Dotterer v. School District of Allentown

DISSENTING OPINION BY

Judge LEAVITT.

Respectfully, I dissent. The School Board demoted James C. Dotterer from assistant principal to teacher after he retired, and it made this demotion retroactive to one year before his retirement. The Board’s action was illegal. A demotion must be prospective, and it can never be imposed upon a retired employee. Accordingly, Dotterer filed a mandamus action to have the School District ordered to pay him the retirement benefits afforded to a retired assistant principal, the position he held when he retired. The trial court held that the subject matter of Dotterer’s complaint belonged before the Secretary of Education and dismissed his complaint. The majority agrees and affirms the trial court’s order, but I would reverse.

Mandamus requires the plaintiff to have a clear right to relief. Here, the statute and case law precedent are crystal clear. A school district’s administrative staff lacks the authority to demote a professional employee. Only a board of school directors can demote, and it can do so only after giving the professional employee a written statement of charges and conducting a hearing on the merits of the administrative staffs recommendation. Should the board decide to demote the employee, its demotion can take effect no earlier than its demotion resolution. The School Board did not follow any of these procedures in the case of Dotterer’s demotion.

The procedures for a demotion and a dismissal are set forth in Section 1127 of the Public School Code of 1949,1 which states as follows:

Before any professional employe having attained a status of permanent tenure is dismissed by the board of school directors, such board of school directors shall furnish such professional employe with a detailed written statement of the charges upon which his or her proposed dismissal is based and shall conduct a *887hearing.... Such hearing shall not be sooner than ten (10) days nor later than fifteen (15) days after such written notice.

24 P.S. § 11-1127. In Section 1151 of the Public School Code the legislature extended these procedures to the professional employee who declines to consent to a proposed demotion. Section 1151 states as follows:

[TJhere shall be no demotion of any professional employe either in salary or in type of position, except as otherwise provided in this act, without the consent of the employe, or, if such consent is not received, then such demotion shall be subject to the right to a hearing before the board of school directors and an appeal in the same manner as hereinbe-fore provided in the case of the dismissal of a professional employe.

24 P.S. § 11-1151 (emphasis added). The procedures “hereinbefore provided” for a “demotion” where “consent is not received” are those set forth in Section 1127 of the Public School Code, which require a “detailed written statement of the charges” and a school board hearing.

The case law precedent confirms that “[t]he law is clear that a demotion cannot become effective until after the hearing has taken place.” McCoy v. Lincoln Intermediate Unit No. 12, 38 Pa.Cmwlth. 29, 391 A.2d 1119, 1125 (1978). This principle was first established in Tassone v. School District of Redstone Township, 408 Pa. 290, 183 A.2d 536, 539 (1962), where the Pennsylvania Supreme Court held that the demotion of a professional employee requires a school board hearing, and the demotion “cannot become effective until after the hearing has taken place.” (emphasis in original). Simply, there is no such thing as a retroactive demotion.

Further, administrative staff cannot effect a demotion and later seek board approval. In Board of School Directors of Abington School District v. Pittenger, 9 Pa.Cmwlth. 62, 305 A.2d 382 (1973), a principal reassigned an assistant principal the duties of a teacher, albeit without a change in salary. After the employee objected, the principal then issued a detailed statement of charges, on which the school board conducted several days of hearings. By a vote of six to two, the board ratified the principal’s “transfer-demotion” of the employee. Id. at 384. The Secretary of Education reversed the Board and reinstated the employee to his prior position. This Court affirmed the Secretary.

We reasoned, first, that a school district’s administrative staff lacks the statutory authority to demote professional employees. Second, absent the employee’s consent, “it is veritably a legal maxim in this Commonwealth that the provisions of the teacher’s tenure, as found in the [Public] School Code requires strict compliance” and the “procedure prescribed is mandatory.” Id. at 385 (citation omitted). It was the school district’s failure to follow the procedures set forth in Sections 1127 and 1151 of the Public School Code that rendered the school board’s subsequent ratification of the assistant principal’s demotion null and void. In dismissing Dot-terer’s complaint, the trial court did not address any of these mandatory procedures for demotion of an assistant principal.

The School District’s assistant superintendent, i.e., a member of the administrative staff, sent Dotterer the following letter on July 1, 2011:

If you do not consent to this demotion, you may request a hearing before the Allentown School Board. Your request for a hearing must be delivered to my office no later than July 15, 2011. Your failure to request a hearing by 1:00 p.m. on July 15, 2011, will constitute a waiv*888er of statutory, contractual, and constitutional rights. Therefore, if you fail to request a hearing, you will be demoted without a hearing.

Complaint, Exhibit A; Reproduced Record at 15a (R.R._) (emphasis added). On July 5, 2011, Dotterer responded that he did not consent to his demotion and wanted a hearing. In the meantime, the assistant superintendent reduced his salary to that of a teacher. This action was unlawful because it was done without Board action and, indeed, before the Board had even scheduled a hearing, let alone issued a written statement of charges to Dotterer.

There is another problem with the School District’s procedure. The assistant superintendent’s July 1, 2011, letter purported, impermissibly, to place the burden upon Dotterer to request a hearing. The School Code places the burden upon the school board to schedule a hearing once it learns that an employee will not consent to a demotion and nowhere states that the non-consenting employee will waive all his “statutory, contractual, and constitutional rights” if he does not request a hearing on his demotion.2 Simply, the assistant principal’s demand of Dotterer was gratuitous and unfounded. See Neshaminy School District v. Neshaminy Federation of Teachers, 84 A.3d 391 (Pa.Cmwlth.2014). The School Board’s obligation to hold a hearing to effect a demotion is absolute and does not depend upon a professional employee’s request. Tassone, 183 A.2d at 539.

In this case, Dotterer expressly refused consent. This triggered the School Board’s responsibility to conduct a hearing as the necessary condition precedent to a demotion of Dotterer. As this Court noted in Pittenger, the Public School Code does not permit

the school district to demote teachers without Board action, so long as the teacher does not ask for a hearing. Quite to the contrary, the statute evidences a legislative intent for Board action, even where there is consent by the professional employee. Further, if there is no consent, then perforce the Legislature has required Board action.

Pittenger, 305 A.2d at 386 (emphasis added).

In its preliminary objection to Dotterer’s mandamus complaint, the school district alleged that “Plaintiff withdrew his request for the demotion hearing.” Preliminary Objection, ¶ 16; R.R. 60a. Dotterer responded, “Denied as stated.” Response, ¶ 16; R.R. 99a. Dotterer went on to explain that he had retired; could not be demoted; and the demotion hearing served no purpose. This answer does not express either a consent or a willingness to relieve the School District of its obligation to hold a hearing, with or without Dotterer’s request, before it could demote him.

On September 27, 2012, the School Board adopted a resolution demoting Dot-terer from assistant principal to teacher and made its resolution effective July 1, 2011. A professional employee “aggrieved by the action of the board of school directors” may appeal to the Secretary of Education under Section 1131 of the Public *889School Code. It states, in relevant part, as follows:

In case the professional employe concerned considers himself or herself aggrieved by the action of the board of school directors, an appeal by petition, setting forth the grounds for such appeal, may be taken to the Superintendent of Public Instruction at Harrisburg, Such appeal shall be filed within thirty (BO) days after receipt by registered mail of the written notice of the decision of the board.

24 P.S. § 11-1131 (emphasis added).3 To be sure, Section 1131 “provides the exclusive procedure” for obtaining “judicial review of administrative determinations.” Jackson v. Centennial School District, 509 Pa. 101, 501 A.2d 218, 220 (1985).4 The question here is whether Section 1131 extends to a former professional employee, i. e., one who is retired.

The trial court held that Dotterer had a statutory remedy under Section 1131 of the Public School Code, which legal remedy made it impossible for him to pursue an action in mandamus. The majority agrees with this conclusion, holding that “professional employe” is a term broad enough to cover a “retired employee.” I disagree.

The term “professional employe” as used in Section 1131 is a defined term, and it does not include “retired” employees. Section 1101(1) states as follows:

As used in this article,

(1) The term “professional employe” shall include those who are certificated as teachers, supervisors, supervising principals, principals, assistant principals, vice-principals, directors of vocational education, dental hygienists, visiting teachers, home and school visitors, school counselors, child nutrition program specialists, school librarians, school secretaries the selection of whom is on the basis of merit as determined by eligibility lists and school nurses.

24 P.S. § 11-1101(1). This exhaustive list does not include “former” or “retired” assistant principals. Under the well-settled statutory construction principle of expresio unius est exclusio alterius, we must presume the definition is complete and refrain from “judicially expanding” the reach of Section 1101(1) to those who are no longer certified as assistant principals, such as Dotterer. L.S. ex rel. A.S. v. Eschbach, 583 Pa. 47, 874 A.2d 1150, 1156 (2005).

However, even if we accept the proposition that a “professional employe” includes a “retired professional employee,” it was error for the trial court to dismiss Dotterer’s complaint. Rather, it was incumbent on the trial court to transfer Dotterer’s complaint to the Secretary of Education. Section 5103(a) of the Judicial Code mandates the transfer of a case that has been brought before a trial court where jurisdiction lies with another “tribunal.” It states as follows:

If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or magisterial district judge shall not quash such appeal or dismiss the matter, but shall *890transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court or magisterial district of this Commonwealth. A matter which is within the exclusive jurisdiction of a court or magisterial district judge of this Commonwealth but which is commenced in any other tribunal of this Commonwealth shall be transferred by the other tribunal to the proper court or magisterial district of this Commonwealth where it shall be treated as if originally filed in the transferee court or magisterial district of this Commonwealth on the date when first filed in the other tribunal.

42 Pa.C.S. § 5103(a) (emphasis added). A “tribunal” includes any “other judicial officer of this Commonwealth vested with the power to enter an order in a matter, the Board of Claims, the Board of Property, the Office of Administrator for Arbitration Panels for Health Care and any other similar agency.” 42 Pa.C.S. § 5103(d) (emphasis added). We have established that the Secretary of Education is a “tribunal” for purposes of a Section 5103(a) transfer. Meck, 625 A.2d at 206-07.

In Meek, a professional employee challenged the school board’s “realignment” of his assignments by filing a complaint with a trial court under the Local Agency Law.5 We concluded that the subject matter of the complaint fell within the jurisdiction of the Secretary of Education under Section 1131 of the Public School Code and, thus, the trial court should have transferred the complaint to the Secretary of Education. We corrected this error by ordering the trial court to do the transfer. Because the issue was jurisdictional, we raised the transfer sua sponte. Id. at 206.

Here, once the trial court held that Dot-terer’s challenge to the Board’s post-retirement demotion belonged before the Secretary of Education, it should have transferred the matter under 42 Pa.C.S. § 5103(a). The majority declines to do so because Dotterer did not ask for a transfer and even noted his opposition to a transfer at oral argument. However, parties do not decide the matter of jurisdiction; courts do.

The majority also cites Black v. Board of Directors of West Chester Area School District, 98 Pa.Cmwlth. 91, 510 A.2d 912 (1986), to support its decision not to transfer Dotterer’s complaint to the Secretary. Black is distinguishable. First, it concerned a school administrator who was an active employee of the school district at the time of his demotion. Second, the employee filed a complaint with the court of common pleas many months after the school board demoted him. Because the school administrator’s complaint was filed more than 30 days after the Board’s action, it was untimely. Had the professional employee’s complaint been timely, we held that it would have been transferred to the Secretary of Education for disposition.

Here, by contrast, a transfer of Dotterer’s complaint would not be untimely. Dotterer filed his mandamus action before the Board demoted him. Further, the trial court held, specifically, that the subject of Dotterer’s mandamus action, including whether the Board could demote a retired employee, was a matter for the Secretary of Education.

The majority notes that if Dotterer were unhappy with the Board’s delay in scheduling a demotion hearing, he could have *891appealed to the Secretary.6 This overlooks the fact that a hearing delay works to the advantage of the professional employee that has been targeted for a demotion. This is because the effective date of that demotion can be no earlier than a decision by the school board. Tassone, 183 A.2d at 539. Stated otherwise, even were the School District to prevail on its proposed demotion, Dotterer should have been reinstated to assistant principal up to the effective date of the Board’s resolution as should his salary. See Migliore v. School District of Philadelphia, (Pa.Cmwlth., No. 1663 C.D.2012, filed June 18, 2013) slip op. at 13 n. 9, 2013 WL 3156533 (noting that had the assistant principal “not retired and had prevailed at the hearing, he would have been entitled to reinstatement and back pay.”). "When negotiations broke down between Dotterer and the School District, the School District should have promptly initiated the formal procedures under Section 1151 to avoid a reinstatement of his salary that had been reduced before the Board’s demotion.7

Dotterer was not a “professional employee” when the Board demoted him. He was retired. Section 1131 cannot be read to apply to retired professionals. Because Dotterer lacks a statutory remedy by which to challenge the Board’s action to demote him, he can pursue his claim in mandamus. Accordingly, I would reverse the trial court’s dismissal of his complaint.

President Judge PELLEGRINI and Judge McCULLOUGH join in this dissent.

. Act of March 10, 1949, P.L. 30, 24 P.S. § 11-1127.

. A notice of intended demotion might be permissible if it said:

Your failure to give consent by 4:00 p.m. on July 15, 2011, will constitute a refusal to give consent. The school district will issue a statement of charges and hold a hearing 10 days thereafter.

However, a professional employee’s failure to request a hearing does not effect a waiver of the school board's statutory obligation under Section 1127 to hold a hearing before demoting the employee.

. The Superintendent of Public Instruction is now designated as the Secretary of Education. Meck v. Carlisle Area School District, 155 Pa.Cmwlth. 469, 625 A.2d 203, 205 n. 4 (1993).

. In Jackson, the employee appealed an adjudication of the Secretary of Education to this Court. Her appeal was untimely. Thereafter, the employee filed an assumpsit action to recover backpay. The Supreme Court held that she could have pursued the issue of her backpay in her appeal of the Secretary’s adjudication: unfortunately, her appeal to this Court was untimely.

. Section 752 of the Local Agency Law, 2 Pa.C.S. § 752, provides a direct right of appeal to a "person aggrieved by an adjudication of a local agency.”

. Dotterer went on medical leave on June 21, 2011. He underwent shoulder surgery in December 2011, and remained on medical leave for the 2011-2012 school year. In June of 2012, Dotterer was released to return to work. At that point, he repeatedly requested the School Board to hold a hearing on his putative demotion and for a written statement of the charges. Complaint, Exhibits I, J and L; R.R. 33a, 35a, 39a. In spite of promises from the District’s counsel that a hearing . would be scheduled, it was not.

During the summer of 2012, Dotterer informed the School District that he was considering a retirement. However, he also explained that he preferred to return to work for the 2012-2013 school year at his assistant principal position.

. The Board's retroactive demotion was contrary to the clear requirement that a demotion be prospective. It was done to avoid a reinstatement at least up to the date of the Board's demotion. See, e.g., Patchel v. Board of School Directors of Wilkinsburg School District, 42 Pa.Cmwlth. 34, 400 A.2d 229, 230 (1979).