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08/20/97 DENNIS J. BOLOGNA v. ST. MARYS AREA SCHOOL

August 20, 1997

DENNIS J. BOLOGNA, APPELLANT
v.
ST. MARYS AREA SCHOOL BOARD



Appealed From No. 96-747. Common Pleas Court of the County of 59th Judicial District (Elk County). Judge ROOF, President Judge.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri.

The opinion of the court was delivered by: Silvestri

OPINION BY

SENIOR JUDGE SILVESTRI

Filed: August 20, 1997

Dennis J. Bologna (Bologna), pro se, appeals an order of the Court of Common Pleas of the Fifty-Ninth Judicial District *fn1 (Elk County Branch) (trial court) of this Commonwealth which sustained the preliminary objections of St. Marys Area School Board (Board) and dismissed Bologna's complaint with prejudice.

The procedural facts giving rise to the matter before us are as follows. Bologna filed an amended complaint on October 28, 1996 alleging that at a special meeting on August 5, 1996, the Board violated the Sunshine Act (Act), Act of July 3, 1986, P.L. 388, 65 P.S. §§ 271-286 and was not in compliance with Section 1073 (b) of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 10-1073 (b). *fn2 The Board filed preliminary objections in the nature of a demurrer to the amended complaint. *fn3 The preliminary objections were sustained by the trial court by order and opinion dated January 13, 1997. *fn4 This appeal followed.

In its opinion, the trial court found the facts to be as follows. *fn5 This case centers upon an August 5, 1996 special meeting of the Board, open to the public, at which reappointment of the district superintendent for a further term was approved by the Board. Notice of the meeting was published in the local newspaper on or before August 3, 1996 and stated the purpose of the meeting was "to discuss and take action on personnel matters and any other business that may come before the Board." Bologna asserts that the reappointment of the superintendent was improper on the grounds that the special meeting was not in compliance with the Act and because the reappointment was not in compliance with the Code.

Bologna raises four (4) issues *fn6 on appeal here. *fn7 However, in essence Bologna argues only two (2) issues. First, he asserts his complaint was timely filed and second, he argues the reappointment was in violation of Section 1073 (b) of the Code. Regarding the first issue, Bologna contends he complied with the time requirements of the Act.

Specifically, the facts indicate Bologna filed a complaint on September 13, 1996 challenging the August 5, 1996 special meeting of the Board. The Board filed a preliminary objection that the complaint was untimely filed. The trial court agreed, determined the complaint should be dismissed, but nonetheless addressed the other issues raised by the preliminary objections of the Board.

Section 283 of the Act, 65 P.S. § 283, provides in pertinent part, as follows:

A legal challenge under this act shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which the act was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of said meeting....

(Emphasis added.)

It is undisputed that the special meeting was open and was held on August 5, 1996. It is also undisputed that Bologna's original complaint was filed in this Court on September 13, 1996, well after the thirty (30) day time period. The complaint was clearly untimely. Thus, we find no error of law or abuse of ...


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