Appeal from order of Commonwealth Court of Pennsylvania, No. 445 C.D. 1971, affirming order of Court of Common Pleas of Monroe County, Oct. T., 1970, No. 309, in case of Cherly Cerra v. East Stroudsburg Area School District.
Peter J. O'Brien, for appellant.
Alex L. Bensinger, for appellee.
Robert Englesberg, Assistant General Counsel for Pennsylvania Human Relations Commission, Roy Yaffe, Acting General Counsel, Pennsylvania Human Relations Commission, and J. Shane Creamer, Attorney General, attorneys for amicus curiae.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones took no part in the consideration or decision of this case.
In September 1965, Cheryl Cerra, a married female, was employed by the East Stroudsburg School District in Monroe County [District] as a temporary professional employee. On June 20, 1967, upon the completion of two years of satisfactory service as a fourthgrade teacher, Mrs. Cerra entered into a written contract with the District under which she was given tenure. On July 17, 1967, the Board of School Directors of the District [Board] adopted a regulation requiring ". . . that any employee who becomes pregnant shall resign effective not later than the end of the fifth (5th) month of the pregnancy; . . ." On May 22, 1970, Mrs. Cerra received notice from the Superintendent of Schools of the District that her employment was terminated immediately because she was more than five months pregnant.*fn1 On June 29, 1970, after an evidentiary hearing, the Board passed a resolution sustaining the termination of Mrs. Cerra's contract, because: (a) of willful and persistent disobedience of a proper regulation of the Board, specifically, the regulation requiring resignation in the event of pregnancy; and (b) during the month of May 1970, "she lacked the physical ability or physical fitness to perform the required duties incident to her employment of teaching." Mrs. Cerra's offer to return to her employment with the
District at the beginning of the new school term in September 1970 was refused.
Mrs. Cerra filed a timely appeal from the Board's resolution with the Secretary of Education of the Commonwealth [Secretary], who, subsequently, filed an opinion and order sustaining the Board's action solely on the ground Mrs. Cerra had persistently and wilfully violated the regulation of the Board, requiring her to resign because of pregnancy. In his opinion the Secretary specifically stated the record ". . . fails to substantiate a charge of incompetency."
Mrs. Cerra then filed a petition for appeal from the Secretary's order in the Court of Common Pleas of Monroe County, pursuant to the provisions of Section 1132 of the Public School Code, Act of March 10, 1949, P. L. 30, as amended, 24 P.S. § 11-1132.*fn2 After a hearing wherein the transcript of the testimony heard by the Board was made part of the record, that court "dismissed" Mrs. Cerra's appeal. In its opinion the court ruled Mrs. Cerra's contract was properly terminated, both on the ground of incompetency and persistent and willful violation of the Board's regulation as to pregnancy.
Mrs. Cerra then filed an appeal in the Commonwealth Court which later affirmed the order of the Court of Common Pleas,*fn3 Judges Mencer and Kramer filed dissenting opinions. See 3 Pa. Commonwealth Ct. 665, 285 ...