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HAAS v. LLEWELLYN. (11/11/57)

November 11, 1957

HAAS, APPELLANT,
v.
LLEWELLYN.



Appeal, No. 243, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1955, No. 1036, in case of Gladys J. Haas v. Catherine Llewellyn et al. Judgment affirmed.

COUNSEL

Charles, F. Dean, for appellant.

John F. Healy, with him John A. Robb and Van der Voort, Royston, Robb & Leonard, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Chidsey

[ 390 Pa. Page 470]

OPINION BY MR. JUSTICE CHIDSEY

Almost seven years after alleged unlawful termination of her employment as a school nurse by the School District of Collier Township, Allegheny County, plaintiff brought this action of mandamus against the School District and the members of its Board of Directors to compel reinstatement and to recover damages alleged to have resulted from the loss of her position. Defendants filed a motion for judgment on the pleadings raising the defense of laches, which the court below, sitting en banc, upheld, and entered a final judgment for the defendants. This appeal followed.

From the pleadings which consisted of plaintiff's complaint, defendants' answer and new matter, plaintiff's answer to new matter, plaintiff's amended complaint and defendants' answer to the amended complaint, the following undisputed facts appear. Plaintiff was first employed by the School District on September 2, 1943 under a temporary professional employe's contract. Subsequently she was employed as a full-time professional employe beginning August 1, 1946 under a permanent professional employe's contract. She performed services as a school nurse under the latter contract from August 1, 1946 to August 31, 1948. On August 26, 1948 a contract was submitted to the plaintiff calling for services of only two days per week with a reduction in compensation. Plaintiff was unwilling to accept this part-time contract. On or about September 2, 1948 the defendant board of directors notified plaintiff by letter that unless she reported for work on or before September 8, 1948 another nurse would be hired and plaintiff's employment terminated. Plaintiff did not report for work as requested and the defendant board thereupon employed another nurse for part-time service for less compensation

[ 390 Pa. Page 471]

    than was received by the plaintiff under her permanent professional employe's contract. By letter dated May 20, 1955 plaintiff's attorney demanded that the plaintiff be reinstated. No prior demand appears in the pleadings and the instant action was not instituted until August 2, 1955.

Plaintiff averred in her complaint that she had performed her duties as nurse with diligence and without fault and, being entitled to tenure under her contract with the school board, her employment as a full-time nurse was illegally terminated. Assuming this to be true, plaintiff failed to complain or assert her rights until the letter sent to the board by her attorney, dated May 20, 1955, nearly six years and nine months after the termination of her services, and did not institute this proceeding in mandamus until August 2, 1955, almost seven years after the cessation of her employment. We agree with the court below that plaintiff was clearly guilty of laches which barred her claim.

Laches does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued but upon whether under the circumstances of the particular case plaintiff is chargeable with want of due diligence in failing to institute or prosecute his or her claim. In the recent case of Commonwealth ex rel. Oliver et al. v. Wilkes-Barre et al., 365 Pa. 24, 73 A.2d 420, four members of the police force brought an action of mandamus against the City, the mayor and members of the city council alleging they had been illegally retired from service in violation of the applicable civil service law. They were retired on February 1, 1948 and did not file their complaint in mandamus until a year ...


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