Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Barbara Goetz v. Norristown Area School District, No. 71-12948. Transferred from the Superior Court of Pennsylvania to the Commonwealth Court of Pennsylvania, December 31, 1973.
Richard W. Rogers, with him Rogers, King & Daniels, for appellant.
Horace A. Davenport, with him Gerber, Davenport & Wilenzik, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Wilkinson.
[ 16 Pa. Commw. Page 390]
Barbara Goetz, a past and present teacher in the
[ 16 Pa. Commw. Page 391]
Norristown Area School District, has appealed from an order of the Court of Common Pleas of Montgomery County dismissing her complaint in mandamus by which she sought an order directing her employer to pay her the amount of money which she would have received during the interval between the time of her discharge from her position by the school board and her reinstatement on order of the State Secretary of Education.
The facts were established by written stipulation entered in the court below. The appellant was first suspended and later discharged because she refused to resign her position after five months of pregnancy as required by a school board regulation. She appealed her employer's actions to the Secretary of Education who held that the regulation was invalid and ordered her reinstatement.*fn1 The Secretary's order was not appealed by the board. The appellant would have earned $8921.76 in the interval between her suspension and reinstatement.
Section 1130 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1130 provides in part: "In all cases where the final decision [of a disciplinary action] is in favor of the professional employe, the charges made shall be physically expunged from the records of the board of school directors, but a complete official transcript of the records of the hearing shall be delivered to the one against whom the charges were made. In all such cases there shall be no abatement of salary or compensation." (Emphasis supplied.) This provision of statute clearly establishes the appellant's right to her salary during the
[ 16 Pa. Commw. Page 392]
period of her illegal discharge.
The dismissal of the complaint by the court below seems to have been based upon its conclusion that mandamus was an inappropriate form of action for the relief sought and because regulations of the Human Relations Commission suggest that the plaintiff would have been entitled to a maternity leave without pay. While assumpsit might have been a more appropriate form of action, the defendant not only stipulated the exact amount of salary to which the plaintiff would have been entitled if her discharge was improper and that the appellant had applied for and been denied a maternity leave, it filed a responsive answer to the complaint averring that it was raising no objection to the plaintiff's entitling the action as in mandamus. Furthermore, there was no stipulation as to the work-time the plaintiff would have necessarily lost by her confinement. This item would have been in mitigation of damages and the burden of proving it would have been on the defendant school district. It follows that it was the district's burden, which it did ...