[J-2-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
CENTRAL WESTMORELAND CAREER : No. 11 WAP 2015
AND TECHNOLOGY CENTER :
EDUCATION ASSOCIATION, PSEA/NEA, : Appeal from the Order of the
COLLEEN CONKO, SABINE LYNN, : Commonwealth Court, entered
DANIEL LUSK, MATTHEW MORRELL, : December 11, 2014 at No. 2336 C.D.
AND JAMES MARK SCHOMING : 2013 affirming the Order of the Court of
: Common Pleas of Westmoreland
: County entered December 4, 2013 at
v. : No. 1120 of 2011.
:
PENN-TRAFFORD SCHOOL DISTRICT :
: ARGUED: October 6, 2015
APPEAL OF: CENTRAL : RE-SUBMITTED: January 20, 2016
WESTMORELAND CAREER AND :
TECHNOLOGY CENTER EDUCATION :
ASSOCIATION, PSEA/NEA, COLLEEN :
CONKO, SABINE LYNN, AND DANIEL :
LUSK :
OPINION
MR. CHIEF JUSTICE SAYLOR DECIDED: FEBRUARY 16, 2016
In this discretionary appeal, we examine whether the Transfer between Entities
Act – a provision of the Public School Code designed to protect teachers affected by
inter-school transfers of educational programs – applies where the transferred students
are placed into pre-existing classes and no new classes are added.
In terms of background, the Transfer between Entities Act, 24 P.S. §11-1113 (the
“Transfer Act”), imposes hiring obligations on receiving schools when a class or
program is transferred from one school to another and a teacher is suspended at the
sending school. This aspect of the act has existed since its inception, and provides:
(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 . . . 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.
24 P.S. §11-1113(a).1
As described more fully below, students attending math classes at one school
were accommodated within existing math classes at another school. Central to this
dispute is whether this circumstance implicated a 1991 addition to the Transfer Act
which states:
(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. . . .
24 P.S. §11-1113(b.1).
1
The Transfer Act is contained within the Public School Code of 1949. See Act of Mar.
10, 1949, P.L. 30 (as amended 24 P.S. §§1-101 to 27-2702) (the “Code”). It appears in
Article XI(b) of the Code, which relates to employment of professional employees. The
Transfer Act was added to the Code in 1982, and has been amended several times,
most notably in 1991, as discussed below. It has often been referred to, imprecisely, as
the “Transfer of Entities Act.”
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The Central Westmoreland Career and Technology Center, a public vocational-
technical school (the “Vocational School”), provides career and technical training to high
school students from numerous sending school districts within Westmoreland County,
including Appellee Penn-Trafford School District (“Penn-Trafford”). For a number of
years, the Vocational School taught math to students from the high schools in such
districts who were enrolled in career and technical programs at the Vocational School
(the “vocational students”). During this time, the sending school districts were providing
the same math instruction to students in their high schools who were not enrolled at the
Vocational School.
In early 2010, eight sending school districts, including Penn-Trafford, advised the
Vocational School that, beginning with the 2010-11 school year, they would be providing
math instruction to the vocational students at the students’ home high schools rather
than sending them to the Vocational School for math.2 Due to these changes, the
Vocational School curtailed its math offerings and suspended five certified math
teachers: Colleen Conko, Sabine Lynn, Daniel Lusk, Matthew Morrell, and James
Schoming. See generally 24 P.S. §11-1124 (relating to causes for suspension). The
Vocational School took the position that no transfer of courses or programs had
occurred, and hence, the Transfer Act was not implicated. However, in response to a
grievance filed by the Central Westmoreland Career and Technology Center Education
Association, PSEA/NEA (the “Association”) – a labor organization representing the
Vocational School’s professional employees – the Vocational School, per Section
1113(b.1), created a pool of suspended employees, consisting of the five furloughed
math teachers, and sent their names and certifications to Penn-Trafford.
2
These students continued to attend career and technical training at the Vocational
School. The next year, two additional sending school districts took the same action.
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Meanwhile, at Penn-Trafford High School, the existing math classes had enough
capacity to accommodate the vocational students. Thus, no new math classes were
added for the 2010-11 school year. Separately, one of the high school’s math teachers,
Brian O’Neil, resigned in March 2010 for reasons unrelated to the above circumstances.
Penn-Trafford posted a job vacancy announcement to fill his position, and it interviewed
nine candidates, including teachers Lusk and Lynn. Penn-Trafford ultimately hired a
substitute teacher to fill the vacancy, and he stayed on as a long-term substitute for Mr.
O’Neil during the 2010-11 school year.
These events led to correspondence between the Association and Penn-Trafford
in the fall of 2010 reflecting that the parties disagreed over whether a program transfer
had occurred so as to implicate the Transfer Act. The Association also expressed that,
even absent a transfer, Penn-Trafford was obligated under sub-paragraph (b.1)(2) to
hire math teachers, in the first instance, from the Vocational School’s pool of suspended
teachers since the school district did not already have a suspended, certified teacher of
its own to recall pursuant to sub-paragraph (b.1)(1). When correspondence failed to
resolve the disagreement, the Association, as well as teachers Conko, Lynn, Lusk,
Morrell, and Schoming (collectively, “Plaintiffs”), filed a complaint in the county court.3
Plaintiffs requested a declaratory judgment interpreting the Transfer Act to require
Penn-Trafford to hire teachers from the Vocational School’s pool. They also sought lost
wages and benefits due to Penn-Trafford’s failure to do so for the 2010-11 school year.
The parties engaged in discovery and, thereafter, filed cross-motions for
summary judgment. The county court granted Penn-Trafford’s motion, denied Plaintiffs’
motion, and entered judgment in favor of Penn-Trafford. The court agreed with Penn-
Trafford’s argument that, under the facts of the case, no transfer occurred so as to
3
Teachers Morrell and Schoming are no longer part of this litigation.
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trigger the plaintiff teachers’ rights under the Transfer Act. The court noted, in this
regard, that no math classes were “dismantled” at the Vocational School and then
“reconstituted” at Penn-Trafford High School, and, moreover, no math classes were
added at the high school. Cent. Westmoreland Career & Tech. Ctr. Educ. Ass’n,
PSEA/NEA v. Penn-Trafford Sch. Dist., No. 1120 of 2011, slip op. at 4 (C.P.
Westmoreland Dec. 4, 2013). As for precedent, the court relied on Hahn v. Marple
Newtown School District, 132 Pa. Cmwlth. 60, 571 A.2d 1115 (1990), in which the
Commonwealth Court addressed a similar situation and concluded that no “transfer” of
math classes had taken place because there was no evidence the math classes in
question “were taken” from one entity to another. Id. at 65, 571 A.2d at 1117; see also
id. at 65, 571 A.2d at 1118 (explaining that the Transfer 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”).
A three-judge panel of the Commonwealth Court affirmed in an unpublished
opinion. See Cent. Westmoreland Career & Tech. Ctr. Educ. Ass’n, PSEA/NEA v.
Penn-Trafford Sch. Dist., No. 2336 CD 2013, slip op. (Pa. Cmwlth. Dec. 11, 2014). The
panel acknowledged that the General Assembly added paragraph (b.1) to the Transfer
Act in the post-Hahn timeframe, and that the court had eventually interpreted paragraph
(b.1) as imposing hiring obligations on receiving schools where a vacancy arises which
is unrelated to the transferred program. See id. at 8-9 (citing and quoting Allegheny
Intermediate Unit # 3 Educ. Ass’n v. N. Hills Sch. Dist., 155 Pa. Cmwlth. 211, 216-17,
624 A.2d 802, 804-05 (1993)). Still, the panel observed that: such rule is limited to
schools which receive transferred programs of some sort; and, in Cook v.
Chambersburg Area School District, 97 A.3d 419 (Pa. Cmwlth. 2014), the court had
reaffirmed Hahn’s understanding that the verb, to “transfer,” means to carry or take from
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one person or place to another. See Penn-Trafford, No. 2336 CD 2013, slip op. at 9
(citing Cook, 97 A.3d at 425); see also id. at 10 (explaining 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” (quoting Cook, 97 A.3d at 426)). Based on its finding that no
educational class or program was transferred from the Vocational School to Penn-
Trafford High School, the panel approved the county court’s decision to enter judgment
in favor of Penn-Trafford. See id. at 11.
President Judge Pellegrini dissented on the basis of his dissent in Cook, in which
he interpreted paragraph (b.1) as imposing hiring obligations on schools that assume
educational program responsibilities for transferred students. In the dissent’s view,
these obligations exist – relative to teachers who have been formally suspended –
whether or not a program or class has been transferred as a unit between schools. See
Cook, 97 A.3d at 428-30 (Pellegrini, P.J., dissenting).
We allowed appeal to determine whether Section 1113(b.1) of the School Code,
24 P.S. §11-1113(b.1), was intended to give employment priority to individuals who are
members of a pool of furloughed teachers in the circumstances described above. See
Cent. Westmoreland Career & Tech. Ctr. Educ. Ass’n, PSEA/NEA v. Penn-Trafford Sch.
Dist., ___ Pa. ___, 114 A.3d 1036 (2015) (per curiam).
Plaintiffs assert Section 1113(b.1) requires any school which assumes “program
responsibility for transferred students,” 24 P.S. §11-1113(b.1), to offer employment to
properly certificated teachers in a pool of furloughed employees regardless of whether
the vacancy in question is related to the transfer. Plaintiffs contend that the
intermediate court’s interpretation converts paragraph (b.1) into surplusage, as they
state it is difficult to see what purpose a pool of furloughed employees would serve if
employment prioritization is only triggered when a program is transferred as a unit. As
[J-2-2016] - 6
applied here, Plaintiffs proffer that, because program responsibility for the mathematics
instruction of vocational students was transferred to the school districts, including Penn-
Trafford, the teachers in the pool retained employment priority as to vacancies occurring
at such districts.
Plaintiffs also take issue with the Commonwealth Court’s reliance on Hahn in
concluding that, for a furloughed teacher’s paragraph (b.1) rights to apply, a program
must be dismantled at one school and reconstituted at another school. Plaintiffs
suggest such a requirement is not supported by (b.1)’s text. They note, in any event,
that Hahn was decided before the 1991 addition of paragraph (b.1), which they view as
broadening the concept of a “transfer” for purposes of the Transfer Act. Further
undermining Hahn’s applicability, Plaintiffs reference Allegheny Intermediate Unit’s
explanation that (b.1) was intended to ensure that teachers at entities other than school
districts – such as vocational schools and intermediate units – would have increased
protection at a time when many furloughs were anticipated due to the transfer of
educational programming to school districts, which in turn resulted from a change in
educational program funding. See Allegheny Intermediate Unit, 155 Pa. Cmwlth. at
218, 624 A.2d at 805.
Penn-Trafford initially observes that the Transfer Act, as applied in Hahn,
requires that an educational class or program be transferred as a unit between school
entities for furloughed teachers to have hiring priority. It suggests this still holds true in
the wake of the 1991 legislation, for at least two reasons. First, Penn-Trafford notes
that such legislation added the phrase, “as a unit,” to paragraph (a), thus demonstrating
that “a transfer of a program or a class [is] still the primary focus” of the Transfer Act.
Brief for Appellee at 23.
[J-2-2016] - 7
Second, Penn-Trafford contends that paragraphs (a) and (b.1) were meant to be
read together, with a class or program transfer being the triggering event for either
paragraph. In this respect, Penn-Trafford urges that, had the General Assembly
intended to eliminate the need for a transfer of a program or a class as a unit under
paragraph (b.1), it would have used more definitive prefatory language in (b.1) such as,
“Notwithstanding the requirements of subsection (a), . . ..” Id. at 24. Absent such
phraseology, Penn-Trafford agrees with the Cook court’s suggestion that the sole
purpose of paragraph (b.1) is to add a second layer of protection whereby furloughed
teachers are given priority to fill vacancies unrelated to the initial transfer. See id.
(quoting Cook, 97 A.3d at 425-26); see also id. at 23 (quoting Cook, 97 A.3d at 425
(“[W]e find 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 [Transfer] Act.”)).
The Pennsylvania School Boards Association, as amicus curiae, adds that
students transfer between school entities for various reasons, and their influx or
departure will sometimes affect staffing. It forwards a reductio ad absurdum argument,
noting that a minimal change consisting of a single student taking math at his or her
home school rather than the associated vocational school could lead to the cancellation
of one math class at the latter entity. It suggests the Legislature did not intend
paragraph (b.1)’s hiring preference to be triggered in such event. In this regard, the
School Boards Association argues more generally that paragraph (b.1) is structured to
relate back to the transferred-as-a-unit language in paragraph (a), thus demonstrating
that (b.1) pertains to a transfer of programs, not students. It concludes, accordingly,
that not every movement of students is a transfer for purposes of the Transfer Act.
[J-2-2016] - 8
Resolving this appeal centrally requires ascertaining the meaning of paragraph
(b.1) of the Transfer Act. The issue is one of statutory interpretation, a question of law
over which our review is de novo and plenary. See In re D.L.H., 606 Pa. 550, 563, 2
A.3d 505, 513 (2010). There is little doubt that the definition of “transfer” employed by
the Hahn decision – meaning, “to carry or take from one person or place to another,”
Hahn, 132 Pa. Cmwlth. at 64, 571 A.2d at 1117 – is in accord with the plain meaning of
the word and, as such, is applicable here, since neither the Code nor the Statutory
Construction Act otherwise defines the term. See 1 Pa.C.S. §1903(a) (generally
directing that words and phrases should be construed according to common usage).
The contested issue is whether a transfer of students, as opposed to programs or
classes, between entities is sufficient to invoke the employment protections afforded
under paragraph (b.1).
A careful review of the statutory text reveals that, although the rights conferred
under paragraph (a) are limited to situations in which a program or class is transferred
as a unit, paragraph (b.1) is markedly different and does not suggest such a limitation.
First, entrance into a pool of teachers can be predicated on the mere receipt of a formal
notice of suspension. This condition, which is listed in paragraph (b.1)’s initial sentence,
constitutes a separate and independent basis for inclusion in the pool, as demonstrated
by the legislative use of disjunctive phraseology. As such, it applies even where no
classes or programs have been transferred from the school entity in question.
More important, the operative facet of paragraph (b.1) – its second sentence –
grants employment prioritization in situations where another school entity “assum[es]
program responsibility for transferred students[.]” 24 P.S. §11-1113(b.1) (emphasis
added). While this may occur when a class or program is transferred, it may also occur
when students are transferred between identical or substantially similar educational
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programs, as occurred in the present matter. The Legislature appears to have intended
to include this latter possibility because, unlike paragraph (a), paragraph (b.1) makes no
mention of any transfer of classes or programs. Indeed, to the contrary, it does not refer
to transferred classes at all and, instead, centers on the circumstance that a school
entity assumes program “responsibility.” See generally Commonwealth v. Elliot, 616
Pa. 524, 534, 50 A.3d 1284, 1290 (2012) (observing that when the General Assembly
uses different words or phrases in a statutory provision, a presumption arises that the
legislative body intended those words or phrases to have different meanings).
Under these circumstances, it would be tenuous to read into the phrase,
“assuming program responsibility for transferred students,” a requirement that a class or
program must have been transferred as a unit.4 We therefore conclude the General
Assembly intended the trigger for employment prioritization under paragraph (b.1) to be
broader than that of paragraph (a). In particular, we find that the transfer of students
and the assumption of program responsibility by the receiving entity are alone sufficient
to implicate the protections conferred under paragraph (b.1).
The order of the Commonwealth Court is reversed, and the matter is remanded
for further proceedings.
Mr. Justice Eakin did not participate in the consideration or decision of this case.
Mr. Justice Baer, Mmes. Justice Todd and Donohue and Messrs. Justice
Dougherty and Wecht join the opinion.
4
To the degree there is any remaining doubt based on the concept that a school entity’s
assumption of program responsibility presupposes that a program has been transferred,
we note that the Transfer Act is remedial legislation designed to protect the employment
interests of furloughed professional school employees. Hence, the act is to be liberally
construed to effectuate its objectives, with doubts resolved in favor of the conferral of
such protection. See 1 Pa.C.S. §1928(c).
[J-2-2016] - 10
CWC v. Penn-Trafford, Apl of: CWC
Combined Opinion