Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Joanne Jackson v. Centennial School District, No. 79-9868.
John Philip Diefenderfer, Stuckert, Yates & Krewson, for appellant.
A. Martin Herring, for appellee.
Judges Craig, Doyle and Blatt, sitting as a panel of three. Opinion by Judge Doyle.
[ 81 Pa. Commw. Page 281]
This is an appeal from the order of the Bucks County Court of Common Pleas which granted summary judgment in favor of Joanne Jackson in an assumpsit action to recover her back wages as a teacher formerly employed by the Centennial School District.
On November 27, 1975, the Board of Directors of the Centennial School District (Board) discharged Joanne Jackson (employee) from her professional position with the school district on charges of mental derangement, incompetency, and persistent negligence. On appeal, the Secretary of Education reversed the discharge on the basis of procedural error,*fn1 and remanded to the Board for a new hearing. After additional hearings were held, the Board again discharged employee on July 28, 1977. This discharge was upheld by the Secretary of Education on appeal, and the matter was not further pursued.*fn2
On August 27, 1979, the employee instituted a separate action in the Bucks County Court of Common Pleas to recover her salary for the period between her
[ 81 Pa. Commw. Page 282]
attempted discharge in 1975 and her effective discharge in 1977. The trial court awarded employee summary judgment on her cause of action in assumpsit,*fn3 and the Board has taken the present appeal.
The Board argues that the Court of Common Pleas had no jurisdiction to hear this matter because the previous proceedings under the Public School Code of 1949 (School Code)*fn4 constituted the employee's exclusive remedy for the recovery of her back salary. Prior case law suggests, however, that a separate action in assumpsit is an appropriate method for the recovery of back salary owing to an illegally discharged or demoted public school employee. See Goetz v. Norristown Area School District, 16 Pa. Commonwealth Ct. 389, 328 A.2d 579 (1974); Jost v. Phoenixville Area School District, 267 Pa. Superior Ct. 461, 406 A.2d 1133 (1979).
The Board also argues that the Secretary of Education's final decision under the School Code proceedings is res judicata to employee's present claim for backpay. In order for res judicata to apply, there must be a concurrence of four conditions: 1) identity of the cause of action; 2) identity of the parties; 3) identity of the issues, and 4) identity of the quality or capacity of the parties suing or being sued. Reilly v. Department of Environmental Resources, 49 Pa. Commonwealth Ct. 374, 412 A.2d 652 (1980).
After reviewing the present assumpsit action, we find res judicata to be inapplicable, as neither the cause of action nor the issues raised therein are the same as those presented in the previous action before the Secretary of Education. While the ...