I should affirm the order of the Superior Court on the basis of Judge RENO'S able opinion which, to my mind, appropriately and correctly applies the controlling statutory law pertinent to the questions raised under the material facts of this case, none of which are in dispute.
The case is concerned exclusively with the interpretation and application of relevant statutes and not with the construction of an individual arrangement or agreement between Melvin and the School Board, as the opinion for the majority of the court seems, in effect, to conceive.
If the facts concerning Melvin's appointment by the School Board as a teacher for the district be given due effect in their true chronology and proper relation, there *Page 294 is no "ambiguity" such as the majority sense. A general statute of the State (Act of May 18, 1911, P. L. 309, Article XII, section 1210, cl. 2, and Article XVII, section 1701, as amended, 24 PS 1165 and 1581) and the established salary schedule of the school district automatically answer the question which this appeal poses; and the answer is the same as that which Honorable Francis B. Haas, Superintendent of Public Instruction for the Commonwealth, gave (Record, 20a et seq.) in a thorough and well-considered written opinion in this very case on the same facts now before us.
But, even if there was ambiguity in the terms of Melvin's original employment by the School Board, the dispute which subsequently arose (and is here involved) is not to be resolved on the basis of the conduct of the parties. The rule to latter effect, which has applicability upon a judicial construction of a doubtful or uncertain private contract, has no place in the determination of the relation between an administrative appointee of a municipality or a political subdivision and his appointor. The rights of respective parties so circumstanced are to be decided according to the general law applicable regardless of what either or both of them may have demonstrated to be their individual understandings in such regard. The conferring or withholding of rights issuing from the public is not subject to influence from private accord or acquiescence. Obviously, therefore, "the interpretation which the Board and Melvin himself placed upon the appointment" is not "the principal and most promising avenue of inquiry . . .".
Melvin, moreover, was at all times alert to reserve to himself whatever rights he had in the matter.1 And, *Page 295 it is hardly fair now to impale him for not having made a "claim or demand for such increments . . . until 1941, ten years after his appointment" when the controversy could not and, therefore, did not arise until 1939 upon his becoming eligible, according to his contention, for theseventh2 increment. Then was the first occasion for the Board's making known its opposite view which it did by refusing to recognize Melvin's claim. Nor was his application in 1941 "for a senior rating" inconsistent with his contention. Had he not been advised that such a course would afford an expeditious "out" for all concerned from the impasse at which they had arrived?
Continuing the irrelevant private contract analogy, the majority opinion states that "It must be emphasized at the outset that his [Melvin's] rights are dependent entirely upon the terms of his original appointment and that the mere fact that he came to teach subjects in the upper grades of that school, whether through assignment by the Superintendent of Schools or other administrative officer, did not entitle him to any other position or greater salary than that to which he was appointed by the Board". In my opinion that statement is utterly without merit.
Granted that Melvin's election as a teacher of the school district, as evidenced by the Board's minute of September 22, 1931, fixed his position as that of a junior high school teacher in the Taylor-Allderdice (six-year) High School, under existing law the appointment *Page 296 was but for a year. Assuming further, however, that Melvin's status as a teacher, so created initially, must be presumed to have continued to exist under his subsequently recurring annual elections by the Board, the time came (May 4, 1937) when Melvin and the Board entered into the "professional employe" contract (Melvin's first contract), required by the Teachers' Tenure Amendment of April 6, 1937, P. L. 213, 24 PS 1126. By that contract (Exhibit C, Record, 130a et seq.), Melvin agreed with the Board to "teach in the said school district for a term of ten months, for an annual compensation of $2675.00, . . . [i. e., the $1800 base pay plus five increments then accrued to Melvin's credit] . . . with the right of The Board of Public Education to increase the compensation over the compensation [t]herein stated, from time to time, as may be provided under the provisions and proper operation of the established salary schedule, . . ."
What, then, was Melvin entitled to as compensation for his teaching services? The "professional employe" contract made no mention of whether Melvin was a "high school" or a "junior high school" teacher and, likewise, made no reference whatsoever as to where he was to teach, except that he was to teach "in the said school district". Yet, the contract contained everything that the Act of 1937 prescribes for exclusive inclusion in such a contract. The fact is that in the year 1937 Melvin was teaching senior high school grades entirely when his "professional employe" contract of May 4, 1937, was executed and he continued thereafter so to do until he was summarily transferred to the Herron Hill Junior High School on November 29, 1941, by the school superintendent as the latter's curt and devastating response to Melvin's polite letter of three days before (November 26th). He had thereby informed the Board that, under the law (section 1210 of the School Code), he was entitled to the eight increments due a high school teacher of his period of service, as indeed he was. If *Page 297 that was not in accordance with what the relevant statutes provide, on the basis of the salary schedule, then I fail to understand plain language. But, if so, I am not alone. The excellent opinion of the Superintendent of Public Instruction of the Commonwealth on Melvin's appeal concludes with the following: "From the standpoint of actual teaching service he was, therefore, a teacher of senior high school rank and in view of that fact and the fact that a secondary school of six years is by law defined as a six-year high school and not as a junior high school or as a junior-senior high school, we must conclude that for salary purposes as well as for teaching service, the appellant was a 'high school teacher' and consequently was entitled to a continuance of salary increments until he had attained the top of the regular salary schedule for Pittsburgh high school teachers, namely, $3200, instead of being limited to the maximum of $2850 provided for junior high school teachers in the City of Pittsburgh".
We took this case on appeal from the Superior Court because of its possible seriousness to the school district of Pittsburgh. The Board's petition for leave to appeal represented that if the decision of the Superior Court were to stand, the additional and unanticipated cost to the school district for like claims on the part of high school teachers would aggregate $517,000. While that was, of course, neither here nor there as regards the merit of Melvin's claim, yet, being a matter of potentially large public concern, it did seem that our further review of the matter was not unwarranted. But, the large figures dropped out of the estimate at the oral argument of the appeal. Upon invitation at bar, counsel for the Board declined to hazard even an approximation of the prospective cost to the school district from an affirmance of the Superior Court's order. Anyway, if existing statutes have placed the school district in an unbearable financial situation, that condition will not *Page 298 be cured nor will it be alleviated in the slightest degree by disregarding the legal rights of a faithful employee of the district. In the Board's resolution dismissing Melvin's complaint against his peremptory transfer from a six-year high school, the twelve directors present unanimously resolved that ". . . no charge warranting the termination of the professional employee's [i. e., Melvin's] contract has ever been made or could be made . . .; on the contrary, [Melvin] was and is an able, meritorious, and conscientious teacher, and his contract is in full force and effect [sic] . . ." Or, should be, I might add. In the light of the above, the Board's seemingly cavalier treatment of his complaint is all the harder to understand.
1 For example, see Melvin's letter to the Board (Exhibit D, Record, 133a): "I hereby advise you that by accepting a lesser amount I do not waive my contractual or other legal rights. I reserve to myself the benefit of any decision rendered in any suit involving the question of salaries for teachers in my proper classification." And, again, his further letter to the Board (Exhibit F, Record 135a-136a), as follows: "My action in reporting for work at Herron Hill Junior High School in accordance with orders from Dr. Graham is not to be construed as an acceptance of the demotion nor is it to be construed as a waiver of any rights I may have as a teacher in a high school."
2 A junior high school teacher is entitled to six increments. In Melvin's case his right to a sixth had not accrued until the 1938-1939 school year so that the increments paid him were yet the same for both a high school teacher and a junior high school teacher.