3d 362 (2015)
[1]
Catherine M. DUSMAN
v.
The BOARD OF DIRECTORS OF the
CHAMBERSBURG AREA SCHOOL DISTRICT
and the Chambersburg Area School District,
Appellants.
Synopsis
Background: Former assistant superintendent filed
complaint in mandamus seeking to compel her
reinstatement by school district following elimination of
her position. The Court of Common Pleas, Franklin
County, No. 2013-2085, Herman, J., granted preemptory
judgment in favor of former assistant superintendent and
ordered her reinstatement. School district appealed.
Mandamus
Nature and scope of remedy in general
Mandamus
Nature of acts to be commanded
[2]
Mandamus
Nature and scope of remedy in general
Mandamus will issue only where there is a clear
legal right in the plaintiff, a corresponding duty
in the defendant, and no other adequate remedy.
Cases that cite this headnote
[2]
[5]
Education
Proceedings and review
[6]
Affirmed.
[4]
Education
Employment contracts
Fact that former assistant superintendents
Dusman v. Board of Directors of Chambersburg Area School Dist., 113 A.3d 362 (2015)
[7]
[5]
Education
Proceedings and review
School districts responses to averments in
former assistant superintendents complaint
seeking reinstatement following elimination of
her position, that after reasonable investigation
school district was without knowledge to form
belief as to truth of averments, was valid denial
of averments; record was not clear that
information at issue in averments was in
possession of school district, such that responses
constituted ineffectual denials, and, when
reading answer as a whole, responses were not
intended to be admissions, especially given
school districts other denials and its asserted
defenses in new matter. Rules Civ.Proc., Rule
1029(c), 42 Pa.C.S.A.
[8]
Mandamus
Proceedings to Procure
A motion for peremptory judgment in
mandamus may be granted at any time after the
filing of the complaint, without the filing of an
answer and even without disposing of
outstanding preliminary objections. Rules
Civ.Proc., Rule 1098, 42 Pa.C.S.A.
Cases that cite this headnote
[6]
Pleading
Admissions by Failure to Traverse or Deny
Even if responses in an answer to a complaint
may appear to be ineffective denials when
viewed in isolation, the court must look to the
Pleading
Right to amend pleadings in general
Pleadings may be amended at the discretion of
the trial court and amendments to pleadings will
be liberally allowed to secure a determination of
cases on their merits. Rules Civ.Proc., Rule
1098, 42 Pa.C.S.A.
Dusman v. Board of Directors of Chambersburg Area School Dist., 113 A.3d 362 (2015)
Education
Employment contracts
School districts first alleged employment
contract with former assistant superintendent
was valid, in former assistant superintendents
action seeking reinstatement after elimination of
her position, even if districts defenses, namely
mutual mistake, frustration of purpose,
superseding impracticability of performance,
and illegality, called start date of contract into
question; end date, not start date, was at issue in
action, and any invalidity of start date did not
invalidate entire contract.
[13]
Mandamus
Nature and grounds
Peremptory judgment in mandamus should not
be granted except in the clearest of cases where
there is not the least doubt as to the absence of a
triable issue of material fact. Rules Civ.Proc.,
Rule 1098, 42 Pa.C.S.A.
Cases that cite this headnote
[11]
Education
Employment contracts
Education
Proceedings and review
School district failed to satisfy requirement of
150-day notice of intent not to renew former
assistant superintendents contract, under either
term of first employment contract or alleged
second contract, and, thus, former assistant
superintendent was entitled to reinstatement
based on failure to provide proper notice, even if
it was unclear which contract controlled. 24 P.S.
101077(b).
Cases that cite this headnote
Mandamus
Nature and grounds
A factual issue is considered material, for
mandamus peremptory judgment purposes, if its
resolution could affect the outcome of the case
under the governing law. Rules Civ.Proc., Rule
1098, 42 Pa.C.S.A.
Cases that cite this headnote
*364 Michele
appellants.
J.
Mintz,
Huntingdon
Valley,
for
[12]
Mandamus
Nature and grounds
When determining whether to grant peremptory
judgment in mandamus, a court is guided by the
standards governing summary judgment;
accordingly,
peremptory
judgment
is
appropriately entered only where there exists no
Dusman v. Board of Directors of Chambersburg Area School Dist., 113 A.3d 362 (2015)
Dusman v. Board of Directors of Chambersburg Area School Dist., 113 A.3d 362 (2015)
Dusman v. Board of Directors of Chambersburg Area School Dist., 113 A.3d 362 (2015)
Dusman v. Board of Directors of Chambersburg Area School Dist., 113 A.3d 362 (2015)
Dusman v. Board of Directors of Chambersburg Area School Dist., 113 A.3d 362 (2015)
ORDER
AND NOW, this 6th day of January, 2015, the order of
the Court of Common Pleas of the 39th Judicial District
of Pennsylvania, Franklin County Branch is hereby
AFFIRMED.
Footnotes
1
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. 101077(b). Section 1077(b) provides:
At a regular meeting of the board of school directors occurring at least one hundred fifty (150) days prior to the
expiration date of the term of office of the assistant district superintendent, the agenda shall include an item requiring
affirmative action by five (5) or more members of the board of school directors to notify the assistant district
superintendent that the board intends to retain him for a further term of three (3) to five (5) years or that another or
other candidates will be considered for the office. In the event that the board fails to take such action at a regular
meeting of the board of school directors occurring at least one hundred fifty (150) days prior to the expiration date of
the term of office of the assistant district superintendent, he shall continue in office for a further term of similar length
to that which he is serving.
Paragraph 5 states:
As a result of such board action, on or about September 27, 2007, Cathy entered a written contract with CASD
with a commencement date of August 1, 2004 and a term through July 31, 2008. This contract contains an
integration clause superseding all prior oral and written agreements and representations. A true and correct copy
of that contract ... is attached hereto as Exhibit A and hereby incorporated herein by reference.
(R.R. 13a.) The Boards response: No response to the averments of paragraph 5 of the Amended Complaint is
necessary in that the document speaks for itself. (R.R. 37a.)
Paragraph 8 states:
Because of the board action, as well as board and administrative policy, on information and belief, the CASD
solicitor prepared a new contract, which Cathy approved, aligning her contract term to the same date range as
every other administrator in CASD from July 1 to June 30. The contract was to be effective from July 1, 2009 for
four years ending June 30, 2013. A true and correct copy of that contract ... is attached hereto as Exhibit C and
hereby incorporated herein by reference. The 2009 contract does reflect the contractual terms, including a change
in payment terms, under which she and CASD have operated since July 1, 2009, although she has never seen a
copy signed by CASD.
(R.R. 13a.) The Boards response:
Proof of the averments of paragraph 8 of the Amended Complaint is demanded. After reasonable investigation,
Defendants are without knowledge sufficient to form a belief as to the truth of said averments and strict proof
thereof at trial is demanded. To the extent that paragraph 8 of the Amended Complaint refers to a document, said
document speaks for itself.
(R.R. 38a.) Paragraph 9 states:
Cathy does not have a signed copy of the 2009 Contract as that document is in the sole control of CASD and,
despite demand, CASD has refused to produce the signed 2009 Contract to either Cathy or her duly authorized
counsel, but has instead disavowed its existence. Based upon the existence of the attached 2009 Contract, but
the failure of CASD to provide a signed copy, Cathy draws the inference that either the 2009 Contract was lost
through misfeasance or malfeasance, as the existence of that contract is contrary to CASDs actions with respect
Dusman v. Board of Directors of Chambersburg Area School Dist., 113 A.3d 362 (2015)
to renewal of her position as assistant superintendent. Despite request on May 10, 2013, Cathys authorized
representative has been denied inspection of her personnel file as guaranteed by [the Inspection of Employment
Records Law, Act of November 26, 1978, P.L. 1212, as amended,] 43 P.S. 1322.
(R.R. 13a14a.) The Boards response:
Proof of the averments of paragraph 9 of the Amended Complaint is demanded. After reasonable investigation,
Defendants are without knowledge sufficient to form a belief as to the truth of said averments and strict proof
thereof at trial is demanded. To the extent that paragraph 9 of the Amended Complaint refers to a document, said
document speaks for itself.
(R.R. 38a.) Paragraph 12 states: Cathy has a direct interest in this action inasmuch as the CASD action constituted
an involuntary demotion and deprives her of her ability for advancement and promotion, although this Honorable
Courts jurisdiction is limited to determining whether CASD correctly acted within 150 days under 24 P.S.
101077. (R.R. 14a.)
The Boards response:
Proof of the averments of paragraph 12 of the Amended Complaint is demanded. After reasonable investigation,
Defendants are without knowledge sufficient to form a belief as to the truth of said averments and strict proof
thereof at trial is demanded. To the extent that paragraph 12 of the Amended Complaint refers to a document, said
document speaks for itself. To the extent that paragraph 12 of the Amended Complaint contains legal conclusions,
no response to the same is required.
(R.R. 39a.) Paragraph 15 states: On information and belief, the position of assistant superintendent still exists in
CASD, and Cathys responsibilities merely were re-assigned to other persons within CASD so that the Court has the
power to reinstate her to the office of assistant superintendent. (R.R. 15a.)
The Boards response:
Proof of the averments of paragraph 15 of the Amended Complaint is demanded. After reasonable investigation,
Defendants are without knowledge sufficient to form a belief as to the truth of said averments and strict proof
thereof at trial is demanded. To the extent that a response may be required, said averments are denied.
(R.R. 39a.)
3
Pursuant to Pennsylvania Rule of Civil Procedure 1736(b), the appeal filed by CASD operated as an automatic
supersedeas in favor of the Board and CASD. On May 22, 2014, Dusman filed an application to vacate the automatic
supersedeas. CASD filed a response in opposition on June 6, 2014. In an opinion and order dated June 30, 2014, the
trial court granted Dusmans motion and ordered CASD to take immediate and appropriate action to reinstate Dusman
to the position of assistant superintendent. In an order dated August 26, 2014, this Court denied CASDs application to
restore automatic supersedeas and that issue is not currently before the Court.
Our standard of review is limited to determining whether the trial court abused its discretion or committed an error of
law. Aiken v. Radnor Twp. Bd. of Supervisors, 83 Pa.Cmwlth. 190, 476 A.2d 1383, 1386 (1984).
CASD does not challenge the trial courts determination that it admitted the averments in paragraph 5 of the amended
complaint.
CASD purports to base this argument on Section 1077(b), but that section does not address setting an assistant
superintendents term, rather, it deals with renewal of a term. We will, therefore, assume they meant Section 1077(a),
which does address setting an assistant superintendents term.
We note that the General Assembly has recently amended the Public School Code to require written employment
contracts for assistant superintendents. Act of July 12, 2012, P.L. 1142, amending Section 1073 of the Public School
Code, 24 P.S. 101073(e)(1) (Notwithstanding any other provision of law, no individual shall be employed as a
district superintendent or assistant district superintendent by a school district except pursuant to a written contract of
employment expressly stating the terms and conditions of employment.). Because this amendment was not added
Dusman v. Board of Directors of Chambersburg Area School Dist., 113 A.3d 362 (2015)
until 2012, it is not controlling here, where the relevant time period is 20052009.
9
10
We note the existing factual dispute regarding the execution of the 2009 contract, which the trial court did not decide,
and take no position on whether the 2009 contract, if executed, would be valid under Mullen.
11
As we have previously noted, the 2009 contract contained in the record is not signed, and the trial court made no
decisions regarding its validity. We will, therefore, focus on the 2007 contract in addressing this argument.
End of Document
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