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decided: November 13, 1985.


Appeal from the Order of the Court of Common Pleas of Lawrence County in case of Charles E. Gibbons v. New Castle Area School District, No. 177 of 1982, Miscellaneous Division.


Gregory S. Fox, with him, Kenneth E. Fox, Jr., for appellant.

Dominick Motto, Chambers, Nicolls, Balph, Paul & Motto, for appellee.

Judges Williams, Jr., Colins and Barry. President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Doyle, Barry and Palladino. Opinion by Judge Craig. Dissenting Opinion by Judge Palladino. Judge MacPhail and Judge Doyle join in this dissent.

Author: Craig

[ 93 Pa. Commw. Page 30]

This is an appeal by Charles E. Gibbons (appellant) from an order of the Court of Common Pleas of Lawrence County which affirmed a decision by the New Castle Area School District's Board of School Directors to reassign appellant from his position as principal of Benjamin Franklin Junior High School (Franklin) to assistant principal of New Castle Senior High School (Senior High).

In June of 1982, the board closed George Washington Junior High School (Washington), one of the two junior highs in the district at that time; the board transferred the seventh and eighth grade students from Washington to Franklin and the ninth grade students to the Senior High. The board's decision to close Washington required a realignment of the secondary school administrators involving the abolition of two secondary administrator's positions. Consequently, the board returned the two least senior secondary administrators to the classroom as teachers, and assigned the two most senior administrators, who had been the principal and assistant principal of Washington, to Franklin as its principal and assistant principal. Appellant, who was the third most senior secondary school administrator, and who had previously been principal of Franklin, was appointed assistant principal of the Senior High. The board retained Frank Dattilo, who ranked fifth on the seniority list for secondary school administrators, in his position as principal of the Senior High.*fn1

Pursuant to the Local Agency Law, 2 Pa. C.S. § 553, appellant requested a hearing to challenge his reassignment. At a hearing on August 31, 1982, the board presented the testimony of the Superintendent

[ 93 Pa. Commw. Page 31]

    of Schools.*fn2 Because the appellant had more seniority than Mr. Dattilo, the superintendent had considered recommending that appellant be assigned to the position of principal at the Senior High. However, the superintendent decided against that recommendation because the Senior High principal has more responsibilities than a junior high principal and Mr. Dattilo had demonstrated success in managing the additional responsibilities.*fn3 The superintendent also testified that the salary and certification requirements for principal and assistant principal of the secondary schools are the same.

After the hearing, the board issued an adjudication in which it concluded that, although appellant had more seniority than Mr. Dattilo, appellant's reassignment was not arbitrary or capricious but was reasonable because it was based upon proper considerations of the needs of the district. The board therefore affirmed the reassignment.

Appellant then appealed to the trial court claiming that the board's realignment plan violated section 1125.1(c) of the Public School Code of 1949, Act of

[ 93 Pa. Commw. Page 32]

March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1125.1(c), because the realignment was not based solely upon seniority. The trial court affirmed the board's adjudication and the appellant filed this appeal.

Our scope of review is specified by the Local Agency Law, 2 Pa. C.S. § 754(b), in that we must affirm the action of the board unless there has been a violation of appellant's constitutional rights, an error of law, or the findings of fact are not supported by substantial evidence.

Initially we note that the trial court properly held that section 1125.1(c) is applicable to the case at bar. The law is now settled that section 1125.1(c) applies to demotions as well as suspensions of professional employees caused by a realignment of the professional staff within a school district. Appeal of Cowden, 87 Pa. Commonwealth Ct. 165, 486 A.2d 1014 (1984); Fry v. Garnet Valley School District, 86 Pa. Commonwealth Ct. 206, 485 A.2d 508 (1984); Olson v. Board of School Directors Methacton School District, 84 Pa. Commonwealth Ct. 189, 478 A.2d 954 (1984); Shestack v. General Braddock Area School District, 63 Pa. Commonwealth Ct. 204, 437 A.2d 1059 (1981).

Section 1125.1(c) of the Public School Code provides:

A school entity shall realign its professional staff so as to insure that more senior employes are provided with the opportunity to fill positions for which they are certificated and which are being filled by less senior employes. (Emphasis supplied.)

With the enactment of section 1125.1, containing the above subsection (c), in 1979, the legislature repealed section 1125 of the Code.*fn4 That former section 1125

[ 93 Pa. Commw. Page 33]

    had focused upon suspensions, specifically suspensions which result "[w]henever a board of school directors decreases the size of the staff of professional employes. . . ." Unlike the new section 1125.1, which does not modify its references to seniority with any reference to efficiency ratings, the repealed section 1125(a) called for "suspensions to be made . . . on the basis of efficiency rank determined by ratings. . . ." Under its subsection (b), professional employees were to be retained on the basis of seniority rights only "where there is no substantial difference in rating."

By contrast, the new provision, section 1125.1, in its subsection (a), requires, where suspensions are involved, that professional employees be suspended "in inverse order of seniority within the school entity of current employment." Subsection (b) mandates that employees retain seniority rights throughout and beyond any reorganization or consolidation. Following subsection (c) quoted above, subsection (d) requires reinstatement on the basis of seniority.

Thus, by the amendment, the legislature eliminated section 1125's earlier modifications of seniority rights in terms of ratings, and established seniority as the sole and preeminent consideration in connection with realignments, or when professional staff is otherwise decreased as a consequence of the approved causes for reduction of staff by suspension enumerated in section 1124, 24 P.S. § 11-1124, as: (1) substantial decrease in enrollment, (2) curtailment or alteration of the educational program and (3) consolidation of schools. This case obviously involves a realignment which included a consolidation of schools as a consequence of the closure of one of the junior high schools.

The Pennsylvania Supreme Court foreshadowed the legislative emphasis upon seniority as the controlling criterion. Even under the former section 1125,

[ 93 Pa. Commw. Page 34]

    the Supreme Court, in Welsko v. School District of the Township of Foster, 383 Pa. 390, 119 A.2d 43 (1956), affirmed the reinstatement of a teacher who had been suspended because of a decrease in pupil enrollment despite his greater seniority rights. Apparently no efficiency rating ...

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