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JAMES T. BLACK v. WYALUSING AREA SCHOOL DISTRICT. COMMONWEALTH PENNSYLVANIA (11/18/76)

decided: November 18, 1976.

JAMES T. BLACK
v.
WYALUSING AREA SCHOOL DISTRICT. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION. WYALUSING AREA SCHOOL DISTRICT, APPELLANT



Appeal from the Order of the Department of Education in case of Appeal of James T. Black, a Professional Employe, from a Decision of the Board of School Directors of the Wyalusing Area School District, Bradford County, Pennsylvania, No. 269.

COUNSEL

A. B. Duvall, for appellant.

Edward A. Miller, Assistant Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 27 Pa. Commw. Page 176]

Appellant appeals an order of the Secretary of Education (Secretary) reinstating appellee as an elementary principal. We affirm.

[ 27 Pa. Commw. Page 177]

Appellee was hired as an elementary principal by appellant in 1968. In July 1975, after appellee had acquired tenure, appellant notified him that his position was being abolished. Appellee alleged that this action constituted a nonconsensual demotion and requested a hearing before appellant's board of school directors in accordance with Section 1151 of The Public School Code of 1949.*fn1 A hearing was begun on August 6, 1975, but was adjourned without presentation of evidence when appellee refused to stipulate that the Local Agency Law*fn2 would control the proceedings. Appellee then accepted without prejudice to his rights to appeal a teaching position within appellant's system at an annual salary approximately $2,765.00 less than his last pay as a principal. On appeal the Secretary conducted a hearing and ruled that a nonconsensual demotion had occurred, no hearing before the board had been held, and, therefore, the appellee was entitled to reinstatement as a principal. This appeal followed.

Appellant clearly had the right to abolish appellee's position. Abington School Board v. Pittenger, 9 Pa. Commonwealth Ct. 62, 68, 305 A.2d 382, 385 (1973). However, if appellee was demoted thereby, Section 1151 voids such demotion until a hearing is conducted before the board. No hearing has been held.

[ 27 Pa. Commw. Page 178]

The first issue, therefore, is whether the appellee was demoted. Unquestionably he was. Section 1151 provides that demotion of a professional employee can occur either in salary or in type of position. Appellee suffered not only a decrease in pay, but also a reduction in duties and responsibilities. See Lakeland Page 178} Joint School District v. Gilvary, 3 Pa. Commonwealth Ct. 415, 420, 283 A.2d 500, 502 (1971). Appellant contends, however, that appellee's position was "nonmandated" and, therefore, his reassignment was not a demotion. We refuted this exact contention in Commonwealth Department of Education v. Charleroi Area School District, 22 Pa. Commonwealth Ct. 56, 61, 347 A.2d 736, 738 (1975).

The distinction between 'mandated' and 'nonmandated' positions is not relevant to the necessity for a hearing on the threshold issue of whether or not a demotion has taken place. (Emphasis in original.)*fn3

The second and more difficult issue is whether, given the fact that the appellee was demoted, the Secretary was correct in ordering reinstatement. Appellant does not dispute appellee's right to a hearing on remand, but does dispute the Secretary's authority to order reinstatement without such a hearing. Appellant cites Charleroi, supra. There the Secretary had also ordered reinstatement after deciding that a professional employee had been demoted without a hearing. We held that remand rather than reinstatement was proper. In that case, however, we felt a full hearing was required for the Secretary to determine whether the reassignment was actually a demotion.*fn4 Here there can be no doubt that a demotion occurred. Nor is our recent decision in ...


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