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JERSEY SHORE AREA SCHOOL DISTRICT v. CARROLL BITTNER (03/14/84)

decided: March 14, 1984.

JERSEY SHORE AREA SCHOOL DISTRICT, PETITIONER
v.
CARROLL BITTNER, RESPONDENT



Appeal from the Order of the Secretary of Education in case of Carroll Bittner v. Jersey Shore Area School District, Teacher Tenure Appeal No. 13-79.

COUNSEL

Charles J. McKelvey, McNerney, Page, Vanderlin & Hall, with him Clyde E. Carpenter, Jr., for petitioner.

William A. Hebe, Spencer, Gleason & Hebe, for respondent.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 81 Pa. Commw. Page 31]

This appeal arises from a unique factual scenario in which a public school teacher, after being unlawfully terminated by the school district where she was employed, was elected to the board of directors of that same school district. The issue we must resolve is

[ 81 Pa. Commw. Page 32]

    whether the back pay award to which the teacher is entitled due to her wrongful termination should include wages lost during the time that she served as a school district director.

The procedural history in this case goes back more than a decade to September of 1973 when the appellee, Carroll Bittner, was terminated by the appellant, the Jersey Shore Area School District (School District). Bittner appealed her termination on the ground that her two years of instructional service for the School District entitled her to tenure despite the fact that the educational program under which she was employed was specially funded by the federal government. She ultimately prevailed on her claim: the Supreme Court of Pennsylvania, on October 6, 1978 reinstated an order of the Department of Education awarding her reinstatement and back pay. Commonwealth, Department of Education v. Jersey Shore Area School District, 481 Pa. 356, 392 A.2d 1331 (1978). Meanwhile, Bittner was elected to the Board of Directors of the Jersey Shore Area School District, a position which she held from December of 1973 throughout the time period addressed by this appeal. When, in October of 1978, Bittner was reinstated to her teaching position pursuant to the order of the Pennsylvania Supreme Court, she resigned her teaching post in order to retain her directorship on the School Board. The School District, in calculating Bittner's back pay entitlement, took the position that, under the Pennsylvania School Code,*fn1 she was foreclosed from receiving compensation for any time period during which she sat on the School Board. Thus, instead of a gross back pay award of approximately $50,600.00 plus interest, the School District

[ 81 Pa. Commw. Page 33]

    tendered Bittner $2,727.38 plus interest, representing lost wages for the period from September 4, 1973, the date of her termination, to December 3, 1973, the date of her swearing in as a school district director.

Bittner filed an application for relief with the Supreme Court seeking to compel compliance with the Court's order reinstating the Education Secretary's back pay award. In a per curiam order dated September 12, 1979, the Supreme Court referred the matter to the Secretary of Education to determine the School District's compliance. After a hearing and briefing on the matter, the Secretary of Education sustained Ms. Bittner's claim, and held that (1) the School District was foreclosed by principles of res judicata from raising five years after the original appeal the issue of whether Bittner's position on the school board was incompatible with her claim for full back pay; and (2) even if the School District had not waived the issue, on the merits, Bittner was not precluded from receiving back pay for the period of her school directorship. The Secretary ordered the School District to tender Bittner an amount equivalent to what her earnings would have been from the School District between the date of her termination in September of 1973 and the date of her resignation in October of 1978, less her interim weekday earnings and unemployment compensation benefits received during the back pay period. The School District has appealed from this order.

Although the Secretary of Education determined that the School District was foreclosed by principles of res judicata from asserting Bittner's school board directorship as a basis for defending her back pay claim, we decline to address this issue. Rather, we proceed directly to the merits ...


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