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ROBERT W. BAILEY ET AL. v. FERNDALE AREA SCHOOL DISTRICT (12/29/82)

decided: December 29, 1982.

ROBERT W. BAILEY ET AL., APPELLANTS
v.
FERNDALE AREA SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cambria County in the case of Robert W. Bailey et al. v. Ferndale Area School District, No. 1980-534.

COUNSEL

William K. Eckel, for appellants.

J. Phillip Saylor, with him Robert S. Brierton, Spence, Custer, Saylor, Wolfe & Rose, for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 70 Pa. Commw. Page 629]

The plaintiffs, professional employees of the Ferndale Area School District, appeal from an order of the Court of Common Pleas of Cambria County sustaining the jurisdictional preliminary objection of the school district to the plaintiffs' complaint in assumpsit.

The complaint, in fifty-three counts corresponding to the number of named professional employees initially involved,*fn1 purports to state a cause of action under the Wage Payment and Collection Law, Act of July 14, 1961, P.L. 637, 43 P.S. 260.1 et seq. The principal averments are that the terms and conditions of the plaintiffs' employment with the school district were the subject of a collective bargaining agreement which expired on August 31, 1979; that the plaintiffs thereafter continued to perform their duties for the school district from September 4, 1979 until January 4, 1980; that the plaintiffs then commenced a lawful strike which was in progress on the date of the filing of the complaint;*fn2 that the practice of the school district in previous years had been to pay each of the plaintiffs an amount equal to 1/26th of the appropriate annual salary on each of twenty-six bi-weekly paydays;

[ 70 Pa. Commw. Page 630]

    that this practice was continued during the first four months of the 1979-1980 school year with payments made to each of the plaintiffs on two dates in September, two dates in October, two dates in November, and two dates in December, 1979, and on January 2, 1980; and that on January 16, 1980 the following memorandum and accompanying paycheck were received by each of the plaintiffs. The memorandum appears under the signature of the president of the Ferndale Area School Board:

Enclosed please find your payroll check dated January 16, 1980. The check is 8/14th of your normal wages per past practice for the pay period of December 27, 1979 through January 9, 1980. This amount has been determined because Section 1006 of Act 195, 43 P.S. 1101.1006 provides that "No public employee shall be entitled to pay or compensation from the public employer for the period engaged in any strike". Those performing extra-curricular duties on a full-time basis will be paid as per past practice.

In addition to the averments summarized above, the complaint sets forth detailed arithmetic calculations from which may be derived, it is alleged, an amount of money "due at the time of filing this complaint" from the school district to each of the named plaintiffs. Although the conceptual underpinnings of these calculations is never explained and is not the subject of explanation in the briefs submitted by either party, it would appear that the amount asserted to be "due" represents the difference between the amount actually paid by the school district to each of the plaintiffs and the amount that would have been paid if the whole of the annual salary was to be distributed during the school year instead of being distributed in even amounts on each of twenty-six bi-weekly paydays. In other words, the plaintiffs assert

[ 70 Pa. Commw. Page 631]

    that on January 4, 1980, they had worked nearly half of the school year but had received only slightly more than one-third of the annual salary; which shortfall was a consequence of the fact that work was to be performed on a nine month ...


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