V. J. Rich, Margiotti, Rich & Gravina, Pittsburgh, for appellant.
Edward R. Lawrence, Jr., Lawrence, Plum & Lawrence, Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a dissenting opinion in which O'Brien and Roberts, JJ., join.
Appellant, Albert Frantz, instituted suit in the Court of Common Pleas of Allegheny County, challenging the action of his employer, the Baldwin-Whitehall School District, in terminating his employment as a school teacher on his 62nd birthday. Appellant requested a
writ of mandamus seeking reinstatement and back pay. The lower court, sitting without a jury, tried the case and rendered a verdict upon which judgment was entered, in favor of Baldwin-Whitehall and against Frantz. Exceptions to the verdict were filed by Frantz and after argument the court en banc dismissed the exceptions. An appeal to the Commonwealth Court resulted in an affirmance of the action of the Court of Common Pleas of Allegheny County with one judge dissenting. We granted allocatur and now affirm.
Appellant, at the time of his dismissal, had been a school teacher in the appellee's school district from September 1, 1955 until June 25, 1971. At all times material to this lawsuit, appellant was not a member of the old age and survivors insurance system established for public employees (including school teachers) pursuant to the provisions of the Act approved the first day of June, 1956, P.L.1973, 65 P.S. § 201 et seq. On at least three different occasions appellant specifically elected not to become a member of such system established pursuant to the aforesaid Act. Frantz is a member of the old age and survivors insurance system established pursuant to the Act of Congress approved August 14, 1935 as amended, 42 U.S.C.A. § 301 et seq. and his contributions to the system were made through part-time employment in the private sector. No portion of the wages earned by appellant as a public school employee have been credited to his Social Security account. On June 25, 1971, at a special meeting of the Board of Directors of the appellee school district upon the recommendation of the Superintendent of the district, action was taken to terminate Frantz's employment. Frantz was sixty-two years of age on June 25, 1971.
Appellant alleges three points of error in this appeal. He asserts that he was denied his constitutional right of equal protection by being forced into retirement as a member of the class covered by Social Security but not
under the Act of June 1, 1956. Secondly, he argues that the School Board acted arbitrarily, capriciously, and in violation of his right of equal protection in terminating his employment while not terminating the employment of three other teachers who were also sixty-two years of age and not members of the old age and survivors insurance system pursuant to the 1956 Act. Lastly, he asserts that since he is a member of the old age and survivors insurance system, although not under the Act of 1956, the age sixty-five termination date should apply to him because he also will not receive full benefits until age sixty-five.
Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § ...