Appeal from the Order of the Secretary of Education in the case of Patricia Brumbaugh v. Tussey Mountain Area School District, Appeal No. 59.
J. Michael Dorezas, with him Jolene M. Grubb, Patterson, Evey, Routch, Black & Behrens, for petitioner.
J. Thomas Menaker, with him Jason S. Shapiro, McNees, Wallace & Nurick, for respondent.
Michael I. Levin, with him William Fearen, Cleckner and Fearen, for Amicus Curiae, Pennsylvania School Boards Association.
Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.
[ 55 Pa. Commw. Page 281]
Patricia Brumbaugh (petitioner) has appealed from a decision of the Secretary of Education affirming the order of the Tussey Mountain School District (Tussey Mountain) which denied petitioner reinstatement as a reading teacher and coordinator. We affirm.
Prior to the beginning of the 1977-78 school year, petitioner requested and received a one-year leave of absence from her tenured position with the Huntingdon Area School District (Huntingdon). Tussey Mountain then hired petitioner as a reading specialist and coordinator for a one-year term. Although petitioner had never submitted a resignation to Huntingdon, she notified the Tussey Mountain School Board, on July 10, 1978, of her intention to remain at Tussey Mountain. On August 2, 1978, Tussey Mountain voted not to reemploy petitioner, and she thereupon resumed employment with Huntingdon for the 1978-79 school year.
Petitioner argues that Tussey Mountain is attempting to circumvent the tenure system of the Public School Code of 1949 (School Code)*fn1 by refusing to
[ 55 Pa. Commw. Page 282]
rehire her. She syllogizes that (1) she was hired to fill a vacant full-time position that opened after a tenured professional employee had retired; (2) only a professional employee or temporary professional employee*fn2 could be hired to fill such a position; (3) since petitioner had attained the status of professional employee with tenure, she could only be hired in this capacity; and (4) therefore, Tussey Mountain was bound by the School Code tenure system to reemploy her. We disagree with petitioner's characterization of the issue as one in which she is being denied the benefits of the tenure system. Rather, we believe the question is whether the benefits of tenure may be simultaneously invoked in two school districts at the same time.
Petitioner relies on Section 1108(b) of the School Code, 24 P.S. § 11-1108(b), which provides: "No professional employe who has attained tenure status in any school district of this Commonwealth shall thereafter be required to serve as a temporary professional employe before being tendered [a regular contract of employment] when employed by any other part of the public school system of the Commonwealth." Although this section deals with the permanency of tenure status, we do not conclude that it was intended to address the unique problem engendered by a professional employee who seeks to invoke tenure in one school district while on leave of absence and tenured in another.
The statute must be read in light of the reasons for its enactment. The purpose of the tenure provision was to foster an ...