Klein v. EMPLOYEES'RETIREMENT SYS.

NIX, Chief Justice,

concurring.

The Opinion Announcing the Judgment of the Court has concluded that appellant is entitled to receive the same compensation received by his colleagues. I agree with this result, based on the reasoning in Goodheart v. Casey, 521 Pa. 316 , 555 A.2d 1210 (1989). I write, however, to express my clear disagreement with the suggestion that this result can be supported under a constitutional Equal Protection analysis.

To sustain an Equal Protection challenge in a case such as this where a suspect class is clearly absent, one initially must identify a right which has been offended by a particular classification. Appellant and the Court fail to determine what right has been implicated here.

*350 In Goodheart , where the constitutionality of the 1974 amendment to the Retirement Code was contested, we found that judges are entitled to adequate compensation commensurate with “their learning, experience, and the elevated-position they occupy in modern society.” Id., 521 Pa. at 322 , 555 A.2d 1213 . The legislature is empowered to fix adequate compensation for judges at an amount which will not pose a genuine threat to the independence and proper functioning of the judiciary. Id., 521 Pa. at 321 , 555 A.2d 1212 . Once the legislature has made that determination, all judges have a right to receive the established rate. Id., 521 Pa. at 326-327 , 555 A.2d 1216 . See also Commonwealth ex rel. Carson v. Mathues, 210 Pa. 372 , 59 A. 961 (1904). As Goodheart illustrated, when the legislature fixed the rate of compensation for judges prior to 1974, that rate presumptively established adequate compensation for appellant’s office. Goodheart, 555 A.2d at 1215 . It is on that basis that the Court in Goodheart sustained the claims of the judges therein. It is for that reason that I concur in the result in this appeal.

In an Equal Protection analysis, the issue is not a question of the adequacy of the compensation, but rather the legitimacy of the classification. The focus is therefore upon whether the classification is appropriate. The accepted test is whether or not there is a rational basis for that classification, City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 (1985); Schweiker v. Wilson, 450 U.S. 221, 230 , 101 S.Ct. 1074, 1080 , 67 L.Ed.2d 186 (1981); United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-175 , 101 S.Ct. 453, 459-460 , 66 L.Ed.2d 368 (1980); Vance v. Bradley, 440 U.S. 93, 97 , 99 S.Ct. 939, 943 , 59 L.Ed.2d 171 (1979); New Orleans v. Dukes, 427 U.S. 297, 303 , 96 S.Ct. 2513, 2517 , 49 L.Ed.2d 511 (1976); James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137,145 , 477 A.2d 1302, 1306 (1984), unless the classification affects a suspect group or impinges upon a fundamental right. San Antonio School District v. Rodriguez, 411 U.S. 1 , 93 S.Ct. 1278 , 36 *351 L.Ed.2d 16 (1973). Clearly, in this case the appropriate standard is rationality.

The right involved here is the right of employment. Specifically it concerns the compensation to be paid for that employment. From Biblical times, it has been recognized that a fair compensation for employment is based upon the amount agreed upon by the employer and the employee at the commencement of the employment relationship. 1 Matthew 20:1-16. In this instance, the rate of compensation was established when the judges in, question sought election to the office. Clearly, their action is properly deemed to be an acceptance of the prevailing salary at the time they assumed the office. There is no suggestion, and it would be ludicrous to argue, that they were in any way coerced in making the judgment to seek the office. Therefore, there is no factual basis to support a deprivation that impinges upon a right. Mere dissatisfaction with one’s compensation cannot be transformed into a constitutional challenge even though another employee may be receiving greater compensation for similar services. 2

*352 Implicitly recognizing the weakness of such a position, the opinion announcing the judgment of the Court attempts to frame the right implicated in this appeal as being the right of the people to an impartial and independent judiciary. While this right is obviously relevant in an adequacy argument, see Goodheart, supra, it has no place in an Equal Protection analysis. Moreover, this is not an action brought by the people of this Commonwealth to protect the integrity of the judiciary, but rather by the judges themselves who are dissatisfied with the compensation they are receiving.

Therefore, on the basis set forth in Goodheart , I would reverse the order of the Commonwealth Court affirming the decision of the State Employees’ Retirement Board.

FLAHERTY and STOUT, JJ., join in this opinion.

ORDER

PER CURIAM:

AND NOW, this 9th day of May 1989, the Application for Reargument is granted. The order granting reargument in Bernard J. Goodheart, et al. v. The Honorable Robert P. Casey, Governor, Commonwealth of Pennsylvania, No. 33 M.D. Appeal Docket 1988, 555 A.2d 1210 at 1216 , is incorporated herein.

. There is no issue of the lower paid group being used to threaten the job security of those who received the former higher remuneration. See, e.g., Trans World Airlines, Inc. v. Independent Federation of Might Attendants, — U.S. —, 109 S.Ct. 1225 , 103 L.Ed.2d 456 (1989) (at the time of the writing of this opinion, the decision in Trans World Airlines was still pending). Under our constitutional provision, the former judge’s salary may not be diminished. Pa. Const, art. V, § 16(a). The only question here is whether the fiscal integrity of the retirement fund supplied a rational basis for an alteration of the compensation package. It is significant that in Trans World Airlines, Inc. v. Independent Federation of Might Attendants there was no equal protection argument raised. This does not mean, however, that in such a case an equal protection argument could not be raised under the constitution of this Commonwealth. (We express no opinion as to the outcome of such an argument under our constitution.)

. In McKenna v. State Employees Retirement Board, 495 Pa. 324 , 433 A.2d 871 (1981), this writer noted that retirement benefits are "founded upon a contract theory of deferred compensation.” Id., 495 Pa. at 334 , 433 A.2d at 876 . See also Catania v. State Employment Retirement Board, 498 Pa. 684, 705-8 , 450 A.2d 1342, 1345-1347 (1982), (Opinion in Support of the Grant of Summary Judgment) (joined by Mr. Justice Larsen), wherein we again recognized retirement benefits as part of the total compensation package, subject to the original contract of employment.

*352 The Opinion Announcing the Judgment of the Court inappropriately relies on McKenna, supra, and Catania, supra, because the issue in those cases was the impairment of an existing contract for employment. Clearly they provide no support for a constitutional argument premised on equal protection.