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DOUGLAS I. DINBERG v. OIL CITY AREA SCHOOL DISTRICT (06/30/80)

decided: June 30, 1980.

DOUGLAS I. DINBERG, APPELLANT
v.
OIL CITY AREA SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Venango County in case of Oil City Area School District v. Douglas I. Dinberg, A.D. No. 89, 1979.

COUNSEL

Bruce T. Rosen, Rosen & Rosen, for appellant.

Benjamin G. McFate, for appellee.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Craig.

Author: Mencer

[ 52 Pa. Commw. Page 450]

Douglas I. Dinberg (Dinberg) was a professional employee of the Oil City Area School District (School District). During April 1977, Dinberg requested and was granted a sabbatical leave for the 1977-78 school year. Prior to his sabbatical leave, Dinberg was a music teacher at the Hasson Heights Elementary School and at the Oil City Junior High School. On July 10, 1978, Dinberg received notification that, for the 1978-79 school year beginning September 5, 1978,

[ 52 Pa. Commw. Page 451]

    he was being assigned as a music teacher at the Hasson Heights Elementary School and at the Oakland Elementary School.

Dinberg, being of the view that he was being transferred in violation of the Public School Code of 1949*fn1 and the May 13, 1974 collective bargaining agreement entered into between the School District and the Oil City Area Education Association, did not report for work on September 5, 1978 and notified the School District on September 15, 1978 that he was retiring from employment with the School District.

The School District responded by filing a complaint in assumpsit against Dinberg seeking to recover benefits paid to him during the term of his sabbatical leave.*fn2 An answer was filed on behalf of Dinberg averring that he was ready, willing, and able to return to his employment at the Hasson Heights Elementary School and the Oil City Junior High School. Also, a counterclaim was filed on behalf of Dinberg seeking damages from the School District because of its refusal to return him to the same position in the same school or schools he occupied prior to his sabbatical leave.*fn3 The School District filed preliminary objections

[ 52 Pa. Commw. Page 452]

    to Dinberg's answer, new matter, and counterclaim. The Court of Common Pleas of Venango County dismissed the preliminary objections but, on reconsideration, by order dated July 10, 1979, sustained the preliminary objections and directed the entry of judgment in favor of the School District and against Dinberg in the sum of $7,794.34, with interest and costs, and also directed entry of judgment in favor of the School District and against Dinberg on his counterclaim. Dinberg appeals to this court from the order of July 10, 1979, and we affirm.

Two issues confront us in this appeal: Was the School District required to return Dinberg to the same schools at which he taught prior to his sabbatical leave? Did the School District offer him the same ...


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