The opinion
ZAPPALA, Justice,
dissenting.
I join in the dissenting opinion of Chief Justice Nix. I also write separately to raise some additional points.
Appellees should be treated as professional employees under the Public School Code, Act of March 10, 1949, P.L. 30, 24 P.S. § 11-1101 et seq. Under the Code, teachers are professional employees with tenure rights unless newly hired, in which case they are temporary professional employees, § 1101, as amended, 24 P.S. § 11-1101. A temporary professional employee acquires the status of a profes *81 sional employee under the provisions of § 1108, 24 P.S. § 11-1108, as amended, which provides as follows:
(a) It shall be the duty of the district superintendent to notify each temporary professional employe, at least twice each year during the period of his or her employment, of the professional quality, professional progress, and rating of his or her services. No temporary professional employe shall be dismissed unless rated unsatisfactory, and notification, in writing, of such unsatisfactory rating shall have been furnished the employe within ten (10) days following the date of such, rating. The rating of a temporary professional employe shall be done as provided in section one thousand one hundred twenty-three of this act.
(b) A temporary professional employe whose work has been certified by the district superintendent to the secretary of the school district, during the last four (4) months of the second year of such service, as being satisfactory shall thereafter be a “professional employe” within the meaning of this article. The attainment of this status shall be recorded in the records of the board and written notification thereof shall be sent to the employe. The employe shall then be tendered forthwith a regular contract of employment as provided for professional employes. No professional employe who has attained tenure status in any school district of this Commonwealth shall thereafter be required to serve as a temporary professional employe before being tendered such a contract when employed by any other part of the public school system of the Commonwealth.
A teacher who becomes a professional employee acquires tenure and may be suspended only for the causes specified in § 1124, as amended, 24 P.S. § 11-1124:
(1) Substantial decrease in pupil enrollment in the school district;
(2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by *82 the Department of Public Instruction, 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 Public Instruction;
(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.
The difference in rights between professional and temporary professional employees was spelled out in Phillipi v. School District of Springfield, 28 Pa.Cmwlth. 185 , 367 A.2d 1133 (1977). The court held that where a reduction of staff is necessary, the seniority rights of professional employees prevail in selecting those to be suspended unless there is a substantial difference in ratings. Temporary professional employees have no right of retention on the basis of seniority or ratings against professional employees or among themselves. Appellees’ rights will be governed accordingly.
In Department of Education v. Jersey Shore Area School District, 481 Pa. 356 , 392 A.2d 1331 (1978), we held that a temporary professional employee who works for two years without receiving an unsatisfactory rating thereupon becomes a professional employee with the tenure rights associated with such status. Rather than an affirmative rating of satisfactory being required, the absence of an unsatisfactory rating is sufficient, Elias v. Board of School Directors, 421 Pa. 260 , 218 A.2d 738 (1966). It is clear that Appellees acquired professional employee status at the conclusion of the 1980-81 school year.
The question to be determined is what status is to be accorded to Appellees for the purpose of determining their *83 rights to retain their positions in the face of the reduction in staff. Appellant argues that Appellees should be treated as temporary professional employees, as they had not acquired professional employee status at the time of the May 1, 1981 notice that they would not be retained. Appellees argue that they should be treated as professional employees, as they acquired such status prior to the school year during which the staff reduction was to take effect. I would hold to the latter view. Appellees acquired professional employee status at the end of the 1980-81 school year, having taught for two years without receiving unsatisfactory ratings. That status will determine their rights in regard to any suspension of employees due to staff reduction that takes effect after that time. I would hold that the date, the suspension goes into effect governs, rather than the date of notice of suspension. I would not permit Appellant to diminish Appellees’ rights by giving early notice of suspension. Such result would be contrary to law.
I would affirm the Order of the Commonwealth Court.