Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Betty S. Rosenberg v. South Allegheny School District, No. S.A. No. 1319-79.
Neil R. Rosen, Sikov and Love, P.A., for appellant.
Michael F. Fives, Bresnahan & Caputo, for appellee.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Rogers dissents.
[ 78 Pa. Commw. Page 621]
This is an appeal by Betty S. Rosenberg (Appellant) from a decision and order of the Court of Common Pleas of Allegheny County dismissing Appellant's appeal of her suspension from employment by the South Allegheny School District (District). We reverse.
Appellant was initially hired by the District in 1966 as a cafeteria manager. Beginning in 1968, Appellant functioned as the District's manager of food services and her employment contracts designated her as a "professional employee" of the District. Appellant was subsequently awarded tenure by the District and she also received professional certificates from the Pennsylvania Department of Education (Department) as a "Nutrition Service Specialist" and as a "Manager of School Food Services." On March 1, 1976, the District's Board of School Directors (Board) voted to close the District's cafeteria department
[ 78 Pa. Commw. Page 622]
as of the close of the school year and to have cafeteria services provided by an independent contractor. This decision resulted in Appellant being sent notice that her employment was to be effectively terminated in June of 1976.
Appellant contested the propriety of the termination of her employment by requesting a hearing before the Board and then appealing to the Secretary of Education (Secretary) when that request was denied. The Secretary dismissed her appeal by an order entered July 7, 1977 ruling that Appellant was suspended rather than dismissed and therefore not entitled to a teacher tenure dismissal hearing with an appeal to the Secretary as provided by Sections 1127 and 1131 of the Public School Code of 1949*fn1 (School Code). In so holding, the Secretary pointed out that Appellant was entitled to a hearing before the Board on her suspension but that an appeal from that proceeding properly lay with the court of common pleas.*fn2 Ancillary to the Secretary's decision, was a conclusion that Appellant was a professional employee of the District.
Appellant then filed a petition with the court of common pleas for the issuance of a writ of mandamus directing the Board to afford her a hearing on her employment status. That court issued the writ, holding that Appellant "as a member of the class protected by the Law [School Code] was clearly entitled to a hearing. . . ."*fn3
[ 78 Pa. Commw. Page 623]
The Board conducted the hearing ordered by the court on Appellant's suspension on August 15, 1979. It held that the District had the right to close its cafeteria department and that Appellant's suspension was proper.*fn4 Appellant appealed the Board's decision to the court of common pleas and, while citing to numerous appellate court decisions for support, asserted that the suspension of a professional employee can only be properly effectuated for a reason itemized in Section 1124 of the School ...