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APPEAL BERNARD E. COWDEN ETC. MOON AREA SCHOOL DISTRICT (05/24/84)

decided: May 24, 1984.

IN RE: APPEAL OF BERNARD E. COWDEN ETC. MOON AREA SCHOOL DISTRICT, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Appeal of Bernard E. Cowden from the decision of the Board of School Directors of the Moon Area School District, No. SA 744 of 1982.

COUNSEL

Robert T. Crothers, with him, Mary Drake Korsmeyer, Peacock, Keller, Yohe, Day & Ecker, for appellant.

Michael A. Della Vecchia, with him, G. N. Evashavik, Evashavik, Capone & Della Vecchia, for appellee.

Judges Rogers, Colins and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 87 Pa. Commw. Page 166]

This is an appeal from an order of the Court of Common Pleas of Allegheny County (1) denying a motion to quash filed by the Moon Area School District (District) and (2) sustaining the appeal of Bernard E. Cowden (Appellee) from an order of the Board of School Directors of the Moon Area School District (Board) which had affirmed his reassignment from the position of elementary school principal to the position of elementary school teacher. We affirm.

On April 12, 1982 the Board decided by resolution to close one of the District's six elementary schools because of "fiscal restraints and declining enrollment." As a result of this decision, one of the District's six elementary school principals had to be reassigned to teaching duties. In deciding which principal was to be reassigned, the District utilized the results of a professional evaluation rating made in May of 1982, and since Appellee's score in this performance rating was the lowest of all the District's principals, he was reassigned. Appellee then requested, and received, a hearing before the Board on this personnel action. At this hearing Appellee maintained that the District's selection of an elementary school principal for reassignment constituted a "realignment" of professional staff which, under the mandate of Section 1125.1(c) of the Public School Code of 1949 (Code),*fn1 had to be made strictly on the basis of seniority. The Board subsequently decided, however, (1) that Appellee's reassignment constituted a "demotion" within the intendment of Section 1151 of the Code, 24 P.S. § 11-1151, and not "realignment"

[ 87 Pa. Commw. Page 167]

    of professional staff within the intendment of Section 1125.1(c) of the Code, and (2) that since Appellee had failed to show that his demotion was arbitrary, discriminatory, or based on improper motives, see Nagy v. Belle Vernon Area School District, 49 Pa. Commonwealth Ct. 452, 412 A.2d 172 (1980), that the District's reassignment was proper.

Appellee subsequently appealed this decision to the court of common pleas and, in response, the District filed a motion to quash. In this motion the District alleged that the court lacked jurisdiction over the appeal since Section 1131 of the Code, 24 P.S. § 11-1131, provides, inter alia, that all appeals from school board decisions involving demotions must initially be taken to the Secretary of Education. The court, citing this Court's decision in Shestack v. General Braddock Area School District, 63 Pa. Commonwealth Ct. 204, 437 A.2d 1059 (1981), however, denied this motion concluding (1) that the District's personnel action had been a realignment of professional staff within the intendment of Section 1125.1(c) of the Code, (2) that appeals from school board decisions concerning realignment are governed by the provisions of Section 752 of the Local Agency Law, 2 Pa. C.S. § 752, and not by the provisions of Section 1131 of the Code, and (3) that the common pleas court therefore had jurisdiction over the matter. The court then sustained Appellee's appeal and remanded the matter back to the Board for a realignment of professional staff in accordance with the directives of Section 1125.1(c) of the Code. The present appeal followed.

Before this Court, the District maintains that the common pleas court improperly characterized the District's personnel action as a realignment, governed by the provisions of Section 1125.1(c) of the Code, since

[ 87 Pa. Commw. Page 168]

    the District did not actually suspend any employees when it closed the ...


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