Coleman v. Board of Ed. of School Dist. of Philadelphia

• Decision Date: 21 May 1976
• Citation: 350 A.2d 904,23 Pa.Cmwlth. 69
• Parties: Mary F. COLEMAN v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF PHILADELPHIA, Appellant.
• Court: Pennsylvania Commonwealth Court

Page 904

350 A.2d 904

23 Pa.Cmwlth. 69

Mary F. COLEMAN v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF PHILADELPHIA, Appellant.

Commonwealth Court of Pennsylvania.

Argued Oct. 9, 1975.

Decided Jan. 23, 1976.

Petition for Allowance of Appeal Dianted May 21, 1976.

[23 Pa.Cmwlth. 71] Vincent J. Salandria, Philadelphia, for appellant.

Harry P. Begier, Jr., John M. McNally, Jr., Philadelphia (Intervenor), for appellee.

Before CRUMLISH, Jr., KRAMER and WILKINSON, JJ.

OPINION

CRUMLISH, Jr., Judge.

Mary F. Coleman brought an action in mandamus against the Appellant, Board of Education of the School District of Philadelphia (School Board), seeking to compel it to reinstate her to the position from which she had been discharged or in the alternative to transfer her to another position, with back pay. The parties filed cross-motions for summary judgment. The Court of Common Pleas of Philadelphia County ¹ denied School Board's motion for summary judgment and granted Coleman's motion for summary judgment. School Board appeals those orders. The Board of Revision of Taxes of the City of Philadelphia (Board of Revision), although not a party to the action in the court below, has intervened in this appeal.

In 1960, School Board assigned Coleman to work at the Board of Revision ² as a file clerk in the assessment and collection of taxes for School Board. ³ On June 26, 1974, she was notified by her supervisor at Board of Revision that her assignment was terminated effective June 28, 1974. The following facts, which are accepted as true, ⁴ characterized the relationship between Coleman and School Board:

a) Coleman was assigned an employee number by School Board;

b) Coleman was issued a School Board employee identification card bearing her employee number and identifying her as a 'clerk';

c) Coleman is a member of the School Employees' Retirement Association;

d) Coleman's salary is paid by School Board;

e) Coleman is a member of the School Board Credit Union;

f) Provision is made in School Board's budget allocations for municipal services, including Board of Revision Services, performed by school district employees.

In her Complaint, Coleman contends that she was an employee of School Board and that her termination was unlawful under the provisions of the Education Supplement to the Philadelphia Home Rule Charter (Home Rule Charter) and the Public School Code governing employees of School Board.

The sole question before this Court is whether, based on the uncontroverted facts, Coleman was an 'employee' of School District. We think that she was.

In mandamus actions, summary judgment under Pa.R.C.P. No. 1098 may not be granted where there exists a disputed question of fact which is material to the disposition of the case. Borough of Monroeville v. Effie's Ups and Downs, 12 Pa.Cmwlth. 279, 315 A.2d 342 (1974); Venneri v. County of Allegheny, 5 Pa.Cmwlth. 105, 289 A.2d 523 (1972). However, the facts set forth in Coleman's request for admissions as to facts and documents must be deemed uncontroverted for the purposes of this appeal since School Board failed to object to or deny them. ⁵

We turn now to the merits of this appeal.

Section 12--309(a) of the Home Rule Charter specifically authorizes School Board to enter into joint personnel agreements with other municipal and state agencies. The last sentence of that section reads:

'In any such agreements, the Board shall, insofar as possible, safeguard all rights of employment, status, and tenure of employees Who may be transferred into or out of School District service by virtue of the operation of such agreements.' (Emphasis added.)

Section 514 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, As amended, 24 P.S. § 5--514 (School Code) outlines the procedure by which employees of School Board may be terminated:

'The board of school directors in any school district, except as herein otherwise provided, shall After due notice, giving the reasons therefor, and after hearing is demanded, have the right at any time to remove any of its officers, employees, or appointees for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct.' (Emphasis added.)

If Coleman is an 'employee' of School Board, then she is entitled to the protections and procedural safeguards accorded to all School Board employees by virtue of the foregoing provisions of the Home Rule Charter and the School Code.

In Sweet v. Pennsylvania Labor Relations Board, 457 Pa. 456, 322 A.2d 362 (1974), the Supreme Court addressed itself to the question of whether an employer-employee relationship existed between certain court-related public employees of Washington County and the Common Pleas Court Judges for whom the employees worked. The Court held that:

'The relation of employer and employe exists when a party has the Right to select the employe, the Power to discharge him, and the Right to direct both the work to be done and the manner in which such work shall be done.' 457 Pa. at 462, 322 A.2d at 365. (Emphasis added.)

Sweet also applied the principle that employees can have more than one employer when it stated that:

'Our review of the present record convinces us that appellants are at least An employer of Some of the employes included in the bargaining unit comprised of court-related employes.' 457 Pa. at 462, 322 A.2d at 365. (Emphasis in original.)

The following are undisputed facts as to Coleman:

1) She was functioning as a clerk pursuant to an arrangement between School Board and Board of Revision whereby she performed work for School Board purposes, albeit at the Board of Revision;

2) She had a School Board employee number and identification card bearing the signature of the Superintendent of Schools (the chief administrative officer of School Board);

3) She was a participant in the School Employees' Retirement Association;

4) She was a member of School Board's credit union;

5) She was paid by School Board.

6) Her salary was provided for by School Board in its budgetary documents.

All of these facts clearly establish that Coleman was an employee of School Board. We therefore agree with the court below that School Board was bound by the mandate of Section 12--309(a) of the Home Rule Charter to protect the procedural safeguards guaranteed to Coleman, as an employee of School Board, by Section 514 of the School Code.

School Board contends that Coleman is their 'employee' only if it (School Board) exercise Actual control over her work. We disagree. Sweet clearly emphasizes that it is the Right to control rather than Actual control which is one of the indicia of the existence of an employer-employee relationship.

Intervenor cites Costigan v. Philadelphia Finance Department Employees Local 696 --- Pa. ---, 341 A.2d 456 (1975), for the proposition that School Board and Board of Revision are 'joint employers' of Coleman. Costigan held that both the Register of Wills and the City of Philadelphia were 'employers' of persons working in the office of the Register of Wills. Therefore, both employers were required to join in a collective bargaining agreement with the employees' bargaining agent as required by the Public Employee Relations Act. The Court said:

'Although common law principles relating to the existence of an employer-employee relationship are relevant to the determination of that question under the Public Employee Relations Act, these principles are not be applied without regard for the purposes and policies of that Act.' --- Pa. at ---, 341 A.2d at 459.

As in Costigan, we are mindful of the purposes and policies underlying the procedural safeguards contained in Section 514 of the School Code. They were enacted to benefit school employees by protecting them from summary dismissal and, therefore, should be liberally construed toward that end. Unlike Costigan, our situation in the instant appeal does not require a finding of 'joint-employ...