No. 379 January Term, 1979, Appeal from Order of the Commonwealth Court, at No. 2372 C.D. 1977, Reversing Order of the Court of Common Pleas of Lancaster County at Trust Book 44, page. 6.
David Wagenseller, III, Lancaster, for appellant.
Michael I. Levin, Harrisburg, for Pa. School Bds. Assoc. (Amicus Curiae).
Gerald E. Ruth, York, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., files an Opinion in Support of Affirmance which Nix and Larsen, JJ., join. Larsen, J., files a separate Opinion in Support of Affirmance. Flaherty, J., files an Opinion in Support of Reversal which Roberts and Kauffman, JJ., join.
The Court being equally divided, the Order of the Commonwealth Court is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
This case presents the issue of whether a school board may legally suspend a tenured professional employee for financial reasons alone without establishing any of the causes for suspension enumerated in § 1124 of The Public School Code.*fn1
Appellee, Aristoteles J. Theros (Theros), a tenured professional employee of the Warwick School District in Lancaster County since 1965, was a teacher of business education. On June 29, 1976, the Warwick School Board adopted its budget for the 1976-1977 academic year. In an effort to reduce a projected budget deficit, the Board abolished three non-mandated supervisory positions, including the head of the Business Education Department and the Director of Athletics. At that time both supervisors were serving as half time administrators and half time teachers in the Business Education Department. After their administrative positions were eliminated, they were assigned to full time teaching positions in the Business Education Department. As a result, the business education staff had one more full time teacher than was needed.
None of the department's six business education teachers was certified to teach in any other subject area. All six teachers were evaluated according to the provisions of the School Code, 24 P.S. § 1-101 et seq., and the requirements of the Commonwealth's Department of Education. Theros was found to be the teacher with the lowest quality rating and the lowest total rating. On July 6, 1976, the School Board
reviewed the ratings of the business education teachers and placed Theros on suspension. At the same time it authorized the superintendent to inform the Department of Education of the entire procedure, and Theros was notified that he would be suspended, effective September 8, 1976. Following a hearing which Theros requested pursuant to Local Agency Law,*fn2 the School Board affirmed the suspension of Theros from his position as a professional employee in the Warwick School District.
Theros appealed to the Court of Common Pleas of Lancaster County which affirmed the School Board and dismissed the appeal. On appeal to the Commonwealth Court, the order of the Court of Common Pleas was reversed and the case remanded for "entry of an order directing the reinstatement of [Theros] as a professional employee of Warwick School District with payment of an amount of money equal to the compensation he would have been paid during the period of suspension." We granted the School Board's petition for allowance of appeal.
Theros does not assert that the School Board suspended him for political or arbitrary reasons. He maintains only that the Board failed to establish a cause of suspension under § 1124 of the School Code, which provides as follows:
"Any board of school directors may suspend the necessary number of professional employes, for any of the ...