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RICHARD MONGELLUZZO AND FRANK TOTH v. SCHOOL DISTRICT BETHEL PARK (12/18/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 18, 1985.

RICHARD MONGELLUZZO AND FRANK TOTH, APPELLANTS
v.
SCHOOL DISTRICT OF BETHEL PARK, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Richard Mongelluzzo and Frank Toth v. School District of Bethel Park, No. S.A. 34 of 1984.

COUNSEL

Stephen H. Jordan, with him, Shelley W. Elovitz, Rothman, Gordon, Foreman and Groudine, P.A., for appellants.

John R. Johnson, with him, A. Bruce Bowden and Thomas S. Giotto, Buchanan, Ingersoll Professional Corporation, for appellee.

Judges Rogers and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 93 Pa. Commw. Page 558]

Richard Mongelluzzo and Frank Toth (Appellants) appeal from an order of the Court of Common Pleas of Allegheny County affirming the adjudication of the School District of Bethel Park (School District) suspending them from their teaching positions pursuant to Sections 1124 and 1125.1 of the Public School Code of 1949 (Code).*fn1 We affirm.

The relevant facts are not in dispute, inasmuch as they were stipulated to by the parties in the proceedings before the Board of School Directors. (R.R. 2a-7a). There was a substantial decrease in overall pupil enrollment in the Bethel Park School District from the 1979-80 school year through the 1983-84 school year. Appellants were suspended for the 1983-84 school year. The suspensions were the result of the School District's elimination of its Driver Education program and the alteration and/or curtailment of its Industrial Arts program through the elimination of all photography courses effective with the beginning of the 1983-84 school year. Pupil enrollment in the Driver Education program had not substantially declined and the enrollment in the various photography courses decreased from 215 in the 1979-80 school year to 199 in the 1982-83 school year.

The relevant portion of Section 1124 of the Code reads:

Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated:

[ 93 Pa. Commw. Page 559]

(1) Substantial decrease in pupil enrollment in the school district;

(2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction[.]*fn2

Appellants assert that because the Driver Education and Industrial Arts programs were curtailed or altered, the School District could only suspend them if approval for the program changes had been obtained from the Department of Education*fn3 and if the suspensions were a result of a substantial decline in class or course enrollments. The School District counters by asserting that, in order to invoke the provisions of Section 1124, it need only show a substantial decrease in the overall pupil enrollments.

Where, as here, the common pleas court has taken no additional evidence, our scope of review is limited to a determination of whether the School District abused its discretion, committed an error of law, or violated the employees' constitutional rights, and whether the School District's findings of facts are supported by substantial evidence. Rosen v. Montgomery County Intermediate Unit No. 23, 90 Pa. Commonwealth Ct. 335, 495 A.2d 217 (1985). Hence, the only issue we must determine is whether or not the School

[ 93 Pa. Commw. Page 560]

District committed an error of law when it determined that inasmuch as there was a substantial decrease in overall pupil enrollment, it could suspend Appellants without regard to the provisions of Subsection 1124(2).

There is no question that the School District experienced a substantial decrease in overall pupil enrollment.*fn4 It did not, however, experience a decrease in the programs taught by Appellants. As a response to the declining enrollment, the School District decided it would be best to cut 23 positions, including all of the Driver Education and Photography teaching positions. Once a substantial decline in overall enrollment has been shown, a school board should have the discretion to decide in what programs it would be best to cut teaching positions.

The issue involved here has never been directly addressed by this Court. The Court of Common Pleas of Allegheny County did consider a similar situation in Arnold v. Board of School Directors, School District of Pittsburgh, 131 P.L.J. 434 (1982). There, a Head Start Program teacher challenged her suspension. The school district had experienced a substantial decrease in enrollment. The teacher argued that she was improperly suspended because the enrollment in the Head Start Program had not declined. The Court said:

[ 93 Pa. Commw. Page 561]

Appellant's argument that the enrollment of the Head Start Program remained the same may be accurate, but is immaterial. The Board has absolute authority to suspend its extra employees upon a finding of decline in student enrollment in the District, regardless of the enrollment in particular programs.

Id. at 435.

It is implicit in the statutory scheme that the School District has such discretion. The School District need only show that the suspensions were based on any one of the causes permitted by the Code. Platko. The language of Subsection 1124(1) puts no restrictions on the School District's discretion once it shows that it has experienced a decline in pupil enrollment. Subsection 1124(2) applies only when there has been no overall decline but where there has been a decline in enrollments in a particular course or a program change.*fn5 In these situations, approval of the Department of Education is required.

In the case at bar, we are clearly under Subsection (1). There was a substantial decline in enrollment, and the School District clearly expressed it was proceeding under Subsection (1). In such an instance, neither a decrease in a particular class enrollment nor approval of the Department of Education need be shown. School districts must have the flexibility in such situations to decide where personnel cuts should occur with due regard to the overall educational program. In this case, the School District decided it was

[ 93 Pa. Commw. Page 562]

    better to cut Appellants' positions than others it felt were more necessary.*fn6

The School District proceeded properly in suspending Appellants. As such, the common pleas court's order affirming the School District's adjudication must be upheld.

Order

The order of the Court of Common Pleas of Allegheny County denying Appellants' appeal from their suspensions by the School District of Bethel Park is affirmed.

Disposition

Affirmed.


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