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BIG BEAVER FALLS AREA SCHOOL DISTRICT v. NICK CUCINELLI (01/06/88)

decided: January 6, 1988.

BIG BEAVER FALLS AREA SCHOOL DISTRICT, APPELLANT
v.
NICK CUCINELLI, APPELLEE



Appeal from the Order of the Court of Common Pleas of Beaver County, in case of Nick Cucinelli v. Big Beaver Falls Area School District, No. 1873 of 1985.

COUNSEL

Samuel J. Orr, III, for appellant.

Daniel R. Delaney, Delaney and Evans, for appellee.

Judges Craig, Doyle and Barry, sitting as a panel of three. Opinion by Judge Craig. Concurring Opinion by Judge Doyle.

Author: Craig

[ 112 Pa. Commw. Page 343]

Big Beaver Falls Area School District appeals the order of Judge Thomas C. Mannix, of the Court of Common Pleas of Beaver County, reversing the adjudication of the School Board and reinstating Nicholas M. Cucinelli to his teaching position with back pay.

The issue is whether a school district may treat a teacher's unapproved leave of absence as a break in service, requiring a rebeginning of seniority credit, when two years earlier the school superintendent did not so treat the absence.

The facts are not in dispute. Mr. Cucinelli began teaching social studies in the school district in January 1969. In February, 1982, when Mr. Cucinelli aggravated a neck and back injury received in an automobile accident a few years earlier, he called the principal and informed him that he could not report for work. Mr. Cucinelli's physician told him to refrain from physical activity until he had another medical examination in March. To obtain convalescent treatment, he went to Florida to recuperate at his parents' home. On March 12, 1982 Mr. Cucinelli's doctor examined him and issued a note stating that he was able to return to work. The superintendent of the school district, not satisfied with that note, requested that Mr. Cucinelli obtain another explanation from the physician. Mr. Cucinelli submitted a second note. In July of 1982, the superintendent, still not satisfied with Mr. Cucinelli's medical excuses, sent him a letter which read in pertinent part as follows:

During the 25 school days you were absent you had five (5) sick days remaining and you

[ 112 Pa. Commw. Page 344]

    were paid by the Business Office for your first five days since you reported your absence as illness. You had no remaining sick days to cover your absence for the next twenty days and you made no attempt to seek approval to be away from your job for the time you knew your doctor's excuse was not acceptable and you have made no attempt to provide me with a further statement that would justify your absence. Therefore, you will not be given seniority credit for the following days during the 1981-1982 school year:

February 22, 23, 24, 25, 26, 1982

March 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 1982.

[Y]our seniority now stands as indicated. . . .

Mr. Cucinelli decided not to contest the superintendent's determination of his absence as "unapproved" and the loss of fifteen days seniority because he still had 76 days of seniority over the social studies teacher closest to him.

Mr. Cucinelli continued to teach throughout the 1982-83 and 1983-84 school years, during which his seniority status proceeded on the basis reflected in the superintendent's 1982 letter. In June of 1984, the Board of School Directors decided to eliminate a social studies position because of declining enrollment. The board furloughed a teacher determined to be junior in seniority to Mr. Cucinelli. However, on August 28, 1984, at a board hearing, the furloughed teacher contended that Mr. Cucinelli's unapproved leave constituted a break in service which reduced his seniority to zero. On September 4, 1984, the board agreed and furloughed Mr. Cucinelli on the basis that his 1982 unapproved leave constituted a break in service, so that, with his seniority at zero in 1982, he fell into junior status.

[ 112 Pa. Commw. Page 345]

Mr. Cucinelli exercised his rights under the Local Agency Law,*fn1 and the superintendent conducted a formal grievance hearing on September 19, 1984. The superintendent denied the grievance and stated: "[C]ase law has established that an unapproved leave constitutes a break in seniority. Your ...


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