           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joyce Cook,                                    :
                                               :
                      Appellant                :
                                               :
               v.                              : No. 1096 C.D. 2013
                                               : Argued: March 10, 2014
Chambersburg Area School                       :
District and Shippensburg Area                 :
School District                                :


BEFORE:       HONORABLE DAN PELLIGRINI, President Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                           FILED: July 28, 2014

              Joyce Cook appeals from an order of the Court of Common Pleas of
the 39th Judicial District (Franklin County Branch) granting summary judgment in
favor of Chambersburg Area School District (CASD) and Shippensburg Area
School District (SASD; collectively, the Districts) and dismissing Cook’s
complaint against the Districts brought pursuant to Section 1113 of the Public
School Code of 1949, commonly referred to as the Transfer Between Entities Act
(Act).1 For the reasons that follow, we affirm the order of the trial court.
              Prior to the commencement of this action, Cook was employed as a
teacher at the Franklin County Career and Technology Center (Career-Tech


1
  Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1113. The Transfer Between
Entities Act, which is also referred to as the Transfer of Entities Act, was added by the Act of
February 4, 1982, P.L. 1, No. 1.
Center) for approximately 29 years from 1977 to 2006. (Deposition of Joyce Cook
(Cook Dep.) at 8-9, 14, Reproduced Record (R.R.) at 74a, 76a.) The Career-Tech
Center is a vocational high school located in Chambersburg that serves the six
school districts in Franklin County, including CASD and SASD. (Complaint ¶6,
R.R. at 6a.)
               During her entire career at the Career-Tech Center, Cook taught in the
Business Data Processing (BDP) program. (Cook Dep. at 14, R.R. at 76a.) The
BDP program, which evolved over time with changing technologies, did not allow
students to choose individual courses but rather offered a set three-year curriculum
over the sophomore, junior and senior years of high school with instruction in
various business related topics, such as software, accounting, business
mathematics, office procedures, data processing, and career development. (Id. at
14-18, R.R. at 76a-77a; Business Data Processing Program Course of Study, Jan.
2, 2003, R.R. at 302a-333a.) Cook holds bachelor’s and master’s degrees in
education and Department of Education teaching certificates in Accounting,
Typewriting and Data Processing.           (Cook Dep. at 9-10, R.R. at 74a-75a;
Professional Certificate, R.R. at 253a.)
               Though the Districts sent students to the BDP program at the Career-
Tech Center, both CASD and SASD had for many years prior to 2006 also
maintained business education programs in their high schools for students who did
not enroll at the Career-Tech Center. (Cook Dep. at 17-18, 62-63, R.R. at 76a-77a,
88a; Deposition of Dr. Eric Michael, Assistant Superintendent of CASD (Michael
Dep.) at 14-15, R.R. at 112a.) The business education programs in both of the
Districts offered a range of classes on different business topics; during the 2006-
2007 school year, SASD offered 15 courses and CASD offered approximately 20



                                           2
courses.2 (Michael Dep. at 14-15, R.R. at 112a; Shippensburg Area Senior High
School Program of Studies: 2006-2007 at 8-10, R.R. at 447a-449a.)
             Beginning with the 2006-2007 school year, the Districts decided to
discontinue sending their students to the BDP program at the Career-Tech Center
with the intention of incorporating those students into the existing business
education programs at their high schools. (Complaint ¶¶7, 8, R.R. at 6a; Michael
Dep. at 12-13, R.R. at 111a.) Enrollment in the BDP program had been dwindling
for some time; CASD had sent 81 students to the BDP program in the 1998-99
school year and only 25 students in 2004-2005 and 33 students in 2005-2006.
(Michael Dep. at 13-17, R.R. at 111a-112a; CASD Enrollment List for BDP
Program, R.R. at 157a.) SASD sent 3 students to the BDP program during the
2004-2005 school year and 5 students in 2005-2006. (Cook Dep. at 58, R.R. at
87a; SASD Enrollment List for BDP Program, R.R. at 377a-381a.)
             Faced with reduced enrollment, the Career-Tech Center decided to
close the BDP program at the conclusion of the 2005-2006 school year.
(Complaint ¶9, R.R. at 6a; Minutes of Career-Tech Center’s May 25, 2006 Joint
Operating Committee Meeting at 2, R.R. at 383a.)             The Career-Tech Center
informed Cook that she was suspended from her teaching position effective June
30, 2006.    (May 25, 2006 Letter of Chairman of Career-Tech Center Joint


2
   CASD’s offerings included courses in accounting, word processing, Microsoft software,
QuickBooks, A+ computer repair, yearbook production, shorthand, business law, sports and
entertainment, personal financial management, accounting, health care and cooperative
programs. (Chambersburg Area Senior High School Program of Studies: 2007-2008, R.R. at
159a-173a.) SASD offered classes in accounting, word processing, law, personal financial
management, computer software, shorthand, yearbook production, desktop publication and
cooperative programs. (Shippensburg Area Senior High School Program of Studies: 2006-2007
at 8-10, R.R. at 447a-449a.)



                                           3
Operating Committee, R.R. at 384a-385a.) Cook requested a medical sabbatical
for the 2006-2007 school year, and the Career-Tech Center approved Cook’s
sabbatical on June 23, 2006. (May 30, 2006 Sabbatical Leave Request, R.R. at
188a; June 23, 2006 Letter Approving Sabbatical, R.R. at 190a-193a.)
              In the spring of 2007, the Districts advertised openings for teaching
positions in their business education programs beginning in the 2007-2008 school
year.3 CASD had three openings: one position was for instruction on Essential
Software Applications, QuickBooks and Interactive Media; the second position
required certification in Office Technology; and the third was a Cooperative
Education position. (Michael Dep. at 23-30, R.R. at 114a-116a; CASD Answer to
Cook Interrogatory No. 4, R.R. at 136a-137a.) The first opening was the result of
a transfer within the school, the second opening was created because of a
retirement, while only the third opening, for a Cooperative Education instructor,
was a newly created position. (Michael Dep. at 23-30, R.R. at 114a-116a; July 16,
2007 Letter of Jan G. Sulcove, Counsel for CASD, R.R. at 294a.)
              Cook applied for the three open positions at CASD on May 21, 2007,
and she was interviewed by CASD for the positions shortly thereafter. (Cook Dep.
at 38-39, R.R. at 82a; Application, R.R. at 158a.) Cook was informed by CASD in
June 2007 that other applicants had been hired to fill the three positions. (Cook
Dep. at 39-40, R.R. at 82a.)
              SASD had one opening in its business education department for the
2007-2008 school year following a retirement. (Deposition of Dr. Jacqueline

3
  CASD had also hired one teacher in its business education department for the 2006-2007
school year; Cook did not apply for the 2006-2007 opening, which was created as a result of an
internal transfer. (CASD School Board Minutes of July 26 and Aug. 9, 2006, R.R. at 206a-209a,
211a-218a.) This opening is not at issue in this litigation.



                                              4
Lesney, Superintendent at SASD (Lesney Dep.) at 14-15, R.R. at 529a.) SASD
advertised for an opening for a “business education teacher” in early May 2007,
and Cook applied for this position on May 9, 2007. (Newspaper advertisements,
R.R. at 389a-395a; May 9, 2007 Application, R.R. at 396a-403a.) Cook was not
contacted by SASD to interview for this opening. (Cook Dep. at 42, 54, R.R. at
83a, 86a.) On May 31, 2007, the Principal of Shippensburg Area Senior High
School informed Cook that the school had hired another teacher for the open
business education position. (Id. at 54, R.R. at 86a; May 31, 2007 Email of Fred
Shilling, R.R. at 423a.)
             Shortly after being notified that she had not been hired for the open
positions at CASD and SASD, a representative from the Pennsylvania State
Education Association (PSEA) sent letters to the Districts stating that PSEA had
learned that the Districts filled the open positions with persons other than Cook and
that Cook should have been offered the positions pursuant to the Act because the
Districts had caused Cook’s suspension by deciding to stop sending students to the
BDP program. (June 21, 2007 Letters of Marcia A. Bender, R.R. at 292a, 422a.)
Cook thereafter filed a grievance against the Career-Tech Center for failure to
report to the Districts that she was entitled to vacant positions under the Act. (June
26, 2007 Grievance Report Form, R.R. at 424a.) The grievance was denied.
(Cook Dep. at 33-34, R.R. at 80a-81a.)
             Cook filed the instant action against the Districts on November 16,
2007. In her complaint, Cook alleged that the decision by the Districts to “take
back” the BDP program from the Career-Tech Center, and her resulting
suspension, triggered the Act, and that the Districts violated the Act by failing to
hire her for their open positions for the 2007-2008 school year. The Districts filed



                                          5
Answers and New Matters in late 2007. In the fall of 2012, following the close of
discovery, the Districts filed motions for summary judgment.4
               On May 29, 2013, the trial court granted the summary judgment
motions. The trial court held that there must be a “transfer” of a class or program
in order for the Act to provide protection to a suspended teacher, and that the BDP
program was not transferred to CASD and SASD.                        Instead, the trial court
concluded that each of the Districts had a preexisting business education
department and the BDP program was phased out due to declining student interest.
The trial court defined “transfer” in the context of the Act as requiring “the ending
of a program or class at one school and restarting of that same program in another
school.” (Opinion at 4.) The trial court further concluded that, even though CASD
created a Cooperative Education position in their business education program for
the 2007-2008 school year, Cook was not entitled to the protection of the Act with
respect to that opening because she was not certified by the Commonwealth to
teach Cooperative Education. (Id. at 3-4.) Cook appealed the trial court’s rulings
to this Court.5
               On appeal, Cook argues that, by “taking back” their business
education students from the Career-Tech Center, the Districts caused a substantial


4
  On January 27, 2009, during the pendency of this action, Cook notified the Career-Tech Center
by letter of her decision to retire effective February 20, 2009; Cook stated in the letter that she
was retiring only because of her suspension and indicated that she wished to remain on the recall
list in case a position opened at the Career-Tech Center. (Jan. 27, 2009 Letter, R.R. at 195a.)
She began receiving retirement benefits in May 2009. (May 1, 2009 Letter of Public School
Employees’ Retirement System, R.R. at 197a.)

5
 This Court’s standard of review of a trial court’s grant of summary judgment is de novo, and
our scope of review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011); Evans v.
Thomas Jefferson University, 81 A.3d 1062, 1068 n.3 (Pa. Cmwlth. 2013).



                                                6
decline in enrollment in the BDP program, which in turn led the Career-Tech
Center to eliminate the BDP program and suspend Cook from her position. Cook
contends that as a suspended teacher who was not transferred with a specific class
she should have been placed in a pool of suspended teachers, pursuant to
Subsection (b.1) of the Act, 24 P.S. § 11-1113(b.1), and given hiring preference for
any new position that opened in the Districts’ business education programs. Cook
further argues that the trial court improperly relied on our decision of Hahn v.
Marple Newtown School District, 571 A.2d 1115 (Pa. Cmwlth. 1990), which Cook
contends was abrogated by a subsequent amendment to the Act.
             In Hahn, the first case requiring this Court to interpret the Act, a
Delaware County vocational school decided to discontinue its math classes and
suspend three of its four math teachers following a decline in enrollment. Id. at
1116-17. The three suspended math teachers gave notice of their rights under the
Act to the school districts in Delaware County and then brought an action in the
nature of mandamus against a school district that hired a different math teacher.
Id. at 1116. The trial court ruled in favor of the suspended teachers and the school
district appealed. Id. at 1116-17.
             Recognizing that the term “transfer” was not defined in the Act, we
gave the term its common and approved usage, defining it to mean “to carry or
take from one person or place to another.” Id. at 1117. Applying this definition to
the facts of the case, we concluded that there was no transfer between the
vocational school and the school district based on the fact that the school district
offered all of the classes that the vocational school did prior to the suspension of
the math program and made no additions to its math department after the
suspension. Id. We also found that applying the Act in that case would bring



                                         7
about an unreasonable result because the opening was the result of two retirements
in the school district’s math department rather than the vocational school’s
suspension of its program. Id. at 1117-18. As we explained, “[c]learly, the 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.” Id. at
1118.
            In 1991, a year after the Hahn decision, the General Assembly
amended the Act. See Act of Aug. 5, 1991, P.L. 219, No. 25, § 2. Of relevance
here, Subsection (a) was amended, to include the italicized language below:

            (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 as defined in section 1141(1)
            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) (emphasis added). In addition, the General Assembly added a
new Subsection (b.1):

            (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



                                        8
             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.
             Members of the pool shall have the right to refuse
             employment offers from such school entity and remain in
             the pool. ....

24 P.S. § 11-1113(b.1).
             Following the 1991 amendment, this Court had occasion again to
determine when the Act protects suspended teachers in Allegheny Intermediate
Unit #3 Education Association v. North Hills School District, 624 A.2d 802 (Pa.
Cmwlth. 1993) (en banc).        In that case, 25 special education classes were
transferred from an Allegheny County intermediate unit to the two defendant
school districts, with all 25 of the intermediate unit teachers being transferred with
their classes to the defendant school districts. Id. at 803-04. There remained,
however, a pool of suspended intermediate unit special education teachers whose
classes had been transferred to other Allegheny County school districts; when the
two defendant school districts subsequently advertised open special education
positions that were unrelated to the initial transfer from the intermediate unit, the
education association representing the pool of suspended teachers brought suit. Id.
at 804.
             The Court ruled in favor of the suspended teachers, holding that any
school district who receives a transferred class must accept other teachers from the



                                          9
pool for employment in their district, even if the vacancy was unrelated to the
transfer. Id. at 804-06. We concluded that, by omitting in the newly added
Subsection (b.1) the requirement of Subsection (a) that teachers be suspended “as a
result of the transfer” and are needed “to sustain the program or class transferred,”
the General Assembly did not intend to limit the hiring obligation of receiving
entities to positions related to the transferred class or program. Id. at 805. We also
found the use of the term “assuming” in Subsection (b.1)(2) shows the continuing
obligation of the receiving school after the initial transfer. Id. Finally, the Court
discussed the intent of the 1991 amendment:

             [S]ubsection (b.1) was enacted at the same time the
             General Assembly made extensive changes in the funding
             of special education classes for the 1991–1992 school
             year. As a result of these changes, it became financially
             beneficial for school districts to reclaim special education
             programs from the intermediate units. Subsection (b.1)
             was enacted with the expectation that the funding
             changes would result in the suspension of many
             intermediate unit teachers. Contrary to the School
             Districts’ argument, there is nothing absurd about the
             legislature taking special action to protect intermediate
             unit teachers at a time when it anticipates that many of
             them will be suspended.

Id. (citation omitted).
             Cook argues that in granting the Districts’ summary judgment
motions the trial court erroneously relied on Hahn, as that case was abrogated by
the 1991 amendment to the Act adding Subsection (b.1). While we agree with
Cook that the 1991 amendment imposes additional requirements that were not
present when the Hahn Court interpreted the Act, we find no language in the 1991
amendment to the Act that abrogates the requirement stated in Hahn that there be a


                                         10
“transfer” of a program or class to a receiving school before a teacher may claim
the protection of the Act. Nor do we find any evidence that the General Assembly
impliedly intended to remove the requirement of a transfer of a program or class
with the 1991 amendment, which as explained in Allegheny Intermediate was done
in anticipation of the transfer of special education programs from intermediate
units to school districts following funding changes. As we explained in Allegheny
Intermediate: “Subsection (b.1) functions to place certain hiring obligations on
school entities who have received transferred programs and classes.” 624 A.2d at
805 (emphasis added). This prerequisite of a transfer to the protections of the Act
is evidenced in the title given to it by the General Assembly:                     “Transferred
programs and classes.”6 24 P.S. § 11-1113.
               Read together, Subsections (a) and (b.1) of the Act can be understood
as providing two layers of protection to teachers affected by inter-school transfers.
First, Subsection (a) provides that teachers who are assigned to “a program or class
[that] is transferred as a unit” to another school shall be offered employment at the
receiving school if necessary to sustain the transferred program or class unless
there is a suspended, properly certified teacher in the receiving school to fill the
new position. Second, Subsection (b.1) provides protection for teachers affected
by a transfer of a program or class but who cannot be transferred with the class to
which they were assigned or are suspended because of the transfer. The schools
receiving a transferred program or class must then offer any future vacancies –
even if unrelated to the initial transfer – to teachers in the pool who are certified for
the open position, unless there is a suspended teacher in the receiving school who

6
 Though not controlling, the title of a statute may be considered as an aid in its construction. 1
Pa. C.S. § 1924.



                                               11
is certified for that position. However, no matter which subsection of the Act a
suspended teacher claims provides a remedy, there must be a transfer of a program
or class for the act to take effect.7
               In the case before us, then, we must determine whether the trial court
properly concluded that there was no genuine issue of material fact as to whether
any program or class was transferred from the Career-Tech Center to the Districts.
In determining whether a transfer occurred, we begin with the meaning of that term
given in Hahn of “to carry or take from one person or place to another.” 571 A.2d
at 1117. This definition necessarily implies that a class or program ends at one
school and that class or program is brought over or added to another school, and
further 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.
               Cook first argues that the BDP program was transferred in its entirety
from the Career-Tech Center to the Districts. In support of this argument, Cook
attempts to highlight the differences between the BDP program and the business
education classes offered at the high schools in the Districts, specifically noting
that the BDP program did not offer a buffet of individual courses like the Districts
but instead provided students with a set three-year curriculum.

7
  We do agree with Cook, however, that the trial court erred in relying on Cook’s lack of
certification in Cooperative Education to exclude her from the protection of the Act for all the
openings at CASD. The trial court concluded that, while the creation of a new Cooperative
Education position at CASD for the 2007-2008 school year might provide “some evidence” that
this aspect of the BDP program had been transferred from the Career-Tech Center to CASD,
Cook was not certified to teach Cooperative Education classes and thus was not entitled to the
protection of the Act with respect to that opening at CASD. (Opinion at 3-4.) Under Subsection
(b.1), whether Cook was qualified to teach the specific Cooperative Education class was not
dispositive of whether she was protected by the Act; instead, so long as there was a transfer of a
program or class from the BDP program to either CASD or SASD, Cook would be entitled for
any opening for which she was properly certified in that district.



                                               12
            Regardless of the differences in the instructional styles between the
Career-Tech Center and the Districts, however, there is no evidence that the
Districts adopted the Career-Tech Center’s curriculum.       Instead the evidence
produced during discovery shows that the Districts continued to offer individual
courses rather than the BDP program’s set curriculum after the BDP program was
shut down due to declining enrollment. (Cook Dep. at 12, 62-63, R.R. at 75a, 88a;
Chambersburg Area Senior High School Program of Studies: 2007-2008, R.R. at
159a-173a; Shippensburg Area Senior High School Program of Studies: 2007-
2008 at 8-10, R.R. at 489a-491a.) Furthermore, in deciding to cease sending
students to the BDP program, the Districts did not intend to recreate the BDP
curriculum but rather to address the dwindling interest in the BDP program and the
Districts’ view that their own, well-established business education programs
provided equally as good, if not better, instruction. (See, e.g., Minutes of Career-
Tech Center’s May 25, 2006 Joint Operating Committee Meeting at 2, R.R. at 383a
(approving closure of BDP program “due to duplication and workplace need”);
Michael Dep. at 34, R.R. at 117a (explaining that BDP program classes were “very
rudimentary” and were comparable to classes taught at the middle school and
junior high school level at CASD); Chambersburg Area Senior High School, A
Partnership in Change: A New Look at the Career Technology Center, March
2006, R.R. at 186a (noting that CASD had reevaluated its relationship with the
BDP program because “no incoming 10th grader has selected that program as a
first choice” and “the course offerings at CASHS will equal the opportunities at the
Career-Tech school”).) Therefore, it is clear that there was no wholesale transfer
of the BDP program from the Career-Tech Center to the Districts.




                                        13
              Cook also argues that there was a transfer of a class from the BDP
program to CASD, namely the creation of a Cooperative Education position at
Chambersburg Area Senior High School for the 2007-2008 school year. Cook
concedes that she did not hold the certificate required to teach Cooperative
Education, (Cook Br. at 13 n.3, 17; Cook Dep. at 24-25, 32, R.R. at 78a, 80a), but
contends that she was certified to teach the other two CASD openings and should
have been offered those two positions pursuant to Subsection (b.1) of the Act. Of
the three new hires in the CASD business education department for the 2007-2008
school year, only the Cooperative Education position was a new position while the
other two open positions were created as a result of an internal transfer and a
retirement.8 (Michael Dep. at 23-30, R.R. at 114a-116a.)
              While the Cooperative Education opening at CASD was a newly
created position, Cook has offered no evidence to show that the creation of the
Cooperative Education position was tied to the closing of the BDP program or that
CASD adopted the curriculum of the Career-Tech Center’s Cooperative Education
classes as its own. Rather, the Cooperative Education class was not new to CASD
but instead had been offered at CASD long before the closure of the BDP program.
(Michael Dep. at 28, R.R. at 115a (“Co-op has been taught within [the CASD]
Business Department since its inception.”); Chambersburg Area Senior High
School, A Partnership in Change: A New Look at the Career Technology Center,
March 2006, R.R. at 186a (noting that CASD offered a “COOP experience if
desired” to students in its business education department); Sept. 24, 2007 Letter

8
  The one open position in SASD for the 2007-2008 school year was created as a result of a
retirement and there was no increase in the number of positions in the SASD business education
department following the elimination of the BDP program at the Career-Tech Center. (Lesney
Dep. at 14-15, 24, R.R. at 529a, 531a.)



                                             14
from Eric Michael, Assistant Superintendent of CASD to James Duffey of the
Career-Tech Center, R.R. at 126a (explaining that decision was made to stop
sending students to the BDP program in part because “CASD offers a supervised
Co-op and Exploratory Career Program through several local businesses”).)
               Here, at most the evidence would show that the addition of the
Cooperative Education position in the 2007-2008 school year was caused by an
increase in interest in that program at CASD. In the absence of evidence that the
new Cooperative Education position was the result of a transfer, Cook cannot
prove a claim under the Act and summary judgment was therefore appropriate.
See Pa. R.C.P. No 1035.2(2) (summary judgment is appropriate where “after the
completion of discovery relevant to the motion, ... an adverse party who will bear
the burden of proof at trial has failed to produce evidence of facts essential to the
cause of action”); Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996)
(holding that failure by a non-moving party to adduce evidence during discovery
on an issue that is essential to a claim on which she bears the burden of proof
“establishes that there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law”); see also Ario v. Ingram Micro, Inc., 965
A.2d 1194, 1207 n.15 (Pa. 2009) (same).
               Accordingly, as there was no transfer of a program or class from the
BDP program to CASD or SASD, we affirm the trial court’s grant of summary
judgment in favor of the Districts.9 While we recognize that Cook’s suspension


9
  The Districts also argue that even if there was a transfer and Cook fell under the protection of
the Act, this Court should still affirm summary judgment because Cook was on a medical
sabbatical when she applied for the open positions at the Districts and thus could not have been
part of a suspended pool of teachers who were eligible for the protection of the Act at that time.
As we affirm the determination of the trial court that there was no transfer of a program or class,
(Footnote continued on next page…)


                                                15
was through no fault of her own but only the result of the determination by the
Districts that they were better suited than the Career-Tech Center to prepare their
students for the business world, the decision by the Districts to stop sending their
students to the BDP program and instead allow them to take courses in their own
well-established business education programs did not bring Cook under the
protection of the Act.


                                             ____________________________________
                                             JAMES GARDNER COLINS, Senior Judge




_____________________________
(continued…)
which is a necessary prerequisite for the protection of the Act in this case, we need not reach the
alternate ground argued by the Districts here.



                                                16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joyce Cook,                            :
                                       :
                   Appellant           :
                                       :
              v.                       : No. 1096 C.D. 2013
                                       :
Chambersburg Area School               :
District and Shippensburg Area         :
School District                        :



                                  ORDER


              AND NOW, this 28th day of July, 2014, the order of the Court of
Common Pleas of the 39th District (Franklin County Branch) in the above-
captioned matter is hereby AFFIRMED.



                                    ____________________________________
                                    JAMES GARDNER COLINS, Senior Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joyce Cook,                                 :
                           Appellant        :
                                            :
              v.                            : No. 1096 C.D. 2013
                                            : Argued: March 10, 2014
Chambersburg Area School District           :
and Shippensburg Area School District       :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


DISSENTING OPINION
BY PRESIDENT JUDGE PELLEGRINI                          FILED: July 28, 2014


              Because the majority erroneously limits the application of Section
1113(b.1) of the Public School Code of 1949 (Code)1 to instances where a teacher
has been suspended as a result of the transfer of a program or class as a unit under
Section 1113(a), I respectfully dissent.


              Section 1113 of the Act provides, in pertinent part:

              (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 as defined in section 1141(1) and
              are suspended as a result of the transfer and who are

      1
        Act of March 10, 1949, P.L. 30, added by the Act of February 4, 1982, P.L. 1, as
amended, 24 P.S. §11-1113(b.1).
            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.

                                    *   *      *

            (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. Members of the pool shall have the right to
            refuse employment offers from such school entity and
            remain in the pool….


24 P.S. §11-1113(a), (b.1) (emphasis added).


            As the majority notes, in Allegheny Intermediate Unit #3 Education
Association v. North Hills School District, 624 A.2d 802, 804 (Pa. Cmwlth. 1993),
this Court considered whether Section 1113(b.1) “requires receiving school
districts to fill all teaching vacancies with properly certified suspended sending


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entity teachers from the pool, regardless of whether the vacancies are related to a
class or program transfer….” (Emphasis in original). As we explained:

                   Unlike §1113(a), subsection (b.1) does not limit its
            applicability to instances where the teachers are
            suspended “as a result of the transfer” and are needed “to
            sustain the program or class transferred.” By omitting
            these qualifications in subsection (b.1), the legislature
            indicated that it did not intend to limit the employment
            obligation of the receiving entity to positions related to
            the program or class transferred….

                                    *    *   *

                   Moreover, were we to construe subsection (b.1) as
            the School Districts request, subsection (b.1) would have
            no meaning independent from the meaning of §1113(a).
            Under §1113(a), receiving entities are already obligated
            to hire any sending entity teachers who are suspended as
            a result of the transfer and whose services are needed to
            sustain the transferred program or class. The School
            Districts’ interpretation of subsection (b.1) reduces it to
            surplusage….


Id. at 805 (emphasis added).


            Likewise, the majority’s interpretation of Section 1113(b.1) would
result in it being mere surplusage and violates the rules of statutory construction.
For purposes of Section 1113(b.1), the Chambersburg Area School District
(CASD) and the Shippensburg Area School District (SASD) assumed “program
responsibility” of the Business Data Processing (BDP) program by absorbing the
“transferred students” into their existing business classes whether or not the BDP
program or the classes offered thereunder were “transferred as a unit” for purposes


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of Section 1113(a). As we explained in Allegheny Intermediate Unit, 624 A.2d at
805, “[u]nder §1113(a), [CASD and SASD] are already obligated to hire any
sending entity teachers who are suspended as a result of the transfer and whose
services are needed to sustain the transferred program or class….”       Because
Section 1113(b.1) covers either professional employees “who are not transferred
with the classes to which they are assigned” or those “who have received a formal
notice of suspension,” and because Cook was suspended as a result of the transfer
of her students to CASD and SASD, she is entitled to be placed in the preferred
hiring pool of employees in CASD and SASD.


             Accordingly, unlike the majority, I would reverse the trial court and
direct that Cook be placed in the preferred hiring pool established under Section
1113(b.1).



                                      ___________________________________
                                      DAN PELLEGRINI, President Judge




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