Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Diane McKelvey v. The Colonial School District, No. 74-15381.
Richard W. Rogers, with him Norma R. Frank, and Rogers, King & Cole, for appellant.
Raymond M. Seidel, with him High, Swartz, Roberts & Seidel, for appellee.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
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Diane McKelvey has appealed an order of the Court of Common Pleas of Montgomery County which granted the petition of the Colonial School District to open a default judgment. The judgment taken by
[ 35 Pa. Commw. Page 266]
McKelvey was for want of an answer to her complaint in mandamus demanding an order that she be reinstated to her position of temporary professional employee of the defendant, here appellee, school district.
On or about August 21, 1974, Ms. McKelvey received a letter from the Board of School Directors of the Colonial School District notifying her that by reason of unsatisfactory ratings of her performance her temporary professional employee's contract was terminated effective immediately. The letter told her that she would be afforded a hearing before the school board if she asked for one within ten days. Her lawyer asked for a hearing by letter dated August 30, 1974. In fact no hearing was scheduled by the Board. On October 23, 1974 Ms. McKelvey filed her complaint in mandamus in the Court of Common Pleas of Montgomery County in which she alleged that the school board of the defendant school district had failed and refused to provide a hearing, contrary to the requirements of the Local Agency Law*fn1 and asking for an order for reinstatement with back pay. The court below sustained the school district's preliminary objection in the nature of a demurrer, reasoning that although Ms. McKelvey was clearly entitled to a hearing under Section 4 of the Local Agency Law, 53 P.S. § 11304, she had asked for reinstatement, an act purely discretionary with the school board. On appeal this Court vacated the order below because we believed that McKelvey's complaint alleging that the school board had failed and refused to provide any hearing at all stated a cause of action for her reinstatement because Section 4 of the Local Agency Law provides that no adjudication of a local agency shall be valid unless the party affected shall have been given reasonable
[ 35 Pa. Commw. Page 267]
notice of hearing and an opportunity to be heard. McKelvey v. Colonial School District, 22 Pa. Commonwealth Ct. 207, 348 A.2d 445 (1975). Our opinion and order were filed December 5, 1975. We there wrote:
The court below, although noting that the plaintiff had a right to a hearing pursuant to the Local Agency Law, Act of December 2, 1968, P.L. 1133, 53 P.S. § 11301 et seq. and recognizing that she had asked for and been refused a hearing, sustained the demurrer. The basis of the court's ruling was that the complaint did not ask for a hearing but for reinstatement, a matter within the discretion of the School Board. We believe that the lower court erred and we vacate its order and remand the case for further proceedings.
The dismissal of temporary professional employees rated unsatisfactory is provided for by Section 1108 of The Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1108. The Public School Code of 1949 does not provide a temporary employee a right to a hearing. Further, in Nicolella v. Trinity Area School District School Board, 444 Pa. 544, 281 A.2d 832 (1971), our Supreme Court held that mandamus would not afford the remedy of reinstatement to a temporary professional employee discharged after an unsatisfactory rating. In a footnote of the Nicolella opinion, it ...