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CAROLYN M. MERRITT v. WEST MIFFLIN AREA SCHOOL DISTRICT (01/16/81)

decided: January 16, 1981.

CAROLYN M. MERRITT, APPELLANT
v.
WEST MIFFLIN AREA SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Carolyn M. Merritt, a Professional Employee v. West Mifflin Area School District, No. GD-79-31318.

COUNSEL

P. Andrew Diamond, with him William E. Stockey, Lewis, Stockey and DeAngelis, for appellant.

William C. Andrews, with him Thomas M. Rutter, Jr., Goehring, Rutter & Boehm, for appellee.

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

Author: Macphail

[ 56 Pa. Commw. Page 127]

This is an appeal taken by Carolyn M. Merritt (Appellant) from an order of the Court of Common Pleas of Allegheny County which sustained the preliminary objections of the West Mifflin Area School District (Appellee) and dismissed Appellant's complaint in mandamus. We affirm.

Appellant filed a complaint in mandamus with the Court of Common Pleas of Allegheny County on November 28, 1979. Appellant alleges therein that on October 25, 1979 she was dismissed, after having failed to appear at a hearing held on the same date, from employment as a professional employee with

[ 56 Pa. Commw. Page 128]

    the Appellee.*fn1 The complaint further alleges that Appellant's family and legal counsel did not become aware of the dismissal proceedings until November 20, 1979. Since Appellant allegedly was mentally incompetent to participate in the hearing held in October, she requested that the court below direct Appellee to hold another hearing on the issue of her dismissal. The court sustained Appellee's preliminary objection raising a question of jurisdiction finding that the matter should have been appealed to the Secretary of Education.

The issues raised by the present appeal are: (1) whether the Appellee's objection was properly pleaded and (2) whether the court below was correct in concluding that it lacked jurisdiction over the action in mandamus.

Appellant argues that Appellee's preliminary objection, to wit, that jurisdiction over the action in mandamus was lacking because Appellant failed to pursue her statutory remedy, does not raise a question of jurisdiction and should have been pleaded in New Matter.*fn2 We disagree.

Mandamus is an extraordinary writ which lies to compel the performance of a ...


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