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decided: October 5, 1978.


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,

Author: Roberts

[ 481 Pa. Page 358]


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

[ 481 Pa. Page 359]

    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 employees performing similar services.*fn6 Thereafter,

[ 481 Pa. Page 360]

    in the 1972-1973 school year, appellee assigned Bittner to a four and one-half hour work day and paid her at a rate of $5 per hour. In the 1972-1973 school year, as in the previous one, appellee did not tender Bittner a written contract, and the board's minutes again did not reflect her employment.

In September, 1973, at the start of the 1973-1974 school year, Bittner appeared for work, but appellee's reading supervisor informed her that she no longer had a teaching position. Appellee denied Bittner's request for a hearing, and Bittner appealed to the Department of Education.*fn7 Following a hearing, the Department concluded that Bittner's two years of service as a certified reading teacher, during which she "served on a better than half-time basis . . . [and] was never rated unsatisfactory," entitled her to "professional employee" status. It therefore directed Bittner's reinstatement. In reversing,*fn8 the Commonwealth

[ 481 Pa. Page 361]

Court concluded: "[O]ne cannot acquire professional status as a school teacher in the Commonwealth of Pennsylvania without having first obtained a written contract to teach, which written contract [must be] approved by a majority of the School Board." Department of Education v. Jersey Shore Area School District, 23 Pa. Commw. 624, 625, 353 A.2d 91, 92 (1976). We granted Bittner's and the Department's petitions for allowance of appeal.

Section 1127 of the Public School Code of 1949 accords "any professional employe having attained the status of permanent tenure" several procedural rights before dismissal by a school board.*fn9 Bittner contends she attained tenured status by serving two years in the Jersey Shore Area School District as a "temporary professional employe" without receiving an unsatisfactory rating from appellee's district superintendent.

[ 481 Pa. Page 362]

Under the Public School Code, "temporary professional employes" are one of three classes of individuals "[t]he board of school directors in every school district shall employ . . . to keep the public schools open in their respective district in compliance with [the Code]."*fn10 Section 1101(3) of the Code defines a "temporary professional employe:"

"The term 'temporary professional employe' shall mean any individual who has been employed to perform, for a limited time, the duties of a newly created position or of a regular professional employe whose services have been terminated by death, resignation, suspension or removal."

Bittner, duly certified to teach as required by the Public School Code,*fn11 taught students reading in a program of instruction which complemented appellee's existing curriculum. Bittner's understanding of her employment relationship, uncontradicted by appellee, was that she was to teach in the reading program "until an opening in the system, a regular classroom job occurred."*fn12 Thus, the record supports Bittner's assertion that she "was employed to perform, for a limited time, the duties of a newly created position" and, accordingly, began her teaching career at Jersey Shore as a "temporary professional employe."*fn13

Two provisions of the Public School Code establish the manner in which a "temporary professional employe," such

[ 481 Pa. Page 363]

    as Bittner, attains tenured status. Section 1108(a) directs the district superintendent of schools "to notify each temporary professional employe, at least twice each year during the period of his or her employment, of the professional quality, professional progress, and rating of his or her services."*fn14 Section 1108(a) also prohibits a school district from dismissing a temporary professional employee "unless [he or she is] rated unsatisfactory, and notification, in writing, of such unsatisfactory rating shall have been furnished the employe within ten (10) days following the date of such rating." Section 1108(b) provides:

"A temporary professional employe whose work has been certified by the district superintendent to the secretary of the school district, during the last four (4) months of the second year of such service, as being satisfactory shall thereafter be a 'professional employe' within the meaning of this article.*fn15 The attainment of this status shall be recorded in the records of the board and written notification thereof shall be sent also to the employe. The employe shall then be tendered forthwith a regular contract of employment as provided for professional employes.

[ 481 Pa. Page 364]

No professional employe who has attained tenure status in any school district of this Commonwealth shall thereafter be required to serve as a temporary professional employe before being tendered such a contract when employed by any other part of the public school system of the Commonwealth."

Appellee's superintendent never certified Bittner in the manner set forth in Section 1108(b), nor did the superintendent rate her "unsatisfactory." The Department of Education concluded, however, and appellants now argue, that based upon Elias v. Board of School Directors, 421 Pa. 260, 218 A.2d 738 (1966), Bittner is entitled to "professional employe" status.

In Elias, two registered nurses brought actions in mandamus, requesting the trial court to direct their employers, a school district and school board, to reinstate them to their previous positions as school nurses, issue them "professional employe" contracts, and pay them lost earnings. The school board had terminated the nurses' employment after three years of service. At no time during the last four months of the nurses' first two years of employment, or thereafter, did the school district's superintendent certify the nurses' rating under Section 1108(b) of the Code. Nor did the superintendent rate either "unsatisfactory." The trial court dismissed the complaints, but this Court reversed. We concluded that the trial court

"ignored the provision of § 1108 prohibiting the dismissal of a temporary employe unless rated unsatisfactory. Neither plaintiff was ever rated unsatisfactory by the superintendent. In fact, the record reveals that the only rating received by either plaintiff was an excellent rating of 97.6 in the case of plaintiff Elias. Under the circumstances, we must conclude that the absence of ratings indicates satisfactory performance and that each plaintiff is entitled to a professional employe's contract under § 1108 of the School Code."

Id., 421 Pa. at 265, 218 A.2d at 741. Accord, Tyler v. Jefferson County-DuBois Area Vocational Technical School, 467 Pa. 595, 359 A.2d 761 (1976).

[ 481 Pa. Page 365]

Here, the Department of Education concluded that Bittner, like the nurses in Elias, worked the two years Section 1108(b) required of her. The Department also determined that at no time during those two years did she receive an unsatisfactory rating. As we concluded in Elias, the Department could properly conclude here that "the absence of ratings indicates satisfactory performance" and therefore Bittner is entitled to professional employe status.

We therefore reject appellee's argument, and the Commonwealth Court's conclusion, that a written contract of employment approved by appellee's school board is a necessary prerequisite to Bittner's status as a "professional employe." Elias does not require such evidence of employment.*fn16 Neither Article XI nor any other article of the Public School Code imposes upon a "temporary professional employe" the obligation to procure a written contract approved by the school board. Indeed, of the above sections of Article XI governing teacher tenure, only Section 1108(b) mentions a written contract; that section imposes a duty upon school officials to "tender forthwith" to the teacher with newly-acquired tenure "a regular contract of employment as provided for professional employes." Section 1121, which describes the contract to be issued, speaks only of "professional employes."*fn17 Moreover, even assuming that a

[ 481 Pa. Page 366]

    writing is required by Section 1121 or, as appellee contends, Section 508 of the Code,*fn18 appellee's failure to provide Bittner an appropriate contract cannot be the basis for denying Bittner her tenure. "The burden of complying with the statute rests with the school boards; should they fail to conduct their business as required, the consequences ought to lie at their door, not at the door of their victims. They must not be permitted to advantage themselves of their own failures to the detriment of their employes." Mullen v. DuBois Area School District, 436 Pa. 211, 217, 259 A.2d 877, 880-81 (1969) (rejecting school board's argument that "temporary professional employe" contract is invalid for want of school board minutes approving it).

Nor do we believe that Bittner's assignment to a part-time schedule during her second year of employment diminishes her entitlement to "professional employe" status. Nothing in Section 1101(3) of the Code,*fn19 defining "temporary professional employe," or any other tenure provision of the Code, suggests that a candidate for tenure must work a minimum number of hours per week. So long as a person devotes half of his or her time to teaching or other direct educational activities, that person is a "teacher" entitled to "professional

[ 481 Pa. Page 367]

    employe" status under Section 1101(1). Brentwood Borough School District Appeal, 439 Pa. 256, 267 A.2d 848 (1970) (borrowing § 1141(1), 24 P.S. § 11-1141(1), definition of "teacher" for purposes of compensation subdivision of Article XI of the Code). The Department concluded that Bittner fulfilled this requirement in both years of employment and the record supports this determination.

Accordingly, we reverse the order of the Commonwealth Court and reinstate the order of the Department of Education.

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