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decided: September 20, 1985.


Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Ruth C. Finnegan v. Derry Township School District, No. 5151 S 1979.


James R. Clippinger, with him, Kent H. Patterson, Cleckner and Fearen, for appellant.

Thomas W. Scott, with him, Betty F. Perry, Killian & Gephart, for appellee.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. President Judge Crumlish, Jr., Judges Rogers, Craig, MacPhail, Doyle, Barry and Palladino. Opinion by Judge MacPhail. Judge Barry dissents. Dissenting Opinion by Judge Rogers. Judge Craig joins in this dissent. Dissenting Opinion by Judge Craig. I also join Judge Rogers' dissenting opinion. Judge Rogers joins this dissent.

Author: Macphail

[ 92 Pa. Commw. Page 62]

Derry Township School District (Appellant) appeals from an order of the Court of Common Pleas of Dauphin County which reversed the decision of its Board of School Directors (Board) suspending Ruth Finnegan (Appellee) from her position as an elementary

[ 92 Pa. Commw. Page 63]

    school teacher and directing that the Board reinstate Appellee with full back pay. We reverse.

Appellee was a tenured elementary school teacher*fn1 with ten and a half years of service with the school district. On May 30, 1979, the Board voted to suspend Appellee from her position as an elementary school teacher due to a substantial decrease in student enrollment. Appellee requested and received a hearing on her suspension before the Board. The Board affirmed her suspension. An appeal was taken to the trial court, which reversed and directed the Board to reinstate Appellee. Appellant has appealed from this decision.

There is no dispute that a substantial decrease in pupil enrollment justified the Board's decision to decrease the number of its professional employees in the elementary schools. What is at the center of this dispute is whether Appellee should have been retained in favor of discharging a temporary professional employee, the elementary school principal.*fn2

[ 92 Pa. Commw. Page 64]

Inasmuch as the trial court took no additional evidence, we must affirm the action of Appellant unless we find that Appellee's constitutional rights have been violated, that Appellant failed to act according to law or failed to conform to procedural requirements, or that the findings of Appellant are not supported by substantial evidence. Section 754 of the Local Agency Law, 2 Pa. C.S. § 754; Platko v. Laurel Highlands School District, 49 Pa. Commonwealth Ct. 210, 410 A.2d 960 (1980). The trial court, having taken no additional evidence, was restricted to the same scope of review. That court, however, stated that inasmuch as Appellee raised no issue of error of law or violation of constitutional or procedural rights, its scope of review was limited "to whether the School District abused its discretion in making any Findings of Fact." The court held that Appellant had abused its discretion and ordered Appellee's reinstatement. Abuse of discretion is not a proper criteria in the trial court's scope of review, as we have noted. To employ this factor in reviewing the Board's decision clearly was error on the part of the trial court. This error has been compounded in the Appellant's statement of the question involved in this appeal as being whether the Board abused its discretion when it realigned its staff by suspending a tenured teacher and retaining an untenured principal. The proper scope of review is whether the Board's action constituted an error of law.

Appellant contends that the method employed by it in determining which employees to suspend was in

[ 92 Pa. Commw. Page 65]

    accordance with the law. The Superintendent reviewed both the teaching and non-teaching staff to determine where the reductions should be made and what realignments of staff were practical. Section 1125 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1125*fn3 requires school boards to suspend professional employees on the basis of efficiency rank determined by ratings, mandating the school board to retain professional employees on the basis of seniority where no differences in ratings are found.*fn4 Where there are substantial differences in rating, "seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards." Section 1125(b) of the Code.*fn5

The Superintendent recommended, inter alia, that five (5) professional employees be suspended, two in the elementary school, a music teacher in the intermediate school, and two teachers in the senior high school.

The ratings of all elementary school teachers were then examined. Out of a possible 100 rating points, Appellee received a total of 46, the lowest rating given to a teacher within the township. The next lowest rating was a 59. In accordance with its rating plan, Appellant weighted the scores. Appellee received a weighted score of 56.5; the next lowest rated score within the township was 65. Appellee was therefore the first elementary school teacher suspended by the Board.

[ 92 Pa. Commw. Page 66]

At the hearing before the Board, Appellee alleged that the method employed by the Board in determining which employees to suspend was unlawful. Specifically, Appellee contended that Appellant should have suspended the elementary school principal, Dr. Dale Summers, a temporary professional employee, and replace him with a Mr. Glen Zehner, a professional employee certified as an elementary school principal, allowing Appellee to be retained. The Board found this proposed realignment to be totally unreasonable as well as impractical.*fn6

On appeal, the trial court reversed. Citing Welsko v. Foster Township School District, 383 Pa. 390, 119 A.2d 43 (1956), the court held that "the shifting of three employees within the elementary school which could be considered a department, since teachers at this level are not certified by subject, but have 'Elementary Certification' would be considered sound and practical." The trial court adopted Appellee's realignment plan in its order.

We have identified the issue presented as whether a school board commits an error of law when it realigns its staff by suspending a tenured teacher at the expense of an untenured principal. Our analysis of this issue is twofold: we must examine the rights and privileges inherent in being a tenured teacher; we will then focus upon the rights and duties of a school board.

Case law has provided guidance in identifying the rights and privileges of the tenured teacher. In Welsko, a school board suspended Welsko but retained five (5) other teachers with less seniority. Welsko conceded that three of the retained teachers taught subjects for which there were no other certified teachers,

[ 92 Pa. Commw. Page 67]

    but argued that the subjects taught by two of the retained teachers could be taught by other teachers in the staff and that therefore he should not have been suspended. In ...

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