Opinion
No. 2336 C.D. 2013
12-11-2014
Central Westmoreland Career and Technology Center Education Association, PSEA/NEA, Colleen Conko, Sabine Lynn, Daniel Lusk, Matthew Morrell, and James Mark Schoming v. Penn-Trafford School District Appeal of: Central Westmoreland Career and Technology Center Education Association, PSEA/NEA, Colleen Conko, Sabine Lynn, and Daniel Lusk
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Central Westmoreland Career and Technology Center Education Association ("Association"); PSEA/NEA; and Colleen Conko, Sabine Lynn, Daniel Lusk, Matthew Morell, and James Mark Schoming (collectively referred to as "Technology Center Employees") commenced this action by filing a Complaint for Declaratory Judgment (Complaint) in the Court of Common Pleas of Westmoreland County (trial court) on February 16, 2011. The Complaint seeks declaratory relief regarding the obligations of the Penn-Trafford School District ("School District") to hire the Technology Center Employees for vacant mathematics positions pursuant to Section 1113 of the Transfer of Entities Act (Act).
The trial court issued orders removing Matthew Morell and James Mark Schoming as Plaintiffs and both Morell and Schoming submitted Notices of Non-Participation, by letter, to this Court.
Act of March 10, 1949, P.L. 30, added by Section 5 of the Act of February 4, 1982, P.L. 1, as amended, 24 P.S. § 11-1113. Section 1113 provides, in relevant part, that:
(a) When a program or class is transferred as a unit from one or more school entities 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 . . . .
School District filed Preliminary Objections, which were overruled by the trial court. After the close of pleadings, discovery was conducted, which included depositions of several School District administrators and Central Westmoreland Career and Technology Center ("Technology Center") personnel, interrogatories, and a request for production of documents served by Association, PSEA/NEA, and Technology Center Employees (Appellants) on School District. Following discovery, School District filed a Motion for Summary Judgment (Motion) and Appellants filed a Cross-Motion for Partial Summary Judgment (Cross-Motion). The trial court granted School District's Motion, denied Appellants' Cross-Motion, and entered judgment in favor of School District on December 4, 2013. Appellants now appeal to this Court. On appeal, Appellants argue that (1) a transfer of mathematics programming occurred between Technology Center and School District, which triggered School District's hiring obligations with respect to Technology Center Employees pursuant to the Act; and (2) the trial court committed an error of law when it granted School District's Motion and denied Appellants' Cross-Motion. Discerning no error, we affirm.
Technology Center Employees worked as mathematics teachers at Technology Center, a vocational-technical secondary school located in Westmoreland County. (Trial Ct. Op. at 2.) For many years prior to the 2010-2011 school year, students from eight school districts (including School District) who attended vocational classes at Technology Center also received math instruction at Technology Center. (Trial Ct. Op. at 2; Superintendent Deborah Kolonay's Dep. at 12, R.R. at 256a; Assistant Superintendent Harry Smith's Dep. at 22, R.R. at 234a.) "Beginning with the 2010-2011 school year," the eight school districts, including School District, informed Technology Center "that they were going to provide mathematics instruction to their [Technology Center] students in their home districts rather than at [Technology Center]." (Trial Ct. Op. at 2.) School District decided to stop sending its students to Technology Center for math instruction because of low math scores received by students at Technology Center. (Letter from Kolonay to Biondo (March 9, 2010), R.R. at 51a.) Thereafter, Technology Center passed a resolution that curtailed its mathematics instruction and furloughed the Technology Center Employees who had previously provided mathematics instruction. (Trial Ct. Op. at 2.) The Technology Center Executive Director notified School District of the curtailment and furlough in a letter and stated that it was the opinion of Technology Center that the Act did not apply because "an actual transfer of courses or program[s] ha[d] not occurred as each member school district currently offer[ed] math courses." (Trial Ct. Op. at 2; Letter from Matta to Kolonay (August 13, 2010), R.R. at 62a.)
On March 16, 2010, a School District mathematics teacher, Brian O'Neil, resigned. (Trial Ct. Op. at 2.) School District posted a job vacancy announcement for the position and interviewed nine prospective candidates, including Technology Center Employees Lusk and Lynn. (Trial Ct. Op. at 2.) School District eventually hired a long-term substitute teacher, who was not a Technology Center Employee, to fill the vacancy. (Trial Ct. Op. at 2.) Appellants commenced this action in early 2011, seeking a declaration that School District be required to "refrain from hiring new professional employees classified as teachers to fill any and all secondary mathematics teaching vacancies, and require that [School District] instead employ" the Technology Center Employees. (Complaint at 9, R.R. at 44a.) Moreover, Appellants also requested that the trial court "order any other relief deemed legal and just under the circumstances, including but not limited to ordering relief for any wages and employee benefits lost by the [Technology Center Employees] as a result of [School District's] refusal to hire them . . . ." (Complaint at 9, R.R. at 44a.)
The trial court found that "[t]he mathematics vacancy for the 2010-2011 school year did not result from [School District's] decision to teach mathematics to all of its students, but rather from the resignation of O'Neil[]." (Trial Ct. Op. at 3 (emphasis in original).) Further, the trial court found that the mathematics curriculum at School District "did not change between the 2009-2010 and the 2010-2011 school years." (Trial Ct. Op. at 3.) The trial court also found that "[n]o additional classes or sections were added to the then-existing mathematics curriculum at the [School District] with this change." (Trial Ct. Op. at 4.)
Based upon this Court's holding in Hahn v. Marple Newtown School District, 571 A.2d 1115 (Pa. Cmwlth. 1990), the trial court concluded that no transfer occurred under the Act and that School District was not obligated to hire the furloughed Technology Center Employees. (Trial Ct. Op. at 4.) Thus, the trial court determined that School District was entitled to judgment as a matter of law, granted its Motion, and denied Appellants' Cross-Motion. Appellants now appeal to this Court.
"This Court's scope of review of a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion." Wolfe v. Stroudsburg Area School District, 688 A.2d 1245, 1247 (Pa. Cmwlth. 1997).
On appeal, Appellants first argue that School District's decision to take back the math program for vocational students constituted a transfer under the Act and that School District is obligated to offer all secondary mathematics positions that become vacant to Technology Center Employees. In particular, Appellants argue that the plain language of the Act and this Court's holding in Allegheny Intermediate Unit # 3 Education Association v. North Hills School District, 624 A.2d 802 (Pa. Cmwlth. 1993), mandate that a transfer has occurred. Further, Appellants argue that the trial court erred in relying on Hahn because that case is inapposite to the present case and the holding from Hahn was abrogated by the General Assembly's 1991 amendment of the Act. School District argues that there has not been a transfer under the Act and, therefore, it has no obligation to hire Technology Center Employees.
The current version of the Act states that:
When a program or class is transferred as a unit from one or more school entities 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 . . . 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.24 P.S. § 11-1113(a) (emphasis added).
In Hahn, the first case in which this Court interpreted the Act, a vocational school decided to suspend its math classes due to a decline in student enrollment. Hahn, 571 A.2d at 1116. The suspended math teachers notified the appellant school district, where the vocational students began taking math classes, that they intended to exercise their rights under the Act. Id. On appeal from the trial court's determination that the Act was applicable to the math teachers, we concluded that the common meaning of the word "transfer" is "to carry or take from one person or place to another." Id. at 1117. Based on the common meaning of the word "transfer," we held that there was "no evidence in the record that the math courses taught at the vocational-technical school[] were taken to" the appellant school district or any other school district. Id. In explaining our holding, we reasoned that the appellant school district had already offered math and provided the same number of math courses both before and after the vocational school's decision to terminate its math program. Thus, we held that no transfer of math programs occurred. Id.
After this Court's decision in Hahn, the General Assembly amended Section 1113 of the Act to include Subsection (b.1). Subsection (b.1) provides that:
Added by Section 2 of the Act of August 5, 1991, P.L. 219, as amended, 24 P.S. § 11-1113(b.1). The 1991 amendment also slightly modified the language of Subsection (a) of the Act. --------
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:
24 P.S. § 11-1113(b.1)(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 . . . .
Following the 1991 amendment, this Court interpreted the Act as amended in Allegheny Intermediate. In that case, the school district took over 23 special education classes that were previously contracted out to the Allegheny Intermediate Unit (AIU) and hired many of the teachers that had previously worked for AIU. Allegheny Intermediate, 624 A.2d at 803-04. After the takeover of the special education program, the school district advertised certain special education vacancies which were unrelated to the takeover. Id. The parties stipulated that a transfer had occurred, but disputed whether the school district was required to fill the vacancies through hiring teachers suspended by AIU. Id. at 804. The school district contended that, because the General Assembly titled the Act "Transferred programs and classes," it was only required to hire AIU teachers where a vacancy was related to the program or class transferred. Id. In contrast, AIU argued that "[S]ubsection (b.1) of the Act requires receiving school districts to fill all teaching vacancies with properly certified suspended sending entity teachers from the pool, regardless of whether the vacancies are related to a class or program transfer." Id. (emphasis in original).
We determined that the title of the Act "does not require that [S]ubsection (b.1) applies only when the vacancies are related to the programs or classes transferred to the receiving entity." Id. at 804-05. Moreover, we found that Subsection (b.1) "functions to place certain hiring obligations on school entities who have received transferred programs and classes" and that "[S]ubsection (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.'" Id. at 805. Accordingly, we held that "vacancies need not be related to the program or classes transferred" and that the school district needed to fill its vacancies by hiring AIU's suspended teachers. Id.
Recently, this Court had another occasion to interpret the Act in Cook v. Chambersburg Area School District, 97 A.3d 419 (Pa. Cmwlth. 2014), which was issued after the parties submitted their briefs in this case. In Cook, a vocational school offered the "Business Data Processing" (BDP) program. Id. at 420-21. Several school districts decided to stop sending their students to the BDP program, "with the intention of incorporating those students into the existing business education programs at their high schools." Id. at 421. Due to reduced enrollment resulting from the school districts' action, the vocational school discontinued the BDP program and suspended its business teacher, Cook. Id. After two of the school districts hired new business teachers, Cook filed an action against the districts arguing that a transfer had occurred under the Act and that she should have been hired by the school districts when they hired the new teachers. Id. at 422.
On appeal from the trial court's grant of summary judgment in favor of the school districts, Cook argued that a transfer occurred under the Act and that Subsection (b.1) abrogated our decision in Hahn. Id. at 423. We concluded that, although "the 1991 amendment imposes additional requirements that were not present when the Hahn Court interpreted the Act," there was "no language in the 1991 amendment to the Act that abrogates the requirement stated in Hahn that there be a 'transfer' of a program or class to a receiving school before a teacher may claim the protection of the Act." Id. at 425. Therefore, we determined that Subsection (b.1) of the Act only applies when a transfer of programs and classes has occurred. Id. at 426.
In order for a transfer to occur under the Act, we concluded that a class or program must end at one school and be "brought over or added to another school." Id. Moreover, we determined that "the Act is not triggered merely based on the fact that students cease to enroll at one school and instead enroll at another school." Id. Upon review of the record we held that there was no evidence that the school districts adopted the BDP program, and the evidence showed that the districts continued to offer their own classes rather than the BDP curriculum and did not intend to recreate the BDP program. Id. at 427. Thus, because there was no evidence that a transfer had occurred, we affirmed the trial court's grant of summary judgment in favor of the school districts. Id. at 428.
The present case is indistinguishable from Cook. Just as the vocational school in Cook discontinued its business program after the school districts stopped sending their students to the vocational school, here Technology Center discontinued its math program after School District stopped sending its students to Technology Center for math instruction. Under Cook, the Act does not apply merely because vocational students have ceased taking math courses at Technology Center and are now receiving math instruction at their home districts. Id. at 426. Rather, for the Act to apply, Appellants would have to demonstrate that School District adopted Technology Center's math curriculum or began teaching math courses that were brought over from Technology Center. Id. at 426-27. However, upon this Court's review of the record, Appellants have presented no evidence to show that School District added any of Technology Center's classes or adopted its curriculum.
In addition, School District has traditionally offered math courses. Like Hahn and Cook, in which vocational students were integrated into pre-existing math and business programs and we held that a transfer did not occur, the evidence here demonstrates that vocational students who previously took math classes at Technology Center began taking School District's pre-existing math classes in the 2010-2011 school year. As we held in Cook, the Act is not triggered merely because School District's students are now enrolled there for math instruction rather than at Technology Center. Id. at 426. Thus, as a matter of law, because School District did not add any of Technology Center's classes or curriculum, we conclude no transfer occurred under the Act.
Moreover, although Appellants argue that, under Subsection (b.1) and Allegheny Intermediate, School District is required to offer the vacant math teacher position to the Technology Center Employees, as we explained in Cook, '"Subsection (b.1) functions to place certain hiring obligations on school entities who have received transferred programs and classes."' Id. at 425 (quoting Allegheny Intermediate, 624 A.2d at 805 (emphasis in original)). Because there is no evidence here that Technology Center's programs or classes were transferred to School District, Subsection (b.1) and our holding from Allegheny Intermediate are inapplicable to the present case.
Next, Appellants argue that the trial court erred as a matter of law in granting School District's Motion. Appellants argue that, although the total number of teacher positions did not increase between the 2009-2010 and 2010-2011 school years, School District required the services of an additional math teacher due to O'Neil's resignation. According to Appellants, a material issue of fact remains regarding whether the hiring resulting from O'Neil's resignation constitutes a transfer under the Act. Further, Appellants argue that, although the trial court concluded that "[n]o additional classes or sections were added to the then-existing mathematics curriculum" at School District for the 2010-2011 school year, (Trial Ct. Op. at 4), the master schedule for School District shows that two sections of a different mathematics class were offered.
It is undisputed that the mathematics teacher vacancy for School District resulted from O'Neil's resignation rather than a transfer of math programs or curriculum from Technology Center to School District. (Resignation Letter of O'Neil and School District's Approval of Resignation Letter, R.R. at 92a-93a.) Moreover, while Appellants argue that School District added an additional class by referencing School District's master schedule, (School District 2009-2010 and 2010-2011 Master Schedules, R.R. at 411a-13a, 425a-27a), there is no evidence in the record that the additional class supposedly added to School District's master schedule was related to School District's decision to provide math instruction to its vocational students. In the absence of evidence that any new class was the result of a transfer of classes or programs from Technology Center to School District, Appellants cannot prove a claim under the Act and summary judgment was appropriate. See Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1035.2 (providing that summary judgment is proper "if, after the completion of discovery relevant to the motion . . . an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action"); cf. Cook, 97 A.3d at 427-28 (holding that in the absence of evidence that a newly created business teacher position was related to closing of vocational school's business program, summary judgment was appropriate). Accordingly, the trial court did not err as a matter of law in granting School District's Motion and denying Appellants' Cross-Motion.
For the foregoing reasons, the trial court's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, December 11, 2014, the Order of the Court of Common Pleas of Westmoreland County, entered in the above-captioned matter, is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY PRESIDENT JUDGE PELLEGRINI
For the same reasons I set forth in Cook v. Chambersburg Area School District, 97 A.3d 419 (Pa. Cmwlth. 2014), I respectfully dissent.
/s/_________
DAN PELLEGRINI, President Judge