temporary professional employee seeking a regular professional employee's contract in mandamus must aver either that he received a satisfactory rating or no rating at all. Judge MacPhail makes no mention of dicta in Supreme Court opinions antedating the Local Agency Law, Act of December 2, 1968, P.L. 1133, as amended, 53 P.S. § 11301 et seq., suggesting that relief might be available by mandamus if the plaintiff alleged and proved that unsatisfactory ratings were given fraudulently, arbitrarily or capriciously.
Because there has been so much litigation on the subject and because the effect of the Local Agency Law, which we believe to be crucial, has not been fully considered heretofore we will attempt a review of the law as we find it.
Section 1108 of the Public School Code of 1949, 24 P.S. § 11-1108, provides:
"(a) It shall be the duty of the district superintendent to notify each temporary professional employe, at least twice each year during the period of his or her employment, of the professional quality, professional progress, and rating of his or her services. No temporary professional employe shall be dismissed unless rated unsatisfactory, and notification, in writing, of such unsatisfactory rating shall have been furnished the employe within ten (10) days following the date of such rating. The rating of a temporary professional employe shall be done as provided in section one thousand one hundred twenty-three of this act.
"(b) A temporary professional employe whose work has been certified by the district superintendent to the secretary of the school district, during the last four (4) months of the second year of such service, as being satisfactory shall thereafter be a 'professional
[ 24 Pa. Commw. Page 625]
employe' within the meaning of this article. The attainment of this status shall be recorded in the records of the board and written notification thereof shall be sent also to the employe. The employe shall then be tendered forthwith a regular contract of employment as provided for professional employes. No professional employe who has attained tenure status in any school district of this Commonwealth shall thereafter be required to serve as a temporary professional employe before being tendered such a contract when employed by any other part of the public school system of the Commonwealth.
"(c) Any temporary professional employe who is not tendered a regular contract of employment at the end of two years of service, rendered as herein provided, shall be given a written statement signed by the president and secretary of the board of school directors and setting forth explicitly the reason for such refusal.
"(d) Temporary professional employes shall for all purposes, except tenure status, be viewed in law as full-time employes, and shall enjoy all the rights and ...