Appeal, No. 123, March T., 1954, from order of Court of Common Pleas of Mercer County, Sept. T., 1953, No. 80, in case of Harriet Maxwell v. Board of School Directors of School District of Farrell et al. Order affirmed.
Bernard Goldstone, with him Harvey E. Moore, for appellant.
Cyril T. Garvey, with him Anthony Perfilio, for appellees.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff, a teacher duly certified and qualified to teach in our public schools, was appointed by the defendant School Board to teach as a "substitute teacher" during the school year 1947-48 and the school year 1948-49. The appointment was so recorded in the minutes of the School Board. Pursuant to this appointment the plaintiff taught the fourth grade, replacing Miss Gwenn Leyshon, a regular teacher, i.e., "a regular professional employe."
Plaintiff was also employed by defendants during each of the next three years, viz., 1949-50, 1950-51 and 1951-52. In each of these years the minutes of the School Board described the plaintiff as "a teacher" rather than "a substitute teacher" as they had in the first two years of her employment.
On March 13, 1952 defendant Hetra, Superintendent of Schools, notified the plaintiff by letter that the state legislature by the Act of January 14, 1952, P.L. 2018, 24 PS § 25-2518, had amended the Public School Code Act of March 10, 1949, P.L. 30, 24 PS, supra, to provide penalties in cases where a school district employs substitute teachers to fill a vacancy which exists for a full year or more. The letter added that "all teachers on a substitute basis who have one year agreements, may or may not have these agreements renewed next year." The plaintiff was not appointed for the year 1952-53. Plaintiff, contending she became a temporary professional employe in 1949 and was entitled to tenure, commenced this action in mandamus on July
, 1953. The Court below sustained defendants' preliminary objections and dismissed the complaint.
The pertinent provisions of the Public School Code of 1949, supra, are:
"Section 1101. Definitions. - As used in this article,
"(1) The term 'professional employe' shall include teachers, supervisors, supervising principals, principals, directors of vocational education, dental hygienists, visiting teachers, school secretaries the selection of whom is on the basis of merit as determined by eligibility lists, school nurses who are certified as teachers and any regular full-time employe of a school district who is duly certified as a teacher.
"(2) The term 'substitute' shall mean any individual who has been employed to perform the duties of a regular professional employe*fn1 during such period of time as the regular professional employe is absent on sabbatical leave or for other legal cause authorized and approved by the board of school directors or to perform the duties of a temporary professional employe who is absent.
"(3) The term 'temporary professional employe' shall mean any individual who has been employed to perform, for a limited time, the duties of a newly created position or of a regular professional employe whose services have been terminated by death, resignation, suspension or removal.
"Section 1108. Temporary Professional Employes. - It shall be the duty of the county superintendent of schools or the district superintendent, as the case may be, to notify each temporary professional employe, at least twice each year during the period of his or her employment, of the professional quality, professional
progress, and rating of his or her services. No temporary professional employe shall be dismissed unless rated unsatisfactory, and notification, in writing, of such unsatisfactory rating shall have been furnished the employe within ten (10) days following the date of such rating. A temporary professional employe whose work has been certified by the county superintendent of schools or the district superintendent to the secretary of the school district, during the last four (4) months of the second year of such service, as being satisfactory shall thereafter be a 'professional employe' within the meaning of this article. The attainment of this status shall be recorded in the records of the board and written notification thereof shall be sent also to the employe. The employe shall then be tendered forthwith a regular contract of employment as provided for professional employes. No professional employe who has attained tenure status in any school district of this Commonwealth shall thereafter be required to serve as a temporary professional employe before being tendered such a contract when employed by any other school district.
"Any temporary professional employ who is not tendered a regular contract of employment at the end of two years of service, rendered as herein provided, shall be given a written statement signed by the president and secretary of the board of school directors and setting forth explicitly the reason for such refusal.
"Temporary professional employes shall for all purposes, except tenure status, be viewed in law as full-time employes, and shall enjoy all the rights and privileges of regular full-time employes."
The basic contention of plaintiff is that her services as a school teacher cannot be terminated because under the Code she was a "temporary professional employe" from 1949 ...