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December 29, 1997


Appeal from the Order of the Commonwealth Court Dated March 13, 1996, at No. 1001 C.D. 1995. JUDGE(S) BELOW: CCP - Honorable Lawrence A. Brown / Commonwealth - DOYLE, FRIEDMAN, MIRARCHI JR., JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Justice Cappy files a Dissenting Opinion in which Mr. Justice Nigro joins.

The opinion of the court was delivered by: Zappala


DECIDED: December 29, 1997

This case involves the applicability of Section 1125.1 of the Public School Code to a position that does not require certification. For the following reasons, we reverse the order of the Commonwealth Court.

The relevant facts have been stipulated to by the parties. Linwood Bennett was employed as a teacher by the Central Montgomery County Area Vocational Technical School. During the 1989-90 school year, Bennett was a full-time auto body instructor at the school. In June of 1990, Bennett was advised that he would be demoted from his full-time position to a half-time position because of declining enrollment in the auto body program and in the school.

Bennett was an auto body instructor on a half-time basis during the 1990-91 school year. Samuel Stearly, who was employed by the school as a full-time industrial production and maintenance instructor, went on sabbatical leave during that school year. Stearly's position was then filled by Nicholas Sucic, who had taught carpentry during the previous school year. Sucic was certified as both a carpentry instructor and an industrial production and maintenance instructor. The void created by Sucic's change in teaching responsibilities was filled by the hiring of Arthur Mahan as a long-term substitute.

The school instituted an in-school suspension pilot program for two days per week in the second half of the 1989-90 school year. Stearly was contacted during his sabbatical leave to see if, upon his return, he would be interested in being assigned to the in-school suspension program, if the program were extended to full-time. A decision was later made by the school's Joint Operating Committee to offer the program on a full-time basis beginning with the 1991-92 school year. No specific teacher certification was established for the position.

When Stearly returned from his sabbatical at the beginning of the 1991-92 school year, he was assigned to the position with the in-school suspension program. Sucic continued to be assigned to the industrial production and maintenance program. Bennett remained as the half-time auto body instructor. Since there were no instructors on the suspension or demotion list certified to fill the carpentry position, Mahan (the substitute instructor for 1990-91) was hired as the full-time carpentry instructor.

In the fall of 1991, Bennett requested a hearing before the Joint Operating Committee. Bennett asserted that, under the provisions of the Public School Code, he was entitled to be transferred from his half-time position to the newly created full-time position in the school's suspension program because he had more seniority than Stearly. *fn1 After a hearing, the Joint Operating Committee determined that the school had not violated the Public School Code by failing to appoint Bennett to the new position and denied his request to be returned to full-time employment.

Bennett sought review of the Joint Operating Committee's adjudication in the Montgomery County Court of Common Pleas pursuant to the Local Agency Law, 2 Pa.C.S. § 751. The common pleas court dismissed Bennett's petition for review. On appeal, the Commonwealth Court reversed, finding that the common pleas court had erred in holding that Section 1125.1(d)(2) of the Public School Code did not apply to the newly created in-school suspension position. The matter was remanded to the Joint Operating Committee for reinstatement of Bennett and for the payment of back pay. We granted the school's petition for allowance of appeal to address this issue.

In reviewing the matter on appeal, we must affirm the decision of the local agency unless it is determined that constitutional rights were violated, that an error of law was committed, that the procedure before the agency was contrary to statute or that necessary findings of fact were unsupported by substantial evidence. Public Advocate v. Philadelphia Gas Commission, 544 Pa. 129, 674 A.2d 1056 (1996); 2 Pa.C.S. § 754(b).

Section 1125.1 of the Public School Code, 24 P.S. § 11-1125.1, establishes the procedure that a school entity must follow when suspending or reinstating professional employees. *fn2 Professional employees must be suspended in inverse order of seniority within the school entity of current employment. 24 P.S. § 11-1125.1(a). Section 1125.1(d)(2) provides that

suspended professional employes or professional employes demoted for the reasons set forth in section 1124 shall be reinstated on the basis of their seniority within the school entity. No new appointment shall be made while there is such a suspended or demoted professional employe available who is properly certificated to fill such vacancy. For the purpose of this subsection, positions from which ...

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