Elias v. Board of School Directors of Windber Area
| Decision Date | 22 March 1966 |
| Citation | 218 A.2d 738,421 Pa. 260 |
| Parties | Olga Kibsey ELIAS, Appellant, v. The BOARD OF SCHOOL DIRECTORS OF the WINDBER AREA and the School District of Windber Area. Marjorie WAGNER, Appellant, v. The BOARD OF SCHOOL DIRECTORS OF the WINDBER AREA and the School District of Windber Area. |
| Court | Pennsylvania Supreme Court |
Lewis F. Adler, Harrisburg, Charles H. Coffroth, Somerset, for appellants.
Fike, Cascio & Boose, Joseph N. Cascio, Robert Boose, Somerset, for appellees.
Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.
These are two actions in 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 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As originally enacted, the Public School Code, Act of March 10, 1949, P.L. 30, art. XI, § 1101, 24 P.S. § 11--1101, defined the term 'professional employe' to include 'teachers, supervisors, supervising 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 section 1101 defined the terms 'substitute' and 'temporary professional employe,' respectively.
In the same session section 1101 was amended by the Act of May 14, 1949, P.L. 1365, § 2, which provided:
'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, 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 employe of a school district who is duly certified as a teacher).'
Subsections (2) and (3) of section 1101, defining the terms 'substitute' and 'temporary professional employe' were not set forth at length in the amendatory act. Defendants contend that failure to set forth at length these subsections nullifies the entire amendment for failure to comply with the provisions of Article III, section 6 of the Pennsylvania Constitution P.S. and the Statutory Construction Act, Act of May 28, 19378 P.L. 10198 Art. V, § 71, 46 P.S. § 571.
Article III, section 6 of the Constitution states:
'No law shall be revived, amended, or May 28, 1937, P.L. 1019, Art. V, § 71, 46 by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.'
Section 71 of the Statutory Construction Act requires that the Secretary of the Commonwealth, in printing amendatory laws, print the section only as re-enacted, and indicate between brackets the provisions of the existing law eliminated by the amendment, and print in italics all new provisions which have been added to the law.
In the instant matter, the mandates of both the Constitution and the Statutory Construction Act have been obeyed. If the purpose of an act is to amend a subsection, it is sufficient to re-enact and publish at length only that subsection. Commonwealth v. Hallberg, 374 Pa. 554, 559, 97 A.2d 849, 851 (1953). The amendatory act was not intended to amend subsections (2) and (3), nor was any attempt made to amend those two subsections. Rather, the intended amendment is of the first Subsection only, not the entire section. The title of the amendatory act states, in relevant part, that it amends the Public School Code of 1949 by '* * * clarifying the term 'professional employe," which term is defined in subsection (1). No mention is made of an intention to clarify the terms 'substitute' and 'temporary professional employe', which are the subject matters of subsections (2) and (3) respectively. Section 554 of the Statutory Construction Act provides that the title of a law may be considered in its construction. Certainly, in this instance, the title of the amendatory act limits its scope and indicates that within its purview is to be included only subsection (1) of section 1101 and not subsections (2) and (3).
If either plaintiff is to claim the status of a professional employe, she must be certified as a school nurse, in accordance with the definition set forth in the amendatory act. At the time of her employment, neither plaintiff was certified to serve as a school nurse. However, several months thereafter each plaintiff was issued by the Commonwealth a State Standard Limited Certificate, which authorized her 'to act as a public school nurse in this commonwealth for three years. * * *' While this certificate was still effective both plaintiffs received notice of dismissal. Certainly, at that time they were certified to act as school nurses, and had attained the status of professional employe as defined by the Code. More particularly, each was a temporary professional employe, as defined in section 1101(3) and by their separate contracts of employment. As such, each plaintiff was protected by section 1108 of the Code, which provides in relevant part:
'(a) * * * No temporary professional employe shall be dismissed unless rated unsatisfactory, and notification, in writing, of such unsatisfactory rating shall have been furnished the employe within ten (10) days following the date of such rating. * * *'
Other portions of section 1108 provide that each temporary professional employe shall be rated by the county or district superintendent at least twice yearly and that a temporary professional employe who has been certified as satisfactory during the last four months of the second year of service, shall become a full-fledged professional employe and be tendered forthwith a professional employe's contract.
It is on the basis of these latter portions of section 1108 that the court below determined that neither plaintiff had attained the status of professional employe. The lower court, however, ignored the provision of section 1108 prohibiting the dismissal of a temporary professional employe unless rated unsatisfactory. Neither plaintiff was ever rated unsatisfactory by the superintendent. In fact, the record reveals that the only rating received by either plaintiff was an excellent rating of 97.6 in the case of plaintiff Elias. Under the circumstances, we must conclude that the absence of ratings indicates satisfactory performance and that each plainti...
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