C. Brewster Rhoads and Edward B. Soken, Philadelphia, for appellant.
Lewis F. Adler, Harriburg, for Pennsylvania State Education Ass'n, amicus curiae.
Augustus S. Ballard and Pepper, Bodine, Stokes & Hamilton, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 598]
Plaintiff is a teacher in the public schools of Philadelphia. As a professional employee he was required under his contract with the defendant school district to teach for a term of ten months in each school year. Plaintiff is also a Lieutenant Colonel in a Reserve Component of the United States Army. He was ordered by competent military authority to report for active training duty at a summer training camp for a period beginning June 11 and ending on July 1, 1950. Similarly he was ordered to active field training duty for a period from June 9 to July 7, 1951. The school year in 1950 ended on June 30, and in 1951 on June 26. He, on his request, was granted leave of absence by the school district for the period of his active training duty in 1950 and also in 1951, but without pay.
Plaintiff brought this action to recover his salary as a teacher for 15 days, and for only that part of the training period within the school year in 1950, amounting to $294 and for 15 days only, of the period of his
[ 173 Pa. Super. Page 599]
leave of absence in 1951, amounting to $345, on the authority of the Act of July 12, 1935, P.L. 677, 65 P.S. § 114. That Act provides: 'All officers and employes of the Commonwealth of Pennsylvania, or of any political subdivision thereof, members, either enlisted or commissioned, of any reserve component of the United States Army, Navy, or Marine Corps, shall be entitled to leave of absence from their respective duties without loss of pay, time, or efficiency rating on all days not exceeding fifteen in any one year during which they shall, as members of such reserve components, be engaged in the active service of the United States or in field training ordered or authorized by the federal forces.' (Emphasis added.) The defendant Board of Education on behalf of the School District of the City of Philadelphia filed preliminary objections to plaintiff's complaint, questioning the constitutionality of the above Act. After hearing, the objections were dismissed, and judgment subsequently was entered for plaintiff in the amount of his claim for want of an affidavit of defense to the merits. The judgment will be affirmed.
Defendants' preliminary objections questioned the validity of the 1935 Act, supra, on two grounds. It was asserted that the Act violates (1) Article III, Section 7, of the Pennsylvania Constitution P.S., which prohibits 'any local or special law * * * Granting to any * * * individual any special * * * privilege * * *' and (2) Article III, Section 18, which provides: 'No appropriations, except for pensions or gratuities for military services, shall be made for charitable, educational or benevolent purposes, to any person * * *.' It is obvious that any violation of § 18 under the facts of this case, will also fall within the prohibition of § 7. In the approach to the question it must be borne in mind that only a clear violation of the Constitution can nullify an Act of
[ 173 Pa. Super. Page 600]
Assembly. Tranter v. Allegheny Co. Authority, 316 Pa. ...