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decided: August 7, 1986.


Appeal from the Order of the Court of Common Pleas of Cambria County, in case of John Feigh v. Glendale School District, No. 84-2597.


Richard J. Green, Jr., for appellant.

William A. Hebe, Spencer, Gleason & Hebe, for appellee.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail. Judge Colins dissents.

Author: Macphail

[ 99 Pa. Commw. Page 471]

Glendale School District (School District) appeals from an order of the Court of Common Pleas of Cambria County which reversed the decision of its Board of School Directors (Board) suspending John Feigh (Appellee) from his position as a music instructor pursuant to Section 1124 of the Public School Code of 1949 (Code).*fn1 We reverse.

In June of 1984, the superintendent of the School District met with members of the Board and recommended the curtailment of various school programs in order to deal with an anticipated budgetary deficit. On June 27, 1984, the Board, acting upon the superintendent's recommendations, approved curtailment of the elementary music program by eliminating the elementary instrumental music part of that program. The superintendent thereupon requested approval of the Board decision from the Department of Education (Department) which was granted.*fn2 On July 2, 1984, the

[ 99 Pa. Commw. Page 472]

    superintendent informed Appellee by letter that as a result of the elimination of the music program, Appellee was to be suspended immediately from his teaching position.*fn3

A hearing was held before the Board which affirmed Appellee's suspension. The trial court reversed,*fn4 reasoning that Appellee was suspended for reasons other than those permitted by Section 1124 of the Code.*fn5 We disagree.

[ 99 Pa. Commw. Page 473]

Section 1124 of the Code states in pertinent part:

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

[ 99 Pa. Commw. Page 474]

(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 Page 474} standards of organization or educational activities required by law or recommended by the Department of Instruction[.] (Emphasis added.)

In Sporie v. Eastern Westmoreland Area Vocational-Technical School, 47 Pa. Commonwealth Ct. 390, 408 A.2d 888 (1979), we held that where a school board eliminated a school program in accordance with a recommended curriculum change, the suspension of a teacher as a result thereof was "required by law." We cautioned, however, that the burden was upon the school board to establish that the suspension was motivated by a desire to provide a more efficient and effective school system and that "a department may not be abolished merely to circumvent the [tenure provisions] and to accomplish the dismissal of a teacher for political or arbitrary reasons by unlawful subterfuge." Id. at 396, 408 A.2d at 892 (quoting Ehret v. Kulpmont Borough School District, 333 Pa. 518, 528, 5 A.2d 188, 193 (1939)).

In Cadonic v. Northern Area Special Purpose Schools, 57 Pa. Commonwealth Ct. 42, 426 A.2d 186 (1981), we held that the school board had met its burden under Sporie where it established that the teacher's suspension was necessitated by the elimination of a guidance counselor program owing to a decrease in federal funding and there was no evidence of an ulterior motive to circumvent the teacher tenure provisions of the Code.

Similarly, in Rosen v. Montgomery County Intermediate Unit No. 23, 90 Pa. Commonwealth Ct. 335, 495 A.2d 217 (1985), we recognized that a suspension precipitated by "economically motivated curriculum reorganization" would provide a basis for a teacher's suspension under Section 1124(2) of the Code, 24 P.S. ยง 11-1124(2),

[ 99 Pa. Commw. Page 475]

    provided the school board had complied with the procedural requirements of the subsection.

In the case before us there is no dispute that the School District's elimination of its elementary instrumental music program was the result of its attempt to find an efficient means for dealing with the School District's severe economic difficulties. While the School District could not suspend Appellee solely for financial reasons, it could, with the approval of the Department, eliminate a non-mandated program for financial reasons. When that occurs, the provisions of Section 1124(2) become operative. Here, inasmuch as Appellee has not alleged any improper motive for his suspension and the substantive and procedural requirements of Section 1124(2) have been met, we are constrained to reverse the trial court and affirm the adjudication of the Board.


The order of the Court of Common Pleas of Cambria County is reversed.

Judge Colins dissents.



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