Opinion
Argued May 7, 1979
July 2, 1979.
Schools — Termination of nonprofessional employe — Interloctury order — Act of 1925, March 5, P.L. 23 — Jurisdictional questions — Public School Code of 1949, Act 1949, March 10, P.L. 30 — Hearing.
1. Under the Act of 1925, March 5, P.L. 23, an interloctutory order is appealable when it answers a jurisdictional question and remands the case for further proceedings. [644-5]
2. An employe who participates in no teaching or other direct educational activities and whose employment is not in a category denominated professional in the Public School Code of 1949, Act 1949, March 10, P.L. 30, is a nonprofessional employe and is not entitled to a hearing under provisions of that statute when dismissed for reasons of economy. [645]
Judge MENCER concurred in the result only.
Argued May 7, 1979, before Judges CRUMLISH, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 1211 C.D. 1978, from the Order of the Court of Common Pleas of Allegheny County in case of Board of Public Education of the School District of Pittsburgh v. Sheldon Goldstein, No. SA 784 of 1977.
Nonprofessional employe terminated by school district. Employe appealed to the Court of Common Pleas of Allegheny County. School district filed motion for rule to show cause why appeal should not be dismissed. Employe filed motion for remand. Rule discharged. Case remanded to Board of Education of the School District of Pittsburgh. WATSON, J. School district appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Appeal of employe dismissed.
Persifor S. Oliver, Jr., Assistant Solicitor, with him David H. Dille, Assistant Solicitor, for appellant.
Raymond Radakovich, with him Alan Frank, for appellee.
Sheldon Goldstein was employed by the School District of Pittsburgh as its Coordinator of Transportation from 1971 until December 31, 1975 when his position was abolished and he was transferred to a teaching position. On September 29, 1977, Goldstein filed an appeal pursuant to the Local Agency Law in the Court of Common Pleas of Allegheny County. The School District filed a petition for rule to show cause why the appeal should not be dismissed as untimely and, as we read the petition, because the Board's action was not an adjudication appealable under the Local Agency Law. After hearings on the rule were closed, Goldstein filed a motion that the matter be remanded to the Board of Education for hearing and decision on the question of whether he was a professional employee. The court below discharged the rule and remanded the matter to the Board of Education for a determination of whether Goldstein was a professional employee as defined in Section 1101 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P. S. § 11-1101. The School District appeals from this order.
Act of December 2, 1968, P.L. 1133, 53 P. S. § 11301 et seq., repealed by Section 2(a) of the Judiciary Act Repealer Act (JARA), Act of April 28, 1978, P.L. 202, 42 Pa.C.S.A. § 2(a). Similar provisions are now found at 2 Pa. C. S. §§ 551-55.
We must first decide whether the order was appealable, an issue we have raised sua sponte. An appeal may be taken as of right from an interlocutory order only as provided by statute or general rule. Pa. R.A.P. 311 (a). Section 1 of the Act of March 5, 1925, P.L. 23, as amended, 12 Pa.C.S.A. § 672, provides, however, that determinations of questions of jurisdiction are appealable "as in cases of final judgments." No court has jurisdiction of a case untimely appealed. The order below was appealable because it answered a question of jurisdiction when it discharged the rule and remanded the case for further proceedings. City of Philadelphia v. Goldstein, 24 Pa. Commw. 434, 357 A.2d 260 (1976).
Although the Act of March 5, 1925, P.L. 23, was repealed by Section 2(a) of JARA, 42 Pa.C.S.A. § 2(a), the repeal is not effective until June 27, 1980.
On the merits, we are compelled to reverse the order below because the record conclusively shows that Goldstein was a nonprofessional employee whose employment was terminated for economy reasons and, therefore, was not entitled to a hearing. The position of Coordinator of Transportation is not one of the categories of position enumerated in Section 1101 of the Public School Code of 1949, 24 P. S. § 11-1101 as conferring the status of professional employee. Further, he testified at the hearing in the court below that he participated in no teaching or other direct educational activities. Fiorenza v. Board of School Directors of Chichester School District, 28 Pa. Commw. 134, 367 A.2d 808 (1977).
In Sergi v. School District of Pittsburgh, 28 Pa. Commw. 576, 368 A.2d 1359 (1977), we held that a school board's action terminating the employment of a nonprofessional employee for reasons of economy was not an adjudication requiring the board to conduct a hearing.
We therefore reverse the order below and dismiss the appellee's appeal in the court below.
Judge MENCER concurs in the result only.
ORDER
AND NOW, this 2nd day of July, 1979, the Order of the Court of Common Pleas of Allegheny County, discharging the School District's rule to dismiss the appellee's appeal and remanding the matter to the School Board for a determination of whether Mr. Goldstein was a professional employee is reversed; and the appeal of Sheldon Goldstein filed in the Court of Common Pleas of Allegheny County on September 29, 1977 be and it is hereby dismissed.