Appeal, No. 323, Jan. T., 1954, from judgment of Court of Common Pleas of Northumberland County, May T., 1952, No. 103, in case of Anna Marnell v. Mount Carmel Joint School System and Joint School Committee. Judgment affirmed.
Russell S. Machmer, with him Charles M. Menapace, for appellant.
Louis Cohen, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The litigation in this case is a particularly unfortunate one because it means that one of two nurses must lose a position which both are equally qualified to fill. The plaintiff, Mrs. Anna Marnell, was employed as a school nurse by the Mount Carmel Township School District. Her opponent (although not formally
the defendant in this case), Miss Mildred Ambrose, was employed by the Mt. Carmel Borough School District. On September 28, 1951, these two school districts established a jointure under the name of Mount Carmel Joint School System, and since, under the combined school system one nurse could perform all the work required in the combined schools, the Joint School System found itself compelled to dismiss either Mrs. Marnell or Miss Ambrose. The School Code, which anticipates such a situation, provides: "(a) Whenever a board of school directors decreases the size of the staff of professional employes, the suspensions to be made shall be determined by the county superintendent of schools or the district superintendent, as the case may be, on the basis of efficiency rank determined by ratings made in accordance with standards and regulations, determined by rating cards prepared by the Department of Public Instruction, as required by section one thousand one hundred twenty-three of this act ..." (Sec. 1125, as amended Aug. 10, 1951, P.L. 1157, sec 2, 24 PS 11-1125 Pocket Parts). (Emphasis supplied.)
Since the ensuing investigation resulted in a "satisfactory" rating for both Mrs. Marnell and Miss Ambrose, it was necessary to turn to subsection (b) of Section 1125: "(b) in cases in which suspensions are to be made, professional employes shall be retained on the basis of seniority rights, acquired within the school district of current employment, where no differences in rating are found. Seniority rights shall also prevail where there is no substantial difference in rating ..." (Emphasis supplied.)
Under this provision the Joint School Committee found Mrs. Marnell to be junior in seniority and she was suspended as of October 4, 1951. Mrs. Marnell brought an action in mandamus to compel reinstatement, averring that her seniority rights surpassed Miss
Ambrose's. When the case came up for trial, the Judge directed a verdict in favor of Mrs. Marnell. The defendant moved for judgment n.o.v., which ...