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WELDON B. SHANK v. EVERETT AREA SCHOOL DISTRICT (01/23/76)

decided: January 23, 1976.

WELDON B. SHANK, JR., APPELLANT
v.
EVERETT AREA SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bedford County in case of Weldon B. Shank, Jr., v. Everett Area School District, No. 106 August Term, 1972.

COUNSEL

William K. Eckel, with him Abood, Rodkey & Eckel, for appellant.

Stanley G. Stroup, with him Stroup & Stroup, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 23 Pa. Commw. Page 92]

This appeal of Weldon B. Shank, Jr. (Appellant) is from an order of the Court of Common Pleas of Bedford County, granting Everett Area School District's (Appellee) motion for judgment on the pleadings in the nature of a demurrer. We affirm.

Appellant filed a complaint in mandamus alleging, inter alia, that he requested a leave of absence from Appellee as a result of orders issued by the Adjutant General to attend U.S. Army flight schools, and that Appellee violated its statutory duties as set forth in Section 1176 of the Public School Code of 1949*fn1 and Section 839 of the Military Code of 1949,*fn2 by denying the leave. Consequently, he sought the benefits that accrue when one is granted a leave of absence for military service, on retirement rights, salary steps, seniority rights, sabbatical leave eligibility and damages for loss in wages, and all salary increments due. Appellee's answers to the complaint and the amended complaint, in essence, denied violation of its statutory duties. Appellee then filed a motion for judgment on the pleadings. The court below issued an order granting motion for judgment on the pleadings and dismissed Appellant's complaint. This appeal followed.

Two questions were presented: First, did the trial court err in granting Appellee's motion for judgment on the pleadings, and second, was Appellant entitled to a military leave of absence pursuant to Section 1176 of the Public School Code of 1949?

Section 1176 of the Public School Code of 1949 provides that a leave of absence must be granted when:

"(a) Any employe of any school district, who shall have been regularly employed by any school district

[ 23 Pa. Commw. Page 93]

    or vocational school district for any period, and who shall volunteer for military service in the armed forces of the United States of America in time of war or during a state of national emergency or who shall be inducted for military service in the Armed Forces of the United States of America at any time, shall, within thirty (30) days after the receipt of notice to report for duty, send a copy of such notice to the secretary of the school board by which he is employed."

This is not the situation here. During the Viet Nam conflict, no declaration of war was voted nor state of emergency declared, and the Appellant volunteered for ...


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