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decided: April 21, 1987.


Appeals from the Orders of the Court of Common Pleas of Mercer County, in case of Jan Dallap, Sharon Cunningham, Betty Yohman, Les Cattron, Tom Ristvey, Sally Fabian, Michele Grunenwald, Ruth Lavin, Shirley Antos, Sheila Schneider, Ann Dunsmore, Chris Carney, Bonnie Flower, Barbara Pisarcik, Dennis Shaw, individual tenured teachers v. Sharon City School District, No. 1083 C.D. 1982, dated July 10, 1985 and November 4, 1985.


Daniel R. Delaney, Delaney and Evans, for appellants/appellees, Jan Dallap et al.

William G. McConnell, Cusick, Madden, Joyce and McKay, for appellee/appellant, Sharon City School District.

Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Concurring and Dissenting Opinion by Judge Palladino.

Author: Kalish

[ 105 Pa. Commw. Page 348]

These are consolidated appeals from an order of the Court of Common Pleas of Mercer County which reversed the Sharon City School Board's (Board) suspension of Michele Grunenwald and affirmed the Sharon City School District's (School District) decision to retain Vicky Lingner. These actions were taken under a program of realignment of schoolteachers pursuant to sections 1124 and 1125.1 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 11-1124 and 11-1125.1. Also before this court is the School District's motion to strike appeal of record. We deny the School District's motion and affirm the trial court's decision on the merits.

The trial court's opinion and order, entered on July 10, 1985, reflected two distinct issues which were decided by the court, one regarding the retention of Lingner and the other regarding the suspension of Grunenwald. On August 9, 1985, appellants, Jan Dallap et al., filed an appeal which was docketed at No. 2184 C.D. 1985. Also on that date, Grunenwald filed a petition for reconsideration and clarification as to the second part of the court's order, questioning the court's meaning of its use of the word "reinstatement." The trial court granted the petition on August 9, 1985, and on November 4, 1985, the court entered an order clarifying the July 10, 1985 order and awarding back pay to Grunenwald. On December 2, 1985, the School District filed a notice of appeal which was docketed at No. 3244 C.D. 1985. On January 24, 1986, the School District filed a motion to strike appeal of record in No. 2184 C.D. 1985. That same day, Grunenwald's attorney filed an answer to the motion to strike. On January 27, 1986, this court ordered the consolidation of these two cases and that the motion to strike be listed with the merits.

[ 105 Pa. Commw. Page 349]

The School District asserts that the appeal of August 9, 1985 (No. 2184 C.D. 1985) be stricken under Pa. R.A.P. 1701(b)(3), because the trial court granted Grunenwald's motion for reconsideration. The motion, however, was granted only as to Grunenwald and not as to Lingner. Accordingly, the motion to strike the appeal in No. 2184 C.D. 1985 should be denied in light of the narrow grant of the motion for reconsideration.

Although appeal No. 2184 C.D. 1985 involves the Lingner situation only and appeal No. 3244 C.D. 1985 involves the Grunenwald case, we will discuss the two appeals together. The facts are undisputed. Following a decline in enrollment throughout the Sharon City School District, a hearing was held on August 16, 1982, at which the Board determined that certain positions of schoolteachers should be eliminated. Grunenwald had been certified by the Board of Education, and taught chemistry for about ten years. During this period of time, she had fulfilled all of the requirements for an Instructional II Reading Specialist certification from the Department of Education; however, she was not teaching reading in the school. Although the School District had received notification of this certification, her file did not contain the actual certification.

Grunenwald contends that she was suspended despite the fact that she could have been realigned into a reading teacher position held by a less senior teacher, and that this suspension violates section 1125.1 of the Code, 24 P.S. § 11-1125.1.

Lingner, certified as an English teacher, was retained as a coordinator of a gifted program, although she was less senior than several of the other teachers who were suspended. No special certification for this position is required.

The Board found that it would be educationally unsound to put Grunenwald into the English teaching

[ 105 Pa. Commw. Page 350]

    position of another who had less seniority, because even though certified in English, her experience was teaching chemistry and science for several years. As to Lingner, the Board found that even though she was certified as an English teacher, it would have been ...

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