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SCHOOL DISTRICT CITY DUQUESNE v. THOMAS J. STURM (09/28/88)

decided: September 28, 1988.

THE SCHOOL DISTRICT OF THE CITY OF DUQUESNE, APPELLANT
v.
THOMAS J. STURM, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Thomas J. Sturm v. The School District of The City of Duquesne, No. S.A. 1467 of 1984.

COUNSEL

Ira Weiss, Gross and Weiss, for appellant.

Ronald N. Watzman, Litman, Litman, Harris, Brown & Watzman, P.C., for appellee.

Judges Doyle, Palladino and McGinley, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 120 Pa. Commw. Page 130]

The City of Duquesne School District (District) appeals an Order of the Court of Common Pleas of Allegheny County (trial court) reversing the decision of the School Board (Board) suspending Thomas J. Sturm (Sturm) as a guidance counselor in the District and directing the Board to reinstate Sturm to his position with back pay and emoluments.

Certain facts are not contested. Sturm was hired October 19, 1972. He worked from his date of hire until the end of the 1983 school year when he was suspended because he had less seniority than Edward Haver (Haver) who was retained as a guidance counselor for the District. Haver was hired on September 14, 1972, although he had begun working some days prior, on August 21, 1972.

The dispute between the parties involves the 1973-1974 school year. At the time set for the beginning of school there was a delay in the District's receipt of federal funds to support the Title I program, and Haver did not begin to teach until September 26, 1973. From September 26 through October 16, 1973, Haver worked four (4) hours of each seven and one-half (7 1/2) hour work day and received full seniority. During the course of Haver's entire employment he was assigned to assist students in the Title I program.

[ 120 Pa. Commw. Page 131]

The Coordinator of Federal Programs for the District, and Supervisor of the Title I Program, Edward Sudzina, testified at the Board hearing that he informed Haver of the following: "Right. I remember Mr. Haver calling me and I told him he should not report to work until I got approval for funding. The funding was slow coming that year, and once I got approved on my funding, I called him up and told him to report to work." Hearing Transcript, July 26, 1984, (H.T.) at 62. On cross-examination Sudzina stated he advised the Board that the federal funding was not in place and that a Board member instructed him to inform Haver not to come to work (H.T. 73-74).

Mr. Sudzina reiterated that in August of 1973, Haver telephoned and was told, "You can report to work when I get the funding. When I find out about the funding I will call you as soon as I find out." (H.T. at 80) Although Haver was not directed to report at the beginning of the school year Haver testified that he was never told by the Board or the Superintendent not to report to work (H.T. at 53, 91). The Board never took any official action to suspend, furlough or discharge Haver in 1973 or at any time and Haver never requested a leave of absence.

On October 11, 1984, the Board determined that the delay in Haver's reporting to work in September of 1973 was not the result of any official Board action and that there was no break in service so as to reduce seniority. Based upon the record of the proceedings before the Board the trial court by order dated December 3, 1987, determined that Haver's time-off in 1973 was not approved by the Board, was therefore not an approved leave of absence and accordingly was not entitled to credit, and that Haver was ...


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