Appeal from the Court of Common Pleas of Lackawanna County in case of In Re: Appeal of Vito D. Grippo, No. 212 May Term, 1974.
James A. Kelly, with him Paul T. Burke, for appellant.
Joseph P. Coviello, with him Dunn, Byrne, Coviello & Eisenstein, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Wilkinson.
[ 27 Pa. Commw. Page 508]
Appellant contests his dismissal from his position as business manager of the Dunmore School Board (Board). The lower court affirmed the Board's final adjudication of dismissal. We affirm.
Appellant was first appointed business manager on August 21, 1972, at a salary of $10,000 a year. On June 28, 1973, his salary was fixed at $12,500 for the 1973-74 school year by a seven to one vote of the Board. On September 20, 1973, appellant and the Board entered into a new contract covering the four year period from July 1, 1973, to June 30, 1977, at a salary of $12,500 per year. The vote of the Board on the proposed contract was four in favor, three opposed and two absent. After a public hearing, the Board, on March 28, 1974, voted to dismiss the appellant effective March 29. The vote was five in favor and
[ 27 Pa. Commw. Page 509]
four opposed. After an appeal, remand, and a second public hearing, the Board found that appellant's contract was invalid and that he was dismissible at the pleasure of the Board.
We need not consider, as did the court below, whether appellant is a civil officer removable at will under Article VI, Section 7 of the Pennsylvania Constitution or an employe dismissible only for cause under Section 514 of the Public School Code, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-514. Even if appellant is correct and a business manager is an employe, appellant cannot avail himself of the protection of Section 514 because his contract is invalid. Commonwealth v. Jersey Shore School District, 23 Pa. Commonwealth Ct. 624, 353 A.2d 91 (1976). Under Section 508 of the Public School Code a majority (five) of the Board had to approve appellant's contract. The record shows only four affirmative votes.
Appellant does not seriously contest the need for five votes, but urges that the execution of the contract by the Board president, who was absent when the Board approved the contract, constituted the necessary fifth affirmative vote. He cites Mullen v. DuBois Area School District, 436 Pa. 211, 259 A.2d 877 (1969) in support of the proposition. Mullen, however, only held that the vote of a board need not be recorded in the minutes when other strong evidence exists to prove a board's approval. Mullen is inapplicable when a board's vote has been recorded. Also, as noted by the court below:
[The] contention that the execution of the contract establishes majority approval under Mullen ignores the fact that in executing the contract on behalf of the School Board, a school board president is not necessarily showing his approval of such but ...