George Filoon
v.
Middle Bucks Area Vocational-Technical School, Appellant


Commonwealth Court of Pennsylvania
Argued Oct. 4, 1993
Decided Nov. 23, 1993.
John E. Freund, III, for appellant.
Charles L. Herring for appelle.



Before COLINS and PELLEGRINI, JJ., and LORD, Senior Judge.
PELLEGRINI, Judge.

Middle Bucks Area Vocational-Teachnical School (Middle Bucks) appeals from an order of the Court of Common Pleas of Bucks County (trial court) reinstating George Filoon (Filoon) to his former positon as a full-time professional emplyee.

Filoon has been employed by Middle Bucks since 1969 as a certified masonry instructor. In 1985, Filoon was also certified as a guidance counselor but never served as such for either Middle Bucks or any other school district. Martha Rechino (Rechino) has been employed as Middle Bucks' certified guidance counselor since 1981.

In April of 1989, Middle Bucks established guidelines providing for a minimum enrollment of 22 students in order to maintain a course full-time, with less enrollment, the course would be offered only half-time. Because of declining enrollment for the 1990-91 school year, Middle Bucks reclassified several full-time courses as half-time, including masonry, and dropped two half- time courses completely.1

Middle Bucks notified Filoon that because of the decline in enrollment in masonry classes, he was being demoted to half-time status with the corresponding reduction in pay. Filoon requested a hearing before the Middle Bucks' Executive Council contending that the minimum class size requirement was arbitrary and that Section 1125.1(c) 2 Of the School Code, the realignment provision, required he be allowed to "bump" the least senior teacher within any area in which he was certified. Because he was more senior than Rechino and is certified as a guidance counselor, Filoon contended he should be allowed to "bump" into that position.3 Middle Bucks contended that its action was not realignment, but was a demotion in accordance with Section 1151 of the School Code.4

The Middle Bucks' Executive Council affirmed the demotion finding it was not arbitrary or founded on improper considerations. Filoon took two appeals. He filed an appeal to the Secretary of Education pursuant to Section 1151 challenging his demotion, as well as a petition for review with the trial court contending that his demotion constituted a realignment within the meaning of Section 1125.1(c).5

Before the Secretary, Filoon contended that his demotion was improper because the minimum enrollment requirement was arbitrary and his demotion was an improper realignment. The Secretary affirmed that the demotion was for a proper reason, but declined to address the realignment issue because Section 1125.1(f) of the School Code, 24 P.S. § 11-1125.1(f), provides that decisions undertaken pursuant to this section are adjudications within the meaning of the Local Agency Law, 2 PaC.S. §§ 551-751, and subject to the jurisdiction of the courts of common pleas. No appeal was taken from the Secretary's finding that the reason for the demotion, less than minimum course enrollment, was valid.

As to his realignment appeal filed with the trial court, Filoon contended only that his demotion constituted a realignment allowing him to "bump" on a strict seniority basis in other areas in which he was certified. Finding that Middle Bucks' reduction of Filoon's position to half- time was a realignment requiring that strict seniority principles be applied, the trial court ordered Filoon reinstated with back pay and benefits. This appeal followed..

Middle Bucks contends that there was no realignment when Filoon was reduced to half-time status, only a demotion and demotions are not subject to the School Code's seniority principles. It further contends that while only seniority and certification may be considered when a teacher is suspended, educational needs may be considered when there is a demotion. Middle Bucks contends that because of Filoon's lack of experience as a guidance counselor, the best interests of the students necessitated retaining Rechino as such.7

The core issue is whether Filoon's reduction to half-time status is a demotion requiring the application of the realignment provision's seniority principles. Moreover, because the sole avenue of appeal for a demotion is to the Secretary, if Filoon's demotion is not the result of a realignment, the trial court is divested of jurisdiction. Reed v. Juniata- Mifflin Counties Area VocationalTechnical School, 112 PaCommonwealth Ct. at 532 n. 2, 535 A.2d at 1231 n. 2.8

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 part-time status also is a demotion. Reed at 532, 535 A.2d at 1231. 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 vCholdney, 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 u Garnet Valley School District, 86 Pa.Commonwealth Ct. 206, 209, 485 A.2d 508, 510 (1984) (citing Webster's New Collegiate Dictionary 954 (1981)).

Even though he agrees he was demoted and not suspended, Filoon contends that our decision in Shestack v General Braddock Area School District, 63 Pa.Commonwealth Ct. 204, 437 A2d 1059 (1981), makes the strict seniority principles in the realignment provision of Section 1125.1(c) applicable to demotions. Shestack's demotion was the direct result of a realignment that involved the elimination of existing positions and a reorganization of staff. In essence, what occurred in Shestack was a suspension with a simultaneous reassignment to a lesser posi-tion. Because there was 2-suspension" involved, we held that application of the realignment provision's seniority principles was required.'

Filoon asks us to apply Shestack to his demotion maintaining the realignment provision was also intended to alleviate the adverse effects of demotions involving a reduction in hours and pay.)' However, only when the demotion results from a suspension caused by the elimination of a position and the attending reorganization does a "realignment-demotion" addressed in Shestack occur. Filoon's demotion was not caused by a realignment; instead, it was caused only by a decline in the number of students enrolled in his class and involved a reduction in his pay and responsibilities only. Here, there is only a "pure demotion."

Because Middle Bucks' action was not a realignment subject to the seniority principles contained in the realignment provisions of Section 1125.1(c), the trial court did not have jurisdiction to consider Filoon's petition for re-view. Instead, Filoon was entitled to the procedural protections provided for in the demotion provisions of Section 1151, which he received in his hearing before the Executive Council and appeal to the Secretary of Education. Accordingly, the order of the Court of Common Pleas of Bucks County is vacated.

ORDER

AND NOW, this 23red day of November, 1993, the order of the Court of Common Pleas of Bucks County, dated February 4, 1993, is vacated.

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