Smith v. School Dist. of Darby Tp.

• Decision Date: 25 March 1957
• Citation: 388 Pa. 301,130 A.2d 661
• Parties: C. Milbourne SMITH v. SCHOOL DISTRICT OF the TOWNSHIP OF DARBY.
• Court: Pennsylvania Supreme Court

Page 661

130 A.2d 661

388 Pa. 301

C. Milbourne SMITH v. SCHOOL DISTRICT OF the TOWNSHIP OF DARBY.

Supreme Court of Pennsylvania.

March 25, 1957.

Edward D. McLaughlin, Donald W. Lehrkinder, Chester, for appellant.

Howard M. Lutz, Edward H. Bryant, Jr., Lutz, Fronefield, Warner & Bryant, Media, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.

BENJAMIN R. JONES, Justice.

Appellant was for many years the Supervising Principal of Darby Township School District with an annual salary of $4,775. The Darby Township School District, a 4th class school district, on July 6, 1954 became a 3rd class school district. ¹ On July 13, 1954 the school board abolished the position of Supervising Pricipal, created the office of Associate Superintendent, ² elected someone other than appellant to that office, and assigned appellant to the position of Principal of the Junior High School at the same salary but without the annual increment.

Appellant, contending that the board's action constituted an unlawful demotion both in type of position and in salary (the latter because of the loss of the annual increment), requested a hearing before the school board. From the board's failure ³ to grant a hearing he appealed to the Superintendent of Public Instruction. After oral argument, the Superintendent, in a written opinion, concluded that he lacked jurisdiction to hear the appeal. An appeal was then taken to the Common Pleas Court of Delaware County and that court made absolute a rule to show cause why the appeal should not be dismissed. From that order this appeal ensued.

On this appeal three questions arise: (1) did the school board's action of July 13, 1954 abolishing the position of Supervising Principal and assigning appellant--then Supervising Principal--to the position of Junior High School Principal constitute a demotion in type of position or in salary, or both; (2) if the board's action constituted a demotion either in type of position or in salary, or both, was such demotion in violation of Article XI, § 1151 of the Public School Code of 1949; ⁴ (3) has the appellant pursued the appropriate remedy to enforce his rights?

A demotion of a professional employee is a removal from one position and an appointment to a lower position; it is a reduction in type of position as compared with other professional employees having the same status. Simmler v. City of Philadelphia, 329 Pa. 197, 202, 198 A. 1; Smith v. Philadelphia School District, 334 Pa. 197, 205, 5 A.2d 535; Wesenberg Case, 346 Pa. 483, 441, 444, 31 A.2d 151; Pittsburgh School District Appeal, 356 Pa. 282, 286, 287, 52 A.2d 17; 78 C.J.S., Schools and School Districts, § 205, p. 1100.

As Supervising Principal the appellant supervised all the schools in the district; in his new position, he supervises only one school in the district. Different qualifications are required of a Supervising Principal than are required of a Principal of a Junior High School. While one qualified to be a Supervising Principal is qualified to perform the duties of a Principal of a Junior High School, yet if the situation be reversed, the lack of qualifications of the latter to perform the duties of the former instantly appears and compels the conclusion that appellant's assignment did effect a demotion in type of position. The positions of Principal and Supervising Principal are dissimilar and are not of the same or a comparable class. While in this case the salary of the Supervising Principal and that of Principal of the Junior High School happens to be the same (with the exception of the annual increment), a demotion in type of position means something more than a reduction in salary. To demote is to reduce to a lower rank or class and there may be a demotion in type of position even though the salary remains the same.

Various statutory provisions recognize a distinction between a Supervising Principal and a Principal (even in the tenure provisions) and place them in separate categories as to salary, increments, qualifications and duties. The school board by its assignment has changed appellant's classification and placed him in a subordinate class. As Supervising Principal the appellant was second in command of the affairs of the district, whereas now, as Principal, he is at most third in command.

On previous occasions our courts have considered the problem of a demotion either in type of position or salary. In Dugan v. Dupont Borough School District, 359 Pa. 590, 595, 59 A.2d 888, a Supervising Principal assigned as Principal of an elementary school was held to have been demoted. In Commonwealth ex rel. Ricapito v. Bethlehem School District, 148 Pa.Super. 426, 433, 434, 25 A.2d 786, Ricapito, a music teacher, was appointed 'Assistant Principal' of a high school with the title of 'Dean' and the following year the board abolished this ofice and assigned Ricapito as a music teacher; the Superior Court held that Ricapito had not been demoted In Houtz' Appeal, 361 Pa. 537, 65 A.2d 420, 422, a Supervising Principal resigned and Houtz--ineligible to be appointed Supervising Principal--was assigned as 'Principal of Schools' under a contract to 'teach' under 'supervision and authority * * * of supervising principal'; later the board stated its intent to appoint a Supervising Principal and abolish the offce of 'principal of schools'. After a prior appeal to this court, 357 Pa. 621, 55 A.2d 375, Houtz was assigned to duty as Principal of elementary schools. The court held that Houtz had not been demoted. In Ritzie's Appeal, 372 Pa. 588, 94 A.2d 729, the court held that the assignment of Ritzie from the newly created position of Principal of elementary schools to the position of a teacher was not a demotion. ⁵

The tenure provisions of the School Code do not infringe upon the general power of a school board to assign professional employees to particular classes or particular schools or positions in accordance with its judgment and discretion reasonably exercised. A professional employee, under the tenure provisions of the Code, does not acquire a vested right to teach in any certain class or in any certain school. Commonwealth ex rel. Wesenberg v. Bethlehem School District, 148 Pa.Super. 250, 256, 24 A.2d 673. The only limiation on a school board's general power is that the work to which a professional employee is assigned be of a rank or class equivalent to that by which his permanent siatus was acquired and one for which he is qualified.

The board's assignment of appellant to act as Principal of the Junior High School was not to a rank or class equivalent to that by which his permanent status was acquired, and therefore, he has been demoted in type of position. Cf. Streibert v. York School District Directors, 339 Pa. 119, 14 A.2d 303; Houtz v. Coraopolis Borough School District, 357 Pa. 621, 624, 625, 55 A.2d 375.

Appellant also contends that, even though in his new position he is paid the same basic salary he received as Supervising Principal, yet, because of the change in position from Supervising Principal to Junior High School Principal, he suffered a loss of an annual increment of $250 and this loss constituted a demotion in salary. By statute, Act of December 27, 1951, P.L. 1776, § 3, 24 P.S. § 11-1142, certain minimum service increments are provided and an examination of this statute indicates that the legislature has provided--applicable at that time--an annual service increment of $200 for a Principal and of $250 for a Supervising Principal.

While it is true that a 'salary' and 'increment' for some purposes are separare and may be probably considered distinct, Bishop v. Bacon, 130 Pa.Super. 240, 196 A. 918, yet as Judge Reno pointed out in Melvin's Appeal, 159 Pa.Super. 328, 337, 48 A.2d 108, (reversed on other grounds in Pittsburgh School District Appeal, supra) since the number and amount of increments are fixed by statute, it can be argued that they automatically enure to the teacher without a new contract or any further action of the school board. In Weber v. Board of Education of City of Trenton, 127 N.J.L. 279, 21 A.2d 808, 812, the New Jersey Court of Errors and Appeals stated: 'The annual increments were integral parts of the salaries, effective when the designated year of service had been attained, that having been the contract with the teachers. It is a statutory requirement that there be a salary schedule, or in its absence, a specific contract with the teacher. The annual increment in a salary schedule is not a prospective increase, subject each time to control of the local authorities before it becomes absolute. It is intrinsically part of the salary, vesting contractually and becoming operative in the various stages of time spaced by the schedule.' Cf. Greenway v. Board of Education of City of Camden, 129 N.J.L. 461, 29 A.2d 890. Had appellant remained as Supervising Principal he would have been entitled, under the legislative fiat, to an increment of $250 annually up to the maximum number allowable; loss of his position carried with it a loss of that increment and to that extent his salary has been reduced. When appellant was demoted in type of position and such demotion carried with it a loss of the annual increment there was a demotion in appellant's salary.

Appellant having been demoted both in type of position and salary, is such demotion in violation of the statute? Article XI, § 1151 of the Public School Code of 1949, supra, provides, inter alia, as follows: '* * * but there shall be no demotion of any professional employe either in salary or in type of position without the consent of the employe, or, if such consent is not received, then such demotion shall be subject to the right to a hearing before the board of school directors and an appeal in the same manner as hereinbefore provided in the case of the dismissal of a professional employe.'

This provision of the School Code...