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DALE ERWAY ET AL. v. BARBARA A. WALLACE (05/28/80)

decided: May 28, 1980.

DALE ERWAY ET AL., APPELLANTS
v.
BARBARA A. WALLACE, APPELLEE



Appeal from the Order of the Court of Common Pleas, Civil Division, of Potter County in case of Barbara A. Wallace v. Dale Erway, Junior Baker, Jerome Eckert, Patricia Flutz, Robert Nelson, Dennis Smoker, Ralph Snyder, Richard Van Etten, Donald Wright and Jalan Aufderheide, Superintendent, Northern Potter School District, No. 338.

COUNSEL

Robert F. Cox, Jr., Cox, Wilcox, Owlett & Lewis, for appellants.

William A. Hebe, Spencer, Gleason & Hebe, for appellee.

Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 51 Pa. Commw. Page 562]

Dale Erway and other individual members of the Board of Directors of the Northern Potter School District and its superintendent (collectively School District) appeal from an order of the Court of Common Pleas of Potter County which order (1) compels the School District to interview Barbara A. Wallace (Appellee) for the full-time position of school nurse for the Northern Potter School District, and (2) directs the School District to offer Appellee such employment if it finds her "suitable" pursuant to the interview, and further directs the School District to pay her the difference between her salary plus fringe benefits received in her job with the Austin Area School District during the school years 1977-78 and 1978-79 and the salary plus fringe benefits to which she would have been entitled had she been employed by the Northern Potter School District during those same years. The court also directed that if Appellee were found unsuitable, a further hearing was to be held before the court, at which time the School District would have the burden of showing that it acted reasonably in finding Appellee unsuitable.

Appellee has been certified as a public school nurse since June, 1971, and has been employed by the Austin Area School District as a part-time school nurse since 1959. In the spring of 1977, Appellee learned of a vacancy in the position of full-time school nurse with the Northern Potter School District and filed an application for the job with the School District's superintendent on or about May 10, 1977. In late June or early July of 1977, the School District informed her that the position had been filled. The School District took official action concerning the hiring of a person as school nurse at its meeting on June 29, 1977.

[ 51 Pa. Commw. Page 563]

Appellee thereafter learned that the person employed by the School District was not certified as a school nurse. In July, 1977, Appellee advised her Pennsylvania State Education Association (P.S.E.A.) representative of the School District's employment of a non-certified individual. The P.S.E.A. representative wrote to his superior, who contacted the Director of the Bureau of Teacher Certification, Department of Education, to express his concern over the matter and to request that the director refuse the School District an emergency certificate for the school nurse. Nevertheless, an emergency certificate dated September of 1977 was granted to the person employed by the School District as school nurse. The P.S.E.A. representative also wrote to the superintendent of the School District requesting information regarding the nurse's certification. These several requests met with little or no response.

Appellee wrote a letter to the Department of Education on October 25, 1977, to protest the School District's employment of a non-certified individual. However, the Appellee at no time filed a formal action with the Department of Education. As a matter of fact, Appellee took no further action whatsoever until June 22, 1978, on which date she filed an action in mandamus with the Court of Common Pleas of Potter County. Appellee asked that court to order the School District to immediately hire her as school nurse and to pay her the salary plus fringe benefits she would have received if she had been employed by the School District for the 1977-78 school year.

In this appeal the School District raises several arguments on the merits of the trial court's order. A threshold issue, however, is whether the court erred when it refused to dismiss Appellee's mandamus action on the ground that it was barred by laches.

[ 51 Pa. Commw. Page 564]

Laches is a proper defense to an action in mandamus. Our Supreme Court has stated that although mandamus is classified as a legal remedy, it is a remedial process and is "'generally regarded as not embraced within statutes of limitation applicable to ordinary actions, but as subject to the equitable doctrine of laches.'" Commonwealth ex rel. Oliver v. Wilkes-Barre, 365 Pa. 24, 26, 73 A.2d 420, 421 (1950). In Wilkes-Barre, supra, the Court held that the claimant's mandamus action was barred by laches. See also ...


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