decided: February 26, 1982.
LINCOLN INTERMEDIATE UNIT NO. 12, APPELLANT
BERMUDIAN SPRINGS SCHOOL DISTRICT, APPELLEE
Appeal from the Order of the Court of Common Pleas of Adams County in the case of Bermudian Springs School District v. Lincoln Intermediate Unit No. 12, No. 79-S-8.
Richard C. Snelbaker, Snelbaker, McCaleb & Elicker, for appellant.
John W. Phillips, Pyle and Phillips, for appellee.
President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino did not participate in the decision in this case.
[ 65 Pa. Commw. Page 54]
Lincoln Intermediate Unit (LIU) appeals a judgment of the Court of Common Pleas of Adams County entered upon a jury verdict that awarded Bermudian Area School District (Bermudian) rent in an action of assumpsit, based upon an implied-in-fact contract for the 1977-78 school year.
LIU is an intermediate unit created under the Public School Code,*fn1 covering twenty-five school districts, including Bermudian. For several school years preceding the 1977-78 school year, LIU provided teaching services, in Bermudian's own classroom facilities, to meet various special educational needs of Bermudian children. In each of those years, LIU and
[ 65 Pa. Commw. Page 55]
Bermudian entered into a "lease" stating the services to be performed and the amount of rent that LIU would pay to Bermudian for the use of the Bermudian facilities.
Before the 1977-78 school year, the LIU board of directors, upon a recommendation of its advisory council, deleted from its budget the item of "rent" to be paid to local districts, including Bermudian, whenever the LIU-taught classes consisted only of local district pupils.
At the start of the school year now in question, 1977-78, LIU teachers reported to Bermudian facilities and conducted classes as in previous years. When LIU sent a proposed "lease" stating that LIU would not be charged for Bermudian's classrooms, Bermudian refused to execute it. After LIU continued to refuse to pay rent, Bermudian initiated this action.
LIU, in its motion for a new trial, raised, along with other issues, the claim that the trial judge erred in his charge to the jury by instructing the jury that:
[I]f you believe [Bermudian's] testimony [indicating that in prior years, LIU would take possession of the classroom spaces before the school term began and sometime thereafter a formal written lease would be provided that would be signed and that would constitute the agreement of the parties] it would establish what we would call a condition by which the parties negotiated and conducted themselves. There is a presumption in the law that once a condition is established it is presumed to continue until it is shown otherwise. The burden of proving this conduct, this arrangement, this type of behavior would be on the Plaintiff [Bermudian] by a preponderance of the evidence.
If you find that this is the way that the parties conducted themselves in the years prior to
[ 65 Pa. Commw. Page 561977]
and '78 then it would be the burden of the Defendant [LIU] to show that the condition changed.
So if you find that you believe [Bermudian's] testimony concerning the past dealings of the parties and you find that by a preponderance or fair weight of the evidence, then you would have to next consider whether the Defendant [LIU] has shown you by the same standard of proof that whatever happened in the past had been changed for the year 1977, '78.
[I]f you find that the Plaintiff has established by a fair weight or preponderance of the evidence . . . that there was an offer and acceptance through the making available and the occupying of the classrooms and that that condition was not changed by the Defendant, then your verdict would be in favor of the Plaintiff. . . .
However, if you find by a fair weight or preponderance of the evidence that the Defendant has shown that the condition which was established was changed and that change was brought to the attention of the Plaintiff, then your verdict would be in favor of the Defendant and against the Plaintiff.
This instruction was in error. The law is specific and long established in an assumpsit action that:
As to any particular issue, only one party or the other has the burden of proof, and the general rule is that the burden of proof is upon the party who, in substance, alleges that a thing is so, or, as it is more commonly put, the burden of proof rests upon the party having the
[ 65 Pa. Commw. Page 57]
affirmative of the issue as determined by the pleadings.
6 Standard Pennsylvania Practice 251.
In other words:
'The fundamental principle is that the burden of proof in any cause rests upon the party who as determined by the pleadings or the nature of the case asserts the affirmative of an issue, . . . One alleging a fact which is denied has the burden of establishing it.'
Hervitz v. New York Life Insurance Co., 160 Pa. Superior Ct. 496, 499, 52 A.2d 368, 369 (1947). Bermudian, as plaintiff, had the burden of proof, in the sense of the burden of persuasion, to establish the existence of a contract in school year 1977-78. However, the trial judge's charge had the effect of placing the burden of proof on defendant LIU to establish the absence of a contract in school year 1977-78.
Neither the trial judge's opinion nor the school district's brief cite any authority establishing a presumption that, once a situation of prior lease arrangements is established, it is presumed to continue until proved otherwise. On the contrary, Bermudian, as plaintiff, had to establish, by a preponderance of the evidence, the existence of a contract in school year 1977-78, notwithstanding the parties' previous relationships.
Thus we must vacate the judgment and remand for new trial. We need not extend this opinion as to the motion for judgment n.o.v.,*fn2 nor as to the other new
[ 65 Pa. Commw. Page 58]
trial grounds,*fn3 apart from the burden-of-proof point treated above. Presumably, the vexing problems of pleading and pleading amendments, which the trial judge properly controlled in the context of the initial trial,*fn4 can be avoided by the opportunity which retrial will afford, for a final clarification of the pleadings, by amendment as necessary, before a new trial is convened.
[ 65 Pa. Commw. Page 59]
Now, February 26, 1982, the judgment of the Court of Common Pleas of Adams County, Civil Action-Law, at No. 79-S-8, In Assumpsit, dated November 13, 1980, is vacated and the case is remanded for new trial.
Judge Palladino did not participate in the decision in this case.
Vacated and remanded.