Appeal, No. 342, Jan. T., 1953, from judgment of Superior Court, Oct. T., 1953, No. 33, affirming judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1951, No. 2346, in case of Paul A. Loomis v. The Board of Education of School District of Philadelphia. Judgment affirmed.
C. Brewster Rhoads, with him Edward B. Soken, for appellant.
Augustus S. Ballard, with him Pepper, Bodine, Stokes & Hamilton, for appellee.
Lewis F. Adler, for Pennsylvania State Education Association, amicus curiae.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, a teacher in the Philadelphia public schools who was also a member of a Reserve Component of the United States Army, brought an action in assumpsit
against the Board of Education of the School District of Philadelphia to recover pay for 15 days in each of the years 1950 and 1951 during which periods he was engaged in field training ordered by competent military authority and absent from his professional duties. The action was brought under the Act of July 12, 1935, P.L. 677, 65 PS § 114, which 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.".
Plaintiff's complaint set forth that he was employed by defendant in 1947 by written contract covering a school term of ten months and continuously thereafter, performing his duties in each school year, commencing September 1st to June 30th, following; that throughout such time he was a lieutenant colonel in a Reserve Component of the United States Army; that he made written request for military leave of absence in accordance with the Act of 1935 covering a period in June of 1949 which was granted by defendant with full pay; that he made similar requests for military leave of absence covering periods commencing in June, 1950 and June, 1951, respectively, which were granted by defendant, but with full loss of salary for the 15 days in each year when he was absent from his professional duties as a teacher. He claimed the proportionate part of his salary covering the 15 day period in each of the years 1950 and 1951.
The defendant filed preliminary objections, claiming the complaint failed to state a cause of action, that the Act of 1935 violates Article III, Section 7 of the Constitution of the Commonwealth as a special law granting to individuals a special or exclusive privilege or immunity and Article III, Section 8 as a provision for payment of public funds for unauthorized purposes, and that since plaintiff was not required to perform any duties as an employe of the defendant during the periods from July 1st to August 31st, inclusive, in the years 1950 and 1951, he received adequate leave of absence ...