Alberts v. Garofalo

Dissenting Opinion by

Mr. Justice Bell:

Plaintiff on July 1, 1955, was elected supervising principal of Luzerne Township School District. On *217June 25, 1956, the position of supervising principal was “abolished for reasons of economy”, and plaintiff was suspended from his employment. The position of supervising principal could be abolished for reasons of economy without violating any law, and the action , of the school directors is presumed to be valid. No question of seniority is involved and the position was not a mandated one. All of this is admitted by the majority opinion.

Plaintiff alleged he was suspended for personal or political reasons. As President Judge Caer, in his able opinion, aptly said: “It goes Avithout saying that in abolishing the position of supervising principal the board was bound to act in good faith. The difficulty with the plaintiff’s case is that there is no evidence to warrant a finding that the board did not do so. . .■. Obviously, therefore, we cannot reinstate the plaintiff in a position that does not now exist.” The lower court entered judgment in favor of the defendants.

' According to the record, the school district was in financial straits, and I find nothing in the record which shows that the action of the defendants in abolishing the position and suspending plaintiff was unlawful or arbitrary or capricious..

On September 3, 1957, a new board of. school directors reinstated plaintiff as supervising principal of the defendant school district. On October 1, 1957, plaintiff appealed to this Court from the judgment entered, as aforesaid, in mandamus.

The judgment should be affirmed for each of two reasons: (1) The record sustains the power of. the school directors to abolish plaintiff’s position for reasons of economy and to suspend plaintiff from his unmandated position. (2) Assuming arguendo that the record shows plaintiff’s suspension to be unlawful, the record likewise shows that he had been reinstated. Un*218der such circumstances, mandamus is not the appropriate remedy by which plaintiff can recover compensation which he claims was due him during the period of his suspension. This is clear from the well established principles pertaining to mandamus.

In Travis v. Teter, 370 Pa. 326, 87 A. 2d 177, where mandamus was refused to a teacher who sought reinstatement and damages, this Court said (page 330) : “We must consider the questions involved in the light of certain principles of law which are well established and directly applicable. Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy :* Borough of Easton v. Lehigh Water, 97 Pa. 554, 560; Goodman v. Meade, 162 Pa. Superior Ct. 587, 60 A. 2d 577. However, even in such cases its issuance [mandamus] is not a matter of right but in certain circumstances is a matter for the sound discretion of the court: Waters v. Samuel, 367 Pa. 618, 80 A. 2d 848.” Where mandamus is granted, damages may be included as an incident thereto, but mandamus never has been (until today), never was intended to be, and under the aforesaid principles, never can be a substitute for an action of assumpsit.

This Court cannot issue the extraordinary writ of mandamus to compel defendants to restore the plaintiff to the position to which he already has been restored, and he has an appropriate and adequate remedy at law for the compensation of which he claims to have been unjustly deprived. I would affirm the judgment on the convincing unassailable opinion of Judge Carr.

Italics throughout, ours.