Nos. 118 & 119 January Term, 1977, Appeal from the Order of the Commonwealth Court, dated March 9, 1976, in No. 1044 Commonwealth Docket 1975, Reversing the Order of the Secretary of Education, dated June 25, 1975.
Spencer, Gleason & Hebe, William A. Hebe, Wellsboro, for appellant at No. 118.
Edward A. Miller, Asst. Atty. Gen., Donna S. Weldon, Harrisburg, for appellant at No. 119.
Clyde E. Carpenter, Jr., Jersey Shore, Charles J. McKelvey, Williamsport, for appellee at Nos. 118 & 119.
Cleckner & Fearen, Michael I. Levin, William Fearen, Harrisburg, for amicus curiae, Penna. School Boards Assn. at Nos. 118 & 119.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, and Larsen, JJ. Pomeroy, J., dissents on the basis of the opinion of Judge Wilkinson speaking for a unanimous Commonwealth Court. Commonwealth of Pennsylvania, Dept. of Education and Carroll Bittner v. Jersey Shore Area School District,
Appellant, Department of Education, properly concluded that, at the time appellee Jersey Shore Area School District summarily terminated appellant Carroll Bittner's employment, Bittner was a "professional employe having attained the status of permanent tenure" within the meaning of Section 1127 of the Public School Code of 1949.*fn1 Because Bittner had attained "professional employe" status, appellee's summary termination was unlawful and therefore the Department properly ordered her reinstatement.*fn2 The Commonwealth Court concluded that Bittner was not a "professional employe" and reversed the Department's order. We now reverse the order of the Commonwealth Court and reinstate the order of the Department of Education.*fn3
Carroll Bittner began her teaching career in September, 1971. Certified by the Department of Education as an
elementary education and early childhood education instructor, she taught reading full-time, seven hours a day and five days per week through the 1971-1972 school year, to elementary students in appellee's federally funded, special remedial reading program.*fn4
Appellee treated Bittner and others in the federally funded reading program differently from other new teachers hired the same year. Appellee did not issue Bittner or others teaching in the program a written contract, but issued other new teachers "temporary professional employe" contracts.*fn5 School Board minutes acknowledge other new teachers' employment, while they do not reflect employment of Bittner and others teaching in the program. Appellee paid Bittner on a daily basis, $35 per day, while it paid other new teachers an annual salary.
In May, 1972, the Department of Education informed all school districts within the Commonwealth that persons such as Bittner were to be accorded the same professional rights as other ...