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WENDELL MCKISSICK v. LAUREL SCHOOL BOARD (08/09/84)

decided: August 9, 1984.

WENDELL MCKISSICK, APPELLANT
v.
LAUREL SCHOOL BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lawrence County in the case of Wendell McKissick v. Laurel School Board, No. 129 of 1982, M.D.

COUNSEL

Alfred W. Babb, for appellant.

John R. Seltzer, Jamison, Seltzer & Harper, for appellee.

Judges MacPhail, Barry and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 84 Pa. Commw. Page 443]

Wendell McKissick (appellant) appeals here the decision of the Court of Common Pleas of Lawrence County to dismiss his action in mandamus in which he sought to compel the Laurel School Board (Board) to reinstate him with back pay. He maintains that the Board violated his due process rights under the Local Agency Law.*fn1

The appellant was employed by the Board as a bus driver for approximately twenty (20) years. On April 13, 1977, he signed a letter of resignation at the request of Dr. John Haddad, the Superintendent of Laurel School District, after being informed by Dr. Haddad that he had been observed kissing a female student on school property. The appellant, however, attempted to rescind this resignation by way of a certified letter dated April 14, 1977, and in a second letter of the same date requested a hearing before the Board. He received a certified mail receipt for each letter, signed by David Smith, the Secretary of the Board, and dated April 28, 1977.

On May 9, 1977, at a regularly scheduled meeting of the Board attended by appellant, his letter of resignation was read into the minutes. The Board took no further action that evening and it is unclear from the

[ 84 Pa. Commw. Page 444]

    record whether or not the Board intended the reading of the letter to be an acceptance of the appellant's resignation. The appellant, however, continued to report to work until May 13, 1977 when he was threatened with arrest for criminal trespass. On November 9, 1977, he signed a complaint in assumpsit prepared by his attorney, but the complaint was not then filed. On May 7, 1981, the appellant's attorney filed a writ tolling the statute of limitations and preserving the appellant's right to file an assumpsit complaint at some future date. The assumpsit complaint, however, was never filed, and the appellant subsequently retained new counsel and a complaint in mandamus was filed on April 22, 1982.

The Board filed preliminary objections alleging, inter alia, that the mandamus complaint "clearly sets forth on its face that Plaintiff [appellant] has failed to pursue his legal remedies in a diligent manner" and requesting that the complaint be dismissed by reason of laches.*fn2 The trial court thereafter sustained the Board's preliminary objection and dismissed the complaint as requested. The present appeal ensued. The only question presented for our review now is whether or not the trial court abused its discretion in so doing.

Although mandamus is technically a legal remedy, the equitable doctrine of laches is appropriate to bar a mandamus action ...


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