Com., Dept. of Ed. v. Jersey Shore Area School Dist.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore EAGEN; ROBERTS; POMEROY; MANDERINO
Citation481 Pa. 356,392 A.2d 1331
Decision Date05 October 1978
PartiesCOMMONWEALTH, DEPARTMENT OF EDUCATION, and Carroll Bittner, Appellants, v. JERSEY SHORE AREA SCHOOL DISTRICT (two cases).

Page 1331

392 A.2d 1331
481 Pa. 356
COMMONWEALTH, DEPARTMENT OF EDUCATION, and Carroll Bittner, Appellants,
v.
JERSEY SHORE AREA SCHOOL DISTRICT (two cases).
Supreme Court of Pennsylvania.
Argued April 10, 1978.
Decided Oct. 5, 1978.

Page 1332

[481 Pa. 357] Spencer, Gleason & Hebe, William A. Hebe, Wellsboro, for appellant at no. 118.

Edward A. Miller, Asst. Atty. Gen., Donna S. Weldon, Harrisburg, for appellant at No. 119.

Clyde E. Carpenter, Jr., Jersey Shore, Charles J. McKelvey, Williamsport, for appellee at Nos. 118 & 119.

Cleckner & Fearen, Michael I. Levin, William Fearen, Harrisburg, for amicus curiae, Penna. School Boards Assn. at Nos. 118 & 119.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, and LARSEN, JJ.

[481 Pa. 358] OPINION OF THE COURT

ROBERTS, Justice.

Appellant, Department of Education, properly concluded that, at the time appellee Jersey Shore Area School District summarily terminated appellant Carroll Bittner's employment, Bittner was a "professional employe having attained the status of permanent tenure" within the meaning of Section 1127 of the Public School Code of 1949. 1 Because Bittner had attained "professional employe" status, appellee's summary termination was unlawful and therefore the Department properly ordered her reinstatement. 2 The Commonwealth Court concluded that Bittner was not a "professional employe" and reversed the Department's order. We now reverse the order of the Commonwealth Court and reinstate the order of the Department of Education. 3

Carroll Bittner began her teaching career in September, 1971. Certified by the Department of Education as an [481 Pa. 359] elementary education and early childhood education instructor, she taught reading full-time, seven hours a day and five days per week through the 1971-1972 school year, to elementary students in appellee's federally funded, special remedial reading program. 4

Appellee treated Bittner and others in the federally funded reading program differently from other new teachers hired the same year. Appellee did not issue Bittner or others teaching in the program a written contract, but issued other new teachers "temporary professional employe" contracts. 5 School Board minutes acknowledge other new teachers' employment, while they do not reflect employment of Bittner and others teaching in the program. Appellee paid Bittner on a daily basis, $35 per day, while it paid other new teachers an annual salary.

Page 1333

In May, 1972, the Department of Education informed all school districts within the Commonwealth that persons such as Bittner were to be accorded the same professional rights as other employees performing similar services. 6 Thereafter,[481 Pa. 360] in the 1972-1973 school year, appellee assigned Bittner to a four and one-half hour work day and paid her at a rate of $5 per hour. In the 1972-1973 school year, as in the previous one, appellee did not tender Bittner a written contract, and the board's minutes again did not reflect her employment.

In September, 1973, at the start of the 1973-1974 school year, Bittner appeared for work, but appellee's reading supervisor informed her that she no longer had a teaching position. Appellee denied Bittner's request for a hearing, and Bittner appealed to the Department of Education. 7 Following a hearing, the Department concluded that Bittner's two years of service as a certified reading teacher, during which she "served on a better than half-time basis . . . (and) was never rated unsatisfactory," entitled her to "professional employee" status. It therefore directed Bittner's reinstatement. In reversing, 8 the Commonwealth [481 Pa. 361] Court concluded: "(O)ne cannot acquire professional status as a school teacher in the Commonwealth of Pennsylvania without having first obtained a written contract to teach, which written contract (must be)

Page 1334

approved by a majority of the School Board." Department of Education v. Jersey Shore Area School District, 23 Pa.Cmwlth. 624, 625, 353 A.2d 91, 92 (1976). We granted Bittner's and the Department's petitions for allowance of appeal.

Section 1127 of the Public School Code of 1949 accords "any professional employe having attained the status of permanent tenure" several procedural rights before dismissal by a school board. 9 Bittner contends she attained tenured status by serving two years in the Jersey Shore Area School District as a "temporary professional employe" without receiving an unsatisfactory rating from appellee's district superintendent.

[481 Pa. 362] Under the Public School Code, "temporary professional employes" are one of three classes of individuals "(t)he board of school directors in every school district shall employ . . . to keep the public schools open in their respective district in compliance with (the Code)." 10 Section 1101(3) of the Code defines a "temporary professional employe:"

"The term 'temporary professional employe' shall mean any individual who has been employed to perform, for a limited time, the duties of a newly created position or of a regular professional employe whose services have been terminated by death, resignation, suspension or removal."

Bittner, duly certified to teach as required by the Public School Code, 11 taught students reading in a program of instruction which complemented appellee's existing curriculum. Bittner's understanding of her employment relationship, uncontradicted by appellee, was that she was to teach in the reading program "until an opening in the system, a regular classroom job occurred." 12 Thus, the record supports Bittner's assertion that she "was employed to perform, for a limited time, the duties of a newly created position" and, accordingly, began her teaching career at Jersey Shore as a "temporary professional employe." 13

Two provisions of the Public School Code establish the manner in which a "temporary professional employe," such [481 Pa. 363] as Bittner, attains tenured status. Section 1108(a) directs the district superintendent of schools "to notify each temporary professional employe, at least twice each year during the period of his or her employment, of the professional quality, professional progress, and rating of his or her services." 14 Section

Page 1335

1108(a) also prohibits a school district from dismissing a temporary professional employee "unless (he or she is) rated unsatisfactory, and notification, in writing, of such unsatisfactory rating shall have been furnished the employe within ten (10) days following the date of such rating." Section 1108(b) provides:

"A temporary professional employe whose work has been certified by the district superintendent to the secretary of the school district, during the last four (4) months of the second year of such service, as being satisfactory shall thereafter be a 'professional employe' within the meaning of this article. ( 15 ) The attainment of this status shall be recorded in the records of the board and written notification thereof shall be sent also to the employe. The employe shall then be tendered forthwith a regular contract of employment as provided for professional employes. [481 Pa. 364] No professional employe who has attained tenure status in any school district of this Commonwealth shall thereafter be required to serve as a temporary professional employe before being tendered such a contract when employed by any other part of the public school system of the Commonwealth."

Appellee's superintendent never certified Bittner in the manner set forth in Section 1108(b), nor did the superintendent rate her "unsatisfactory." The Department of Education concluded, however, and appellants now argue, that based upon Elias v. Board of School Directors, 421 Pa. 260, 218 A.2d 738 (1966), Bittner is entitled to "professional employe" status.

In Elias, two registered nurses brought actions in mandamus, requesting the trial court to direct their employers, a school district and school board, to reinstate them to their previous positions as school nurses, issue them "professional employe" contracts, and pay them lost earnings. The school board had terminated the nurses' employment after three years of service. At no time during the last four months of the nurses' first two years of employment, or thereafter, did the school district's superintendent certify the nurses' rating under Section 1108(b) of the Code. Nor did the superintendent rate either "unsatisfactory." The trial court dismissed the complaints, but this Court reversed. We concluded that the trial court

"ignored the provision of § 1108 prohibiting the dismissal of a temporary employe unless rated unsatisfactory. Neither plaintiff was ever rated unsatisfactory by the superintendent. In fact, the record reveals that the only rating received by either plaintiff was an excellent rating of 97.6 in the case of plaintiff Elias. Under the circumstances, we must conclude that the absence of ratings indicates satisfactory performance and that each plaintiff is entitled to a professional employe's...

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13 practice notes
  • Com. v. Colon
    • United States
    • Pennsylvania Superior Court
    • July 29, 1983
    ...efforts to locate him did not measure up to a court's standard of due diligence. Such a result is obviously absurd. Id. at 355-56, 392 A.2d at 1331. Appellant's obligation to appear for trial on July 12 did not change when he was incarcerated. In Commonwealth v. Williams, 299 Pa.Super. 226,......
  • Com. v. Bundridge
    • United States
    • Superior Court of Pennsylvania
    • February 4, 1980
    ...the requirement of a showing of its efforts to apprehend the defendant during the period of his absence." (emphasis added). Id., 481 Pa. at 356, 392 A.2d at 1331. Because the record did not establish whether the defendants in Cohen "had been properly served notice" to appear,......
  • Commonwealth v. Barbour, No. 13 WAP 2017
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 18, 2018
    ..., in which this Court held that a defendant's failure to appear "at a court proceeding" results in excludable time, Cohen , 392 A.2d at 1331, this Court held that Steltz's failure to appear for his timely trial resulted in waiver of his Rule 600 claim. Our reasoning, in its entire......
  • Com. v. Snyder
    • United States
    • Superior Court of Pennsylvania
    • June 10, 1988
    ...] without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence. Id. at 355-356, 392 A.2d at 1331. This general rule, as established in Cohen, has been followed or cited in numerous cases. See, e.g., Commonwealth[373 Pa.Super. 589] v. Morgan......
  • Request a trial to view additional results
13 cases
  • Com. v. Colon
    • United States
    • Pennsylvania Superior Court
    • July 29, 1983
    ...efforts to locate him did not measure up to a court's standard of due diligence. Such a result is obviously absurd. Id. at 355-56, 392 A.2d at 1331. Appellant's obligation to appear for trial on July 12 did not change when he was incarcerated. In Commonwealth v. Williams, 299 Pa.Super. 226,......
  • Com. v. Bundridge
    • United States
    • Superior Court of Pennsylvania
    • February 4, 1980
    ...the requirement of a showing of its efforts to apprehend the defendant during the period of his absence." (emphasis added). Id., 481 Pa. at 356, 392 A.2d at 1331. Because the record did not establish whether the defendants in Cohen "had been properly served notice" to appear,......
  • Commonwealth v. Barbour, No. 13 WAP 2017
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 18, 2018
    ..., in which this Court held that a defendant's failure to appear "at a court proceeding" results in excludable time, Cohen , 392 A.2d at 1331, this Court held that Steltz's failure to appear for his timely trial resulted in waiver of his Rule 600 claim. Our reasoning, in its entire......
  • Com. v. Snyder
    • United States
    • Superior Court of Pennsylvania
    • June 10, 1988
    ...] without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence. Id. at 355-356, 392 A.2d at 1331. This general rule, as established in Cohen, has been followed or cited in numerous cases. See, e.g., Commonwealth[373 Pa.Super. 589] v. Morgan......
  • Request a trial to view additional results

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