The URL can be used to link to this page

Home My WebLink About94-0606 Civil PARENTS FOR QUALITY : IN THE COURT OF COMMON PLEAS OF EDUCATION, INC., : CUMBERLAND COUNTY, PENNSYLVANIA G. Frank Eichelberger, : Henry W. Treffinger, and : LuAnn Wagner, Ridgley K. : Snyder, Sr., Cynthia p. : Varner, Hilary H. Albright, : John P. Durnin, Charles E. : Swisher, John W. Pittenger, : and Ruth B. Ronnan, : Petitioners : : v. : CIVIL ACTION - LAW EARL M. BARNHART, : : DALE O. HARTZELL, JR., and : GERALD E. EBY, : Respondents : 94-606 CIVIL TERM IN RE: RESPONDENTS, PRELIMINARy OBJECTION BEFORE SHEELY, p.j., and OLER, J. 9RDER OF COURT AND NOW, this ~l~ day of July, 1994, upon careful consideration of Respondents, Preliminary Objection in the Nature of a Demurrer to Petitioners, Petition for Removal of School Directors of Carlisle Area School District, as well as the briefs and oral arguments presented in the matter, Respondents, preliminary objection is SUSTAINED, and the petition for removal is DISMISSED. BY THE COURT, Arthur T. McDermott, Esq. 50 East High Street Carlisle, PA 17013 Attorney for Petitioners James D. Flower, Jr., Esq. 11 East High Street Carlisle, PA 17013 Attorney for Respondents : rc PARENTS FOR QUALITY : IN THE COURT OF COMMON PLEAS OF EDUCATION, INC., : CUMBERLAND COUNTY, PENNSYLVANIA G. Frank Eichelberger, : Henry W. Treffinger, and : LuAnn Wagner, Ridgley K. : Snyder, Sr., Cynthia P. : Varner, Hilary H. Albright, : John P. Durnin, Charles E. : Swisher, John W. Pittenger, : and Ruth B. Ronnan, : Petitioners : : v. : CIVIL ACTION - LAW : EARL M. BARNHART, : DALE O. HARTZELL, JR., and : GERALD E. EBY, : Respondents : 94-606 CIVIL TERM IN RE: RESPONDENTS' PRELIMINARY OBJECTION BEFORE SHEELY, P.J., and OLER, J. OPINION and ORDER OF COURT Oler, J. The present case was commenced by the filing of a petition requesting removal of three public school board directors for an alleged breach of duty to contract. For disposition at this time is Respondents' preliminary objection in the nature of a demurrer. For the reasons stated in this Opinion, the demurrer must be sustained. Statement of Facts The facts involved in this case may be summarized as follows: Petitioners include ten tax-paying residents of the Carlisle Area School District.~ Respondents are elected members of the Carlisle Area School Board and comprise a three-person negotiating team for Petition, paragraphs 1-10. --1-- the school board.2 The Petition states that it is filed under the authority of Section 318 of the Public School Code, and seeks removal of Respondents "for their refusal or neglect to perform their mandatory duty to contract with professional employees (to wit, teachers) .... "~ Petitioners assert that Respondents have not complied with Section 1106 of the Public School Code because Respondents have failed "to employ the necessary professional employees to keep the public schools open in the Carlisle Area School District.-4 In this regard, Petitioners aver that as of August, 1992, the contract between Carlisle Area School District and its teachers expired, and that no new contract has been entered into.5 Petitioners allege that the reason that no new contract has been entered into is that bad-faith negotiating tactics have been utilized by the Board.6 However, "the Petitioners concede that the teachers are 'working' 2 Petition, paragraphs 11-13. 3 Petition, introductory statement; see Act of March 10, 1949, P.L. 30, S318, as amended, 24 P.S. §3-318. 4 Petition, paragraph 14; see Act of March 10, 1949, P.L. 30, ~1106, as amended, 24 P.S. ~11-1106. ~ Petition, paragraph 16. Although press reports indicate that an agreement has been reached with respect to a new contract since oral argument was held in this matter, nothing to this effect has been filed of record and neither counsel has filed a suggestion of mootness. 6 Petition, paragraphs 19-21, 24-25. --2-- and the schools are currently open .... "? Respondents filed a preliminary objection to the petition for removal. The preliminary objection states the following: Petitioners fail to set forth a cause of action. Petitioners assert two erroneous reasons that the Respondents have neglected their duty: (1) That the Respondents have a mandatory duty to contract with the labor union, regardless of terms, when no such duty exists; and (2) That the Respondents have breached a duty to employ teachers as set forth in School Code Sl106, when the Petition and exhibit make clear that all members of the labor organization, CAEA, are employees of the School District.8 In support of the demurrer, Respondents contend that the duty imposed upon them by statute is an obligation to employ rather than a responsibility to contract.9 They maintain further that they have not breached their duty to employ, because the individual teachers are employed.~° Statement of Law With respect to Respondents' demurrer to the petition for removal, certain points of law are pertinent. First, as to a 7 Plaintiff's Brief in Response to Defendant's Preliminary Objections, at 19. ~ Respondents' Preliminary Objection in the Nature of a Demurrer (emphasis in original). at 5.9 Respondents' Brief on Its Demurrer to Plaintiffs' Petition, at 5.~° Respondents, Brief on Its Demurrer to Plaintiffs' Petition, -3- demurrer in general, it is well settled in Pennsylvania that "[t]he question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible .... " Scarpitti v. Weborg, 530 Pa. 366, 369, 609 A.2d 147, 148 (1992). Second, Section 318 of the School Code provides as follows: If the board of school directors in any district refuse or neglect to perform any duty impo~ upon it by the provisions of this act relating to school districts ... any ten resident taxpayers in the district ... may present their petition in writing, verified by the oath or affirmation of at least three such resident taxpayers . to the court of common pleas of the county i~ which such district is located, setting forth the facts of such refusal or neglect of duty on the part of such school directors .... If the court shall be of the opinion that any duty imposed on the board of school directors, which is by the provisions of this act made mandatory upon them to perform, has not been done or has been neglected by them, the court shall have power to remove the board ... and appoint for the unexpired terms other qualified persons in their stead, subject to the provisions of this act. n Third, Section 1106 of the Public School Code states the duty that is the subject of the present dispute: "The board of school directors in every school district shall employ the necessary qualified professional employes, substitutes and temporary professional employes to keep the public schools open in their respective districts in compliance with the provisions of this ~ Act of March 10, 1949, P.L. 30, ~318, as amended, 24 p s. $3-318. · -4- act. "~2 In this regard, it has been noted that "the underlying purpose of the School Code is to aid the children of the Commonwealth to obtain a better education. The separate sections of the code all derive their inspiration from this source. Though containing individual policies in themselves, each is subordinate to this cardinal purpose." Mornell v. Mt. Carmel Twp. Sch. Dist., 23 Northumberland L.J. 90, 94, aff'd sub nom., Mornell v. Kane, 368 Pa. 173, 81 A.2d 542 (1951). Fourth, several rules of statutory construction are of assistance herein. "[T]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.,,~3 "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.-~4 "Words and phrases [are to] be construed ... according to their common and approved usage .... "~ "When the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: ~2 Act of March 10, 1949, P.L. 30, §1106, as amended, 24 P.S. Sll-l106. ~3 Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S.A. ~1921(a) (1994 Supp.).· ~4 Act of December 6, 1972, P.L. 1339, ~3, 1 Pa. C.S.A. ~1921(b) (1994 Supp.). ~5 Act of December 6, 1972, P.L. 1339, ~3, 1 Pa. C.S.A. §1903(a) (1994 Supp.). --5-- (3) The mischief to be remedied. (4) The object to be obtained."~6 Fifth, it has been held that "[a] written contract ... [is] not ... dispositive of the issue of an employee's status." Platko v. Laurel Highlands Sch. Dist., 49 Pa. Commw. 210, 214-215, 410 A.2d 960, 963 (1980). Application of Law to Facts An application of the foregoing points of law to the facts of the present case leads to a conclusion that Petitioners' petition for removal of Respondents from office should not be granted. First, the common meaning of the word "employ" is as follows: "provide with a job that pays wages or a salary .... ..~7 Since one can provide another with a job that pays wages or a salary without the existence of a formal, written contractual agreement, it would seem that in common usage one can "employ" even though there is no formal contract governing that employment. Second, the mischief to be remedied by the act can be ameliorated even though no contractual agreement is present. The public schools in the Carlisle Area School District have been kept open in the absence of a formal contract. Third, the object to be obtained by the act can be achieved even if the teachers are not employed under a formal, written contract. Having a formal contract with the teachers, while highly Act of December 6, 1972, P.L. 1339, ~3, 1 Pa. C.S.A. ~1921(c)(3), (4) (1994 Supp.). Webster's New Third International Dictionary 743 (1963). --6-- desirable, is not an absolute prerequisite to aiding the children of the Commonwealth to obtain a better education. These factors militate against a construction of the School Code which requires the existence of a formal contract under the present circumstances as a predicate to the fulfillment of Respondents' duty to employ teachers. For this reason, the following Order will be entered: ORDER OF COURT AND NOW, this //~ day of July, 1994, upon careful consideration of Respondents' Preliminary Objection in the Nature of a Demurrer to Petitioners' Petition for Removal of School Directors of Carlisle Area School District, as well as the briefs and oral arguments presented in the matter, Respondents' preliminary objection is SUSTAINED, and the petition for removal is DISMISSED. BY THE COURT J. Wesley Oler~Jr. Arthur T. McDermott, Esq. 50 East High Street Carlisle, PA 17013 Attorney for Petitioners James D. Flower, Jr., Esq. 11 East High Street Carlisle, PA 17013 Attorney for Respondents :rc --7--