decided: August 13, 1985.
DIANA M. SCOTCHLAS, PETITIONER
BOARD OF SCHOOL DIRECTORS OF HAVERFORD TOWNSHIP SCHOOL DISTRICT, RESPONDENT
Appeal from the Order of the Office of the Secretary of Education in the case of Diana M. Scotchlas v. Board of School Directors of the Haverford Township School District, Teacher Tenure Appeal No. 18-83.
Thomas P. Hamilton, Jr., with him, Leonard V. Tenaglia, Richard, DiSanti, Hamilton, Gallagher and Paul, for petitioner.
No appearance for respondent.
Howard R. Cohen, for intervening respondent, Haverford Township School District.
Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail.
[ 91 Pa. Commw. Page 102]
Diana M. Scotchlas (Petitioner) appeals here from an order of the Secretary of Education (Secretary) which dismissed her appeal from a denial of a hearing by the Board of School Directors of the Haverford Township School District (Board).
The record shows that in March, 1983, the Board notified Petitioner that a hearing was scheduled to determine whether she should be dismissed from her position as a professional employee.*fn1 Petitioner notified the Board that she waived her right to a hearing before the Board and that she would grieve the matter pursuant to the 1982-84 collective bargaining agreement in effect between the Haverford Township School District (School District) and the Haverford Township
[ 91 Pa. Commw. Page 103]
Education Association (Association). The Board held a hearing on April 5, 1983, after which it voted to dismiss Petitioner. Petitioner did not attend the hearing and filed a grievance on April 8, 1983.
On July 1, 1983, after the grievance was assigned to arbitration, our Supreme Court handed down its decision in the Neshaminy Federation of Teachers v. Neshaminy School District, 501 Pa. 534, 462 A.2d 629 (1983). Arguably, Neshaminy supported the proposition that the provisions of Sections 1121-1132 of the Public School Code of 1949 (Code)*fn2 were the sole means by which a professional employee could protest a dismissal by a school district. As a result of the Neshaminy decision, Petitioner on July 27, 1983, sought a hearing before the Board in which she would participate. The Board, which had refused to participate in the grievance procedure, denied Petitioner's request on the ground that a hearing had already been held which conformed to the provisions of the Code. Petitioner appealed this denial to the Secretary who dismissed the appeal because it was filed more than thirty days after the Board's order dismissing Petitioner.
Shortly before the Secretary entered his order, Section 1133 of the Code*fn3 was enacted by the Act of June 22, 1984 (Act). Section 1133 of the Code provides that
Nothing contained in sections 1121 through 1132 [of the Code] shall be construed to supersede or preempt a provision of a collective bargaining agreement in effect on July 23, 1970, or
[ 91 Pa. Commw. Page 104]
on any date subsequent thereto, negotiated by a school entity and an exclusive representative of the employes in accordance with the act of July 23, 1970 (P.L. 563, No. 195), known as the 'Public Employe Relations Act,' which agreement provides for the right of the exclusive representative to grieve and arbitrate the validity of a professional employe's termination for just cause or for the causes set forth in section 1122 of this act; however, no agreement shall prohibit the right of a professional employe from exercising his or her rights under the provisions of this act except as herein provided. However, if within ten (10) days after the receipt of the detailed written statement and notice as required by Section 1127 [of the Code], the professional employe chooses to exercise his or her right to a hearing, any provision of the collective bargaining agreement relative to the right of the exclusive representative to grieve or arbitrate the termination of such professional employe shall be void. Professional employes shall have the right to file a grievance under the collective bargaining agreement or request a hearing pursuant to section 1121 through 1132 [of the Code], but not both. (Footnotes omitted.)
Section 10(a) of the Act further provided that "Section 4 of this act, insofar as it relates to Section 1133 [of the Code], shall be retroactive to January 1, 1983." In Wilson Area Education Association v. Wilson Area School District, 90 Pa. Commonwealth Ct. 151, 494 A.2d 506 (1985), we determined that the effect of this provision for retroactivity was to negate Neshaminy. The bargaining agreement in the instant case is one to which Section 1133 of the Code is applicable.
[ 91 Pa. Commw. Page 105]
Petitioner's grievance arose after January 1, 1983. We hold, therefore, that the provisions of Section 1133 are applicable to the facts of this case.
In determining the remedy which should be granted to Petitioner under the unique circumstances of this case, we are cognizant of the fact that the Pennsylvania Labor Relations Board has ordered that the School District and the Association arbitrate Petitioner's grievance of her dismissal. 16 Pa. Pub. Employee Rep. § 16115 (1985).*fn4 Because Section 1133 of the Code provides that a professional employe has the right to either a grievance proceeding subsequent to her dismissal or a hearing before a school board prior to her dismissal, we find that the grant of arbitration fulfills Petitioner's rights. Petitioner here seeks to be heard in protest of her dismissal and a hearing on that matter has been ordered. For that reason, the Secretary did not err in failing to grant Petitioner a hearing pursuant to Sections 1121-1132 of the Code.*fn5
The Secretary's order is affirmed without prejudice to Petitioner's right to proceed in arbitration.
The order of the Secretary of Education dated July 18, 1984, Teacher Tenure Appeal No. 18-83, is hereby affirmed without prejudice to the right of Diana M. Scotchlas to proceed in arbitration.