Derry Township School District v. Finnegan

*76Dissenting Opinion by

Judge Craig

This court should not uphold the suspension of a tenured professional employee elementary teacher, in order to retain an untenured temporary professional employee elementary principal. The majority opinion rightly characterizes the former section 1125 of the-Public School Code of 1949, Act of March 10, 1949, P;L.' 30, as amended, formerly 24 P.S. §11-1125, as mandating school boards to retain professional employees on the basis of seniority where rating differences do not govern.

Moreover, footnote. 2 of the majority opinion well summarizes the subordinate status of untenured employees, as' follows:

Temporary professional employees are not entitled to the seniority benefits of tenured professionalemployees under the Code. Phillippi v. School District of Springfield Township, 28 Pa. Commonwealth Ct. 185, 367 A.2d 1133 (1977). Temporary professional employees do not have the'right to be compared with professional em-ploy-ees on the basis of efficiency ratings nor for- that matter among themselves. Tressler v. Upper Dublin School District, 30 Pa. Commonwealth Ct. 171; 373 A.2d 755 (1977).

Thus, because temporary professional employees do not -have-the-right to be compared with professional employees on the- basis of efficiency ratings, tenured status has precedence over untenured status. Begardless of efficiency ratings, when a school’s professional staff must be reduced, an untenured professional is not - entitled to remain when a tenured professional cannot. ' -

A judicial approach which places the untenured employee in an administrative class, distinct from the teaching class of employees, serves only to insulate the untenured administrator from the legal status pre*77scribed by law where tenure is absent. The School Code gives no warrant for thus negating the concept of tenure.

Judicial classification of administrative employees as a group apart would permit school boards to evade the principle of tenure, established by statute, by the simple expedient of appointing untenured persons to administrative positions.

There is here no need to reverse the trial court’s decision entirely. The trial court’s order, in going beyond the reinstatement of the tenured teacher, erred in unnecessarily designating a specific replacement for the untenured principal. Certainly the judiciary need not (and should not) dictate which third party teacher is to replace the untenured principal. More properly, this court should modify the trial court decision. by affirming the order to suspend the untenured employee and reinstate the tenured petitioner, but should leave the replacement of the elementary principal to the discretion of the school board.

I also join Judge Rogers’ dissenting opinion. Judge Rogers joins this dissent.