            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dr. Steven Greenfield,                         :
                  Petitioner                   :
                                               :
               v.                              :
                                               :
Hanover Area School District,                  :   No. 711 C.D. 2019
                 Respondent                    :   Argued: December 10, 2019



BEFORE:        HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                            FILED: May 12, 2020


               Dr. Steven Greenfield (Greenfield) petitions for review from the May
14, 2019 order of the Secretary of Education (Secretary) dismissing Greenfield’s
appeal challenging the decision of the Hanover Area School Board (Board) to
eliminate his position with the Hanover Area School District (District). When
Greenfield sought a hearing before the Board to clarify whether he had been
suspended or terminated, the District did not respond. Greenfield appealed to the
Secretary, who concluded that the District had not terminated Greenfield’s position,
but had suspended Greenfield for economic reasons pursuant to the Public School
Code of 1949 (Code),1 and therefore, the Secretary lacked jurisdiction to adjudicate


      1
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-XXX-XX-XXXX.
the matter. As Greenfield cannot be considered “suspended” under the Code, we
reverse the order of the Secretary and remand to the Secretary for imposition of the
remedy provided herein.
                On August 6, 2009, the District employed Greenfield as a tenured
professional employee and, at the time of his hire, Greenfield was the Director of
Special Education and Director of Pupil Services. Secretary of Education, Opinion
and Order dated May 14, 2019, Findings of Fact (F.F.) 1 & 3 & Conclusions of Law
(C.L.).2 Greenfield’s duties included overseeing the guidance counselors, the school
nurses, the truant officer, clerical staff, English language development, home
instruction, home bound instruction, charter school students, and students with
disabilities.    F.F. 3.   In the summer of 2017, Superintendent William Jones
(Superintendent) divided Greenfield’s position into two positions.                    F.F. 5.
Greenfield retained his position as Director of Pupil Services and the District hired
another employee, Shannon Bennet (Bennet), as Director of Special Education. F.F.
6-7.
                On June 21, 2018, the Board, at a properly noticed meeting, voted to
eliminate Greenfield’s position as Director of Pupil Services effective July 1, 2018.
F.F. 18. The next day, on June 22, 2018, the District notified Greenfield, in writing,
that his position had been eliminated. F.F. 20. On June 27, 2018, Greenfield
requested a hearing before the Board and sought clarification of whether he had been
terminated or suspended. F.F. 25; Notes of Testimony (N.T.) dated 8/7/18 at 31-32.
The District did not respond to his request for a hearing or his request for clarification

       2
          The Secretary is the “ultimate fact-finder” in cases where testimony is taken by the
Secretary, or where, as here, no findings were made by the Board. Balog v. McKeesport Area Sch.
Dist., 484 A.2d 198, 200 (Pa. Cmwlth. 1984). “Where the Secretary makes findings of fact, this
Court must accept those findings if they are supported by competent evidence.” Id. Greenfield
does not challenge the Secretary’s findings of fact.
                                              2
as to whether he had been terminated or suspended. F.F. 26-27. By letter dated July
6, 2018, the District paid Greenfield for his unused sick days and his earned vacation
days. F.F. 28.
               On July 9, 2018, Greenfield filed a petition for appeal with the
Secretary. F.F. 37. The Secretary appointed a hearing officer to hold a hearing on
the matter. The hearing was held on August 7, 2018 at which Greenfield and the
Superintendent testified. F.F. 39, 47 & 49; N.T. at 11-12. After the hearing, the
Secretary found that the District’s employment action involving Greenfield
constituted a suspension because the District terminated Greenfield’s position for
economic reasons. F.F. 30, 33 & C.L. 4. Because the District did not terminate
Greenfield, the Secretary concluded that he did not have jurisdiction to afford the
relief sought by Greenfield, i.e., reinstatement, because the remedy to challenge a
suspension is an appeal to the court of common pleas pursuant to the Local Agency
Law, 2 Pa.C.S. §§ 551-55 & 751-54. C.L. 5-6. Based on the foregoing, the Secretary
dismissed Greenfield’s appeal.3 Secretary’s Order dated 5/14/19. Greenfield filed
a timely petition for review with this Court challenging the Secretary’s order.
               Before this Court,4 Greenfield argues that the elimination of his position
actually constituted a termination under Section 1122 of the Code, 24 P.S. § 11-
1122, and, therefore, the Secretary had jurisdiction to consider his appeal.
Greenfield’s Brief at 10. Greenfield notes that the sole reason provided by the

       3
         On July 20, 2018, Greenfield filed an appeal in the Court of Common Pleas of Luzerne
County (No. 2018-08265), which has been stayed pending the outcome of his appeal with the
Secretary. Petition for Review ¶¶ 15-17.
       4
         Our review of the Secretary’s order is limited to determining whether an error of law was
committed, constitutional rights were violated, or necessary findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; McCoy v.
Lincoln Intermediate Unit No. 12, 391 A.2d 1119, 1121 (Pa. Cmwlth. 1978).

                                                3
District for the elimination of his position was for “economic reasons that require a
reduction in professional employees” as provided by Section 1124(a)(5) of the Code,
24 P.S. § 11-1124(a)(5). Id. While economic reasons can serve as a basis for a
suspension of a professional employee under Section 1124(a)(5) of the Code,
Greenfield asserts that a suspension can only occur if all of the statutory
requirements are met. Greenfield argues that the District did not meet, let alone
attempt to meet, the requirements for a suspension.5 Id. Upon review, we agree.
               The Secretary erred as a matter of law when he concluded that the
District suspended Greenfield pursuant to Section 1124(a)(5) of the Code. See C.L.
4. Section 1124(a)(5) applies when the District is laying off a number of employees
for economic reasons, not, as here, when the District terminated one professional
employee. Before a District can lay off a number of employees for economic
reasons, the District must first follow the process expressly provided in Section
1124(d) of the Code, 24 P.S. § 11-1124(d). Notably, the Secretary made findings
establishing that the District did not follow the process, that is, meet the statutory
requirements of Section 1124(d) of the Code. Given that the Secretary made specific
findings that the District did not follow the process required for a suspension, his
legal conclusion that Greenfield was suspended was incorrect. We now turn to the
statutory language and address the Secretary’s findings of fact in detail.
               Section 1124 of the Code provides the causes for suspension of
professional employees. 24 P.S. § 11-1124. Specifically, Section 1124(a) provides:




       5
         Notably, as stated, Greenfield sought clarification as to whether the elimination of this
job was a suspension or a termination. The Secretary rendered no finding as to whether the
elimination of Greenfield’s position was temporary or permanent.
                                                4
              (a) Any board of school directors may suspend the
              necessary number of professional employes, for any of the
              causes hereinafter enumerated:
              (1) substantial decrease in pupil enrollment in the school
              district;
              (2) curtailment or alteration of the educational program on
              recommendation of the superintendent and on concurrence
              by the board of school directors, as a result of substantial
              decline in class or course enrollments or to conform with
              standards of organization or educational activities required
              by law or recommended by the Department of Education;
              (3) consolidation of schools, whether within a single
              district, through a merger of districts, or as a result of joint
              board agreements, when such consolidation makes it
              unnecessary to retain the full staff of professional
              employes;
              (4) when new school districts are established as the result
              of reorganization of school districts pursuant to Article
              II[], subdivision (i) of this act, and when such
              reorganization makes it unnecessary to retain the full staff
              of professional employes; or
              (5) economic reasons that require a reduction in
              professional employes.

24 P.S. § 11-1124(a) (emphasis added).6 Section 1124(a)(5) plainly states that a
board may “suspend the necessary number of professional employes for . . .
economic reasons that require a reduction in professional employes.” 24 P.S. § 11-
1124(a)(5) (emphasis added).          However, a board may suspend a number of
employees on this basis only if all of the requirements of Section 1124(d), 24 P.S. §
11-1124(d), are first met.
              Section 1124(d) provides:

       6
          Section 1124 was amended by the General Assembly in 2017 to add several provisions
relating to economic reasons for suspensions. See Section 5 of the Act of November 6, 2017, P.L.
1142; see also H.R. 178, 201st Gen. Assemb., Reg. Sess. (Pa. 2017-18). For the purposes of this
matter, the General Assembly added subsections (a)(5) and (d) to Section 1124, 24 P.S. § 11-
1124(a)(5) & (d).
                                               5
A board of school directors may suspend professional
employes pursuant to subsection (a)(5) [(for economic
reasons that require a reduction in professional employes)]
only if all of the following apply:

(1) The board of school directors approves the proposed
suspensions by a majority vote of all school directors at a
public meeting of the board of school directors.

(2) No later than sixty (60) days prior to the date of
adoption of a final budget, the board of school directors
has adopted a resolution of intent to suspend professional
employes in the following fiscal year, which shall set forth
the following:

(i) The economic conditions of the school district making
the proposed suspensions necessary and how those
economic conditions will be alleviated by the proposed
suspensions, including:

      (A) The total cost savings expected to result
      from the proposed suspensions.

      (B) A description of other cost-saving actions
      taken by the board of school directors, if any.

      (C) The projected expenditures of the school
      district for the following fiscal year with and
      without the proposed suspensions.

      (D) The projected total revenues of the school
      district for the following fiscal year.

(ii) The number and percentage of employes to be
suspended who are professional employes assigned
to provide instruction directly to students.



                             6
             (iii) The number and percentage of employes to be
             suspended who are administrative staff.

             (iv) The number and percentage of employes to be
             suspended who are professional employes who are
             not assigned to provide instruction directly to
             students and who are not administrative staff.

             (v) The impact of the proposed suspensions on
             academic programs to be offered to students
             following the proposed suspensions, as well as the
             impact on academic programs to be offered to
             students if the proposed suspensions are not
             undertaken, compared to the current school year,
             and the actions, if any, that will be taken to
             minimize the impact on student achievement.

24 P.S. § 11-1124(d) (emphasis added). Here, the Board did not meet, let alone
attempt to meet, all of these requirements as evidenced by the Secretary’s findings
of fact.
             The Secretary found that Greenfield “was terminated for economic
reasons,” F.F. 30, and then, inexplicitly, renders the legal conclusion that the District
“suspended Greenfield for economic reasons.” See C.L. 4 (emphasis added). Aside
from the obvious problem that the Secretary’s factual finding and legal conclusion
are inconsistent, the Secretary attempts to support his legal conclusion that
Greenfield was suspended by rendering findings on some, but not all, of the
requirements of Section 1124(d). Because the Secretary failed to render findings on
all of the Section 1124(d) requirements, the District’s employment action could not,
as a matter of law, be considered a suspension as the Secretary concluded.
             Section 1124(d)(1) requires the Board to approve the “proposed
suspensions by a majority vote of all school directors at a public meeting.” 24 P.S.


                                           7
§ 11-1124(d)(1). Here, the Secretary found that the Board did not approve “proposed
suspensions” at its June 21, 2018 meeting. Rather, the Board voted to immediately
eliminate Greenfield’s position, which was the only position eliminated. F.F. 18 &
22. Second, Section 1124(d)(2) requires the Board to adopt “a resolution of intent
to suspend professional employes in the following fiscal year” no later than 60 days
“prior to the date of adoption of a final budget.” 24 P.S. § 11-1124(d)(2). The
“resolution of intent to suspend” must include the information listed in subsection
(d)(2)(i)-(v), 24 P.S. § 11-1124(d)(2)(i)-(v). Here, the Secretary expressly found that
“the Board did not adopt a resolution of intent to suspend professional employees in
the following fiscal year . . . .” F.F. 32 (emphasis added). Because the Board did
not approve proposed suspensions or adopt a resolution of intent as required by
Section 1124(d), the Secretary erred as a matter of law when he concluded that the
District suspended Greenfield for economic reasons pursuant to Section 1124(a)(5).
See 24 P.S. § 1124(d) (providing that the “board of school directors may suspend
professional employes pursuant to subsection (a)(5) only if all of the following
apply. . . ”) (emphasis added).
             Despite the Board’s failure to vote on proposed suspensions and to
adopt a resolution of intent to suspend, thereby rendering Section 1124(a)(5) not
applicable here, the Secretary further confused the issue by attempting to render
findings on the items that the Board should have included in a resolution of intent to
suspend. Specifically, the Secretary found that the Superintendent transferred
teachers, hired new teachers at a lower rate of pay, relocated emotional support
children, removed a business manager, switched products in the vending machines,
and refinanced a bond and note, which involved cost-savings for the District. F.F.
12-17. 24 P.S. § 11-1124(d)(2)(i)(B) (requiring the resolution of intent to contain


                                          8
“[a] description of other cost[]saving actions taken by the board . . . if any”). The
Secretary made findings regarding the cost saving actions taken by the
Superintendent and the savings incurred resulting from his actions but there was no
finding showing that the Board considered the “total cost savings expected to result
from the proposed suspensions.” 24 P.S. § 11-1124(d)(2)(i)(A) (emphasis added).
Likewise, there was no finding of the “projected expenditures” of the District for the
“following fiscal year with and without the proposed suspensions.” 24 P.S. § 11-
1124(d)(2)(i)(C) (emphasis added). There was no finding on the “projected total
revenues” of the District for the “following fiscal year.”             24 P.S. § 11-
1124(d)(2)(i)(D) (emphasis added). There was no finding as to the “impact of the
proposed suspensions” on academic programs to be offered to students “following
the proposed suspensions.” 24 P.S. § 11-1124(d)(2)(v) (emphasis added).
             The Secretary further found that there were “no suspensions” of
professional employees assigned to provide instruction directly to students or
administrative staff, F.F. 23-24, but these findings did not address the “number and
percentage of employes to be suspended who are professional employes assigned to
provide instruction directly to students” and “[t]he number and percentage of
employes to be suspended who are administrative staff.” 24 P.S. § 11-1124(d)(2)(ii)
& (iii) (emphasis added). The Secretary found that Greenfield was a professional
employee that did not provide instruction directly to students, F.F. 4, but this finding
does not address “the number and percentage of employes to be suspended who are
professional employes who are not assigned to provide instruction directly to
students . . . .” 24 P.S. §11-1124(d)(2)(iv) (emphasis added).
             Despite the Secretary’s attempt to show that the Board considered the
items necessary for a suspension, the Secretary could not make findings on all of


                                           9
these factors because they support the Board’s intent or proposal to suspend
professional employees in the future. As our Supreme Court has stated, a suspension
“contemplated in Section 1124 is in the nature of an impermanent separation, it is in
reality simply a furlough, it is a laying-off, it is a temporary discontinuance until
conditions readjust. Suspension under Section 1124 envisages a re-hiring.” Kaplan
v. Sch. Dist. of Phila., 130 A.2d 672, 675 (Pa. 1957) (emphasis added).
              To the contrary, here, the Secretary’s findings support a legal
conclusion that the District permanently terminated Greenfield from his position.
The day after the Board voted, the District sent Greenfield a letter notifying him that
his position was eliminated effective July 1, 2018. F.F. 18. Greenfield’s position
was the only position eliminated. F.F. 22. Greenfield was not offered a “right of
recall.” F.F. 21. Though Greenfield requested a hearing upon receipt of the letter,
the District did not respond to his request for clarification as to whether it was a
suspension or termination and did not respond to his request for a hearing. F.F. 25-
27. By letter dated July 6, 2018, the District paid Greenfield for his remaining sick
days and vacation days. F.F. 28. Through all of these actions, it is evident
Greenfield was terminated.
              The District asserts, however, that Section 1124 of the Code required
the Board to follow the procedures in Section 1125.1 of the Code, 24 P.S. § 11-
1125.1,7 when it suspended Greenfield. District’s Brief at 7. The District explains
that the Secretary found that Greenfield was suspended pursuant to Section 1125.1,
F.F. 33, and that “Greenfield does not even address” the Secretary’s “factual
finding.” Id. at 8 (emphasis in original). The District further states that it “has never
taken the position that its elimination of . . . Greenfield’s position was a termination

       7
         Section 1125.1 of the Code was added by Section 3 of the Act of November 20, 1979,
P.L. 465.
                                            10
for ‘just cause’”; rather, the elimination of his position was for “cost savings only.”
Id. at 9 (emphasis in original). Therefore, the District contends that the Secretary
properly found that Greenfield was suspended pursuant to Section 1125.1 and
properly declined to exercise jurisdiction over Greenfield’s appeal. Id. Upon
review, Sections 1124 and 1125.1 of the Code reveal the District’s and Secretary’s
reliance on Section 1125.1 is misplaced.
             Subsection (a.1)(1) of Section 1124 refers to the procedures in Section
1125.1 by providing:

             A school district may not use an employe’s compensation
             in determining which professional employes to suspend,
             but shall use the procedures in [S]ection 1125.1 to
             determine the order in which professional employes are
             suspended.
24 P.S. § 1124(a.1)(1) (emphasis added). As plainly stated by Section 1124(a.1)(1),
boards “shall use the procedures in section 1125.1 to determine the order in which
professional employes are suspended.” Id. Section 1125.1 directs boards to suspend
professional employees based on the ratings given in their “two most recent annual
performance evaluations” and if suspensions cannot be determined in this manner,
to consider seniority as provided therein. 24 P.S. § 1125.1(a)-(c.1). “A decision to
suspend in accordance with this section [(Section 1125.1)] shall be considered an
adjudication within the meaning of the ‘Local Agency Law.’” 24 P.S. § 1125.1(f)
(emphasis added). Therefore, when a board renders its decision regarding the order
in which it is suspending professional employees, this decision is an “adjudication”
that invokes the procedures of the Local Agency Law.
             Here, however, the Board never rendered an adjudication regarding the
order of suspension for professional employees per Section 1124(a.1)(1) of the
Code. As explained herein, the Board never proposed suspensions let alone rendered

                                           11
an adjudication as to an order of suspensions. The Board simply voted to eliminate
Greenfield’s position, F.F. 18, and in so doing terminated Greenfield.8 The Secretary
erred when he concluded that the Local Agency Law applies to the present matter,
see C.L. 5-6, and, therefore, the Secretary had jurisdiction to consider the Board’s
final action terminating Greenfield from his employment with the District.
               Though the Secretary concluded that he did not have jurisdiction over
this matter, the Secretary nevertheless found and concluded that Greenfield was “not
terminated for good or just cause” pursuant to Section 1122 of the Code because the
District “terminated” Greenfield for economic reasons. F.F. 29-30 & C.L. 3.
Section 1122 of the Code provides the “only valid causes” for termination of a
“professional employe” and economic reasons are not among them. 24 P.S. § 11-
1122(a) (emphasis added).9 Greenfield is, therefore, entitled to the remedies that he
seeks, that is, reinstatement and back pay, without a break in service. See Black v.
Bd. of Dirs. of W. Chester Area Sch. Dist., 510 A.2d 912, 915-16 (Pa. Cmwlth. 1986)
(concluding that the “relief requested by appellant, namely, reinstatement with back
pay, is within the authority of the Secretary to so award”); W. Shore Sch. Dist. v.
Bowman, 409 A.2d 474, 481 (Pa. Cmwlth. 1979) (stating that when a professional
employee is discharged by a school board without the required notice of a hearing
and opportunity to be heard, the employee is entitled to reinstatement) (citing


       8
        Though the Superintendent made the business decision to retain Bennett based on her job
performance and seniority, F.F. 10, the Board did not make this decision as part of a proposed
suspension.
       9
         The Code provides the procedures that a board is to follow prior to terminating a tenured
professional employee. A board is to provide the employee with a “detailed written statement of
the charges upon which [the employee’s] proposed dismissal is based and shall conduct a hearing.”
Section 1127 of the Code, 24 P.S. § 11-1127. The parties agree that the Board had no cause upon
which to terminate Greenfield, and, therefore, there is no need to remand this matter to the Board
for a hearing for further fact-finding on this issue.
                                               12
McKelvey v. Colonial Sch. Dist., 385 A.2d 1040 (Pa. Cmwlth. 1978) & McKelvey v.
Colonial Sch. Dist., 348 A.2d 445 (Pa. Cmwlth. 1975)). For the foregoing reasons,
we reverse the Secretary’s decision to dismiss Greenfield’s appeal and remand this
matter to the Secretary to issue an order providing Greenfield with the relief to which
he is entitled because the District terminated him without cause in violation of the
Code.


                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge




                                          13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dr. Steven Greenfield,                     :
                  Petitioner               :
                                           :
            v.                             :
                                           :
Hanover Area School District,              :   No. 711 C.D. 2019
                 Respondent                :


                                    ORDER


            AND NOW, this 12th day of May, 2020, the May 14, 2019 order of the
Secretary of Education dismissing Dr. Steven Greenfield’s (Greenfield) appeal for
lack of jurisdiction is REVERSED. We REMAND this matter to the Secretary of
Education to issue an order providing the relief requested by Greenfield in
accordance with the foregoing opinion.
            Jurisdiction relinquished.




                                         __________________________________
                                         CHRISTINE FIZZANO CANNON, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dr. Steven Greenfield,            :
                                  :
                       Petitioner :
                                  :
           v.                     : No. 711 C.D. 2019
                                  : Argued: December 10, 2019
Hanover Area School District,     :
                                  :
                       Respondent :

BEFORE:         HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge
                HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE WOJCIK                                                   FILED: May 12, 2020

                I respectfully dissent.
                The crux of the matter is whether Dr. Steven Greenfield (Dr.
Greenfield) was “dismissed” within the meaning of Sections 1122 and 1127 of the
Public School Code of 1949 (School Code),1 or whether he was “suspended”
within the meaning of Sections 1124, 1125 and 1125.1 of the School Code, 24 P.S.
§§11-1124, 11-1125, 11-1125.1.2 If Dr. Greenfield was dismissed, his appeal was
properly before the Secretary of Education (Secretary) under Section 1131 of the
School Code, 24 P.S. §11-1131. If, however, Dr. Greenfield was suspended, his

       1
           Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§11-1122, 11-1127.

       2
           Section 1125.1 of the School Code was added by the Act of November 20, 1979, P.L.
465.
right to appeal would be governed not by the School Code but by the Local
Agency Law.3 Section 1125.1(f) of the School Code, 24 P.S. §11-1125.1(f); see,
e.g., Fatscher v. Board of School Directors, Springfield School District, 367 A.2d
1130, 1132 (Pa. Cmwlth. 1977). The Secretary of Education has no jurisdiction
over appeals under the Local Agency Law because jurisdiction is vested in the
court of common pleas. 2 Pa. C.S. §752; 42 Pa. C.S. §933(a)(2). For the reasons
that follow, I believe the Secretary did not have jurisdiction because substantial
evidence supports the Secretary’s finding that Dr. Greenfield was suspended, not
terminated, from his employment.
               Section 1101(1) of the School Code provides that the term
“professional employe” shall include:

               those who are certificated as teachers, supervisors,
               supervising principals, principals, assistant principals,
               vice-principals, directors of career and technical
               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). A tenured professional employee has a property interest in
continued employment. Vladimirsky v. School District of Philadelphia, 144 A.3d
986, 996 (Pa. Cmwlth. 2016), appeal denied, 165 A.3d 887 (Pa. 2017).
               A professional employee may be dismissed only for those reasons set
forth in Section 1122(a) of the School Code, 24 P.S. §11-1122(a).4 As the majority

      3
          2 Pa. C.S. §§551-555, 751-754.
      4
          Pursuant to Section 1122(a) of the School Code:

               The only valid causes for termination of a contract heretofore or
               hereafter entered into with a professional employe shall be
(Footnote continued on next page…)
                                           MHW - 2
correctly notes, those reasons do not include economic reasons. 24 P.S. §11-
1122(a).
              Section 1127 of the School Code governs the procedure school
districts must follow in discharging tenured professional employees, providing:

              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

(continued…)

              immorality; incompetency; unsatisfactory teaching performance
              based on two (2) consecutive ratings of the employe’s teaching
              performance that are to include classroom observations, not less
              than four (4) months apart, in which the employe’s teaching
              performance is rated as unsatisfactory; intemperance; cruelty;
              persistent negligence in the performance of duties; wilful neglect
              of duties; physical or mental disability as documented by
              competent medical evidence, which after reasonable
              accommodation of such disability as required by law substantially
              interferes with the employe’s ability to perform the essential
              functions of his employment; advocation of or participating in un-
              American or subversive doctrines; conviction of a felony or
              acceptance of a guilty plea or nolo contendere therefor; persistent
              and wilful violation of or failure to comply with school laws of this
              Commonwealth, including official directives and established
              policy of the board of directors; on the part of the professional
              employe: Provided, That boards of school directors may terminate
              the service of any professional employe who has attained to the
              age of sixty-two except a professional employe who is a member
              of the old age and survivors insurance system pursuant to the
              provisions of the act, approved the first day of June, one thousand
              nine hundred fifty-six (Pamphlet Laws 1973). In such case the
              board may terminate the service of any such professional employe
              at the age of sixty-five or at the age at which the employe becomes
              eligible to receive full benefits under the Federal Social Security
              Act.

24 P.S. §11-1122(a).


                                          MHW - 3
             such professional employe with a detailed written
             statement of the charges upon which his or her proposed
             dismissal is based and shall conduct a hearing. A written
             notice signed by the president and attested by the
             secretary of the board of school directors shall be
             forwarded by registered mail to the professional employe
             setting forth the time and place when and where such
             professional employe will be given an opportunity to be
             heard either in person or by counsel, or both, before the
             board of school directors and setting forth a detailed
             statement of the charges. Such hearing shall not be
             sooner than ten (10) days nor later than fifteen (15) days
             after such written notice. At such hearing all testimony
             offered, including that of complainants and their
             witnesses, as well as that of the accused professional
             employe and his or her witnesses, shall be recorded by a
             competent disinterested public stenographer whose
             services shall be furnished by the school district at its
             expense. Any such hearing may be postponed, continued
             or adjourned.
24 P.S. §11-1127.     The statutory procedures for dismissal must be strictly
followed; no material deviation therefrom is permissible.            Department of
Education v. Oxford Area School District, 356 A.2d 857, 860 (Pa. Cmwlth. 1976).
A deviation from these procedures constitutes a denial of due process.
Vladimirsky, 144 A.3d at 994.
             On the other hand, Section 1124(a)(5) of the School Code governs
suspensions of professional employees and enumerates the only reasons for non-
disciplinary removal of a professional employee, which includes “economic
reasons that require a reduction in professional employes.”            24 P.S. §11-
1124(a)(5). A suspension under Section 1124 “is in the nature of an impermanent
separation, it is in reality simply a furlough, it is a laying-off, it is a temporary
discontinuance until conditions readjust. Suspension under Section 1124 envisages




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a re-hiring.” Kaplan v. School District of Philadelphia, 130 A.2d 672, 675 (Pa.
1957).
             A board of school directors may suspend professional employees
pursuant to subsection (a)(5) only if all of the following apply:

             (1) The board of school directors approves the proposed
             suspensions by a majority vote of all school directors at a
             public meeting of the board of school directors.

             (2) No later than sixty (60) days prior to the date of
             adoption of a final budget, the board of school directors
             has adopted a resolution of intent to suspend professional
             employes in the following fiscal year, which shall set
             forth the following:
                    (i) The economic conditions of the school district
             making the proposed suspensions necessary and how
             those economic conditions will be alleviated by the
             proposed suspensions, including:

                         (A) The total cost savings expected to result
             from the proposed suspensions.

                          (B) A description of other cost-saving
             actions taken by the board of school directors, if any.

                            (C) The projected expenditures of the school
             district for the following fiscal year with and without the
             proposed suspensions.

                           (D) The projected total revenues of the
             school district for the following fiscal year.

                   (ii) The number and percentage of employes to be
             suspended who are professional employes assigned to
             provide instruction directly to students.

                   (iii) The number and percentage of employes to be
             suspended who are administrative staff.



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                  (iv) The number and percentage of employes to be
            suspended who are professional employes who are not
            assigned to provide instruction directly to students and
            who are not administrative staff.

                  (v) The impact of the proposed suspensions on
            academic programs to be offered to students following
            the proposed suspensions, as well as the impact on
            academic programs to be offered to students if the
            proposed suspensions are not undertaken, compared to
            the current school year, and the actions, if any, that will
            be taken to minimize the impact on student achievement.
24 P.S. §11-1124(d). “[T]he suspension of a professional public school employee
can be upheld only if it conforms to the requirements of Section 1124 of the School
Code, 24 P.S. §11-1124.” Cadonic v. Northern Area Special Purpose Schools, 426
A.2d 186, 189 (Pa. Cmwlth. 1981).
            Here, there is no dispute that Dr. Greenfield is a tenured professional
employee under the School Code. The Secretary found that the Hanover Area
School District (District) eliminated Dr. Greenfield’s position for “economic
reasons.”   Secretary’s Opinion and Order, 5/14/19, Finding of Fact No. 30;
Reproduced Record (R.R.) at 128a.       This finding is supported by substantial
evidence. The Superintendent testified that the elimination of Dr. Greenfield’s
position was for “cost savings” only. R.R. at 113a, 128a. The Superintendent took
other cost savings measures, including placing some teachers in a federally-funded
program; transferring other teachers, a therapist, and emotional support students to
save money; removing the business manager; and refinancing a bond and note, all
of which resulted in substantial savings to the District. R.R. at 113a-16a. A
majority of the board of school directors approved the elimination of Dr.
Greenfield’s position at a public meeting of the board.       R.R. at 117a.     The
Superintendent testified that Dr. Greenfield’s position was eliminated because it

                                     MHW - 6
was “no longer required”; Dr. Greenfield was not dismissed because of his
performance.     R.R. at 119a, 123a.     There is absolutely no evidence that Dr.
Greenfield was fired for just cause or that an improper motive played a role.
               Dr. Greenfield argues that it is not a suspension because the District
failed to comply with the substantive and procedural requirements of suspension
set forth in Section 1124(d) of the School Code. Namely, the board did not adopt a
resolution of intent; the District never offered Dr. Greenfield a right of recall; and
the District did not apply the seniority criteria mandated by Section 1125.1 of the
School Code. However, the District’s failure to comply with any of the suspension
criteria does not, in and of itself, turn a noncompliant suspension into a just cause
termination.
               Because the Secretary’s finding that the District eliminated Dr.
Greenfield’s position based on financial reasons is supported by substantial
evidence, and absent other evidence that would indicate a termination for just
cause or improper motives, the Secretary properly concluded that the District
suspended Dr. Greenfield. Consequently, jurisdiction to review the suspension,
including whether the District satisfied the statutory requirements for suspension
and whether the suspension can be upheld, is vested in the court of common pleas.
See 24 P.S. §11-1125.1(f); Section 752 of the Local Agency Law, 2 Pa. C.S. §752;
Section 933(a)(2) of the Judicial Code, 42 Pa. C.S. §933(a)(2). On this basis, the
Secretary did not err in dismissing Dr. Greenfield’s appeal for lack of jurisdiction.
Accordingly, I would affirm.




                                        MICHAEL H. WOJCIK, Judge
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