Opinion
No. 1149 C.D. 2012
08-23-2013
Nathan E. Myers, Appellant v. Board of Directors of West Branch Area School District
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Nathan E. Myers (Myers) appeals the order of the Court of Common Pleas of Clearfield County (common pleas court) that granted the motion for summary judgment of the Board of Directors of West Branch Area School District (District) and dismissed Myers's complaint in mandamus.
Myers is certified by the Pennsylvania Department of Education as a secondary education science teacher with a background in chemistry. In October 2005, he was hired by Intermediate Unit #10 (IU) to teach science in the IU's alternative education program. Eight different Clearfield County School Districts sent students to IU's alternative education program. The average enrollment in the IU's alternative education program was 44.20 students for the 2007-2008 school year, 38.30 for the 2008-2009 school year, 30.78 for the 2009-2010 school year, 30.50 for the 2010-2011 school year, and was projected to average twenty-two students for the 2011-2012 school year. Initial enrollment for the 2011-2012 school year was projected at seventeen students after the District and the Philipsburg-Osceola School District no longer supplied students to the IU's alternative education programs. IU's alternative education program was indefinitely suspended beginning November 17, 2011, due to enrollment decline.
The IU furloughed Myers by action of its board taken April 28, 2011, effective June 30, 2011. An eighth grade science teacher position in the District became available for the 2011-2012 school year. Myers applied for the job. He was interviewed on July 20, 2011. By letter dated August 11, 2011, Myers informed the Superintendent of the District, Michael Panek (Panek), that he believed he was entitled to the position as a result of his furlough from IU pursuant to Section 1113 of the Public School Code of 1949, 24 P.S. §11-1113. By letter dated August 16, 2011, the District notified Myers that the position had been filled by another individual.
Act of March 10, 1949, P.L. 30, as amended. This section was added by the Act of February 4, 1982, P.L. 1. This section of the Code is often referred to as the Transfer Between Entities Act (Act).
On October 5, 2011, Myers commenced a civil complaint in mandamus in the common pleas court. Myers alleged:
6. Effective for the 2011-2012 school year, Defendant [District] decided to 'take back' its alternative education program so that it would be conducted by the Defendant School District rather than by Intermediate Unit #10 [IU].
7. As a result of Defendant's [District] taking back its alternative education program, Plaintiff [Myers] was suspended from his employment by the Intermediate Unit [IU] . . . .
8. The Defendant School District did not require Plaintiff's [Myers] services to teach the alternative education program which it took back from the Intermediate Unit [IU].Complaint, October 5, 2011, Paragraph Nos. 6-8, and 13-14 at 2-3; Reproduced Record (R.R) at 5a-6a. Myers sought an order directing the District to immediately employ him in the science teacher position for which he interviewed.
. . . .
13. Plaintiff [Myers] is a member of the pool as a result of his suspension from the Intermediate Unit (IU), is properly certified and is willing to accept employment with the Defendant School District in the vacant science position for which he is properly certified.
14. Defendant [District], despite being advised of Plaintiff's [Myers] legal position, has wholly failed and refused to employ Plaintiff [Myers] in its vacant science position in violation of the aforesaid Act.
The District preliminarily objected on the basis that Andrew Chimenti, the teacher hired for the vacant position, had due process rights to his position and must be joined as an indispensable party. The common pleas court overruled the preliminary objection.
The District answered and denied the allegations. In New Matter, the District asserted that the complaint failed to state a cause of action and that mandamus was not available because the District's duty to fill the position was discretionary and it had a duty to hire the most qualified candidate. The District also asserted that it did not recreate Myers's position because it did not operate an alternative education program as an independent contractor operated the District's alternative education program. The District asserted that Myers's furlough from IU had nothing to do with the District leaving the alternative education program of the IU. In his reply, Myers denied the allegations.
On April 18, 2012, the District moved for summary judgment. The District asserted:
7. Throughout his tenure at CIU [IU], Mr. Myers taught students from seven different school districts: Curwensville Area School District, Glendale School District, Harmony Area School District, Moshannon Valley School District, Philipsburg Osceola School District, Purchase Line School District, and finally, West Branch Area School District. . . .
8. For many years, these districts collectively sent more than fifty students on a near-continual basis to CIU's [IU] Alternative Education Program. . . .
9. Jack Hugh Dwyer is the Director of Central Intermediate Unit Number 10. . . .
10. According to Dr. Dwyer, enrollment in CIU's [IU] Alternative Education program experienced significant declines beginning in the 2007-2008 school year and lasting through the 2011-2012 school year. . . .
11. In addition to enrollment decreases, the program produced sizeable financial deficits for CIU [IU] during the same period of time. . . .
. . . .
13. Due to the ongoing decline in enrollment and corresponding financial difficulties, CIU [IU] furloughed Mr. Myers on April 28, 2011. . . .
14. Notwithstanding the furlough of Mr. Myers, the Alternative Education program continued. . . .
15. Michael Panek is the Superintendent of Schools for West Branch [District]. . . .
16. Mr. Panek was the only person involved in discovery who had knowledge of the communications between CIU [IU] and West Branch [District] leading up to the transfer
of West Branch's [District] Alternative Education students from CIU [IU] to another party.
17. According to Mr. Panek, CIU's [IU] business manager contacted officials at West Branch [District] no later than February 2011 to warn West Branch [District] that the Alternative Education program may not be sustained through the 2011-2012 school year. . . .
18. At that time, West Branch Alternative Education students attended not only the program at CIU [IU], but also other Alternative Education programs at other institutions. . . .
19. Having received the warning from CIU [IU], West Branch [District] began considering other options for the Alternative Education program. . . .
20. West Branch [District] ultimately decided to use a third party contractor to perform Alternative Education students [sic]. . . .
21. The Alternative Education program nonetheless continued into the 2011-2012 school year without West Branch students. . . . (Emphasis in original).
. . . .
40. The Act applies only '[w]hen a program or class is transferred as a unit from one or more school entities to another school entity or entities.'. . .
. . . .
43. Until such a transfer has occurred, no teacher qualifies under the Act, and no pool of employees is formed.
. . . .
47. First, Mr. Myers was suspended because of declining enrollment, not to mention substantial financial deficits, of CIU's Alternative Education program. . . .
48. Second, the substantial enrollment declines and the financial deficits facing the program going into school year were the direct cause of Mr. Myers's suspension. . . .
49. Finally, as also was the case in Hahn [v. Marple Newtown School District, 571 A.2d 1115 (Pa. Cmwlth. 1990)], West Bank's curriculum was no different before Mr. Myers's suspension than after the suspension. . . .
. . . .
50. As again set forth at the outset of the Act, teachers are only afforded the Act's protections '[w]hen a program or class is transferred as a unit. . . .' (Emphasis added by the District).
51. Until such a transfer has occurred, no teacher qualifies under the Act, and no pool of employees is formed.
52. Here, however, there was no West Branch [District] 'program' or 'class' at CIU [IU]; rather, West Branch [District] students at different and variable times attended Alternative Education classes with their peers from other school districts. . . .
53. Indeed, there were students from upwards of six other school districts in the same classes, all of whom were taught the same curriculum, all of whom were taught by Mr. Myers. . . .
54. Moreover, West Branch [District] Alternative Education students did not exclusively attend CIU [IU]. . . .
55. Thus, while West Branch [District] sent all of its Alternative Education students to a new provider for the 2011-2012 school year, not all of these students had attended CIU [IU].
. . . .
58. The Act's purpose is 'to protect professional employees whose positions were eliminated in one school entity and recreated in another.' . . .
59. In furtherance of this policy, the Act places the burden of rehiring employees on the school entity absorbing the transferred program.
60. In the language of subsection (a), such employees 'shall be offered employment in the program by the receiving entity.' . . . (Emphasis added by the District).Motion for Summary Judgment, April 8, 2012, Paragraph Nos. 7-11, 13-21, 40, 43, 47-55, 58-64, and 66 at 2-3 and 6-9; R.R. at 22a-23a, and 26a-29a.
61. Subsection (b.1) was added at a later date, and simply states that suspended employees 'shall form a pool of employees within the school entity.' . . .
62. The implication then, is that the 'school entity' in subsection (b.1) is the 'receiving entity' noted in subsection (a).
63. Mr. Myers's arguments run afoul of the plain language of the Act.
64. For one, West Branch [District] is not the 'receiving entity' of CIU's [IU] Alternative Education program. . . .
. . . .
66. Subsection d(1) defines 'school entity' as 'an intermediate unit and its participating school districts or an area vocational-technical school and its sending school districts.' . . .
At the hearing, Myers submitted into evidence the deposition of Panek. Panek explained the District's alternative education policy. He testified that the IU was a provider but not the sole provider of alternative education for the District "[f]or the 2009/2010, the 2010 and into the 2011. . . ." Deposition of Michael Panek (Panek Deposition) at 4. In early 2011, Eric Johnston, the business manager of the IU, informed the District that the alternative education program would not continue at the IU due to financial considerations. Panek Deposition at 6. The District signed a contract with an outside entity to provide alternative education services. Panek Deposition at 7.
Myers also submitted his own deposition which was taken by the District. Myers submitted the deposition of J. Hugh Dwyer, Ed.D. (Dr. Dwyer), executive director of the IU. Dr. Dwyer testified that in the 2010-2011 school year the District sent "roughly eight, give or take one or two" students to the IU. Deposition of J. Hugh Dwyer, Ed.D. (Dr. Dwyer Deposition) at 6. Dr. Dwyer testified that if the District had remained in the program and contributed approximately eight students, the IU would have met its breakeven point in the 2011-2012 school year. Dr. Dwyer Deposition at 8. Dr. Dwyer testified that in 2009-2010 the IU alternative education program operated at a deficit of $90,337. In 2010-2011, the program operated at a deficit of $44,457. Dr. Dwyer Deposition at 15.
Following oral argument, the common pleas court, by order dated May 30, 2012, granted the motion for summary judgment and dismissed Myers's complaint with prejudice.
The common pleas court cited Hahn v. Marple Newtown School District, 571 A.2d 1115 (Pa. Cmwlth. 1990) for the proposition that in order for there to be a clear right to relief under the Act, the following must be established: (1) a program or class must have been transferred from the IU to the District; (2) Myers was suspended as a result of the transfer; (3) services of Myers were needed to sustain the program or class transferred; and (4) there were no suspended professional employees of the District who were certified to fill the position in the transferred program or class.
The common pleas court noted that Myers relied on Allegheny Intermediate Unit No. 3 Education Association v. North Hills School District, 624 A.2d 802 (Pa. Cmwlth. 1993), where this Court held that a pool of Allegheny Intermediate Unit teachers who had been suspended when their classes were transferred to other districts were entitled to fill vacant positions in the receiving school districts even if the positions were unrelated to the transfer.
The common pleas court determined:
In the case at hand, the Court must first note that Allegheny Intermediate did not overrule Hahn, and is of the belief that the two can coexist peacefully. Allegheny Intermediate stands for the rule that where one school entity receives a transferred class or program, that entity is under a continuing obligation to fill its vacancies from the pool of furloughed employees. The elements as delineated in Hahn still stand. Thus, as a prerequisite to invoke the rule from Allegheny Intermediate, it still must be found that a program or class was transferred from the CIU [IU] to the Defendant [District]. As Defendant [District] correctly notes, there was no change in the curriculum at Defendant School District. Also, notably the Alternative Education Program at the CIU [IU] continued beyond Plaintiff's [Myers] suspension. This militates against a finding that Plaintiff [Myers] was furloughed as a result of a transferred program. Finally, and most importantly, all the evidence in the record supports the finding Plaintiff [Myers] was suspended as a result of declining enrollment - not a transfer of a program - similar to the plaintiffs in Hahn. Witnesses could not state whether the CIU [IU] would have continued the Alternative Education program had Defendant West Branch School District students remained. Not insignificantly, Defendant [District] only began searching for another option for its Alternative Education students after the CIU [IU] informed them [sic] that the program would probably be discontinued.
Simply put, Plaintiff's [Myers] position, which was eliminated at the CIU [IU], was not recreated at West Branch. Therefore, based on all the above facts, read in a light most favorable to Plaintiff [Myers], this Court finds that as a matter of law the Plaintiff [Myers] cannot establish that a program or class was transferred from the CIU [IU] to Defendant School District, or that he was suspended as a result of a transfer. Clearly, the Plaintiff [Myers] cannot show a right to the remedy of mandamus. Thus, a grant of summary judgment in Defendant's [District] favor is proper. (Emphasis in original).Common Pleas Court Opinion, May 30, 2012, at 8.
Myers contends that the common pleas court erred when it granted summary judgment where the evidence of record demonstrated a genuine issue of material fact as to whether Myers was entitled to employment by the District in a vacant teaching position at a time after which Myers was suspended/furloughed by IU because the District took back an educational program from the IU.
This Court's review of a common pleas court's grant of summary judgment is limited to determining whether the common pleas court made an error of law or abused its discretion. Salerno v. LaBarr, 632 A.2d 1002 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 537 Pa. 655, 644 A.2d 740 (1994). Summary judgment should only be granted in a clear case and the moving party bears the burden of demonstrating that no material issue of fact remains. The record must be reviewed in the light most favorable to the non-moving party. Id.
Myers asserts that Hahn no longer applies because the Act was amended after Hahn was issued. In Hahn, Robert Hahn, Robert Riehs and Joel Entler (Hahn, Riehs, and/or Entler) were certified math teachers employed by the Delaware County Intermediate Unit (DCIU) to teach mathematics in DCIU's vocational-technical school until August 31, 1986, when they were suspended by DCIU due to a substantial decline in pupil enrollment. Hahn, Riehs, and/or Entler advised the superintendent of Marple Newtown School District (MNSD) that they were interested in exercising their rights under the Act. MNSD hired another mathematics teacher at its senior high school to fill a vacancy rather than either Hahn, Riehs, and/or Entler. Hahn, 571 A.2d at 1116.
Hahn, Riehs, and/or Entler then filed a complaint in mandamus in the Court of Common Pleas of Delaware County (common pleas court) and sought an order that directed MNSD to hire one of them as a math teacher pursuant to Section 1113 of the Act. The trial court determined that MNSD violated the Act when it hired a new professional employee and not either Hahn, Riehs, or Entler. The common pleas court ordered MNSD to hire one of them, to credit the hired individual for all sick leave and years of service while employed by DCIU and to pay back pay after deductions from September 1, 1986. Hahn, 571 A.2d at 1116-1117.
MNSD appealed to this Court and raised one issue: "whether the statutory requirements of the Act were established by Appellees [Hahn, Riehs, and Entler] thus warranting mandamus relief." Hahn, 571 A.2d at 1117. This Court reversed on the basis that Hahn, Riehs, and Entler did not establish a clear right to mandamus relief:
In order for Appellees [Hahn, Riehs, and Entler] to establish a clear legal right, they must show that requirements of the Act were met as follows: (1) a math program or class was transferred from DCIU to Appellant School District [MNSD]; (2) Appellees [Hahn, Riehs, and Entler] were suspended as a result of the transfer; (3) services of Appellees [Hahn, Riehs, and Entler] were needed to sustain the program or class
transferred; and (4) there were no suspended professional employees of Appellant's [MNSD] who were certificated in math to fill the position in the transferred program or class.Hahn, 571 A.2d at 1117-1118.
. . . .
Appellees [Hahn, Riehs, and Entler] however convinced the trial court that DCIU's action was in effect a transfer of a math class to the Marple Newtown School District and suggest that this Court similarly adopt this reasoning. Appellee Hahn testified that the math courses offered at the vocational-technical school were not shop oriented but were similar to math offered at Marple Newtown School District. . . . Although it is true that vocational-technical students were able to receive credit for math taken at the vocational-technical school, Appellant [MNSD] offered the same math courses (algebra, geometry and trigonometry) as DCIU did. In fact, Appellant [MNSD] offered seventeen math courses prior to and after DCIU's decision to terminate the technology math requirement. Consequently, no transfer of a math class or program occurred here.
. . . . Assuming arguendo that there was a transfer of a class or program and that Appellees [Hahn, Riehs, and Entler] were suspended as a result of the transfer, the position which became available in the 1986-1987 school year was not the result of Appellant's [MNSD] inability to sustain the math program due to transfer of the math class but rather was because two math teachers had resigned in June, 1988. One of the two positions was eliminated, leaving one open position which was filled by Mr. Subers. Clearly, the Act was meant to protect professional employees whose positions were eliminated in one school entity and recreated in another which is not what occurred here. Thus to invoke the Act in this situation would render an unreasonable result. (Citation omitted).
Myers concedes that the District would have a strong argument based on Hahn, if the General Assembly did not amend the Act to address the situation in which Myers found himself. Originally, Section 1113(a-b) of the Act, 24 P.S. §11-1113(a-b) provided:
(a) When a program or class is transferred as a unit from one or more school utilities to another school entity or entities, professional employes who were assigned to the class or program immediately prior to the transfer and are classified as teachers as defined in section 1141(1) and are suspended as a result of the transfer and who are properly certificated shall be offered employment in the program or class by the receiving entity or entities when services of a professional employe are needed to sustain the program or class transferred, as long as there is no suspended professional employe in the receiving entity who is properly certificated to fill the position in the transferred class or program.
(b) Transferred professional employes shall be credited by the receiving entity only for their sick leave accumulated in the sending entity and also for their years of service in the sending entity, the latter for purposes of sabbatical leave eligibility and placement in the salary schedule: Provided, however, That such employes shall not utilize the sabbatical leave until they have taught in the receiving entity for a period of three (3) years. Such employes shall transfer their accrued seniority in the area of certification required for the transferred program or class only. (Emphasis added).
On August 5, 1991, the General Assembly amended Section 1113 to add subsection (b.1) of the Act, 24 P.S. §11-1113:
(b.1) Professional employes who are classified as teachers and who are not transferred with the classes to which they are assigned or who have received a formal notice of suspension shall form a pool of employes
within the school entity. No new professional employe who is classified as a teacher shall be employed by a school entity assuming program responsibility for transferred students while there is:
(1) a properly certificated professional employe who is classified as a teacher suspended in the receiving entity; or
(2) If no person is qualified under clause (1), a properly certificated member of the school entity pool who is willing to accept employment with the school entity assuming program responsibility for transferred students. Members of the pool shall have the right to refuse employment offers from such school entity and remain in the pool. For purposes of sections 401 and 402 of the act of December 5, 1936 (2nd Sp.Sess., 1937 P.L. 2897, No. 1), known as the 'Unemployment Compensation Law,' an employer policy is hereby established under which members of the pool are not required to accept employment offers from the school entity assuming program responsibility for transferred students. (Emphasis added).
Here, Myers argues that when the alternative education program was transferred from the IU to the District, it was not necessary for the District to employ a new individual to teach those students because the District contracted with a private provider to implement its alternative education program. As a result, however, Myers entered a pool of furloughed employees. When the science vacancy occurred and the District had no employee of its own who was suspended and qualified to teach the class, the District was obligated to offer the science teacher position to him since he was properly certified and willing to accept that employment.
For support, Myers cites Allegheny. In Allegheny, North Allegheny School District (NA) and North Hills School District (NH) took over certain special education classes that were previously contracted out to another entity, the Allegheny Intermediate Unit (AIU). NA took over twenty-three learning support, speech, life skills support, and hearing impaired classes. NH took over two emotional support classes. Pursuant to the Act, all twenty-five AIU teachers who taught those classes were suspended and then rehired by the corresponding school district to teach the transferred classes. Allegheny, 624 A.2d at 803-804.
Both school districts declared certain special education vacancies which were unrelated to the special education classes transferred in from the AIU. There was a pool of AIU teachers who had been suspended when their classes were transferred to other school districts. The Allegheny Intermediate Unit #3 Education Association (Association), a labor organization for AIU employees, filed declaratory judgment actions against NH and NA and sought a determination that subsection (b.1) of the Act required receiving school districts to fill all teaching vacancies with properly certified suspended teachers from the pool, regardless of whether the vacancies were unrelated to a class or program transfer. The Court of Common Pleas of Allegheny County agreed with the Association and ordered NA and NH to offer the teaching vacancies to members of the AIU pool in order of seniority. Allegheny, 624 A.2d at 804.
NA and NH appealed to this Court which affirmed:
Unlike § 1113(a), subsection (b.1) does not limit its applicability to instances where the teachers are suspended 'as a result of the transfer' and are needed 'to
sustain the program or class transferred.' By omitting these qualifications in subsection (b.1), the legislature indicated that it did not intend to limit the employment obligation of the receiving entity to positions related to the program or class transferred. . . . We find that the words of subsection (b.1) are clear and free from ambiguity. Thus, we must not disturb their plain meaning.Allegheny, 624 A.2d at 805.
. . . .
The School Districts further contend that the General Assembly could not possibly have intended that any school district which receives a transferred class must accept teachers from the pool for general employment throughout the district. They assert that the trial court's interpretation of subsection (b.1) effects an absurd result because it gives pool members advantages which other suspended teachers do not receive. Pool members have the opportunity to be recalled by the AIU or by any of the surrounding districts which have re-acquired AIU classes. Other suspended teachers are eligible for recall only in the district of current employment. . . . Pool members also have the option to remain in the pool even if they refuse employment from a receiving school entity, whereas other suspended teachers generally may not refuse a position. . . .
However, as the Association points out, subsection (b.1) was enacted at the same time the General Assembly made extensive changes in the funding of special education classes for the 1991-1992 school year. . . . As a result of these changes, it became financially beneficial for school districts to reclaim special education programs from the intermediate units. Subsection (b.1) was enacted with the expectation that the funding changes would result in the suspension of many intermediate unit teachers. Contrary to the School Districts' argument, there is nothing absurd about the legislature taking special action to protect intermediate unit teachers at a time when it anticipates that many of them will be suspended. (Citations omitted).
Myers asserts that Allegheny illustrates that Hahn has no applicability where the vacancy in the school entity does not result from the transfer of a program. If a teacher is furloughed because of the transfer of programs and is not employed in a position created by the transfer, he is placed in the pool of available employees, and the school entity may not hire a new professional employee without offering employment to the furloughed intermediate unit employee.
Myers further asserts that the common pleas court erred when it determined that since there was no change in curriculum at the District, there really was no program or class transferred from the IU to the District because that is not a requirement and also because the District's Alternative Education program, which previously was provided by the IU, was transferred back to the District which contracted with a third party to provide those services.
Myers asserts that the common pleas court erred when it granted the District's motion for summary judgment because there is a genuine issue of material fact regarding whether Myers was furloughed as a result of the District taking back its alternative education program. He further argues that under the Act he is entitled to a writ of mandamus.
Mandamus is an extraordinary writ designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and want of any other adequate and appropriate remedy. Princeton Sportswear Corp. v. Redevelopment Authority, 460 Pa. 274, 333 A.2d 473 (1975). --------
Myers asserts that the District took back its alternative education program because it removed its students from the alternative education program at the IU and then contracted with a third party to provide the alternative education program. Myers argues that it is immaterial that this third party operated the alternative education program because the key point is that the District transferred its program from the IU to the District. He further asserts that the transfer of the program resulted in the financial shortfalls which led to his suspension. As a result, he asserts that the rationale in Allegheny applies to him.
On the other hand, the District asserts that there was no transfer of the program because the District's curriculum did not change and a third party entity took over the District's alternative education program. The District also asserts that substantial enrollment declines and financial deficits facing the IU program led to Myers's suspension.
Under the scope and standard of this Court's review concerning a grant of summary judgment, this Court determines that there are issues of material fact which preclude a grant of summary judgment, specifically, the reason for the suspension of Myers and whether the District "took back" its alternative education program. As a result, the common pleas court erred when it granted the District's motion.
Accordingly, this Court reverses and remands for further proceedings consistent with this opinion.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 23rd day of August, 2013, the order of the Court of Common Pleas of Clearfield County in the above-captioned matter is reversed, and the case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
/s/_________
BERNARD L. McGINLEY, Judge