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SARA E. POINTEK v. ELK LAKE SCHOOL DISTRICT (07/22/76)

decided: July 22, 1976.

SARA E. POINTEK, APPELLANT
v.
ELK LAKE SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Susquehanna County in case of Sara E. Pointek v. Elk Lake School District, No. 130 April Term, 1974.

COUNSEL

Peter J. O'Brien, with him O'Brien and Miller, for appellant.

James A. Kelly, with him Paul T. Burke, for appellee.

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

Author: Kramer

[ 26 Pa. Commw. Page 63]

This is an appeal by Sara E. Pointek from an order of the Court of Common Pleas of Susquehanna County dismissing an action in mandamus brought by appellant to compel appellee Elk Lake School District to reinstate her as a professional employe; to cease and desist from threats which might interfere with performance of her professional duties; to issue to her and to all other tenured professional employes of appellee School District a written professional employe's contract; to make full payment of all compensation to which she would have been entitled had she not been wrongfully deprived of her position; or, alternatively to reinstate her pending a hearing pursuant to Section 1127 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1127.*fn1 The sole issue for determination is whether appellant was a professional employe at the

[ 26 Pa. Commw. Page 64]

    time of her dismissal and thus entitled to a Section 1127 hearing. We hold that she was and reverse the order of the Court of Common Pleas.

Pointek was hired as a temporary professional employe with Instructional I certification by appellee School District and commenced her duties on February 1, 1971. As of January 31, 1973, Pointek had completed two years of continuous service for which she had received satisfactory ratings. Thereafter she was treated as a tenured professional employe, and although no written contract was issued as mandated by Section 1108 of the Code, 24 P.S. § 11-1108, the School District continued under the terms of the original contract. In the fall of 1972, Pointek advised her principal that she was pregnant and would require a leave of absence in the spring of 1973. Arrangements were made for a student teacher to substitute for Pointek during her absence (March 19, 1973 to August 27, 1973). On January 28, 1974, the School District notified Pointek of her dismissal as of January 31, 1974 for failure to meet certification requirements.*fn2 By the official notice of dismissal, the School District advised Pointek of her right to a Section 1127 hearing and scheduled such a hearing for February 11, 1974, eleven days after her effective termination. Counsel for Pointek requested a continuance of the hearing pending a decision by the Department of Education as to Pointek's certification status. Counsel for the School District replied that the request would be denied in light of his legal advice

[ 26 Pa. Commw. Page 65]

    that no Section 1127 hearing was required under the circumstances. On February 28, 1974 Pointek received a renewed Instructional I Professional Certificate bearing an issue date of January 1, 1974 and the notation "valid until August 31, 1974." After completing the requisite number of credits, Pointek received a Professional Certificate issued on July 7, 1974 certifying her for an additional period of three years of elementary teaching.

It is undisputed by all parties and was found as a fact by the trial court that Pointek had acquired the status of a tenured professional employe as of February 1, 1973. As such, her employment could not be terminated without full compliance with the prescribed procedures of the Public School Code. Commonwealth of Pennsylvania, Department of Education v. Great Valley School District, 23 Pa. Commonwealth Ct. 423, 352 A.2d 252 (1976). Thus, Pointek could be dismissed (a) only for one of the reasons enumerated in Section 1122*fn3 and (b) only after a Section 1127 formal hearing. As we pointed out in Great Valley, the fact that the ...


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