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November 26, 1997


Appealed From No. 92 EQ 88. Common Pleas Court of the County of Lackawanna. Judge EAGEN.

Before: Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Leadbetter.

The opinion of the court was delivered by: Leadbetter


FILED: November 26, 1997

Scranton School District (the District) and Scranton Federation of Teachers (the Federation) (collectively, appellants) appeal from an order of the Court of Common Pleas of Lackawanna County entering summary judgment in favor of Ms. Corbett, Ms. Buratti, Mr. Bewick and Ms. Thompson (the Teachers). At issue is whether the phrase "any provision of a collective bargaining agreement in effect on February 4, 1982" in the Transfer Of Entities Act *fn1 (the Act) refers to a provision in effect on February 4, 1982, or a collective bargaining agreement in effect on February 4, 1982.

Prior to June 1992, the Teachers, as employees of Northeastern Intermediate Unit # 19 (the Intermediate Unit), provided educational services to visually and hearing impaired students of the District. In early 1992, the District decided that, beginning the following school year, it would provide these services itself. At the Teachers' request, the Intermediate Unit suspended each of them so that they would be available to be hired by the District. The District hired the Teachers, stating in a letter to each that he or she was being hired pursuant to the Act. *fn2 Even though each of the Teachers had been employed by the Intermediate Unit for more than seven years, the District credited them with only seven years of experience for salary step purposes. As a result, the Teachers commenced a declaratory judgment action, contending that the Act requires the District to credit them with all of their years of experience when determining their salary.

The District based its decision to credit the Teachers for only seven years of experience on a provision in the then current collective bargaining agreement (CBA), executed in 1990 by the District and the Federation, which provided that "newly appointed teachers shall receive year for year credit on the salary schedule for no more than seven years of prior teaching experience." This provision had been included in the CBA in effect in 1982 between the District and the Federation and in each successive CBA up to and including the 1990 agreement. The District's decision was based on its view that § 1113(c) of the Act provides that provisions in CBAs supersede the requirements of the Act, as long as the provision at issue was a part of the CBA between the parties in effect on February 4, 1982 and continued to be included in successive CBAs up to and including the governing CBA.

The District, joined by the Federation, and the Teachers filed cross-motions for summary judgment. The trial court disagreed with the District's interpretation of § 1113(c) as set forth above, and granted the Teachers' motion for summary judgment, concluding that a provision in a CBA supersedes the Act's requirements only where the CBA itself was executed prior to February 4, 1982. The trial court, thus, ruled that the Teachers should be credited for all their years of service with the Intermediate Unit. This appeal followed. After review, *fn3 we reverse.

Appellants argue, as a threshold matter, that the protections of the Act do not apply to the Teachers because, since they were suspended at their own request, they were not "suspended" within the meaning of the Act. Specifically, appellants contend that since the Act is a part of the Public School Code of 1949 *fn4 (the Code), the term "suspension" is a term of art that must be interpreted in accordance with its application in § 1125 *fn5 of the Code. While we do not disagree with the general notion that the Act should not be interpreted in a manner inconsistent with the Public School Code, we do not find appellants' analysis persuasive.

There is no indication in the Code, the Act or case law interpreting the Act that a consensual suspension is not considered a suspension under the Act. Section 1125 of the Code, 24 P.S. § 11-1125, merely provides that suspensions imposed for certain specifically identified reasons, as set forth in 24 P.S. § 11-1124, *fn6 should be carried out in inverse order of seniority. Section 1124 does not govern the suspension of teachers as a result of the transfer of a program from one providing entity to another, such is at issue here, and does not apply to the Act.

The Act requires that, when a program is transferred from one school entity to another, teachers who are suspended as a result of the transfer must be offered employment in the program by the receiving entity, with certain exceptions. Whether teachers are consensually suspended or involuntarily suspended is irrelevant to the requirements of the Act. Moreover, the Department of Education has stated that consensual suspensions are encouraged when a program is transferred under the Act from a providing entity to a school district. *fn7 Construction of a statute by those charged with its administration and execution, though not binding on a court, should be given some deference. Luzerne Intermediate Unit # 18 Educ. Ass'n v. Pittston Area Sch. Dist., 168 Pa. Commw. 304, 650 A.2d 1112, 1116 (Pa. Commw. 1994).

The real issue before this court, namely, whether the Legislature intended the phrase in § 1113(c) of the Act, "in effect on February 4, 1982," to modify the term "provision" or the words "collective bargaining agreement," is one of first impression. *fn8 This phrase did not appear in subsection (c) until the Act was amended in 1991. Thus, prior to the 1991 amendment, any provision in any collective bargaining agreement could supersede the requirements of the Act. In 1991, the Legislature chose to limit that ability. We agree with the parties, however, that the words of subsection (c) are susceptible to more than one meaning, and since there is no legislative history concerning the 1991 amendment, we must be guided in our interpretation by The Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991.

The Statutory Construction Act provides, in pertinent part:

In ascertaining the intention of the General Assembly in the enactment of a statute the following ...

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