Appeal from the Order of the Court of Common Pleas of Erie County in the case of Connie Haibach v. Northwest Tri-County Intermediate Unit No. 5, No. 10672-A-1980.
George Levin, Shamp, Levin, Arduini, Jenks & Hain, for appellant.
Donald C. Buseck, with him Bruce L. Getsinger, for appellee.
Judges Williams, Jr., MacPhail and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 80 Pa. Commw. Page 383]
Connie Haibach (plaintiff) appeals here an order of the Court of Common Pleas of Erie County which granted a motion for summary judgment in favor of Northwest Tri-County Intermediate Unit No. 5 (Intermediate Unit).
[ 80 Pa. Commw. Page 384]
The plaintiff was hired by the Intermediate Unit on August 17, 1978 and assigned to teach pre-school, special education classes on a part-time basis. She received an Emergency Certificate from the Department of Education*fn1 in September, issued for the field of "Mental and/or Physical Handicapped" teaching. She worked the 1978-79 school year under this certificate and she completed the requirements for an Instructional I (provisional) Certificate in special education in October, 1979. In the 1979-80 school year, as in 1978-79, she worked on a part-time basis. In 1980-81, the Intermediate Unit hired her to teach the same classes as before, but this time on a full-time basis. She was not offered a professional employe contract, however, and, in an effort to seek relief, she filed a complaint in mandamus asserting her right to such contract. The trial court granted summary judgment in favor of the Intermediate Unit, stating in its opinion that the pre-school program in which the plaintiff taught is not covered by the Public School Code, and that she, therefore, was not entitled to use her previous two years in the pre-school program for the purpose of attaining regular status under Section 1108 of the Code, 24 P.S. § 11-1108.*fn2 The instant appeal followed.
The plaintiff argues first that the trial judge erred as a matter of law in concluding that her pre-school teaching is not covered by the Code. The trial court
[ 80 Pa. Commw. Page 385]
noted that there was "no mention . . . in the Public School Code concerning the availability of tenure rights to other pre-school instructors" and after "[c]onsidering the lack of mention of such programs in the Code" in connection with this Court's decision in Philadelphia Federation of Teachers v. Board of Education of the School District of Philadelphia, 51 Pa. Commonwealth Ct. 296, 414 A.2d 424 (1980), it held that the plaintiff's time in the pre-school program could not be so credited.
The plaintiff cites to several sections of the Code, including Section 1925, which provides that school boards may admit students who are less than school age (6 years)*fn3 to suitable special schools or departments. It appears that the program in which the plaintiff taught was provided for under this statute*fn4 for it is clear that the program was administered by the Intermediate Unit under the auspices of the Department of Education, and not some other governmental agency.*fn5 Moreover, and perhaps even more ...