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BETTY S. ROSENBERG v. SOUTH ALLEGHENY SCHOOL DISTRICT ET AL. (07/24/81)

decided: July 24, 1981.

BETTY S. ROSENBERG, APPELLANT
v.
SOUTH ALLEGHENY SCHOOL DISTRICT ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Betty S. Rosenberg v. South Allegheny School District and The Board of Directors of South Allegheny School District, comprised of Ronald Meisl, President; James Blaha; Peter Gallo; Donald Jakubek; Michael Kurka; Joanne McKelvey; Vincent Restauri; Virginia Tyskewicz; and Feliz Zyra, No. G.D. 76-23307.

COUNSEL

Neil R. Rosen, Sikov and Love, P.A., for appellant.

Michael F. Fives, with him John A. Caputo, O'Donnell, Bresnahan and Caputo, for appellees.

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

Author: Mencer

[ 61 Pa. Commw. Page 64]

Betty S. Rosenberg was a cafeteria manager with the South Allegheny School District. Her position was terminated when the cafeteria department operated by the School District was closed and cafeteria services were provided by an independent contractor. After being notified of her termination, Mrs. Rosenberg made a written request for a hearing. When the School District refused to give her a hearing, she filed an action in mandamus in the Court of Common Pleas of Allegheny County, seeking an order directing the School District to give her a hearing and to reinstate her with pay.

The Court of Common Pleas entered an order, on January 11, 1979, directing the School District to grant Mrs. Rosenberg a hearing "regarding her status as an employee of the defendant School District" but refused to order her reinstatement with pay. Exceptions were filed and, by order dated September 5, 1980, the exceptions were dismissed and that portion of the complaint requesting reinstatement with pay was dismissed without prejudice. Mrs. Rosenberg appeals here from the lower court's September 5, 1980 order which dismissed her request for reinstatement with pay.

It is undisputed that Mrs. Rosenberg was given a professional employee contract from 1968 until the time of her termination. However, she did not teach and was not properly certified to teach in any department of the School District. Thus, it was the position of the School District that Mrs. Rosenberg was not a professional employee and therefore not entitled to a hearing relative to her suspension. Where, as here, the employee's professional status is disputed, we have held that the employee claiming to be an aggrieved

[ 61 Pa. Commw. Page 65]

    professional employee must utilize the remedies provided by the Public School Code of 1949 (Public School Code).*fn1 LaPorta v. Bucks County Public Schools Intermediate Unit, No. 22, 15 Pa. Commonwealth Ct. 566, 327 A.2d 655 (1974).

Thus, Mrs. Rosenberg should be afforded a hearing to prove her entitlement to relief as an aggrieved dismissed professional employee that is commensurate with the Public School Code provisions. See Section 1131, 24 P.S. ยง 11-1131. Accordingly, the lower court correctly ordered a hearing regarding her status as an employee of the South Allegheny School District.

This case is controlled by our decision in School District of Philadelphia v. Rochester, 46 Pa. Commonwealth Ct. 123, 405 A.2d 1142 (1979). We stated in Rochester what is equally applicable here:

We have often declared the extraordinary nature of a writ of mandamus and have allowed the writ to issue only where a plaintiff's right to the relief is clear, where there exists a corresponding clear duty in the defendant, and where there is a want of any alternative adequate remedy. Styers v. Wade, 30 Pa. ...


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