Evansville-Vanderburgh School Corp. v. Moll

• Decision Date: 06 November 1974
• Docket Number: EVANSVILLE-VANDERBURGH,No. 1-674A97,1-674A97
• Parties: SCHOOL CORPORATION, Defendant-Appellant, v. Edwin A. MOLL et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 391

318 N.E.2d 391

EVANSVILLE-VANDERBURGH SCHOOL CORPORATION, Defendant-Appellant, v. Edwin A. MOLL et al., Plaintiffs-Appellees.

No. 1-674A97.

Court of Appeals of Indiana, First District.

Nov. 6, 1974.

Rehearing Denied Dec. 16, 1974.

Joe S. Hatfield, Evansville, for defendant-appellant.

Garry L. Gerling, Ralph E. Moore, Evansville, for plaintiffs-appellees.

ROBERTSON, Presiding Judge.

The defendant-appellant (School) is appealing from the granting of summary judgment allowing the plaintiffs-appellees (Drivers) additional compensation under their school bus driving contracts.

The School raises the issue of whether the trial court erred in finding that there was no genuine issue as to any material fact and that the drivers were entitled to judgment as a matter of law. That issue presents no reversible error.

According to applicable law the school gave notice by publication for bids for school bus routes. The drivers entered into negotiations with the School. In August, 1971, contracts with a four year term were executed by the parties with performance beginning the following month. The contracts provided a per diem rate which varied according to driver experience, for a set number of days in the school year.

Shortly thereafter, a dispute arose between the School and the Drivers predicated on an amendment of the School Transportation Code, infra. The Drivers contended they were to be paid for 200 days while the School stated that 180 days pay was specified by the contract.

The disagreement revolved about paragraphs 8 and 10 in the contract.

Paragraph 8 said:

'8. It is agreed that the provisions of Acts 1965, ch. 260, and as same may be amended, are hereby made a part of this contract, and that it is the intention of the parties hereto to enter into a binding contract subject to the School Transportation Code (Acts 1965, ch. 260), the provisions of which shall prevail over any part of this contract determined to be in conflict therewith.' (Emphasis added).

The statute referred to in paragraph 8 provided:

'In the event a school bus driver for a public school corporation owns either the chassis or the body of a school bus, or owns both the chassis and the body of a school bus, the compensation of the driver shall be fixed and determined, by the terms of the school bus contract, on a per diem basis for the same number of days that determines the compensation of teachers in the schools to which such school bus driver transports school children.' IC 1971, 20-9-2-3; Ind.Ann.Stat. § 28-5121 (Burns 1970).

This statute provides for 200 days of compensation.

However, when the contracts were executed an amendment to the foregoing statute had been passed by the legislature but was not effective because it had not been promulgated and contained no emergency clause. The amendment became effective on September 2nd, 1971. It reads:

'IC 1971, 20-9-2-3 (formerly Acts 1965, c. 260, s. 303) is amended to read as follows: Sec. 3. In the event a school bus driver for a public school corporation owns either the chassis or the body of a school bus, or owns both the chassis and the body of a school bus, the compensation of the driver shall be fixed and determined, by the terms of the school bus contract, on a per diem basis for the number of days (a) on which the calendar of the school corporation provides that students are to be in attendance at school, (b) the driver is required by the school corporation to operate the bus on school related activities, and (c) days of in-service training which is either requested by statute or authorized by the school corporation including, but not limited to, the safety meeting workshops provided for in IC 1971, 20-9-2-5.'

This amendment provides for 180 days pay for school bus drivers.

Paragraph 10 of the contract incorporated the language of the amendment. That paragraph stated:

'10. The School Corporation shall compensate the Driver as fixed and determined by the terms of this contract on a per diem basis for the number of days on which the Driver is required to operate the bus either in the transportation of children or in other duties assigned by the School Corporation or for days of in-service training which is either required by statute or authorized by the Board of School Trustees of the School Corporation.'

Because the School contended that paragraph 10 controlled the number of days drivers were to be paid, the drivers brought a class action to recover the additional 20 days pay. This appeal arises from the trial court's summary judgment allowing the Drivers the additional pay.

Summary judgment provides for a prompt disposition of cases where there is no genuine issue of material fact to be...