Michael HRITZ, Appellant,
v.
Laurel Highlands School District


Commonwealth Court of Pennsylvania.
Argued April. 13, 1994.
Decided Sept. 9, 1994.

Ira Weiss, for appellant.
William M. Radcliffe, for appellee.

Before CRAIG, President Judge, and DOYLE, MCGINLEY, PELLEGRINI, FRIEDMAN, KELLEY, NEWMAN, JJ.



DOYLE, Judge.

Before this Court is the appeal of Michael Hritz from an order of the Court of Common Pleas of Fayette County which affirmed Michael Hritz' demotion from an administrative position to a teaching position by the School Board of Laurel Highlands School District (Board).

The trial court adopted the findings of fact of the Board as follows. Michael J. Hritz is a professional employee with the Laurel Highlands School District. From 1989 until 1991 he held the position of assistant principal/buildings and grounds supervisor at the Laurel Highlands Junior High School. Only part of Hritz' time was spent in duties relating to his position of assistant principal. The remainder of his time involved his duties as building and grounds supervisor.

In July 1991, the Administration of the District abolished the position of assistant principal/buildings and grounds supervisor for "economic reasons." Upon the advice of the Laurel Highlands Junior High School principal, the school superintendent recommended that the Board demote Hritz to a teaching position, although Mr. Harry Joseph, a professional employee with less seniority than Hritz, held a position of assistant principal at the junior high. Mr. Joseph spent all of his time with duties relating to his position as assistant principal. It was the practice of the school district when administrative positions were abolished for economic reasons to demote the person holding that position, regardless of seniority.

Upon receiving notice of his demotion Hritz requested and was granted a hearing. A hearing was held on September 12, 1991, and the Board concluded that, under its standard of review delineated by Chester Upland School District v. Brown, 67 Pa.Commonwealth Ct. 540, 447 A.2d 1068 (1982), Hritz had failed in his burden of proving that his demotion was arbitrary, discriminatory, or founded upon improper motives. On appeal, the trial court affirmed the order of the Board. This appeal followed.

Hritz does not challenge his demotion directly. Instead, he argues that for the purposes of the School Code, a "demotion" is the same thing as a "suspension," and, therefore, Section 1125.1(c) of the Public School Code of 1949 (Code) 2 requires the Board to "bump" Mr. Joseph. an employee Aith less seniority than Hritz. and place Hritz in the position of assistant principal at the junior high. We disagree.

Section 1125.1(c) of the Code provides that:

A school entity shall realign its professional staff so as to insure that more senior employes are provided with the opportunity to fill positions for which they are certificated and which are being filled by less senior employes.

Hritz contends that for purposes of Section 1125.1(c). a demotion and a suspension are the same personnel action, relying on this Court's decision in Shestack v. General Braddock Area School District, 63 Pa.Commonwealth Ct. 204, 437 A.2d 1059 (1981).

Obviously, all demotions are not suspensions, and Section 1125.1(c) of the Code does not cover every staffing change made by school districts. Such a broad interpretation of the scope of Section 1121.1kc) was clearly disapproved by the Supreme Court:

Section 1125.1 ... established a legislative policy on how school districts are to reduce staff while protecting the job security interestsof tenured professional employees. It would give undue weight to the seniority preference of subsection (c), which is only a constituent part of this policy, to remove it from this context and treat it as an overarching statement of the primacy of seniority in the placement of professionals generally.

Gibbons v. New Castle Area School District, 518 Pa. 443, 448-49, 543 A.2d 1087, 1089 (1988). Our recent decision in Filoon v. Middle Bucks Area Vocational-Technical School, 160 Pa.Commonwealth Ct. 124, 634 A.2d 726, 729 (1993), distinguished demotions and suspensions:

A demotion under the School Code does not involve a separation from service, but rather is "a reassignment to a position which has less authority, prestige or salary." Walsh v. Sto-Rox School District, 110 Pa.Commonwealth Ct. 421,424, 532 A.2d 547, 548 (1987). A reduction to parttime status also is a demotion. Reed [v. Juniata-Mifflin Counties Area Vocational-Technical School, 112 Pa.Commonwealth Ct. 529], 532, 535 A.2d [1229], 1231 [1988]. Demotions are presumptively valid and an employee seeking to overturn a demotion has the burden of proving the action was arbitrary, discriminatory or founded on improper considerations. Id. at 536, 535 A.2d at 1233. As to what constitutes a suspension, we have held that a suspension is in the nature of an impermanent separation: a furlough or layoff. Norwin School District v. Chlodney, 37 Pa.Commonwealth Ct. 284, 286, 390 A.2d 328, 330 (1978). Permissible reasons for a suspension are set forth in Section 1124 of the School Code, and when resulting from a realignment, it must be implemented in accordance with that provision's strict seniority principles. With regard to what constitutes a realignment for purposes of the School Code, we have adopted the definition "to reorganize or make new groupings of." Fry v. Garnet Valley School District, 86 Pa.Commonwealth Ct. 206, 209, 485 A.2d 508, 510 (1984) (citing Webster's New Colegiate Dictionary 954 (1981)).

Further, separate provisions of the Code govern each action. Demotions are covered by Section 1151 of the Code 3 and the sole avenue of appeal from an adverse adjudication of a school board is to the Secretary of Education. Section 1131 of the Code, 24 P.S. § 11-1131. Suspensions on the other hand, are controlled by Section 1124 of the Code, 24 P.S. § 11-1124 (causes for suspension), and Section 1125.1 of the Code which must be read in tandem.' The courts of common pleas have jurisdiction to hear the appeals pursuant to these provisions. Section 1125.1(f) of the Code, 24 P.S., § 11 1125.1(f). There have been instances where this Court has interpreted certain demotion due to realignments to be a hybrid action thereby justifying application of the restrictions imposed by Sections 1124 and 1125.1 ie., seniority. But the case before us now is not one of them. A "realignment demotion" is a "demotion result[ing] from a suspension caused by the elimination of a position and the attending reorganization" Filoon, 160 Pa.Commonwealth Ct. at 131, 634 A.2d at 730 (emphasis added).

The parties, in their stipulation of facts presented to the Board, agree that Hritz was demoted (School Board Hearing 9/12/91, Exhibit No. 1.), and the Board also found that no professional employees were furloughed as a result of Hritz' demotion. No evidence was adduced at the hearing indicating that Hritz' duties as assistant principal/building and ground supervisor were reassigned to another professional employee. Hritz merely makes the bald statement in his brief that his demotion was the result of a realignment, but did not present any facts to support such a statement. Simply reducing staff, without more, is not a reorganization.

Hritz' reliance on Shestack is misplaced. In Shestack the petitioner was demoted from his position as principal to a teaching position because the school board closed an entire elementary school due to a decline in student enrollment. Twenty-two other professional and nonprofessional employees were suspended. We held that Section 1125.1 of the Code is not limited in application to suspended employees, but will also be applied where a realignment has occurred which resulted in a de facto suspension and simultaneous reassignment to a lesser position. Shestack; see also Filoon, 160 Pa.Commonwealth Ct. at 130-131, 634 A.2d at 729-30 (explaining our holding in Shestack).

Reviewing the cased law, two elements of commonality become clear. In order for a demotion to constitute a "realignment-demotion." the demotion must be (1) due to one of the enumerated reasons provided in Section 1134 of the Code, such as declining enrollment or the closing of a school, and (2) involve some sort of regrouping or reorganizing of duties of other professionals within the district beyond simply the abolishment of a single position resulting in the demotion of one person. See Meck v. Carlisle Area School District, 155 Pa.Commonwealth Ct. 469, 625 A.2d 2903 (1993).

In this case, Hritz has proven neither of the above elements. His position was abolished for reasons of economy and efficiency. There was no evidence presented to indicate that the duties and responsibilities of other professionals were affected. Accordingly, Hritz's demotion was a "pure demotion" and governed by Section 1151 of the Code, not Section 1125.1(c). See Filoon.

Even assuming arguendo that Section 1125.1(c) did apply, Hritz would not prevail. He only spent part of his time in duties relating to his position as assistant principal.5 By bumping Mr. Joseph, who performed assistant principal duties exclusively, Hritz would be involved in the duties of an assistant principal one hundred percent of the time. No evidence was presented that a building and grounds supervisor was of equal status and pay of an assistant principal. If a reduction to part time status is a demotion, Filoon, an increase from part time assistant principal to full time assistant principal is conversely a promotion or increase in status. Section 1125.1(c) of the Code does not require, nor even deal with the, promotion of a professional employee. Gibbons.

The Board concluded that Hritz' demotion was not arbitrary, discriminatory or founded upon improper considerations under Section 1151 of the Code. The review of the propriety of such a determination lies with the Secretary of Education, not with the courts of common pleas.6 Section 5103, requires that erroneously appealed cases must be transferred to the proper "tribunal." In Meck we held that the Secretary is a tribunal for the purpose of the type of appeal presented here. Accordingly, we must vacate the trial court"s order, remand the case, and instruct the court to transfer Hritz' appeal to the Secretary for a determination of whether Hritz' demotion was proper.7


Order

Now, September 9, 1994, the order of the Court of Common Pleas of Fayette County in the above-captioned matter is hereby vacated and this case is remanded to the trial court with directions that it transfer the matter to the Secretary of Education.


Jurisdiction relinquished.


PELLEGRINI, J., Concurs in the result only.

This decision was reached before the conclusion of President Judge CRAIG's service.



FRIEDMAN, Judge, dissenting.


I believe that the majority, and this court in Filoon v. Middle Buck Area Vocational Technical School, 1609 Pa.Commonwealth Ct. 124, 634 A.2d 726 (1993), make imprudent and erroneous distinctions between what they label "realignment-demotions" and "pure demotions." Because I believe that Filoon was incorrectly decided, I must dissent from the majority here which relies upon the Filoon holding.


In Shestack v. General Braddock Area School District, 63 Pa.Commonwealth Ct. 204, 437 A.2d 1059 (1981), we specifically held that a principal who had been demoted to a teaching position was entitled to a hearing before the school board based on the plain meaning of § 1125.1(c). In the case before us, the majority ignores the fact that § 1125.1(c) was what gave Shestack that right.


Twice since Shestack we have again applied §1125.1(c) to demotions. In both Appeal of Cowden, 87 Pa.Commonwealth Ct. 206, 485 A.2d 508 (1984), we specifically held that the demotion of a school principal to a teaching position was within the purview of § 1125.1(c).


Here, the majority refuses to follow Cowden, Fry or Shestack based on our decision in Filoon and on the belief that our supreme court contradicted Cowden, Fry and Shestack in Gibbons v. New Castle Area School District, 518 Pa. 443, 543 A.2d 1087 (1988). In determining that Gibbons contradicts the prior cases, I believe that this court has misinterpreted Gibbons. Additionally, I believe that Filoon was improperly decided and should be reversed because the court failed to consider applicable legislative changes to 1125.1.

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