Commonwealth ex rel. Ricapito v. School Dist. of City of Bethlehem

• Decision Date: 15 April 1942
• Docket Number: 303-1941
• Citation: 25 A.2d 786,148 Pa.Super. 426
• Parties: Commonwealth ex rel. Ricapito, Appellant, v. Bethlehem School District et al
• Court: Pennsylvania Superior Court

25 A.2d 786

148 Pa.Super. 426

Commonwealth ex rel. Ricapito, Appellant, v. Bethlehem School District et al

No. 303-1941

Superior Court of Pennsylvania

April 15, 1942

Argued December 12, 1941

Appeal from judgment of C. P. Northampton Co., Sept. T., 1940, No 73, in case of Commonwealth ex rel. Joseph Ricapito v. School District of City of Bethlehem et al.

Mandamus proceeding. Before Laub, J.

The facts are stated in the opinion of the Superior Court.

Verdict directed for relator. Motion by defendants for judgment n o.v. granted. Relator appealed.

Error assigned was the action of the court below in granting defendants' motion for judgment n. o. v.

Judgment affirmed.

H. P McFadden, for appellant.

H. J. Hartzog, for appellees.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ.

OPINION

Keller, P. J.

A petition for writ of alternative mandamus was filed by the relator, ^[1] Joseph Ricapito, to compel the School District of the City of Bethlehem, and its officers, to draw, sign and pay warrants for his salary as a professional employe, viz., assistant principal and dean of Liberty High School, for the semi-monthly periods ending July 17, 1940 and August 2, 1940, respectively, in the sum of $ 151.87 each, made up of semimonthly installments of a yearly salary of $ 3520, ($ 146.67), plus like installments of an alleged annual salary increment due him of $ 125 ($ 5.20).

After certain motions by the defendants, not necessary to be referred to, had been overruled, they filed a return or answer denying that, during the month of July 1940, the relator was entitled to be paid on the basis of an annual salary of $ 3520, or an annual increment of $ 125, and averring that the salary to which he was entitled as a professional employe was $ 3100 a year, or $ 129.16 semi-monthly, which had been paid him; and that no salary in excess of that amount was legally due or payable to him.

The case came on for trial before a court and jury and after the undisputed facts had been introduced in evidence, the trial judge directed a verdict in favor of the relator; but, subsequently, the court in banc, including the trial judge, entered judgment in favor of the defendants non obstante veredicto. The relator appealed.

The material facts may be summarized as follows:

The appellant has been an employe of the defendant school district -- a school district of the second class -- since 1927, as instructor of instrumental music, holding a teacher's contract in the form prescribed by the School Code of 1911 (Act of May 18, 1911, P. L. 309), until 1937. Pursuant to the 'Teachers' Tenure' Act or Amendment of April 6, 1937, P. L. 213, he was given a professional employe's contract to teach, in the form prescribed by that act.

On August 16, 1938 he entered into a professional employe's contract with the defendant school district in the statutory form for the school year 1938-1939, to "teach in the said school district" for an annual compensation of $ 3100. He was assigned by the school board to the performance of the duties of teacher of instrumental music, the same as under the previous contract.

On June 21, 1939, the administrative committee of the school district board made, inter alia, the following recommendations:

"13. That an assistant to the principal of Liberty High School be appointed for the coming school year 1939-1940, who shall be designated as Dean of Liberty High School, having exclusive charge of the discipline in that school; and that the compensation for such service shall be fixed at $ 420 a year or $ 35 per month ....

"15. That Edward E. Wesenberg, a graduate of Moravian College, possessing a permanent college certificate, a teacher in the public schools of Bethlehem for a period of 20 years, be appointed for the school year 1939-1940 Principal of Liberty High School, at a salary of $ 3000 per year; and that Joseph Ricapito, a graduate of Lehigh University, possessing a college permanent certificate, be appointed for the school year 1939-1940 Assistant Principal of Liberty High School with exclusive charge of discipline and also the training and directing of the band and orchestra of that school."

At a meeting of defendant's school board, held on June 21, 1939 ^[2] the above recommendations of the administrative committee were separately adopted by a vote of five to three, the minutes of the board recording the action and the names of the directors voting for and against respectively.

On June 23, 1939, the secretary of the board wrote Ricapito a letter (287a) stating that the board, on June 21st "elected you assistant principal of Liberty High School with the title of 'dean' for the school year 1939-1940 at a salary of $ 420 a year or $ 35 a month" (Italics supplied). And in this letter enclosed for his signature two copies of a new contract between the President and Secretary of the Board, acting on behalf of the Board of Directors of said School District, and Joseph Ricapito, Professional Employe, in the form prescribed by the Act of June 20, 1939, P. L. 482, by which it was agreed that said professional employe should, "under the authority of the said board and its successors and subject to the supervision and authority of the properly authorized superintendent of schools or supervising principal, teach in the said school district for a term of twelve months for an annual compensation of $ 3520, payable monthly or semi-monthly during the school term or year less the contribution required by law to be paid to the Teachers' Retirement Fund and less other proper deductions for loss of time." (Italics supplied). The remaining provisions of the contract were in strict accordance with the act aforesaid.

It will be seen that the salary to be paid appellant under this contract, in the amount of $ 3520, included the compensation to be paid him under his professional employe's contract for the year 1938-1939, $ 3100, secured to him under the Teachers' Tenure Act aforesaid, as well as the additional compensation of $ 420 provided for in the resolutions of the board for the additional duties or services imposed upon him therein.

The minutes of the board do not show that any authority was given the president and secretary to execute, on behalf of the school district, the contract in this form.

But during the school year semi-monthly payments in the amount of $ 146.66, (one twenty-fourth of $ 3520), were made to him, as appears from the payroll records of the school district.

On July 26, 1940, at a regular meeting of the board of directors of the defendant school district a resolution was adopted in due form which after reciting the resolution passed on June 21, 1939 providing for the appointment of an assistant to the principal of Liberty High School for the school year 1939-1940, to be designated, Dean of Liberty High School, having exclusive charge of the discipline in that school and fixing the compensation for such service at $ 420 a year or $ 35 a month -- See Recommendation 13, supra -- continued:

"And whereas this action was taken for the year 1939-1940 because of the disciplinary problems of the Liberty High School, partially arising from an enrollment of 3000 pupils, including pupils from the 7th to the 12th grades, in a building intended for 1800 pupils;

"And whereas the removal of the pupils of the 7th, 8th and 9th grades from this building and the decreased school enrollment generally will reduce the enrollment in the Liberty Building to under 1800 pupils during the coming school year 1940-1941;

"And whereas the pupils attending the school will be limited to the 10th, 11th and 12th grades, as well as being much fewer in number;

"And whereas in the opinion of the Board the need for extra disciplinary supervision will no longer exist;

"Therefore, be it resolved that no assistant to the principal and dean of Liberty High School be appointed for the year 1940-1941;

"And be it further resolved that Joseph Ricapito, who was appointed to the foregoing position on June 21, 1939 at a salary of $ 420 per year, or $ 35 per month, for the year 1939-1940, be notified that his services in this capacity expired on June 30, 1940, and that his extra compensation in that behalf likewise ceased, provided further, however, that his contract as a teacher and director of the band and orchestra at an annual salary of $ 3100 as existing prior to said supplementary and limited work is and continues to remain in full effect and force." Notice of the adoption of this resolution was promptly given Mr. Ricapito on July 27, 1940 (See 306a), who, on July 31, 1940 wrote the board protesting against his removal from the position of assistant principal of Liberty High School and the consequent cutting off of $ 420 a year, paid him for such service, from his salary. The letter appears in the margin. ^[3]

We are of opinion that, under the undisputed evidence in the case, the defendant school district was entitled to an affirmance of its point for binding instructions, and that the court in banc rightly entered judgment non obstante veredicto in its favor.

The only valid professional employe's contract between the school district and this appellant for the school year 1939-1940 was that which resulted from the renewal effect of the Teachers' Tenure Act on the contract for 1938-1939, covering his employment as a teacher for an annual compensation of $ 3100.

His employment, pursuant to the recommendation of the administrative committee to the newly created position of assistant to the principal, or assistant principal, of the Liberty High School, to be designated as dean of Liberty High School, at an annual salary of $ 420, was to a "non-mandated office" -- using the language...