Appeal from the Order of the Secretary of Education in case of Malcolm Jarvis v. Allegheny Intermediate Unit, Teacher Tenure Appeal No. 33-77.
Thomas M. Rutter, Jr., with him, William C. Andrews, Goehring, Rutter and Boehm, for petitioner.
Eugene P. Girman, for respondent.
Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig. The decision was reached prior to the expiration of the term of office of Judge DiSalle.
[ 48 Pa. Commw. Page 637]
Petitioner Allegheny Intermediate Unit (AIU) appeals from the order of the Secretary of Education, which reversed the AIU's discharge of respondent, Malcolm Jarvis, for "persistent and willful violation" of the school laws of this Commonwealth within the meaning of Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, § 1122, as amended (Code), 24 P.S. § 11-1122.
The AIU had employed Jarvis as a classroom teacher at the Warrendale Youth Development Center, a juvenile detention center. In May of 1977, AIU informed Jarvis that he was being transferred to the Oakdale Youth Development Center, also a detention center, but Jarvis declined to report to Oakdale as ordered by his supervisor. Because of his refusal, Jarvis was charged with the violation above described, and AIU's board, after a hearing, dismissed him.
Jarvis appealed to the Secretary of Education, arguing that he could not be dismissed under Section 1122 of the Code because the transfer order of his supervisor was itself a violation of Section 1202 of the Code, 24 P.S. § 12-1202, which provides that "no
[ 48 Pa. Commw. Page 638]
teacher shall teach, in any public school, any branch which he has not been properly certificated to teach." Jarvis contended that his supervisor's order was unlawful because his certification is in mental retardation, and his function at Oakdale would have been to initiate and teach a mathematics program geared toward fulfilling the requirements of a general equivalence diploma (GED) at the secondary school level. The Secretary agreed and reversed the dismissal, ordering that Jarvis be "reinstated", with back pay, "as a teacher of the mentally retarded" at AIU.
AIU argues that Section 1202 is inapplicable to the educational program conducted by it at Warrendale and Oakdale, because neither is a "public school" within the embrace of Section 1202, and that the secretary erred when she applied that section to AIU under the guidance of Section 1926 of the Code, 24 P.S. § 19-1926, which provides in part that:
Except as otherwise provided by law, a teacher in a school or of a class organized and supervised by the Department of Public Instruction in an institution wholly or partly supported by the Commonwealth . . . shall enjoy the same privileges, including tenure rights, and be subject to the same laws as a teacher in the public schools of the Commonwealth.*fn1
We agree with the Secretary that Section 1202 applies to the AIU functions in this case. Our conclusion is supported not only by Section 1926 above, but also by Section 901-A of the Code, added by the Act of May 4, 1970, P.L. 311, No. 102, § 1, 24 P.S. § 9-951, which provides for the ...