Appeal from the Order of the Court of Common Pleas of Lackawanna County in the case of Donald K. Stephens v. Northeastern Intermediate Unit No. 19, No. 84 Civil 6018.
James A. Kelly, for appellant.
Michael Brodie, Freedman and Lorry, P.C., for appellee.
Lynne L. Wilson, for amicus curiae, Pennsylvania State Education Association.
Louis B. Kushner, with him, Ronald G. Backer, for amicus curiae, Pennsylvania Federation of Teachers.
John J. Dunn, Sr., Dunn & Byrne, for amicus curiae, The American Legion, Department of Pennsylvania.
Oliver N. Hormell, Judge Advocate, for amicus curiae, Department of Pennsylvania, Veterans of Foreign Wars.
Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. President Judge Crumlish, Jr., and Judges Rogers, Craig, Doyle, Barry, Colins and Palladino. Opinion by Judge Doyle. Judge Colins dissents.
[ 98 Pa. Commw. Page 128]
This is an appeal by the Northeastern Educational Intermediate Unit No. 19 (NEIU) from an order of the Court of Common Pleas of Lackawanna County reversing the decision of the Board of Directors (Board) of
[ 98 Pa. Commw. Page 129]
NEIU and directing that Donald K. Stephens (Appellee), a veteran of the Korean conflict, be reinstated to his teaching position without diminution of his seniority rights and with full backpay. The relevant facts are not in dispute. Appellee began his employment with NEIU as a shop instructor on January 2, 1974. Ten years later it became apparent that NEIU would have to furlough a shop instructor. At the time of the furlough two shop instructors were employed, Appellee and Joseph Kasztejna. Kasztejna had begun teaching on September 4, 1973 (approximately four months before Appellee) and hence NEIU, recognizing that Section 1125.1 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, (School Code) 24 P.S. § 11-1125.1,*fn1 mandated furlough in inverse order of seniority, furloughed Appellee. Appellee appealed his furlough to the Board maintaining that in computing his seniority for furlough purposes the Board should have taken into account the time he served in the armed forces, i.e., September 5, 1950 through April 25, 1952. Appellee, in support of his argument, relied upon Section 7107 of what is commonly referred to as the Veterans' Preference Act (Act), 51 Pa. C.S. § 7107.*fn2 Section 7107 of the Act provides as follows:
Whenever a reduction in force is necessary in any public position, or on public works of the Commonwealth ...