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BOARD SCHOOL DIRECTORS AVON GROVE SCHOOL DISTRICT v. COMMONWEALTH PENNSYLVANIA (07/15/77)

decided: July 15, 1977.

BOARD OF SCHOOL DIRECTORS OF AVON GROVE SCHOOL DISTRICT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION AND ELIZABETH M. PARSONS, RESPONDENTS



Appeal from the Order of the Secretary of Education in case of Elizabeth M. Parsons v. Board of School Directors of the Avon Grove School District, dated March 16, 1976.

COUNSEL

Daniel J. Whelan, with him Montgomery, McCracken, Walker & Rhoads, for petitioner.

Arlene J. Diosegy, Assistant Attorney General, for respondent, Department of Education.

Thomas P. Hamilton, Jr., with him Alexander A. DiSanti, and Richard, Brian, DiSanti, Hamilton & Gallagher, for respondent, Parsons.

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

Author: Kramer

[ 31 Pa. Commw. Page 90]

This is a petition for review filed by the Board of School Directors of Avon Grove School District (Directors) requesting appellate review of an order of the Secretary of Education (Secretary) dated June 24, 1976. The order dismissed the Directors' untimely petition to open and for reconsideration of the Secretary's determination that Elizabeth M. Parsons (Parsons) should be reinstated as a teacher in the Avon Grove School District. Presently before this Court are motions raised by the Commonwealth, Department of Education (Commonwealth) and Parsons, to dismiss the petition for review for want of jurisdiction or alternatively to quash it on grounds that it is untimely.

On March 16, 1976, the Secretary entered an order reinstating Parsons to her teaching position. On June 4, 1976, 80 days later, the Directors filed a petition to open and for reconsideration. The Secretary dismissed this petition on June 24, 1976, and on July 6, 1976 the Directors filed the petition for review at issue.

The Commonwealth and Parsons contend that the petition for review was filed untimely. They argue that the Secretary's reinstatement order was entered March 16, 1976 and that the petition for review was

[ 31 Pa. Commw. Page 91]

    not filed until July 6, 1976. This 112-day period is well beyond the 30-day appeal period allowed under Pa. R.A.P. 1512, 42 Pa. C.S. Their argument relies on this Court's decision in Department of Environmental Resources v. Wolford, 16 Pa. Commonwealth Ct. 254, 329 A.2d 304 (1974). Wolford, however, is not supportive. Although the appellant in that case was denied a hearing on an untimely petition for reconsideration, his appeal was of the original administrative decision. He attempted to extend the time for appealing the original decision by measuring the time from the subsequent order denying the untimely petition for reconsideration. This is not the case before us. Here, the Directors are not seeking review of the Secretary's original decision to reinstate Parsons. They request appellate consideration solely of the June 24 order dismissing their petition to open and for reconsideration.

This Court stated in Mayer v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 244, 366 A.2d 605 (1976), that where the appeal is of the order denying the petition for reconsideration only, the appeal time in such circumstances runs from the date of the order dismissing the petition. Such a result was deemed proper even though the petition for reconsideration was filed untimely and subsequent to the time allowed for appealing the original decision. The Court's conclusion in Mayer relied upon the language found under Subsection ...


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