Appeal from the Order of the Secretary of Education in case of In Re: Theresa W. Wagner and Clarence E. Doak, dated October 12, 1977.
Byrd R. Brown, for petitioners.
Donna S. Weldon, Assistant Attorney General, with her Patricia A. Donovan, Deputy Attorney General, Chief Counsel, for respondent.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.
[ 42 Pa. Commw. Page 202]
This is an appeal by Theresa W. Wagner and Clarence E. Doak (petitioners), professional employees of the Pittsburgh School District, from a decision of the Pennsylvania Secretary of Education (Secretary), denying an appeal from a decision of the Board of Education of the Pittsburgh School District (Board) because the appeal was not timely filed in accordance with the requirements of Section 1131 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1131.
The Board, by resolution dated February 24, 1976, reassigned petitioners to positions with lower salaries, effective immediately. On April 9, 1976, Wagner requested a hearing on her alleged demotion. The assistant solicitor for the Board, by letter of April 30, 1976, informed Wagner that the chairman of the Board's
[ 42 Pa. Commw. Page 203]
personnel committee had referred her request to the legal department for a response and that, since the reassignments resulted from budgetary considerations and decreased student enrollment, "it is the position of the School District that a hearing is not required and, therefore, your request for a hearing is denied." Doak's request for a hearing was apparently denied at about the same time and in the same manner. By letter of June 30, 1976, petitioners requested the Secretary to direct the Board to hold a hearing and to reinstate them to their original positions. Nothing further occurred until January 1977, when petitioners inquired about their request of the Secretary and were informed that their June letter was never received. The Secretary requested verification that the letter was sent and received no response. Petitioners did nothing more until May 1977, when petitioners again requested and were denied a hearing before the Board regarding the alleged demotions. On July 25, 1977, petitioners appealed the denial of the hearing to the Secretary and were denied the appeal because it was untimely. This appeal followed.
Section 1151 of the School Code, 24 P.S. § 11-1151, requires the Board to hold a hearing on all nonconsensual demotions before the demotion becomes effective. See Black v. Wyalusing Area School District, 27 Pa. Commonwealth Ct. 176, 365 A.2d 1352 (1976).*fn1 After the hearing, the demoted professional employee is entitled to an appeal to the Secretary pursuant to
[ 42 Pa. Commw. Page 204]
Sections 1151 and 1131 of the School Code. See Black v. Wyalusing Area School District, supra. Finally, Section 1131 provides that an "appeal shall be filed within thirty (30) days after receipt by registered mail of the written notice of the decision of the board."
The parties agree that, if the Board denies a request for a hearing by a professional employee who has allegedly been demoted, the denial of the hearing is the decision from which the employe must appeal under Section 1131. The Secretary's position is that petitioners failed to appeal within 30 days of receiving the letter from the Board's solicitor and that the appeal was therefore properly dismissed as untimely. Petitioners argue, however, that the solicitor's letter denying a hearing did not constitute a "decision" of the Board and that, since the ...