decided: June 11, 1986.
SAMUEL H. BLACK, SR., APPELLANT
BOARD OF DIRECTORS OF THE WEST CHESTER AREA SCHOOL DISTRICT, APPELLEE
Appeal from the Order of the Court of Common Pleas of Chester County in the case of Samuel H. Black, Sr. v. Board of Directors of the West Chester Area School District, No. 84 June Term, 1982.
Bruce Alan Herald, Goldberg, Evans, Herald & Donatoni, for appellant.
Ross A. Unruh, with him, Mary Ann Rossi, MacElree, Harvey, Gallagher, O'Donnell & Featherman, Ltd., for appellee.
Judges Barry and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.
[ 98 Pa. Commw. Page 92]
Samuel H. Black, Sr. (appellant) appeals an order of the Court of Common Pleas of Chester County which sustained the preliminary objections of the Board of Directors of the West Chester Area School District (appellee) and dismissed Count II of appellant's Amended Complaint for lack of jurisdiction.*fn1 Count I of the Amended Complaint, a mandamus action in which appellant sought an order compelling appellee to afford him tenure, remains before the trial court.
Appellant had been employed by appellee as the Supervisor of State and Federal Programs, an administrative position with an annual salary of $31,750 plus benefits. By letter dated June 25, 1981, the Superintendent of the School District, a Mr. Langlois, informed appellant that his position had been eliminated as a result of budgetary constraints adopted by appellee and necessitated by reductions in enrollment and funding. Thereafter, appellant was "reassigned" to a position of guidance counselor, with an annual salary of $26,460, and was informed of his right to request a hearing before the School Board (Board) if he objected to the
[ 98 Pa. Commw. Page 93]
assignment. On August 13, 1981, appellant did request a hearing before the Board but appellee did not respond to his demand.
On June 4, 1982, appellant filed a single count complaint in mandamus regarding his entitlement to tenure, and some months later, renewed his request for a hearing before the Board on his alleged demotion to the position of guidance counselor pursuant to Section 1151 of the Public School Code of 1949 (Code).*fn2 On August 4, 1982, appellee denied appellant's request for a hearing.
Upon leave of court, appellant then amended his complaint in mandamus by the addition of a second count (Count II), in which he averred that he had been demoted without his consent and denied a hearing before the Board, in contravention of Section 1151 of the Code.*fn3 In the alternative, appellant pled that his
[ 98 Pa. Commw. Page 94]
consent to the transfer had been obtained by fraud on the part of appellee.*fn4 Count II, entitled mandamus, sought an order compelling appellee to reinstate appellant in his former position or an equivalent administrative position and to pay him back salary.
Upon the filing of preliminary objections by appellee, the trial court entered an order sustaining the objection in the nature of a motion to strike for failure to exhaust or exercise an adequate statutory remedy and dismissed Count II of the appellant's Amended Complaint. The trial court determined that appellant had indeed been demoted and noted that appellant's "proper avenue of relief [was] the one he commenced June 15, 1983: an appeal to the Secretary of Education, and then to the Commonwealth Court. . . . As the proper administrative procedures do not include this court, we dismiss Count II for lack of jurisdiction." Appellant's appeal to the Secretary and the Secretary's decision are not of record.
Upon appeal to this Court, appellant contends that his alleged demotion was void ab initio because of the Board's failure to satisfy the procedural requirements of Section 1151 of the Code. As his demotion was void, appellant contends that Section 1131, 24 P.S. § 11-1131, regarding appeal to the Secretary of Education, was thus inapplicable such that the trial court erred in dismissing
[ 98 Pa. Commw. Page 95]
his complaint for his failure to pursue an administrative remedy.
This Court in Board of School Directors of Abington School District v. Pittenger, 9 Pa. Commonwealth Ct. 62, 305 A.2d 382 (1973), has defined the procedural constraints imposed on a school district attempting to demote a professional employee. The Board must pass a resolution stating that it had sufficient justification to demote said employee, serve notice of this fact on the employee and advise him of his right to a hearing. It may not be necessary that the hearing precede the demotion if the demotion is necessitated by budgetary constraints. See School District of Philadelphia v. Twer, 498 Pa. 429, 447 A.2d 222 (1982).
In the case sub judice, appellant was notified of his reassignment to the position of guidance counselor by a Mr. Brantley, the Assistant Superintendent of the School District. Although Mr. Brantley informed appellant that the transfer was predicated on Board-implemented budgetary reductions, there is no evidence that the Board acted to demote appellant, nor did the Board give notice of appellant's termination or demotion. On the contrary, the President of the Board testified at depositions that while the Board did vote to eliminate a supervisory position, it did not vote to demote appellant.
This Court stated in Pittenger, 9 Pa. Commonwealth Ct. at 69, 305 A.2d at 386, that:
We can find no provision in the School Code conferring upon the administrative staff of a school district, whether it be the Superintendent or the Principal, the authority to demote a professional employe.
As the assistant Superintendent lacked the authority to demote appellant, his attempt to do so was invalid.
Nevertheless, our so holding does not lead us to conclude, as appellant suggests, that the invalidity of his
[ 98 Pa. Commw. Page 96]
demotion renders the relevant Code provision regarding appeal to the Secretary of Education inapplicable.
The record reveals that Appellant twice requested a hearing before the Board to voice his objections to his transfer. Appellee denied his request, by letter of counsel dated August 4, 1982.
Since appellant contends he is a professional employee, his remedy upon the Board's refusal to grant him a hearing was an appeal to the Secretary of Education. Wolff v. Board of School Directors of the Chichester School District, 59 Pa. Commonwealth Ct. 196, 429 A.2d 129 (1981). Appellant's argument that no event triggered such an appeal is without merit. The Board's failure to hold a hearing and its failure to specify the evidence necessitating appellant's demotion are both grounds for appeal. See Wolff.
Further, 22 Pa. Code § 351.5(a), entitled "Appeals from Denial of a Hearing," states in relevant part:
Where the Board refuses to give an employee a hearing under Section 1151 . . . the employee may appeal to the Secretary within 30 days after receipt by registered mail of the written notice of the decision of the board or may file upon receipt of actual written notice of the denial of the hearing, whichever comes first. (Emphasis added.)
Appellant received actual written notice of the Board's denial of his request for a hearing on August 4, 1982. He had thirty days from that date within which to appeal to the Secretary of Education. He did not do so, and any appeal subsequent to that date is unquestionably untimely.
Appellant contends that the Court of Common Pleas erred in failing to transfer the matter to the Secretary of Education, pursuant to 42 Pa. C.S. § 708 (relating to improvident administrative appeals) and 42 Pa. C.S.
[ 98 Pa. Commw. Page 97]
§ 5103 (relating to transfer of erroneously filed matters), rather than dismissing the action. We need not address the merits of this argument. As we have previously stated, appellant had thirty days from August 4, 1982 in which to appeal the Board's denial of his request for a hearing. Appellant did not petition the Court of Common Pleas for leave to amend his complaint to include reference to his alleged demotion until March, 1983 and was not granted leave to amend until September 9, 1983. Even upon transfer to the Secretary, appellant's appeal would be untimely.
The relief requested by appellant, namely, reinstatement with back pay, is within the authority of the Secretary to so award. See Black v. Wyalusing Area School District, 27 Pa. Commonwealth Ct. 176, 365 A.2d 1352 (1976). Moreover, the issues raised in appellant's Amended Complaint are within the purview of the Secretary's expertise. Had appellant pursued an appeal to the Secretary, he would have had ample opportunity to develop the circumstances of his alleged demotion and any allegations of fraud.
We find the remedy afforded appellant through the administrative process, and one which he failed to timely pursue, was adequate.
Accordingly, we affirm the order of the Court of Common Pleas of Chester County.
And Now, June 11, 1986, the order of the Court of Common Pleas of Chester County, No. 84, June Term, 1982, dated June 6, 1985, is affirmed.