Isban v. Commonwealth

382 A.2d 1266, 34 Pa. Commw. 88, 1978 Pa. Commw. LEXIS 884
CourtCommonwealth Court of Pennsylvania
DecidedMarch 1, 1978
DocketAppeal, No. 2202 C.D. 1976
StatusPublished
Cited by2 cases

This text of 382 A.2d 1266 (Isban v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Isban v. Commonwealth, 382 A.2d 1266, 34 Pa. Commw. 88, 1978 Pa. Commw. LEXIS 884 (Pa. Ct. App. 1978).

Opinion

Opinion by

Judge DiSalle,

This case comes before us upon a petition for review of an order of the Secretary of Education of the Commonwealth of Pennsylvania (Secretary) dated November 15, 1976. The order dismisses Henry Isban’s appeal of a decision of the Board of School Directors of Tuscarora Intermediate Unit No. 11 (Board). We will affirm.

Isban was hired as a speech therapist by the Fulton County Board of School Directors on January 19, 1965. In 1971, the Fulton County Board was absorbed into the newly created Board of School Directors for the Tuscarora Intermediate Unit No. 11. Thereafter, Isban worked as a speech therapist for the Intermediate Unit. His services were utilized by the Forbes Road School District, the Southern Fulton School District, and the Central Fulton School District.

On May 25, 1973, the superintendent of the Central Fulton School District notified Intermediate Unit No. 11, by letter, that because of various difficulties experienced with Isban over the past two years, the school district preferred to be without speech therapy services rather than have such a program administered by him. Similarly worded letters were subsequently sent to the Intermediate Unit by the superintendents of the Southern Fulton School District and the Forbes Road School District.

[90]*90On June 1, 1973,, Isban met with Mr. Donald Miller, Director of Special Education for the Tusear'ora Intermediate Unit. At this meeting, Miller informed Isban of the letters which had been received from the three district superintendents. Miller also indicated to Isban that it would be difficult to find another position for him within the Intermediate Unit. He then suggested that Isban should perhaps consider resigning. The meeting concluded, however, without Isban making any commitment as to his future course of action.

On June 14, 1973, at a meeting of the Intermediate Unit’s Board, the special education program for Unit No. 11 was revised. This revision relieved Isban of his duties as speech therapist for Fulton County and assigned him to a language development program for the mentally retarded trainable children in the Lewis-town and Mount Union areas. Isban received a letter notifying him, of these changes on June 15, 1973. His only response to the reorganization was that he had never been informed by the Intermediate Unit of the reasons for his reassignment.

Dr. Clay Burkholder, Executive Director of Intermediate Unit No. 11, replied to Isban by letter on June 25, 1973. He indicated that the specific reasons for his reassignment had been given to Isban in his previous meeting with Mr. Miller on June 1, 1973. Dr. Burkholder then asked Isban to inform the Intermediate Unit whether he chose to accept the new assignment or resign.

On July 2, 1973, the Board of School Directors of the Forbes Boad School District passed a resolution adopting the language of the letter sent by the District’s superintendent indicating the District’s desire to be without a speech therapy program if Isban was to continue to provide such services. The Boards of both the Southern Fulton School District and the Cen[91]*91tr-al Fulton School District subsequently passed similar resolutions in support of their respective superintendents.

On August 6, 1973, Isban’s attorney sent a letter to the Intermediate Unit, contending that Isban’s reassignment constituted a demotion. The letter requested a hearing before the Intermediate Unit’s Board pursuant to Section 1151 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1151.1 The Board complied with this request and scheduled a hearing for October 11, 1973. Prior to the hearing, the Intermediate Unit’s solicitor received letters from all three school districts in which Isban formerly taught, specifying the reasons why Isban’s services were no longer desired. Neither Isban nor the representative from the Pennsylvania State Education Association who counseled him at the hearing, had access to these letters prior to the commencement of the hearing.

Isban was the only person to testify before the Board on October 11, 1973. His testimony centered on the specific responsibilities of his new position and [92]*92oil the increased travel he would have to incur to reach his new areas of employment. Following this testimony, Isban’s representative requested that the hearing be continued to allow him time for review of the reasons given by the districts for the refusal of his services. The Board granted this request and continued the hearing until an unspecified future date.

Thereafter, no request was made upon the Board to conduct any further hearing on Isban’s claim until January 2, 1974. On this date, the attorney retained by Isban sent the Board a letter requesting further hearing pursuant to the continuance granted October 11, 1973. Following a phone conversation between Is-ban’s attorney and the solicitor for the Board, however, no further hearing was ever conducted.

On July 15, 1974, Isban filed an appeal to the Secretary of Education requesting that the Board be compelled to comply with his request for further hearing.2 He also asked that he be reinstated to his former posh tion until a hearing was held.

Testimony was adduced from Mr. Miller and Isban at this hearing before the Secretary. This centered on whether or not Isban’s reassignment amounted to a demotion, and the reasons offered by the districts for refusing Isban’s services. Upon consideration of the evidence, the Secretary concluded that the Intermediate Unit had the power to transfer Isban within its area of jurisdiction. He further decided that the transfer involved had not amounted to a demotion because no reduction in pay or position had resulted. In light of these conclusions, the Secretary dismissed Isban’s appeal.

[93]*93The Secretary, however, noted that he reached the issue of whether or not a demotion had occurred only because both parties demonstrated their willingness that such be done. The Secretary’s opinion noted that, absent this willingness, two procedural defects which occurred before the Board would normally have resulted in his remanding the case to the Board for a new hearing. The Secretary indicated that it was his belief that Isban had not been afforded a full and complete hearing by the Board on his alleged demotion as required under Smith v. Darby School District, 388 Pa. 301, 130 A.2d 661 (1957). Additionally, the Secretary pointed out that the solicitor for the Board acted in an improper manner by representing the Intermediate Unit before its Board and then advising the Board that no further hearing was necessary because Isban had not been demoted. See Horn v. Township of Hilltown, 461 Pa. 745, 337 A.2d 858 (1975); In Re: Appeal of Feldman, 21 Pa. Commonwealth Ct. 451, 346 A.2d 895 (1975).

In view of the numerous defects which occurred procedurally before the Intermediate Unit’s Board, the Secretary should have remanded the case to the Board for a new hearing as requested in Isban’s appeal. This conclusion is even more compelled in light of the Board’s complete willingness to conduct such a hearing.

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390 A.2d 328 (Commonwealth Court of Pennsylvania, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
382 A.2d 1266, 34 Pa. Commw. 88, 1978 Pa. Commw. LEXIS 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/isban-v-commonwealth-pacommwct-1978.