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THERESA J. BARRETT v. COMMONWEALTH PENNSYLVANIA (05/21/80)

decided: May 21, 1980.

THERESA J. BARRETT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, ROBERT G. SCANLON, SECRETARY, RESPONDENT



Appeal from the Order of the Secretary of Education in case of Theresa J. Barrett v. Department of Education of the Commonwealth of Pennsylvania, Robert G. Scanlon, Secretary.

COUNSEL

Peter J. O'Brien, O'Brien and Miller, for petitioner.

Wayne M. Richardson, Assistant Attorney General, with him, Patricia A. Donovan, Deputy Attorney General and Chief Counsel, for respondent.

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

Author: Blatt

[ 51 Pa. Commw. Page 463]

Theresa J. Barrett (petitioner) appeals here from an order of the Secretary of Education (respondent) which upheld her demotion from the position of Education Director to the position of teacher at the Scranton State School for the Deaf. The petitioner contends that this demotion was illegal because she was never afforded the opportunity for a hearing. The respondent submits that the petitioner, as a non-teacher at the School for the Deaf, had no statutory entitlement to a hearing before being demoted.

The petitioner does not claim any contractual right to a hearing. It is incumbent upon her, therefore, to prove a statutory entitlement to one, for we have previously held that "[a]n enforceable expectation of continued public employment can exist only if the employee, by statute or contract, has been granted some form of guarantee." Amesbury v. Luzerne County Institution District, 27 Pa. Commonwealth Ct. 418, 421, 366 A.2d 631, 633 (1976). She relies on Section 1151 of the Public School Code*fn1 of 1949 (Public School Code), 24 P.S. § 11-1151, which provides that no demotion of a professional employee in a school district may be made without first affording the employee a hearing. She is not, however, a professional employee in a school district but rather is an employee of a state institution. And, with respect to employees of that institution, Section 1926 of Article XIX of the Public School Code, 24 P.S. § 19-1926 provides that:

[T]eachers in the Pennsylvania State Oral School for the Deaf [now known as the Scranton

[ 51 Pa. Commw. Page 464]

State School for the Deaf] . . . 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. (Emphasis added.)

It is undisputed that, at the time of her demotion, the petitioner was not a teacher at the Scranton School. She argues, however, that the rights afforded teachers by this section of the Public School Code extend to her as a professional employee. We cannot agree.

The rights and privileges of employment of public school teachers are set forth in Article XI of the Public School Code which contains the following definition of professional employee:

The term 'professional employee' shall include those who are certificated as teachers, supervisors, supervising principals, principals, assistant principals, vice-principals, directors of vocational education, dental hygienists, visiting teachers, home and school visitors, school counselors, child ...


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