Appeals from the Order of the Secretary of Education in case of Robert J. Bruckner v. Lancaster County Area Vocational-Technical Joint School Operating Committee, Teacher Tenure Appeal No. 4-80.
Thomas W. Scott, Killian & Gephart, for petitioner, Robert J. Bruckner.
Clarence C. Kegel, Jr., Barley, Snyder, Cooper & Barber, for respondent.
President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Rogers. Dissenting Opinion by President Judge Crumlish, Jr. Judge Blatt joins in this dissent. Dissenting Opinion by Judge Blatt. President Judge Crumlish, Jr. and Judge Doyle join in this dissent.
[ 78 Pa. Commw. Page 315]
The Secretary of Education upheld the action of Lancaster County Area Vocational Technical Joint School Operating Committee taken December 27, 1979,
[ 78 Pa. Commw. Page 316]
dismissing Robert J. Bruckner as a professional employee on the grounds of intemperance, persistent and willful violation of the school laws, persistent negligence and incompetency. The Secretary's order awarded back pay until December 27, 1979. To No. 3107 C.D. 1980, Bruckner filed a petition for review of the Secretary's order upholding his dismissal. To No. 3210 C.D. 1980, the School Committee filed a petition for review of the Secretary's back pay. In Bruckner v. Lancaster County Area Vocational-Technical Joint School Operating Committee, 70 Pa. Commonwealth Ct. 522, 453 A.2d 384 (1982), a panel of this court affirmed the Secretary's order insofar as it upheld Bruckner's dismissal but reversed the order insofar as it awarded Bruckner back pay.
We granted Bruckner's application for reargument before the court en banc and having conducted reargument now withdraw our previous opinion and orders. By this definitive opinion and orders we affirm as we did before, the Secretary's action upholding Bruckner's dismissal and we also affirm the Secretary's order, which we earlier reversed, awarding Bruckner back pay.*fn1
Bruckner, was, as we have noted, a professional employee of the Lancaster County Vocational-Technical Joint School. His last day of teaching was January 27, 1978, on which date he left school for medical causes referred to in the record as a nervous condition or as mental illness.
There ensued a considerable correspondence between the School Committee and Bruckner, which we record because it is germane to the issue of whether Bruckner expressed a definite intention to abandon his employment.
[ 78 Pa. Commw. Page 317]
By letter dated February 3, 1978, the director of the Vo-Tech School asked Bruckner to furnish a doctor's excuse for his absences. By letter dated February 10, 1978, Bruckner reported his scheduled admission for treatment to the Philadelphia Veterans Hospital on February 13, 1978 and expressed his intention to return to work as soon as possible. He enclosed with this letter a physician's statement verifying his illness. By letter dated February 28, 1978, the director of the Vo-Tech School requested Bruckner to furnish further documentation. By letter dated March 8, 1978, one of Bruckner's physicians responded that he was unable to determine when Bruckner would be able to return to work. By letter dated March 10, 1978, the Vo-Tech director informed Bruckner that his sick leave would expire March 13, 1978 and that from March 14, 1978, he would be carried on a no pay basis. By letter dated April 27, 1978, the business manager of the Vo-Tech School sent checks to Bruckner for accumulated salary and sick leave. By letter dated May 5, 1978, Bruckner informed the business manager, with copy to the director that he would be discharged from the Veterans Hospital on May 5, 1978; that his condition was "somewhere in the recuperative and therapeutic stages"; and that he hoped to be able to return to his duties in the fall.
By letter dated May 30, 1978, the school director informed Bruckner that if he wished to remain an employee, he must ask for an extended medical leave within ten days and that if the school did not receive such, Bruckner's employment would be considered terminated. On or about June 5, 1978, Bruckner sent to the school director a copy of his letter of May 5, 1978 sent to the school business manager on which he wrote that this was his response to the May 30, 1978 letter.
[ 78 Pa. Commw. Page 318]
On June 22, 1978, the Joint School Committee placed Bruckner on medical leave until August 1, 1978. On June 26, 1978, the director wrote Bruckner informing him of his medical leave status. He also instructed Bruckner to provide no later than August 1, 1978, either a written request for extended medical leave or, in the alternative, complete documentation as to his medical condition and his ability to perform his teaching duties. The letter closed with the admonition that if these requirements were not complied with, "we will assume that you have resigned and terminated your employment."
Bruckner did not personally answer this missive. He showed it to a doctor at the Veterans Hospital who by a letter received by the school director on July 27, 1978, informed the latter that Bruckner had left the hospital contrary to his treating physician's advice on May 8, 1978 and that as of that time it was recommended that the appellant allow himself a period of three to four months outside the hospital before returning to work.
On August 24, 1978, the School Committee adopted a resolution that the appellant had resigned because no response to their letter of June 26, 1978 had been received. A letter notifying Bruckner of this action was mailed to him on August 29, 1978. By letter dated August 28, 1978, Bruckner advised the school director that he still intended to teach during the fall semester.
On September 5, 1978, the first day of school, Bruckner appeared at the school. He presented a letter from the acting clinical director of the Philadelphia Veterans Hospital giving that physician's opinion that Bruckner was capable of teaching full time and to continue to do so ...