Appeal from the Order of the Court of Common Pleas of Mercer County in the case of Brenda V. Pickup, Trustee for Sharon Teachers Assoc., William Jena, Dennis Staul, Patricia Wilson, Michele T. Lo Galbo, Jane Leyde, Christine Sheehan v. Sharon City School District, No. 1087 C.D. 1982.
Daniel R. Delaney, Delaney and Evans, for appellants.
William G. McConnell, Cusick, Madden, Joyce and McKay, for appellee.
President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail, Barry, Colins and Palladino. Opinion by Judge Craig. Judge Colins dissents.
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Six public school teachers and their union have appealed a decision of the Court of Common Pleas of Mercer County which, in a declaratory judgment action, concluded that, although they are tenured professional
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employees, the Public School Code of 1949*fn1 does not entitle them, when they have been suspended because of an enrollment decline and temporary replacement opportunities thereafter arise, to be recalled to the limited-term jobs, either (1) in order of their seniority, or (2) at the salary grade related to their professional employee status.
There is no dispute concerning the Sharon City School District's lawful suspension of these professional employee teachers because of enrollment decline, in accordance with section 1124 of the Code, 24 P.S. § 11-1124. For the 1981-1982 school year, the school district recalled them as temporary replacements for other professional employees on sabbatical or maternity leave of absence for the period of that year. The district, although it voluntarily followed seniority, claims that it was not required to do so. The district paid the recalled teachers at the first step of the bachelor degree salary schedule, not at the steps they had previously attained as professional employees. Their collective bargaining agreement is silent concerning the applicability of seniority to such recalls and also as to salary grade entitlement when the district thus temporarily recalls professional employees.
Close examination of the interrelated Code provisions is essential to resolve the statutory interpretation problem in this case.
Code section 1101(1), 24 P.S. § 11-1101(1), defines "professional employee" to include "those who are certificated as teachers . . . ." Subsection (2) of that section defines "substitute" as
any individual who has been employed to perform the duties of a regular professional employee
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during such period of time as the regular professional employee is absent on sabbatical leave or for other legal cause authorized and approved by the board of school directors . . . .
Although that provision describes a "substitute" as anyone filling a position from which the regular professional employee is "absent," without any explicit limitation as to whether the absence is temporary or permanent, two decisions -- Love v. Redstone Township School District, 375 Pa. 200, 100 A.2d 55 (1953) and Lincoln Intermediate Unit No. 12 v. Noble, 55 Pa. Commonwealth Ct. 197, 423 A.2d 49 (1980) -- have construed the provision as equating "substitute" with the role of replacing a professional employee who is absent temporarily.
Before 1979, the temporal aspect of the replacement was determinative. This court held that a professional employee recalled in 1976 as a temporary replacement held the status of an untenured substitute, even when the district used a professional employee's form of contract. Bitler v. Warrior Run School District, 62 Pa. Commonwealth Ct. 592, 437 A.2d 481 (1981).
By the same token, before 1979 this court held that a suspended professional employee's reinstatement rights did not include any entitlement to be employed as a substitute in a temporary replacement situation. Alwine v. Board of School Directors of Richland School District, 39 Pa. Commonwealth Ct. 541, 395 A.2d 1052 (1979). That case involved Code section 1125(c), as it stood in 1977, before the 1979 ...