William K. Eckel, Abood, Rodkey & Eckel, Johnstown, for appellant. Edward A. Miller, Asst. Atty. Gen., Harrisburg, amicus curiae.
David E. Blakeley, Du Bois, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, and Manderino, JJ. Nix, J., filed a dissenting opinion in which Roberts, J., joined.
This appeal arises from an order of Commonwealth Court which sustained summary dismissal of appellant, Milton Tyler, from his employment with appellee, Jefferson County-Du Bois Area Vocational Technical School.
The facts surrounding this appeal are as follows. In September, 1968, appellant received a Provisional Teacher's Certificate issued by the Commonwealth which authorized his teaching of the following courses: Business Education, Business English, Typing, Bookkeeping and Business Mathematics. Appellant was employed in September, 1971, by the appellee school district to teach Distributive Education. Since appellant's provisional certificate did not include Distributive Education, he received from the Department of Education an "Interim Certificate" which permitted him to teach Distributive Education. In December, 1973, appellant's interim certificate was amended to an "Instructional I Certificate" which also authorized him to teach Distributive Education.
In May of 1974, appellant received his first Temporary Professional rating by letter from Dr. George N. Nye, Superintendent of the appellee school district. The rating was unsatisfactory and Dr. Nye indicated that he would recommend to the school board that appellant be dismissed on grounds of incompetence and insubordination. By letter dated May 28, 1974, appellee terminated the employment contract of appellant, effective the end of the 1973-74 school year. The letter further informed appellant that a hearing was to be held on June 12, 1974. On that date, appellant, accompanied by counsel, appeared at the "hearing" but refused to proceed with the hearing because of the lack of a disinterested public stenographer and the School Board's failure to furnish him with a detailed written statement of the charges.
Appellant then filed a mandamus action in the Jefferson County Court of Common Pleas to compel the appellee school district to follow the mandatory dismissal requirements as set forth in the Public School Code of 1949, § 1127, 24 P.S. § 11-1127. The Jefferson County Court entered judgment for appellee and Commonwealth Court affirmed that order. We granted appellant's petition for allowance of appeal and now reverse.
Appellant argues that he was a "professional employee" at the time of his dismissal and, therefore, was entitled to the procedural safeguards provided in § 1127 of the Public School Code of 1949. We agree.
The starting point of our analysis is the question of when appellant became a "temporary professional." Section 11-1101 of the Public School Code of 1949 provides, inter alia :
"As used in this article,
"(1) The term 'professional employe' shall include those who are certificated as teachers . . . .
"(3) The term 'temporary professional employe' shall mean any individual who has been employed to perform, for a limited time, the duties of a newly created position or of a regular professional employe whose services have been terminated by death, resignation, suspension or removal." As amended October 5, 1967, P.L. 348, § 1; July ...