*1 ing jury to a panel his case from drawn the same aas jury previously before has been tried. Cf. 50, Stewart, Commonwealth v. 449 Pa. 295 A.2d 303 (1972), Louisiana, Turner v. 379 U.S. 85 S.Ct. 13 L.Ed.2d 424 A.2d FRANTZ, Appellant,

Albert DISTRICT, Appellee. BALDWIN-WHITEHALL SCHOOL Supreme Pennsylvania. Court of

Argued 1973. Oct.

Decided Jan. *3 Pittsburgh, Gravina, for Rich, Margiotti, Rich & J.Y. appellant. Lawrence, Lawr- Lawrence, Jr., Plum &

Edward R. Pittsburgh, appellee. ence, for EAGEN, O’BRIEN, ROB- JONES, J., and Before C. MANDERINO, POMEROY, JJ. and ERTS, NIX THE COURT OPINION OF NIX, Justice. in the Court Frantz, suit instituted

Appellant, Albert challenging the County, Allegheny Pleas of Common employer, Baldwin-Whitehall of his action employment as school terminating a District, in requested a birthday. on his 62nd teacher seeking pay. writ of reinstatement and back mandamus court, sitting jury, The lower without a tried the case upon judgment and en- rendered verdict was tered, favor Baldwin-Whitehall and Frantz. Exceptions to the verdict were filed Frantz after and argument exceptions. the court en banc dismissed the appeal An to the Commonwealth Court resulted an af- of the action of the firmance Court Common Pleas County Allegheny judge dissenting. grant- with one We ed allocatur now affirm. and

Appellant, dismissal, at the time of his had been a appellee’s Sep- school teacher school district from until tember June At all times materi- appellant lawsuit, al to this was not a member of the old age system pub- and survivors insurance for established employees (including pursuant lic teachers) school provisions approved June, day the Act the first 1956, P.L.1973, seq. 65 P.S. 201 et atOn least three § different specifically occasions elected not to system pursuant become member of such established the aforesaid Act. Frantz is a member of the old system and survivors pursuant insurance established Congress approved August the Act of 14, 1935 as amend- ed, 42 seq. et U.S.C.A. 301 contributions to the § system part-time through were made in the private portion wages appel- sector. No of the earned public lant employee as a school have been credited to his Security 25, 1971, special account. On June at a *4 meeting of the appellee Board of Directors of the school upon district Superintendent the recommendation of the district, of the action was taken to terminate Frantz’s employment. sixty-two years age Frantz was of on June 25, 1971.

Appellant alleges points appeal. three of error in this He right asserts that he was of denied constitutional equal protection by being forced into retirement as a member of the Security class covered not but Secondly, argues under the Act of June arbitrarily, capriciously, the School Board acted and in right equal protection terminating violation of of his employment terminating while not the of sixty-two years three other teachers who were also of age age not of the insur- and members old and survivors system pursuant Lastly, ance Act. he asserts age that since he is a member of the old survivors and system, although the insurance not under Act of age sixty-five apply him the should termination date age full until because he also will receive benefits sixty-five. of of of the Public School Code

Section Act amended, 11-1122, 10, 1949, March P.L. as 24 P.S. § provides pertinent part: for termination of contract

“The valid causes profession- into with a heretofore or hereafter entered incompetency, immorality, intem- employe shall be al negligence, de- cruelty, persistent mental perance, * * * of persistent rangement and violation wilful part of on the of this Commonwealth the school laws employe: Provided, That boards professional the any pro- may the terminate service directors school age six- employe attained to the has who fessional employe a member professional who is ty-two except a system pursu- age insurance survivors old of the day approved act, the first provisions the the ant to fifty-six (Pamph- nine hundred June, thousand one may termi- the board 1973). In such cases let Laws employe at professional such service of nate the em- which the at sixty-five or at the age of under full benefits eligible to receive ploye becomes Security Act.” Federal Social purpose of § the obvious argues that amended as Code 1122 of Public teachers permit school all proviso, is exception of the year sixty-two beyond employees as such to remain *5 197 age limit, rights protect so as to their under Social Se curity. argues He further the forced retirement of appellant already by because he was covered Social Se curity resulting employment, from some other discrimi nates him as a member of a of school teach class by Security. argument, however, ers covered Social This perceive very per fails to real distinction between appellant’s sons situation and school teachers those who ap are covered under the Act. As a result of 1956 pellant’s election not to become a member of Social Se curity public for, employee, as a he has received no credit from, or earnings benefit as a school teacher for So Security cial purposes. Whether retired teaching age forty-five, sixty from fifty, seventy, at or computation would not Security affect of his Social only benefits manner. The factors which could appellant’s eligibility affect Security for Social benefits regard are with private to his in the sector. hand, On the other prior a school teacher who retires to reaching age sixty-five and is Act of covered disadvantages. Security would face two First, his Social account earnings would not subsequent be credited with to retirement which could otherwise have sec accrued and ondly, monthly Security Social benefits would be re if prior reaching age duced to elected receive same sixty-five. Thus, public it is a school teacher iswho Security system pursuant member of the to the prior Act of who would be harmed retirement reaching age sixty-five. statute, It is also clear that classification, establishing rather than an unreasonable exemption age sixty-two creates an from the termination joined pursu date order to enable those teachers who ant eligible Act to become for the benefits they since only through could have attained benefits con wages tinued contributions from earned as teachers. See Hopfer Oklamchak, A.2d 69 Pa.

In our view the classification at issue here rea sonably relates to valid state interest and sustainable *6 challenge upon equal protection based the protected clause. The state interest is to be the avail ability joined sys of benefits to those teachers who the pursuant tem to the Act of 1956 and is rea this interest sonably exemption In insured the for those teachers. contrast, appellant’s by his benefits, elec access to own tion, employment has no as a teacher. relationship 60, Pa., Hospital In Adler v. Pa. A. 453 W. Montefiore quoting the 76-77, (1973), 311 A.2d 643 Court 634, this Maryland, Supreme in v. United States Court McGowan 425-426, 1101, 393 420, 6 L.Ed.2d U.S. S.Ct. 366 81 (1961) stated:

“ developed, the ‘Although precise has no formula been per Amendment Court has held that the Fourteenth enacting scope of discretion mits States wide differently groups of citizens which affect some laws safeguard is offended The than others. constitutional wholly irrel grounds on if the classification rests objective. evant to the achievement of the State’s presumed legislatures acted within are to have State that, power despite fact their constitutional practice, inequality. A statu their laws result some state tory if will not be set aside discrimination (Cita justify may reasonably be conceived to it. facts inherently omitted).’ is a classification Unless tions nationality or alienage, suspect, those on such as based see, e. judicial scrutiny’, race, calls for ‘close and thus 372-373, 365, 91 g., Richardson, v. 403 U.S. Graham cited cases (1971), and 534 29 L.Ed.2d S.Ct. challenged today whether therein, the test remains reasonably justified.” policy may be challenged jus- policy herein exemption Certainly, the teachers, other- not provide those by the need tified that satisfied areWe to benefits. protected, access wise dis- on substantial question is based of classification ger are make real differences and which tinctions Al pertinent purpose of the law. See mane and Bowers, S.Ct. Ohio, v. U.S. lied Stores Inc. Pi River (1959); 437, L.Ed.2d 480 Kotch v. Board L.Ed. Commissioners, 910, 91 lot S.Ct. 330 U.S. Virginia, 253 Royster Co. (1947); F. S. Guano 412, 40 S.Ct. 64 L.Ed. 989 U.S. de Board next that asserts this protection equal in the enforcement

nied provision capriciously ter arbitrarily and acted terminating minating not while sixty-two and also three other teachers who were system of the old members and survivors insurance pursuant sat to the Act of A review of the record *7 support the isfies us that there evidence to was sufficient finding not acted trial court’s that the Board had School arbitrarily the capriciously. and of The circumstances clearly from distinguishable other three teachers are appellant. case, those of not at In one the teacher did commenced, sixty-two age year tain until after the school point resignation voluntarily and at that tendered his year. following effective the The to the oth evidence as per amply they er two teachers demonstrated that were forming specialized proficient highly in manner duties they very and as a to re result would have been difficult place. rating Appellant, of however, had received a say “barely satisfactory”. facts, these cannot Under we they or acted that the Board abused that its discretion purposeful with and discrimination intentional appellant.1 judge as dissenting Court used The Commonwealth one of the illegal an unconsti for was and of the bases his dissent that this age. of v. Baldwin basis Frantz tutional discrimination on the 639, (1973) District, A.2d 531 School Pa.Cmwlth. 304 -Whitehall However, Kramer, not (dissenting opinion, J.). issue was this by not be ad instant and need raised the therefore Co., Lehigh Valley opinion. Dilliplaine Trust dressed in this Pa., 322 A.2d 114 finally argues that because he is age the system,

member of old and survivors insurance although 1956, age not under the Act of the six June ty-five apply termination date should to him and § of the Public Code The should be so construed. language by legislature proviso in used the the § unambiguous clear, is legisla and free from doubt. The explicit referring ture could not have been more by implication excluding Act of 1956 and thus those who specific provision. were not that the covered “When ambiguity, of free words a statute are clear and from all pretext disregarded the letter it is to be the under spirit.” 1921(b), pursuing its added Pa.C.S. § 290), Not (P.L. act of December No. § 3. appellant’s suggested construction in violation meaning language the clear it inconsistent is also purpose It is clear with the obvious section. legislature only limit the discre intended to board’s age sixty-two terminating employment for tion at provisions employees were those who under employment, required un Act of the additional eligible under sixty-five, til become for benefits Security. pay party own costs. Each Order affirmed. dissenting opinion in MANDERINO, J., filed a *8 ROBERTS, join. JJ., O’BRIEN and (dissenting). MANDERINO, Justice in dis- interest legitimate state is no There I dissent. type according employees to criminating between security eligible for social they are employment lose to forces Early retirement benefits. teach- Other 65. reaching income before (or find limited income live on to are forced ers distinc- This ages employment) and 65. between new way purposes. educational to no related tion ages years between Moreover, the three determining a teacher’s significant can be and benefits, security income, than other social retirement salary pensions amounts are related teacher’s since length of service. earned and justification the discrimination announced for

The favoring an- majority of one teacher over is a blatant legitimate educational for reasons unrelated other interest. dissenting ROBERTS, JJ., join this

O’BRIEN opinion. A.2d Pennsylvania, Appellee,

COMMONWEALTH MAHONEY, Appellant. Frederick Gerard Pennsylvania. Supreme Court Argued 19, 1974. Oct. Jan.

Decided