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MILDRED FLINN v. JOHN C. PITTENGER (05/13/75)

decided: May 13, 1975.

MILDRED FLINN, MARJORIE A. HANDLOW, AUDREY J. YANKE AND ELIZABETH J. BENCHO, PLAINTIFFS,
v.
JOHN C. PITTENGER, SECRETARY OF EDUCATION, DEFENDANT, AND MAX H. HOMER, INTERVENING DEFENDANT



Original jurisdiction in case of Mildred Flinn, Marjorie A. Handlow, Audrey J. Yanke, and Elizabeth J. Bencho, v. John C. Pittenger, Defendant, and Max H. Homer, Intervening Defendant.

COUNSEL

Larry P. Gaitens, with him Lucchino, Gaitens & Hough, for plaintiffs.

Norman J. Watkins, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant.

Jerome H. Gerber, with him James L. Cowden, and Handler, Gerber & Weinstock, for intervening defendant.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 19 Pa. Commw. Page 55]

On September 27, 1973, the defendant, Secretary of Education, John C. Pittenger (Secretary), issued a letter certifying the intervening defendant Max H. Homer to

[ 19 Pa. Commw. Page 56]

    be qualified to hold the office of district superintendent in the public schools of the Commonwealth. Homer applied for the position of District Superintendent of the Sto-Rox School District in Allegheny County and was elected to that office. On September 11, 1974, the plaintiffs, Mildred Flinn, Marjorie A. Handlow, Audrey J. Yanke and Elizabeth J. Bencho, residents and taxpayers of the Sto-Rox School District, filed a complaint in equity against the Secretary challenging the lawfulness of his action of certifying Homer's eligibility. The defendant and the intervening defendant have filed preliminary objections now before us for disposition.

The suit is founded on Section 1003 of the Public School Code, as amended, Act of March 10, 1949, P.L. 30, 24 P.S. ยง 10-1003 (Supp. 1974-1975) which provides in pertinent part:

"No person shall be eligible for election or appointment as a district . . . superintendent, unless --

"(1) He holds a diploma from a college or other institution approved by the Department of Public Instruction;

"(2) He has had six (6) years' successful teaching experience, not less than three of which shall have been in a ...


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