Before: Honorable Dan Pellegrini, Judge
Honorable Jim Flaherty, Judge
Honorable Emil E. Narick, Senior Judge
The opinion of the court was delivered by: Judge Flaherty
Appellant, James Burns (Superintendent) appeals the Common Pleas Court of Fayette County's (Trial Court) dismissal of his Complaint in Mandamus to compel the Board of School Directors (Board) of the Uniontown Area School District (District) to honor his tenure as duly elected District Superintendent of that District. Trial Court sustained the District's preliminary objections and dismissed Superintendent's complaint in mandamus because Trial Court concluded that Superintendent has other adequate remedies at law. We reverse.
Superintendent was first elected by the District as its district superintendent for one five year term from July 1988 until June 30, 1993 and then for another five year term from July 1, 1993 until June 30, 1998.*fn1
July 1, 1997 began the final year of the second term of Superintendent. In the primary election in May of 1997, three sitting Board members (whose terms were expiring the first Monday of December of 1997) lost the primary nomination. However, they were still empowered to fulfill their existing term until it ended Monday, December 1, 1997, when, the continuing and newly-elected members "reorganize" the Board during the first week of December of 1997.*fn2
Superintendent was notified by letter that at a special meeting of the Board on July 11, 1997, the Board intended to take official Board action to elect him as Superintendent for a five year term and to enter into a contract with him.*fn3 The July 11, 1997 special meeting of the Board was duly advertised and convened. By a 6-1 vote, a majority of the Board elected Superintendent to that office for a five year term beginning July 1, 1998 and ending July 1, 2003 and also approved the compensation and other terms and conditions of a five year contract concurrent with that term.
After the November 1997 election, the Board met and reorganized in accordance with the School Code during the first week of December 1997. Then, at a special meeting on December 23, 1997, the newly-elected Board voted to rescind the Superintendent's 1998-2003 contract and his election.*fn4
On January 15, 1998, Superintendent filed a complaint in Trial Court at trial docket No. 94 of 1998 G.D., claiming, among other things, unlawful interference with a contractual relationship, breach of contract, a federal civil rights violation under Section 1983 (of the United States Code), an emotional distress claim and a local agency appeal. Among the relief requested in that complaint is the restoration of Superintendent's contract and position as Superintendent.*fn5 Superintendent filed a Motion for Partial Summary Judgment on the breach of contract issue which was granted. Trial Court determined on July 2, 1998 that there was a binding contract between Superintendent and District.*fn6
On July 2, 1998, Superintendent also filed with Trial Court a second complaint entitled Complaint in Equity and a Motion for Preliminary Injunction to have the District pay Superintendent his salary, based upon the trial court's determination that there was a binding contract. After a July 10, 1998 hearing on the matter, trial court dismissed Superintendent's Application for Preliminary Injunction and dismissed his Complaint in Equity because Trial Court concluded that the pending complaint for breach of contract and tort relief was an adequate remedy at law and found no immediate irreparable harm in light of the pending action for money damages at trial docket No. 94 of 1998 G.D.
On July 31, 1998, Superintendent filed this third action in Mandamus and a Motion for Peremptory Judgment, the decision of which is currently before this Court.*fn7 District filed preliminary objections to Superintendent's complaint. Superintendent filed an answer to the District's preliminary objections. On August 20, 1998, Trial Court denied the Superintendent's motion for peremptory judgment with prejudice, finding no immediate irreparable harm.*fn8
On August 21, 1998, Superintendent tried to have the partial summary judgment order on the breach of contract issue entered as a final judgment. District filed a Petition to Strike, which was granted.
On April 14, 1999, Trial Court sustained the District's preliminary objections to the complaint in mandamus, denying the mandamus and dismissing Superintendent's complaint in mandamus. This appeal followed.*fn9
In this appeal, Superintendent contends that Trial Court erred in denying the mandamus and in concluding that the pending contract action was an adequate remedy for Superintendent. Superintendent argues that Trial Court did not apply the provisions of the School Code to the instant situation and that mandamus is the proper remedy. Superintendent contends that the School Code requires an election of a superintendent at a specified period of time and requires the Board to determine the salary.
Superintendent contends that in the present instance he was duly elected by the sitting Board in accordance with the School Code, that the Board also properly set his salary, that he is unlawfully prevented from fulfilling his duties, that the only statutory provisions for removal of a superintendent were not followed by the Board and that mandamus should lie to compel District to honor the due election of Superintendent and the provisions of his contract.
Article X (ten) of the School Code pertains to superintendents and provides that the board of school directors in every school district shall, by a majority vote of all the members thereof, elect a properly qualified person as district superintendent*fn10 during the last year of the term of the district superintendent. The sitting superintendent's term shall continue for another three-to-five years if the Board does not take official specific action during the last year of the term at least 150 days in advance of the end of the term to notify the superintendent that another or other persons will be considered for that position. Section 1073 of the School Code, 24 P.S. §10-1073.
A superintendent does not have tenure like the professional employees, e.g., principals, teachers, etc. A superintendent is not protected by collective bargaining under Act 195 nor is he included under Act 93, as administrators are, with certain rights to meet and discuss. Superintendents have, however, obviously been given select consideration by the Legislature in the School Code, which gives them unique status as a non-voting board member as well as being the chief executive officer of the District. Long term job security for that office is provided by mandating a minimum contract length of at least three years, by restricting removal to four specific reasons, by forcing the school boards to make a decision on retention at least five months before the expiration of the contract and, further, when the sitting board fails to renew, by only allowing a newly organized board less than two months to decide on retention in third through eighth class school districts, i.e., from the reorganization meeting on the first Monday in December until January 31st, the 150th day before July 1st, when the school year ends and most superintendents' contracts end.
It was, therefore, prudent and permissible for the sitting Board to take positive action to establish and support Superintendent's role as the educational leader of the District within the mandate of the law more than 150 days before the expiration of Superintendent's term. By expressly mandating the procedure for the re-election of Superintendent, for renewal of his contract and by expressly providing for removal thereafter, the Legislature excluded by implication any exception to that procedure in election years for school board members, i.e., expressio unium est exclusio alterium. Although Board argues that only the members of the reorganized board should make the decision on renewal of Superintendent's contract, the Legislature had good reasons to place the stability of the educational system ahead of the political ramifications of elections occurring in the last year of the superintendent's contract. To postpone the hiring of the superintendent during the seven month period from May to November in the last year of his contract could undermine, stifle and weaken his leadership of the educational professionals who could view his decisions as only temporarily effective, freeze decisions by him on curriculum, hiring, purchasing and other vital matters and increase instability by encouraging superintendents to shop around for a position with more security. On the other hand, positive action to renew would also avoid the possibility that a sitting superintendent could be viewed as having retained his position merely by default if the new board became mired in controversy or for any other reason failed to notify him during the short seven or eight week window mandated for the decision on non-renewal to be made.
With regard to compensation being set by the sitting Board, the School Code mandates that:
The board of school directors at any convention electing a district superintendent à shall determine the amount of salary to be paid such district superintendent à which compensation shall be paid out of the funds of the district. Section 1075 of the School Code, 24 P.S. §10-1075.
Further, the School Code imposes not only rights but also specific duties upon an elected district superintendent including, but not limited to, having a seat on the school board and the ability to speak to the school board on all matters, albeit without a vote, further evidencing the importance for each school district to elect a qualified superintendent in the last year of the contract.*fn11 The Legislature clearly intends that the unpaid citizen school directors shall have a qualified superintendent, who is a commissioned officer of the Commonwealth of Pennsylvania,*fn12 present to provide the directors, as well as the administrators, teachers, other employees and students, with professional executive and pedagogical ...