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JOSEPH D. GENCO v. BRISTOL BOROUGH SCHOOL DISTRICT (12/03/80)

decided: December 3, 1980.

JOSEPH D. GENCO, APPELLANT
v.
BRISTOL BOROUGH SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Joseph D. Genco v. Bristol Borough School District, No. 79-2207-05-6.

COUNSEL

Miriam Reimel, for appellant.

Thomas J. Profy, III, for appellee.

Judges Craig, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig. Judge MacPhail dissents.

Author: Craig

[ 55 Pa. Commw. Page 79]

Joseph D. Genco, who formerly held a school district position of "Assistant to the Principal, Coordinator of Physical Education, Athletics K-12 and Student Affairs," here appeals from the Court of Common Pleas of Bucks County, which dismissed his appeal from the decision of the board of the Bristol Borough School District which purported to abolish that position, and reassigned him to the position of classroom teacher.

The parties agree that Genco's status as occupant of the abolished position was that of a nonprofessional employee of the district, and that Section 514 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-514, is the statute governing the present controversy. Our Supreme Court has stated, in Coleman v. Board of Education of the School District of Philadelphia, 477 Pa. 414, 383 A.2d 1275 (1978), that "[s]section 514 establishes rights in a School District employee not to be dismissed without due notice and a statement of reasons, and it establishes corresponding

[ 55 Pa. Commw. Page 80]

    duties in the School District. It also establishes a right to a hearing. . . ." 477 Pa. at 423, 383 A.2d at 1280.

The district afforded Genco a hearing, on his demand, as the district solicitor had recommended at the time the board originally eliminated the position. However, after the hearing, a majority of the board concluded that the position had been abolished for budgetary and economic reasons; we note that the board's special counsel for the proceeding had recommended that the board rescind its action eliminating the position and reinstate Genco, on the ground that the evidence demonstrated that action not to have been based on financial considerations, but, rather, to have been an arbitrary and capricious action.

Genco appealed to the lower court under the Local Agency Law, 2 Pa. C.S. § 751 et seq., alleging that the position's elimination, and his consequent reassignment, were abuses of the board's discretion because they were actually undertaken solely in response to public pressure unrelated to the existence of the position, but directed at Genco as its occupant.

The trial court accepted the district's argument that financial considerations caused the board to eliminate the position; the court found the applicable law to be that:

[W]here, however, a non-professional employe is removed from his position for reasons of economy the protections of that section [Section 514] do not apply and the action is not an adjudication as such is defined in the Local Agency Law. Therefore, he has no right to a hearing nor to an appeal to this court under the Local Agency Law. See Sergi v. Pittsburgh School District, 28 Pa. Commonwealth Ct. 576 (1977) and Pefferman v. School District of Pittsburgh, 35 Pa. Commonwealth Ct. 515 (1978).

[ 55 Pa. Commw. Page 81]

We agree, but add only that the converse of that principle must be equally true, i.e., if the employee's removal or the elimination of the position was for reasons other than economy, the protections of Section 514 do apply and the action is an adjudication under the Local Agency Law.*fn1

The issue here, as in the trial court, is precisely as Judge Garb there stated: "In view of the foregoing, the only question remaining for disposition is whether appellant's termination from his position as assistant to the principal, coordinator of physical education, athletics K-12 and student affairs was for reasons of economy."*fn2

The record reveals the following events leading to the board's action:

At least until sometime in the 1977-78 school year, the majority of the duties encompassed in the now-abolished position were the responsibility of one Mr. DeAngelo, the "Coordinator of Physical Education, Athletics K-12 and Student Affairs," at a salary of $22,000 per year. Mr. DeAngelo went on sabbatical leave commencing July 1, 1977.

Effective August 15, 1977, those duties were absorbed by Mr. Yates, who was to ...


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