545 A.2d 998 | Pa. Commw. Ct. | 1988
Opinion by
This is an appeal by Homer Horton (Appellant) from an order of the Court of Common Pleas of Jefferson County which sustained a preliminary objection in the nature of a demurrer filed by Jefferson County-Dubois Area Vocational-Technical School (Appellee) and dismissed Appellants complaint.
On October 9, 1986, Appellant, who is the Director of Vocational Education and is employed by Appellee, filed a complaint in equity. He alleged that by notice dated July 17, 1984, Appellee had sought to dismiss him from his position. He further alleged that after several hearings Appellee withdrew its charges “for the apparent reason that there was no substantial evidence to support the charges.” Appellant further alleged that all other employees of Appellee had received salary in
It is well settled that a court cannot sustain a demurrer unless it is clear on the face of the pleading that the law will not permit the recovery being sought. International Association of Firefighters v. Loftus, 80 Pa. Commonwealth Ct. 329, 471 A.2d 605 (1984). Any doubt must be resolved in favor of overruling the demurrer. Id.
Appellant essentially alleges that the refusal to grant him the increases constitutes discrimination and a de facto disciplinary action. Even assuming this characterization to be accurate, Appellant has pointed to no law, constitutional, contractual, statutory, regulatory, or otherwise which would prohibit Appellees actions or which would entitle Appellant to the relief he seeks. Discrimination is simply not actionable unless it is in violation of some constitutional, contractual, statutory, or regulatory right. None has been pled here. And we reject Appel
Appellant relies upon two provisions of the Public School Code of 1949, Act of March 10, 1949, P. L. 30, as amended, 24 P.S. §§1-101 through 27-2702 (Code). The first, Section 1152 of the Code, 24 P.S. §11-1152, merely permits a board of school directors to increase salaries for any person or group of persons. Contrary to Appellants urging, we cannot read this language to require that Appellant be granted an increase merely because other employees are granted increases.
Appellant also relies upon Section 1151 of the Code, 24 P.S. §11-1152, which, inter alia, prohibits demotion without consent unless an employee is given a hearing. Thus, Appellant appears to assert that he is the victim of a de facto demotion or some similar unspecified, but adverse, personnel action. We have held that a demotion within the intendment of Section 1152 requires either a reduction in salary or a change in the type of position. Norwin School District v. Chlodney, 37 Pa. Commonwealth Ct. 284, 390 A.2d 328 (1978). Here, Appellant has alleged neither. Thus, we cannot conclude that Appellees actions herein violated Section 1152 of the Code. Further, Appellant nowhere contends that his salary is below the statutory minimum set forth in Section 1142 of the Code, 24 P.S. §11-1142.
Although there may be some merit to Appellants contention that in denying him the relief he seeks we
Accordingly, based upon the foregoing discussion, we affirm the order of the common pleas court.
Order
Now, August 17, 1988, the order of the Court of Common Pleas of Jefferson County in the above-captioned matter is hereby affirmed.