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ELIAS v. BOARD SCHOOL DIRECTORS. WAGNER (03/22/66)

decided: March 22, 1966.

ELIAS, APPELLANT,
v.
BOARD OF SCHOOL DIRECTORS. WAGNER, APPELLANT, V. BOARD OF SCHOOL DIRECTORS



Appeals from orders of Court of Common Pleas of Somerset County, Nos. 162 and 163, Continuance Docket 1962, in cases of Olga Kibsey Elias v. Board of School Directors of Windber Area and School District of Windber Area; and Marjorie Wagner v. Same.

COUNSEL

Lewis F. Adler, with him Charles H. Coffroth, for appellants.

Joseph N. Cascio, with him Fike, Cascio & Boose, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring and Dissenting Opinion by Mr. Chief Justice Bell. Concurring and Dissenting Opinion by Mr. Justice Roberts.

Author: Cohen

[ 421 Pa. Page 261]

These are two actions of mandamus, brought by plaintiffs as school nurses against the defendant board of school directors and the defendant school district. Both plaintiffs were registered nurses and were employed by defendants to serve as school nurses. On the date of employment of each plaintiff, neither had certification to act as a school nurse or to teach school. In the case of each plaintiff, a temporary professional employe's contract to teach in the school district for a period of ten months was executed. Several months thereafter, the Department of Public Instruction issued to each plaintiff a State Standard Limited Certificate to act as a school nurse, which certificate was registered with the superintendent of defendant school

[ 421 Pa. Page 262]

    district. After more than three years of service the defendant board terminated the employment of each plaintiff effective at the close of the then current school year. At the time of termination, each plaintiff held a State Standard Limited Certificate to serve as a school nurse, but the district superintendent did not rate either plaintiff during the last four months of the first two years of employment, or thereafter, and he made no certification of any rating to the secretary of the defendant board.

In separate mandamus actions, the plaintiffs seek an order that defendants reinstate them to their former positions and assign them their proper duties; to issue to them professional employe's contracts; and to award damages for lost earnings. The trial court dismissed each complaint.

As originally enacted, the Public School Code, Act of March 10, 1949, P. L. 30, § 1101, 24 P.S. § 11-1101, defined the term "professional employe" to include "teachers, supervisors,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." (Emphasis supplied).

Subsections (2) and (3) of § 1101 defined the terms "substitute" and "temporary professional employe," respectively. In the same session, § 1101 was amended by the Act of May 14, 1949, P. L. 1365, § 2, which provided: "Section 2. Sections one thousand one hundred one and one thousand one hundred forty-six . . . are hereby amended to read as follows: Section 1101. Definitions. -- As used in this article (1) The term 'professional employe' shall include those who are certified as teachers, supervisors, supervising principals, principals, directors of vocational education, dental hygienists,

[ 421 Pa. Page 263]

    visiting teachers, home and school visitors, school counselors, school secretaries the selection of whom is on the basis of merit as determined by eligibility lists and school nurses [who are certified as teachers and any regular full-time ...


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