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ORLANDO A. FALCIONE v. CORNELL SCHOOL DISTRICT (04/27/89)

filed: April 27, 1989.

ORLANDO A. FALCIONE, APPELLANT,
v.
CORNELL SCHOOL DISTRICT, APPELLEE



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, at No. GD 85-17691.

COUNSEL

Lloyd F. Engle, Jr., Pittsburgh, for appellant.

William F. Cercone, Jr., Pittsburgh, for appellee.

Rowley, Del Sole and Montgomery, JJ. Rowley, J., files a concurring statement.

Author: Per Curiam

[ 383 Pa. Super. Page 625]

This direct appeal follows the entry of judgment in favor of Defendant-Appellee, Cornell School District, hereinafter Cornell. For the reasons which follow, we vacate the judgment.*fn1

The simple factual background of this case is muddled considerably by the convoluted procedure surrounding it. The Plaintiff-Appellant, hereinafter Falcione, is employed by Cornell as a school principal and initiated the declaratory action below to settle a salary dispute with his employer. Falcione averred in his complaint that he was awarded a yearly salary increase commencing with the 1972-1973 school year, which he received for that school year. However, after the 1972-1973 school year, Falcione did not again receive the allegedly promised yearly increases until the 1986-1987 school year.

The case was submitted by the parties to the Honorable Bernard J. McGowan on November 17, 1986 as a case stated. The case was apparently reassigned to the Honorable Leonard C. Staisey who, on October 19, 1987, found the case was not properly a case stated because part of the stipulation of facts did not appear to be solidly based. Judge Staisey found the record before him in the form of a

[ 383 Pa. Super. Page 626]

    case stated was insufficient to enable him to render a judgment, and therefore, ordered the case placed on the trial list. In his opinion accompanying the order, Judge Staisey noted that Cornell failed to raise the statute of limitations as a defense. He also reviewed specific issues which were not addressed in the stipulation, but which he apparently thought were relevant to the resolution of Falcione's claim.

Following Judge Staisey's order, Cornell filed, without Falcione's consent or leave of court, an amended answer and new matter raising the affirmative defense of statute of limitations as an absolute bar to Falcione's claim. Falcione responded by filing preliminary objections averring that the amended answer and new matter should be stricken. Falcione argued the responsive pleading was filed twenty-three months late, without leave of court, after the case had been listed for trial as a case stated, and after Judge Staisey's opinion had been filed.*fn2 Falcione's preliminary objections remained outstanding when trial commenced on November 20, 1988 before Judge McGowan. Additionally, the record reveals that these preliminary objections were never formally disposed of by Judge McGowan.

At the non-jury trial, the prior stipulation of facts which was earlier submitted to Judge Staisey was admitted into evidence. Falcione's case consisted of the stipulation, and his own testimony as well as that of one other witness. At the close of the trial, the court invited the parties to submit briefs supporting their respective positions. Subsequently, on January 28, 1988, the trial court entered an order stating that judgment was entered on behalf of Cornell. On February 5, 1988, Falcione filed post-trial motions, and on February 23, 1988, he filed amended ...


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