decided: July 2, 1981.
THE SHALER AREA SCHOOL DISTRICT AND THE BOARD OF DIRECTORS OF THE SHALER AREA SCHOOL DISTRICT,
JOHN G. SALAKAS, APPELLANT
No. 80-1-91, Appeal from Order of the Commonwealth Court of Pennsylvania No. 1568 C.D. 1978
Daniel R. Delaney, Delaney & Evans, Pittsburgh, for appellant.
James D. Zimmer, Zimmer & Dice, Pittsburgh, for appellees.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., did not participate in the decision of this case.
[ 494 Pa. Page 632]
This appeal is from an order of the Commonwealth Court opening a peremptory judgment in mandamus entered by the Court of Common Pleas of Allegheny County in favor of appellant, John G. Salakas.*fn1 Because appellant has not had the opportunity to prove the facts necessary to entitle him to the relief sought, we affirm the order of the Commonwealth Court and remand to the trial court for further proceedings consistent with this opinion.*fn2
Appellant is a tenured professional employee of the appellee, Shaler Area School District ("School District"), and has
[ 494 Pa. Page 633]
been so employed since July 1971.*fn3 In May 1976, the School District commenced dismissal proceedings against him, alleging incompetency, persistent negligence and willful violation of school laws.*fn4 As part of the evidence offered, the School District presented two unsatisfactory performance ratings.*fn5 On March 17, 1977, after extensive hearings, the Board of School Directors voted not to discharge appellant.*fn6
[ 494 Pa. Page 634]
In November, 1977, appellant learned that he had been recommended for yet another unsatisfactory rating. On December 29, 1977, even before he received this rating, appellant filed his Complaint in Mandamus seeking inter alia, (1) expunction from the School District's records of all charges involved in the earlier dismissal action, including the two unsatisfactory ratings offered in support thereof*fn7 and (2) a Local Agency Law*fn8 hearing to challenge the recommended unsatisfactory rating. The School District filed preliminary objections to the complaint, and appellant moved for peremptory judgment.
On March 1, 1978, appellant apparently received his third unsatisfactory rating. Although not of record, it appears from the briefs filed in this appeal that on March 9, 1978 appellant requested a Local Agency Law hearing to challenge that rating and that his request was denied.*fn9
In May 1978, without a hearing, the trial judge dismissed the School District's preliminary objections and granted appellant's motion for peremptory judgment, ordering, inter alia, (1) the expunction of all records in connection with the dismissal action, including the two unsatisfactory ratings, and (2) the convocation of a Local Agency Law hearing to afford appellant the opportunity to contest his March 1, 1978 unsatisfactory rating. The School District unsuccessfully sought to open the judgment of the trial court, but thereafter
[ 494 Pa. Page 635]
agreed to expunge the record underlying the dismissal action and appealed only that portion of the order granting a Local Agency Law hearing. The Commonwealth Court reversed the trial court's order denying the School District's petition to open the judgment and remanded for further proceedings not inconsistent with its opinion. Shaler Area School District v. Salakas, 45 Pa. Commw. 556, 406 A.2d 243 (1979).
The sole issue presented by appellant is whether the March 1, 1978 unsatisfactory rating is a final order, decree, decision, determination or ruling affecting his personal or property rights, privileges, immunities or obligations.*fn10 If so, he would be entitled to a Local Agency Law hearing to challenge its validity.*fn11
In his brief, appellant argues that his property rights have been affected in that the unsatisfactory rating:
(1) threatens his right to continued employment in his current tenured position;*fn12
(2) divests him of a qualifying year of service for purposes of sabbatical leave;*fn13
[ 494 Pa. Page 636]
(3) has precluded his opportunities for job advancement; and
(4) has seriously jeopardized his chances for other employment.
Although we disagree with the Commonwealth Court's conclusion that an unsatisfactory rating in itself cannot affect any personal or property right, privilege, immunity or obligation of a professional employee, we are unable to determine whether appellant is entitled to a Local Agency Law hearing on the basis of the incomplete record now before us.*fn14 Unfortunately, the trial judge entered a peremptory judgment in mandamus in appellant's favor even before the School District filed an answer to the complaint and before any factual record was made.
Mandamus is an extraordinary writ which will issue "to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and appropriate remedy." Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 494 n.11, 387 A.2d 425, 430 n.11 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979); Rylke v. Portage Area School District, 473 Pa. 481, 490, 375 A.2d 692, 696 (1977). Pa.R.Civ.P. 1098 provides for entry of a peremptory judgment in a mandamus action "at any time after the filing of the complaint . . . if the right of the plaintiff there to is clear . . . ." However, peremptory judgment is appropriately entered only where there exists no genuine issue of fact, and where the case is clear and free from doubt. The burden in on the plaintiff to prove that no factual issues exist, and all doubts must be resolved against him. Philadelphia Suburban Water Co. v. Pa. Dept. of Transportation, 36 Pa. Commw. 8, 17, 387 A.2d
[ 494 Pa. Page 637501]
, 505 (1978); J. Berman & Sons, Inc. v. Pa. Dept. of Transportation, 21 Pa. Commw. 317, 329, 345 A.2d 303, 306 (1975).
The entry of a peremptory judgment in this instance was clearly erroneous, since the ultimate question of whether any of appellant's personal or property rights were affected involves factual as well as legal issues. Accordingly, we affirm the order of the Commonwealth Court opening the peremptory judgment in mandamus, albeit on different grounds, and remand this matter to the Court of Common Pleas for further proceedings consistent with this opinion.