Appeal, No. 119, Jan. T., 1955, from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1954, No. 1452, in case of Mary Kosker Fisher v. J. B. Warakomski, et al., Board of School Directors of School District of City of Nanticoke. Judgment reversed.
James T. Shea, with him Charles A. Shea, Jr., and Shea & Shea, for appellant.
Bernard J. Kotulak, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
After a continuous service of 14 years as a school teacher in the School District of Nanticoke, Luzerne County, Mrs. Mary Kosker Fisher asked for and obtained maternity leave. Nine months later the School Board called her back to resume her teaching duties. Some two years and nine months after this resumption of duty, the School Board suspended Mrs. Fisher because of a decrease in pupil enrollment. Mrs. Fisher protested the suspension, claiming that her seniority rights surpassed those of the four teachers who had been retained. The Board countered with the assertion that Mrs. Fisher lost her seniority rights when she took maternity leave. In the action of mandamus filed by Mrs. Fisher in the Court of Common Pleas of Luzerne County, judgment was rendered in favor of the defendant School Board, and this appeal followed.
Section 1166 of the Public School Code of 1949, P.L. 30, provides: "(a) Any person employed in the public school system of this Commonwealth who has completed ten (10) years of satisfactory service as a teacher ... shall be entitled to a leave of absence for restoration of health, study or travel, or, at the discretion of the board of school directors, for other purposes. At least five consecutive years of such service shall have been in the school district from which leave of absence is sought, unless the board of school directors shall in its discretion allow a shorter time. Such leave of absence shall be for a half or full school year, or for two half school years during a period of two years, at the option of such person. Thereafter, one leave of absence shall be allowed after each seven years of service. ..." (Emphasis supplied.)
Under Section 1170 of the Code, a teacher on sabbatical leave shall be considered: "... to be in regular full-time daily attendance in the position from which the sabbatical leave was taken, during the period of said leave, for the purpose of determining the employe's length of service and the right to receive increments, as provided by law."
Thus, if it is determined that Mrs. Fisher was on sabbatical leave during the time she was absent from her teacher's position, she did not forfeit her seniority rights and she is qualified for reinstatement.
The rules and regulations for maternity leave promulgated by the School Board in 1943, provided that such leaves would be for a minimum of two years without pay and upon 20 days' prior application. Then, 60 days before returning to duty, the teacher was to file a notice of intention to return and a physician's certificate of physical fitness. On January 9, 1951, the Board granted maternity leave to Mrs. Fisher without specifying the period of such leave. Nine months later, as above related, the Board recalled Mrs. Fisher, and she taught school from September, 1951 to June, 1954, when she was suspended.
The defendant School Board has conceded through brief filed by its counsel that it could have granted Mrs. Fisher sabbatical leave under the "other purposes" clause of Section 1166 of the School Code: "Though maternity leaves are not specifically mentioned in the Code, it has been held that such leaves might be included within the 'other purposes' for which a teacher ...