          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Debra Anderson,                           :
                                          :
                           Appellant      :
                                          :
                    v.                    : No. 241 C.D. 2017
                                          : Argued: November 13, 2017
North Star School District                :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge (P)
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: May 1, 2018


             Debra Anderson appeals the order of the Somerset County Court of
Common Pleas (trial court) sustaining the preliminary objection of the North Star
School District (District) and dismissing Anderson’s complaint. We reverse and
remand.
             On April 14, 2015, the District entered into a Compensation Plan with
Anderson as the District’s Food Service Director that was signed by Anderson and
the President of the District’s Board of Directors (Board), and attested to by the
Board Secretary. Reproduced Record (R.R.) at 1a-5a. The Compensation Plan
stated the following, in relevant part:

             The Food Service Director hereinafter referred to as the
             “Employee,” shall mean Debra Anderson being that []
             District employee who has general supervisory and
             administrative responsibilities for the food service within
             the [] District which employee shall be employed two
               hundred (200) days for each fiscal year at seven (7) hours
               for each day. Such work year shall begin on or about
               August 15th of each fiscal year.
Id. at 1a (emphasis added). The Compensation Plan stated that it “is effective July
1, 2015, to June 30, 2019,” and stated the compensation and benefits that Anderson
would earn during each fiscal year for that period.                    Id.    Additionally, the
Compensation Plan stated that “[t]he salary hereunder shall be paid in twenty-four
(24) equal payments beginning with the August 25th payroll[.]” Id. (emphasis
added).
               In April 2016, the District retained Metz Culinary Management, a firm
not associated with the District, to operate the District’s food service facilities. As
a result, the District eliminated Anderson’s position and terminated her employment
with the District on June 13, 2016.
               On November 21, 2016, Anderson filed a complaint in the trial court
asserting that the Compensation Plan constituted an employment contract, and that
the District materially breached that contract by terminating her employment and
failing to pay her the wages and benefits stated therein prior to the expiration of its
effective term. R.R. at 6a-12a. Accordingly, Anderson sought judgment against the
District in an amount equal to the amount due under the Compensation Plan totaling
$123,780.00, and undetermined additional benefits that she would have realized
during the remaining term of the Compensation Plan. Id. at 11a. Anderson attached
the Compensation Plan to the complaint as Exhibit A. Id. at 13a-17a.1


       1
          See Pa. R.C.P. No. 1019(h), (i) (“When any claim or defense is based upon an agreement,
the pleading shall state specifically if the agreement is oral or written. Note: If the agreement is
in writing, it must be attached to the pleading. . . . When any claim or defense is based upon a
writing, the pleader shall attach a copy of the writing, or the material part thereof[.]”).



                                                 2
               On December 19, 2016, the District filed a preliminary objection to the
complaint in the nature of a demurrer, and a brief in support, alleging that the
complaint fails to set forth a legally cognizable cause of action. R.R. at 18a-26a.
The District argued that public employees are generally at-will employees subject to
summary dismissal2 and that the Compensation Plan is neither an employment
contract nor employment under a collective bargaining agreement (CBA) which the
District is empowered to enter under the relevant provisions of the Public School
Code of 1949 (School Code).3 R.R. at 20a-21a, 22a-24a. The District asserted that
the Compensation Plan is, at best, an administrative compensation plan (ACP) under
Section 1164 of the School Code, commonly referred to as “Act 93,”4 and that this

       2
          See, e.g., Bolduc v. Board of Supervisors of Lower Paxton Township, 618 A.2d 1188,
1190 (Pa. Cmwlth. 1992), appeal denied, 625 A.2d 1195 (Pa. 1993) (“In Pennsylvania, public
employees are employees-at-will and subject to summary dismissal unless the legislature has
explicitly conferred tenure as an integral part of a comprehensive governmental employment
scheme. Therefore, public employers do not have power, unless conferred by statute, to enter into
employment contracts which prevent them from summarily dismissing their employees at will.”)
(citations omitted).

       3
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 – 27-2702. The District
claimed that Anderson’s Food Service Director position is not one of the following enumerated
positions for which it could enter into an employment contract under the School Code: (1)
Business Administrator pursuant to Section 1089, 24 P.S. §10-1089; (2) Superintendent or
Assistant Superintendent pursuant to Sections 1073 and 1077, 24 P.S. §§ 10-1073, 10-1077; (3)
Certificated Professional Employee pursuant to Article XI, added by Act of July 11, 2006, P.L.
1092, as amended, 24 P.S. §§11-1101 – 11-1195; and (4) employees who are members of a
bargaining unit subject to a CBA pursuant to Article XI-A, added by Act of July 9, 1992, P.L. 403,
24 P.S. §§11-1101-A – 11-1172-A.
        4
          Added by the Act of June 29, 1984, P.L. 438, 24 P.S. §11-1164. In pertinent part, Section
1164(a) defines “school administrator” as:

               [A]ny employe of the school entity below the rank of district
               superintendent, executive director, director of vocational-technical
               school, assistant district superintendent or assistant executive
               director, but including the rank of first level supervisor, who by


                                                3
Court has found that an ACP is neither a contract nor a CBA. R.R. at 21a, 22a, 24a.
See Curley v. Board of School Directors of Greater Johnstown School District, 641
A.2d 719, 726 n.5 (Pa. Cmwlth. 1994) (“We want to make it clear that when we say
an ACP is binding for the life of the plan, we do not mean that the ACP is itself a

              virtue of assigned duties is not in a bargaining unit of public
              employes as created under the [Public Employe Relations Act
              (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S.
              §§1101.101 – 1101.2301].

24 P.S. §11-1164(a).

       Additionally, with respect to such “school administrators,” Section 1164 provides, in
relevant part:
               (b)    The purpose of this section is to provide a means by which
               compensation matters affecting school administrators can be
               resolved within the framework of a management team philosophy.

              (c)    School employers, upon the written request of a majority of
              the school administrators in the district, shall be required to meet
              and discuss in good faith with the school administrators on
              administrator compensation prior to adoption of the [ACP].

              (d)     School employers shall be required to adopt written [ACPs]
              which shall apply to all eligible school administrators, as provided
              in this section, and which shall continue in effect until a time
              specified in the [ACP], but in no event for less than one school year.

              (e)     An [ACP] adopted pursuant to this section shall include, but
              not be limited to, the following items:

              (1)     A description of the program determining administrative
              salaries.

              (2)      Salary amounts or a salary schedule.

              (3)      A listing of fringe benefits.

24 P.S. §11-1164(b) – (e).


                                                  4
contract or a [CBA].”).5 As a result, the District claimed that the Compensation Plan
did not confer any type of tenure or term of employment and Anderson’s claim for
breach of contract against the District is legally insufficient. R.R. at 24a-25a.

       5
         In Curley, this Court explained the rationale for the enactment of Act 93, adding Section
1164 to the School Code, as follows:

                        The PERA, passed in 1970, gave rank-and-file public
               employees, including professional employees such as teachers, the
               right to be represented by unions, to negotiate contracts, and to strike
               in the event of an impasse. Although first level supervisors were not
               given the right to negotiate contracts, collectively bargain, or strike,
               public employers were required to “meet and discuss” with units of
               first-level supervisors or their representatives on matters deemed
               bargainable for other public employees covered by the PERA.
               Section 704 of the PERA, 43 P.S. §1101.704. However,
               management level employees, that is, those who are “involved
               directly in the determination of policy or who responsibly direct the
               implementation thereof,” are excluded from participation in any
               labor bargaining unit. Section[] 301(2) and 301(16) of the PERA,
               43 P.S. §[] 1101.301(2), 1101.301(16).

                       Subsequently, in case law construing the PERA, it was held
               that school principals and assistant principals were management
               level employees. Employees of Carlynton School District v.
               Carlynton School District, [377 A.2d 1033 (Pa. Cmwlth. 1977)].
               Thus, the largest group of first-level supervisors in the school
               systems, principals and assistant principals, were deemed ineligible
               to form separate “meet and discuss” bargaining units because they
               were managerial employees who had policy-making duties. It is
               likely that “first level supervisors who by virtue of assigned duties
               [are] not in a bargaining unit of public employes as created under
               [PERA],” are specifically mentioned and included in the definition
               of school administrators in Section 1164 of the School Code,
               because of and in direct response to the Carlynton decision. The
               Board’s argument that because Curley was no longer a supervisory
               employee, he was not a school administrator who was eligible for
               the ACP, is based on an erroneous understanding of Section 1164.
               It was not the intent of this section of the School Code to equate
               supervisors with administrators and to exclude all but supervisory


                                                  5
               Anderson filed a brief in opposition to the preliminary objection,
arguing that she set forth a cognizable theory of recovery against the District’s
improper termination of her employment. R.R. at 37a-45a. Anderson asserted that
even if the Compensation Plan is characterized as an ACP under Act 93 rather than
a contract, this is a distinction without a difference because an ACP is “binding, once
adopted, for the life of the plan.” Curley, 641 A.2d at 726.6 Specifically, Anderson
“recognize[d] that her agreement is an ACP, and she acknowledge[d] that she
entered into that agreement of her own volition; however, she [did] not and cannot
agree that [the District] can exempt itself from the terms of the ACP by saying that
it had no authority to enter into a term contract.” R.R. at 43a. Rather, she asserted
that the District “drafted and executed an agreement that bound it to [Anderson] until


               employees from participation in an ACP, rather first-level
               supervisors are mentioned in order to insure that such policy-
               making, managerial, first-level supervisors, such as principals, who
               were formerly excluded from “meet and discuss” units under the
               PERA, would now be specifically included in the “meet and
               discuss” sessions which must occur prior to establishing the [ACPs]
               under Act 93.

                      Thus, . . . it was the intent of the School Code to compel
               school employers to adopt compensation plans, “within the
               framework of a management team philosophy,” (24 P.S. §11-
               1164(b)), which would include school administrative employees
               who were historically excluded from bargaining units of public
               employees, including the “meet and discuss” units of first-level
               supervisors.

641 A.2d at 725 (footnote omitted).
       6
         See also Chapel v. School District of the City of Allentown, (Pa. Cmwlth., No. 750 C.D.
2009, filed December 15, 2009), slip op. at 10 (“Relying on Curley’s holding that an ACP is a
binding document once adopted, the trial court here reasoned that, no matter what method it
employed, the District could not retroactively revoke the bonus provision of the 2004-07 ACP and
was required to fulfill its commitments under that plan. . . . We agree that Curley is controlling
and compels us to affirm.”) (footnote omitted).
                                                6
June 2019, and [Anderson] relied on that agreement until the date of her
termination.” Id. at 44a. As a result, Anderson asked the trial court to overrule the
preliminary objection so “that she may enforce the terms of the contract that [the
District] drafted and executed for ‘the life of the plan.’” Id. Anderson further
claimed that the ACP’s unique language is sufficient to establish a question of fact
as to whether the District intended and knew that it would be bound by the ACP for
a specific term, until June 2019, so dismissal by preliminary objection was
inappropriate and discovery should have been permitted to proceed on this question.
Id. at 44a-45a.
              Following oral argument, the trial court sustained the District’s
preliminary objection and dismissed Anderson’s complaint, stating the reasons for
its ruling on the record. The trial court initially determined that Anderson’s position
with the District “is not a position of employment specifically entitled to any type of
contract of employment or tenure under the School Code,” so that it “is a position of
public employment where the employee is an at-will employee and subject to
summary dismissal.” R.R. at 68a. The court also found that “even if the [District]
Compensation Plan constitutes an [ACP] as defined by Section []1164 of the School
Code, the result would still be the same.” Id. at 69a. The court held:

              [U]nder the rationale of the Curley case, had the [District]
              board decided to continue Anderson’s employment, the
              board would have been bound by the terms of the ACP
              until it expired by its own terms, but that isn’t what
              happened here.

                     She didn’t continue her employment with the
              district. She was terminated based upon her at-will status;
              and upon that termination, the school board is no longer
              bound by the terms of the [ACP].
Id. at 71a.

                                           7
                The trial court rejected Anderson’s reliance on Curley and Chapel,
explaining:

                [T]he key distinction in both Curley and Chapel is that the
                employee there remained employed during the relevant
                time in question; and when the employee remains
                employed, the school district is in fact bound by the terms
                of the [ACP].

                      But again here, [Anderson] was not employed. She
                was terminated based upon her at-will status, which I
                believe the school board had every legal right to do, based
                upon her employment as a public employee, and there not
                being any specific authority under the Pennsylvania
                School Code for the [District] board to in any way provide
                [sic] her with any type of tenure or a contract of
                employment.
R.R. at 72a-73a. As a result, the trial court concluded that “based on the facts alleged
in [Anderson]’s complaint, and the relevant statutory provisions of the School Code
and the case law, it would be appropriate to sustain the preliminary objection[] filed
by the [District], and therefore dismiss the plaintiff’s complaint at this stage.” Id. at
73a.
                In this appeal,7 Anderson first argues that the trial court erred in
sustaining the District’s preliminary objection and dismissing her complaint because


       7
           As this Court has explained:

                  Our scope of review on appeal from an order sustaining
                preliminary objections and dismissing a complaint is limited to
                determining whether the trial court committed legal error or abused
                its discretion. When considering preliminary objections, we must
                accept as true all well-pled facts set forth in the complaint, as well
                as all inferences reasonably deducible therefrom, but not
                conclusions of law. Preliminary objections in the nature of a
                demurrer should be sustained only where the pleadings are clearly


                                                  8
the School Code does not preclude the District from entering into an employment
contract with its Food Service Director. Specifically, Anderson contends that
Section 504 of the School Code8 authorizes the District to execute such an
employment contract, and argues that the language of the Compensation Agreement
demonstrates an intent to create such an employment contract for the term of fiscal
years stated therein.
                In general, “[a]ccording to well-established Pennsylvania law,
employment agreements are presumptively terminable at will by either party.”
Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d 1004, 1010 (Pa.
Super. 1999) (citation omitted). “In order to rebut the presumption of at-will
employment, a party must establish one of the following: (1) an agreement for a
definite duration; (2) an agreement specifying that the employee will be discharged
for just cause only; (3) sufficient additional consideration; or (4) an applicable
recognized public policy exception.” Rapagnani v. The Judas Company, 736 A.2d
666, 669 (Pa. Super. 1999) (citation omitted). As herein, “[t]he party claiming that

                insufficient to establish a right to relief; any doubt must be resolved
                in favor of overruling the demurrer.

Boyd v. Rockwood Area School District, 907 A.2d 1157, 1163 n.8 (Pa. Cmwlth. 2006), appeal
denied, 919 A.2d 959 (Pa. 2007) (citations omitted).

       8
           24 P.S. §5-504. Section 504(a) states:

                (a)     The board of school directors in any school district shall
                have power to establish, equip, maintain, and operate cafeterias, or
                to contract for any services necessary for the operation of a food
                service program, in any of the schools under its jurisdiction,
                whenever in its judgment it is deemed advisable to do so, and shall
                have power to appoint such directors, supervisors, or other employes
                as are necessary, and set and pay their salaries.

24 P.S. §5-504(a).
                                                    9
an agreement is for a definite period has the burden of proving that fact . . . [by
providing] clear proof that the parties contracted for a specific duration.”
Gruenwald, 730 A.2d at 1010 (citation omitted).
             Additionally, “the issue of an at-will employee turns on the
interpretation of the contract,” and “[t]he interpretation of a contract is a matter of
law to be decided by this Court.” Case v. Lower Saucon Township, 654 A.2d 57, 59
(Pa. Cmwlth. 1995) (citation omitted). In interpreting contracts, “[t]he fundamental
rule . . . is to ascertain and give effect to the intention of the parties.” Lower
Frederick Township v. Clemmer, 543 A.2d 502, 510 (Pa. 1988) (internal quotation
omitted). The intent of the parties “is to be regarded as being embodied in the writing
itself, and when the words are clear and unambiguous the intent is to be discovered
only from the express language of the agreement.” Steuart v. McChesney, 444 A.2d
659, 661 (Pa. 1982). If a “written contract is clear and unequivocal, its meaning
must be determined by its contents alone. It speaks for itself and a meaning cannot
be given to it other than that expressed. Where the intention of the parties is clear,
there is no need to resort to extrinsic aids or evidence.” East Crossroads Center,
Inc. v. Mellon-Stuart Co., 205 A.2d 865, 866 (Pa. 1965).
             However, if the contract language is ambiguous, the meaning of the
agreement’s terms is determined by the surrounding facts and circumstances, and
that requires a decision for the trier of fact. Hutchison v. Sunbeam Coal Corp., 519
A.2d 385, 390 (Pa. 1986). An ambiguity exists if the contract language is subject to
two or more reasonable interpretations. Drummond v. University of Pennsylvania,
651 A.2d 572, 580 (Pa. Cmwlth. 1994), appeal denied, 661 A.2d 875 (Pa. 1995).
Initially, the court must ascertain whether the intent of the parties, as manifested only




                                           10
by the language of the contract, is clear. Standard Venetian Blind Co. v. American
Empire Insurance Co., 469 A.2d 563, 566 (Pa. 1983).
               The parties do not dispute that the instant Compensation Plan is styled
as an ACP as defined by Section 1164 of the School Code. Nevertheless, as argued
by Anderson, the instant Compensation Plan also contains language that could be
interpreted as creating a contract with respect to her services of operating a food
service program for the District as authorized by Section 504(a) of the School Code.
Specifically, as noted above, the Compensation Plan states that Anderson “shall be
employed two hundred (200) days for each fiscal year at seven (7) hours for each
day . . . begin[ning] on or about August 15th of each fiscal year,” and that her “salary
hereunder shall be paid in twenty-four (24) equal payments beginning with the
August 25th payroll[.]” R.R. at 1a (emphasis added). Based on the foregoing
ambiguity in the Compensation Plan, the trial court erred in sustaining the District’s
preliminary objection to Anderson’s breach of contract claim. See, e.g., Kane v.
State Farm Fire and Casualty Co., 841 A.2d 1038, 1051 (Pa. Super. 2003), appeal
denied, 871 A.2d 192 (Pa. 2005) (“At any rate, this ambiguity convinces us that it
was error for the trial court to dismiss the breach of contract claim against Erie at
this early preliminary objection stage of the litigation. See 220 Partnership v.
Philadelphia Electric Company, [650 A.2d 1094, 1096 (Pa. Super. 1994)] (doubts
as to the legal sufficiency of the complaint should be resolved in favor of overruling
the demurrer).”).9

       9
          Based on our disposition of this claim, we need not reach the other claims raised by
Anderson in this appeal. Moreover, to the extent that Anderson asserts other claims or legal
theories that were not raised in her complaint or in the trial court, these claims have been waived
for purposes of appeal. Pa. R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Siegfried v. Borough of Wilson, 695 A.2d 892, 894
(Pa. Cmwlth. 1997) (“Rule 302(a) clearly states that issues not raised in the trial court are waived


                                                11
               Accordingly, the trial court’s order is reversed, and the matter is
remanded to the trial court to enter an order overruling the District’s preliminary
objection.




                                               MICHAEL H. WOJCIK, Judge




and cannot be raised for the first time on appeal. Pennsylvania courts have consistently applied
this rule. The appellate court may sua sponte refuse to address an issue raised on appeal that was
not raised and preserved below[.]”) (citations and footnote omitted); Kemp v. Qualls, 473 A.2d
1369, 1374 (Pa. Super. 1984) (“It is well-established that a party may not successfully advance a
new and different theory of relief for the first time on appeal, while failing to assert on appeal other
grounds which were submitted for the same purpose in the lower court.”) (citation omitted).
                                                  12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Debra Anderson,                        :
                                       :
                          Appellant    :
                                       :
                   v.                  : No. 241 C.D. 2017
                                       :
North Star School District             :




                                      ORDER


             AND NOW, this 1st day of May, 2018, the order of the Somerset County
Court of Common Pleas dated January 25, 2017, at No. 622 Civil 2016 is
REVERSED, and the matter is REMANDED to that court to enter an order
overruling the preliminary objection of the North Star School District.
             Jurisdiction is RELINQUISHED.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
