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HERBERT H. BRINSER v. CUMBERLAND-PERRY AREA VOCATIONAL-TECHNICAL SCHOOL JOINT-OPERATING COMMITTEE (08/02/79)

decided: August 2, 1979.

HERBERT H. BRINSER, APPELLANT
v.
CUMBERLAND-PERRY AREA VOCATIONAL-TECHNICAL SCHOOL JOINT-OPERATING COMMITTEE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cumberland County in case of Herbert H. Brinser v. Cumberland-Perry Area Vocational Technical School Joint-Operating Committee, No. 3764 Civil 1976.

COUNSEL

Thomas W. Scott, with him Killian & Gephart, for appellant.

Robert E. Yetter, with him Metzger, Wickersham, Knauss & Erb, for appellee.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 44 Pa. Commw. Page 556]

Herbert H. Brinser (appellant) appeals here from an order of the Cumberland County Court of Common Pleas which affirmed his suspension from his position as auto-body teacher at the Cumberland-Perry Area Vocational-Technical School (School).

The appellant had served as the auto-body teacher at the School for five years from 1971 to 1976. Previously the auto-body course had been taught by a Mr. Kelley who was placed in an administrative position as Staff Assistant in 1971 and later removed from this administrative position in 1975 because he was not properly certified, then being placed in a full-time "itinerant" teaching position. In August of 1976, the Joint-Operating Committee (Committee) of the School abolished both Mr. Kelley's teaching position and the position he had previously held as Staff Assistant. At the same time, it voted to suspend the appellant from his position as auto-body teacher and appointed Mr. Kelley to replace him in that position. In November of 1976, the appellant filed a complaint in mandamus against the School requesting reinstatement as a professional employee, including payment of full back-pay and reimbursement for all lost benefits. The lower court ordered the School to provide the appellant a hearing, which was done. Then the Committee affirmed the suspension, and this was affirmed on appeal by the lower court. This appeal followed.

The appellant argues that, as a tenured professional employee, he was improperly suspended in the absence of one of the four reasons enumerated under Section 1124 of the Public School Code of 1949*fn1 (Code)

[ 44 Pa. Commw. Page 557]

    wherefore he should be granted reinstatement with back-pay and benefits. The Committee maintains, however, that it acted properly under the Code.

We agree with the Committee that, if proper procedures are followed, positions occupied by professional employees may be abolished for financial or other proper reasons. Charleroi Area School District v. Secretary of Education, 18 Pa. Commonwealth Ct. 121, 334 A.2d 785 (1975). At issue here, however, is not the abolition of the position held by Mr. Kelley but rather the propriety of the suspension of the appellant from his position when he was replaced by Mr. Kelley. It is well recognized that school authorities "must be given broad discretionary powers to ensure a better education for . . . children . . . and any restrictions on the exercise of these powers must be strictly construed on the basis that the public interest predominates and private interests are subordinate thereto." Smith v. Darby School District, 388 Pa. 301, 314, 130 A.2d 661, 668-69 (1957). If it appears, however, that the action taken is based upon a misconception of the law, the courts will intervene to prevent an abuse of power adverse to the public welfare. Hibbs v. Arensberg, 276 Pa. 24, 26, 119 A. 727, 728 (1923). The law is clear that Section 1124 of the Code sets forth the only four statutory reasons for which a tenured employee may be suspended, Fatscher v. Board of School Directors, 28 Pa. Commonwealth Ct. 170, 367 A.2d 1130 (1977), which are as follows:

(1) Substantial decrease in pupil enrollment in the school district;

(2) Curtailment or alterations of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of ...


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