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GARY WHITLING v. KEYSTONE SCHOOL DISTRICT (06/21/89)

decided: June 21, 1989.

GARY WHITLING, APPELLANT,
v.
KEYSTONE SCHOOL DISTRICT, APPELLEE



Appeal from Clarion County Common Pleas Court, Honorable James B. Dwyer, Judge.

COUNSEL

William J. Maikovich, New Brighton, for appellant.

Ellis H. Katz, Curtin and Heefner, Morrisville, for appellee.

Barry and Smith, JJ., and Narick, Senior Judge.

Author: Smith

[ 127 Pa. Commw. Page 35]

Appellant Gary Whitling appeals from the April 21, 1988 order of the Court of Common Pleas of Clarion County which dismissed Appellant's appeal from a decision of the Keystone School District Board of Directors (Board) to furlough Appellant from his position as a professional employee of the School District. The issue presented here is whether Appellant's furlough prior to commencement of the 1987-88 school year violated Section 1125.1 of the Public School Code of 1949 (School Code)*fn1 in that the School District failed to consider Appellant's anticipated certification in driver education.

The record demonstrates that Appellant, certified in chemistry, was hired as a professional employee of the District on November 10, 1976. He taught in the science department and was the least senior employee in that department at the time of the Board's decision. By letter dated May 27, 1987, the Board of Directors of the District notified Appellant that due to a substantial decrease in student enrollment, the District would curtail its vocational-agricultural department and that Appellant would be suspended effective June 30, 1987 as a result of this curtailment approved by the Board on May 21, 1987. The department consisted of one instructor, Thomas L. McCoy (McCoy), who was certified to teach agricultural and general science. McCoy, hired on August 12, 1974, was moved to the science department as a result of the curtailment.

Hearing was held before the Board on Appellant's appeal after which the Board upheld the decision to suspend Appellant. At hearing, Appellant presented evidence that he was

[ 127 Pa. Commw. Page 36]

    enrolled in courses which would lead to certification in driver's education on August 13, 1987. The Board entered its adjudication on July 20, 1987 in which it concluded, inter alia, that the School District must consider Appellant's certification record at the time of suspension and that the School District is not required to anticipate Appellant's certification in driver's education; that the radical realignment or checkerboarding suggested by Appellant, which would result in a general science instructor with twenty-two years' seniority replacing the guidance counselor with three years' seniority, is neither mandatory under the School Code nor educationally sound; additionally that Appellant's suspension from the science department is educationally sound. Board Conclusions of Law, Nos. 6-7, 10-16.

Appeal was thereafter filed by Appellant to the trial court contesting the District's failure to anticipate Appellant's expected certification in driver's education and to realign him as the driver's education instructor thereby requiring furlough of a less-senior employee. The trial court affirmed the Board's order to suspend Appellant holding that the District possessed the discretion to determine whatever date it desired for furlough of employees and that on the furlough date established for Appellant, there was no definite information that he would be certified in driver's education.

Section 1125.1 of the School Code provides in part that:

(a) Professional employes shall be suspended under section 1124 (relating to causes for suspension) in inverse order of seniority within the ...


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