Opinion
Argued April 5, 1979
October 1, 1979.
Schools — Suspension of professional employes — Grounds for suspension — Public School Code of 1949, Act 1949, March 10, P.L. 30 — Reorganization — Unsatisfactory rating — Back pay — Set-off for other earnings.
1. Provisions of the Public School Code of 1949, Act 1949, March 10, P.L. 30, establish the sole reasons for suspending a professional employe, and such an employe cannot be suspended simply because an internal reorganization of assignments is thought warranted when no basis under the statute exists for such suspension. [299]
2. A temporary professional employe of a school district cannot be suspended unless an unsatisfactory rating is received or unless a basis exists for the suspension of a professional employe under the Public School Code of 1949, Act 1949, March 10, P.L. 30. [300]
3. When reinstatement of a suspended professional employe of a school district is ordered with back pay, the school district is entitled to set-off against such payment an amount equal to earnings received by the employe from other sources while suspended. [300]
Argued April 5, 1979, before Judges BLATT, DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 210 C.D. 1978, from the Court of Common Pleas of Luzerne County in case of Marilyn Cigarski, Thomas Brown, Stephen Placko and William Peters v. Lake Lehman School District, No. 7674 of 1977.
Professional employes suspended by school district. Employes appealed to the Board of School Directors of Lake Lehman School District. Suspensions affirmed. Employes appealed to the Court of Common Pleas of Luzerne County. Appeal dismissed. PODCASY, J. Employes appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Peter J. O'Brien, with him O'Brien and Miller, for appellants.
Charles D. Lemmond, Jr., for appellee.
William Fearen, Michael I. Levin and Cleckner Fearen, for amicus curiae, Pennsylvania School Boards Association.
On June 30, 1977, the Lake Lehman School District (District) suspended temporary professional employees Marilyn Cigarski and Thomas Brown and professional employees Stephen Placko and William Peters (collectively, Appellants) from their teaching positions with the District pursuant to a resolution adopted by the Board of School Directors (Board) of the District.
Here, as in Phillipi v. School District of Springfield Township, 28 Pa. Commw. 185, 367 A.2d 1133 (1977), the Board has, by suspending rather than terminating the non-tenured Appellants, extended them rights to which they are not entitled under the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P. S. § 1-101 et seq.
The Board purported to adopt this resolution pursuant to Section 1124 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P. S. § 11-1124, "in accordance with the reasons specifically given, but not limited to, in sub-sections 1, 2 and 3 and economic trends." The Board affirmed its suspension of the appellants after a hearing, stating as a reason for its adjudication that "one of the reasons for suspension enumerated in Section 1124 does, in fact, exist," without specifying which of those reasons applied.
The Appellants appealed to the Court of Common Pleas of Luzerne County, which was obliged to affirm the Board's adjudication unless a necessary finding of fact was not supported by substantial evidence or the adjudication was not in accordance with the law. 2 Pa. C.S. § 754(b). The trial court held that the Board's finding that one of the reasons listed in Section 1124 existed was not supported by substantial evidence. Nevertheless, that court held "we do not believe that Section 1124 was intended by the Legislature to provide the only reasons for suspension of tenured teachers." The trial court further found that the Board "made a discretionary determination on an internal management policy." Thereupon, the trial court dismissed the appeal because it found that a reorganization of the District entailing a reduction in personnel was warranted.
We agree with the trial court that no Section 1124 reason was established by the District. We must reverse that court, however, because, according to decided cases, our Legislature has mandated that Section 1124 provides the sole reasons for suspending a professional employee. Theros v. Warwick Board of School Directors, 42 Pa. Commw. 296, 401 A.2d 575 (1979), and cases cited therein.
With respect to the non-tenured Appellants, Section 1108(a) of the Code, 24 P. S. § 11-1108(a), provides that no temporary professional employee shall be dismissed unless rated unsatisfactory. Neither of the two non-tenured Appellants have been given that rating. Although Section 1124 does not apply to temporary professional employees, we have held that the reasons contained in Section 1124 by analogy are also sound reasons for the non-renewal of a temporary professional employee's contract. Phillippi v. School District of Springfield Township, 28 Pa. Commw. 185, 367 A.2d 1133 (1977). Since, as we have already held, none of the Section 1124 reasons applies to this case and neither of the non-tenured employees has been rated unsatisfactory, their suspension must also be reversed.
The Appellants request "reinstatement without loss of pay." While they are entitled to that remedy, the District is also entitled to set off the earnings which the Appellants may have received from other sources during their suspension against the compensation they would have received from the District had the District not suspended them unlawfully. Eastern York School District v. Long, 46 Pa. Commw. 209, 407 A.2d 69 (1979).
ORDER
AND NOW, this 1st day of October, 1979, the order of the Luzerne County Court of Common Pleas dated January 13, 1978, dismissing the appeals of Marilyn Cigarski, Thomas Brown, Stephen Placko and William Peters is reversed and the case is remanded for entry of an order directing the reinstatement of those employees by the Lake Lehman School District with payment of an amount of money equal to the compensation they would have been paid during the period of suspension less their earnings from other sources during that period.