Appeal from the Order of the Court of Common Pleas of Beaver County in the case of Paul James v. Big Beaver Falls Area School District, No. 437 of 1985.
William J. Maikovich, for appellant.
Samuel J. Orr, III, for appellee.
President Judge Crumlish, Jr., and Judges Rogers, Craig, Doyle, Barry, Colins and Palladino. Opinion by Judge Doyle. Dissenting Opinion by Judge Colins.
[ 98 Pa. Commw. Page 320]
This is an appeal by Paul James from an order of the Court of Common Pleas of Beaver County which affirmed a determination of the Big Beaver Falls Area School District (District) holding that James' suspension because of declining enrollment pursuant to 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, was valid.*fn1
The relevant facts are not in dispute. James is a professional employee with the District and is certified to teach only Social Studies. Paulette Potter, who is black, is a professional employee with the District and is certified in Social Studies, Spanish and Elementary Education. James is senior to Potter who is in turn senior to at least one elementary school teacher who was not suspended. At the time relevant to this appeal Potter was teaching four classes of Spanish and two classes of Black Studies, a course which she developed. Robert Blythe is also a professional employee with the District and is certified to teach Social Studies. Blythe served twenty-one
[ 98 Pa. Commw. Page 321]
months in the armed services (March 1965 through January 1967) including approximately a one year tour of duty in Vietnam and was honorably discharged. Blythe and James are equal in seniority within the District. Under the relevant collective bargaining agreement where a suspension under Section 1125.1 is necessary and employees are of equal seniority, lots are to be drawn. In the instant case with respect to Blythe and James lots were drawn and James was determined to be the more senior employee. The District, however, pursuant to Section 7107 of what is commonly known as the Veterans' Preference Act (Act), 51 Pa. C.S. § 7107, awarded Blythe twenty-one months seniority for his time in the military and hence suspended James.*fn2
James argued below and now argues as well two alternative theories in which he asserts that the District improperly determined that he should be the employee suspended.*fn3 With respect to Blythe, James contends that application of Section 7107 of the Act to Section 1125.1 of the School Code is improper. It is undisputed that had Blythe not been given seniority credit for his
[ 98 Pa. Commw. Page 322]
military service, James, who won the lottery, would be deemed the more senior necessitating the suspension of Blythe rather than James. We have already decided the question of the applicability of the Act to Section 1125.1 of the School Code in Northeastern Educational Intermediate Unit No. 19 v. Stephens, 98 Pa. Commonwealth Ct. 127, 510 A.2d 1267 (1986) (NEIU) considering there all of the statutory construction, constitutional, and public policy arguments raised here. We held in NEIU that Section 7107 of the Act is properly applied to Section 1125.1 of the School Code for purposes of computing seniority and that such application is constitutional. NEIU controls the result here.
With respect to Potter, James asserts that because he is senior to her and because she teaches two classes of Social Studies for which he, too, is certified he should have been reassigned to teach those two classes.*fn4 We must reject this contention. While it is true that suspension under Section 1125.1 is premised only upon seniority, we held in Godfrey v. Penns Valley School District, 22 Pa. D. & C. 3rd 466 (1981) affirmed on the opinion of the trial court at 68 Pa. Commonwealth Ct. 166, 449 A.2d 765 (1982), that in instances involving employees with multiple certification, and the resultant checkerboarding ...