concurring:
I concur in the majority’s conclusion that judgment should be entered in favor of appellant, Falcione, in the *631stipulated amount of $34,041.00. However, I do not join in that part of the majority’s analysis in which they conclude that the appellee, Cornell, has waived the issue of rescission. At least on the facts of this case, I do not think it was essential for Cornell to raise the issue of rescission in new matter in order to preserve it because Falcione had already introduced the issue in his complaint. Paragraph 6 of Falcione’s complaint specifically mentions rescission:
Thereafter, Defendant applied that schedule of compensation increase for the administrative staff, proportionate to the negotiated increases for the represented teachers, but subsequently failed to apply that schedule and, without any action taken to rescind or abrogate the May 1972 motion, reverted to the prior practice of giving the administrative staff, including Plaintiff, at will disproportionate increases in compensation.
Paragraph 9 of the complaint also states:
To the knowledge of Plaintiff, Defendant has not adopted any written compensation plan other than that comprised in the May 1972 motion of Defendant as set forth hereinbefore and that compensation plan of scheduled increases proportionate to the bargained for increases of the teachers has never been revoked or amended and remains in effect, though it has not been applied by Defendant as is more fully set forth hereinafter.
Cornell’s answer denied each of these paragraphs of the complaint. Therefore, in my opinion, the issue of rescission was properly raised in the pleadings, and it was not error for the trial court to address that issue.
Although in my opinion the issue of rescission was not waived, I agree with the majority that the trial court erred in entering judgment for Cornell because that determination was based on factual findings contrary to the express stipulations of the parties. The trial court’s finding of rescission rests on two facts: 1) that Cornell rescinded the *632contract when it failed to appropriate the necessary funds to implement the wage increases pursuant to the contract; and 2) Falcione rescinded the contract when he failed to object to Cornell’s refusal to pay him the increased salary pursuant to the contract. The parties stipulated, however, that
14. Cornell has not taken any official action to rescind or amend the May 1972 Motion (Exhibit “B”) or the plan inaugurated thereby.
******
12. Falcione made attempts to discuss Cornell’s noncompliance with the Cornell Board but was unsuccessful because the Public School Code of 1949 (citation omitted) did not require the Board to meet, discuss or negotiate with Falcione.
******
16. From and after Cornell’s adoption of the plan [] Falcione continued to perform all of his duties for Cornell in reliance upon Cornell’s promises and undertakings under said plan, and when Cornell did not comply with the plan, attempted to discuss the noncompliance but was not permitted to do so as set forth in Paragraph 12 herein-before.
Based on these stipulations by the parties, I find no basis in the record to support the trial court’s conclusions that Cornell took any action to rescind the agreement or that Falcione did not make any effort to object to Cornell when he did not receive the anticipated salary increases. Thus, I agree with the majority’s decision to enter judgment for Falcione.