Opposition — Palmer v. Ticcione

IN THE

Supreme Court of the United States

Octoser Term, 1978

Docket No. 78-240

Loris PaLMeEr,

Petitioner,

—against—

Frank Ticcione, Epwarp Hayes, Benzamin GIAMBALVO,

WruiaMm O’ConneLt, Wititiam GarciuLo, Rosert Jacos

AND N. Paut Buscemi, and THe ScHoou Boarp or THE

Copiacue Union Free Scuoou District #5,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

Henry A. WEINSTEIN

Attorney for Respondents

1415 Kellum Place

Garden City, New York 11530

(516) 747-2734

INDEX

PAGE

III siccnacaietnecenantidemchastagtiaiiaiaitbvicssqathctodesebeictabcorainsetes 1

Preliminary Statement .....0.......ccsccsssssssssseesesseecsseeeseeecseeesooe: 1

EPSON aa BMD ote ORE INR eee 2

IRE eel Ska SADT NEST CTT OO 4

Point J—

Petitioner’s retirement pursuant to the provisions

of the Education Law of the State of New York,

§510(1)(b), was not in violation of her constitu-

ABORT ar AE ANE RLS Aer oe decane 5)

Port TI—

Certiorari should not be granted based on the

presumed conflict in holdings between the Second

and Seventh Circuits in Palmer and Gault v. Gar-

RESORT rae: 5S eve Dele See ELE eNO RN 11

Nia sass eahstciahnancsncalon 12

Appendix “A”—Opinion of Tasker, J. Dated Septem-

ae TR raksss closest delete aap iacallds beds iniasianincmtstciosniiinn la

TABLE OF AUTHORITIES

Cases:

Campbell v, Aldrich, 79 P2d 257, 305 U.S. 559 0.00.2... 10

Cannon v. Guste, —— F.Supp. —— (E.D. La., 1975),

EB RE, Re ee its ea a ~

Gault v. Garrison, 569 F2d 993 ...00...........cec-e---es 3, 4, 5, 11

Harren v. Middle Island Central School District, n.o.r.,

Sup. Ct., Suf. Co. (Tasker, Jr., Sept. 1974); 49 AD

Fk FE Pe. ae EO cnicentiesiesniorsntenssengiaieegioneal 2-3, 5, 7

Johnson v. Lefkowitz, 566 F2d 866 2.00.20... eeeeeeeee 38

Massachusetts Board of Retirement v. Murgia, 427

WEANING. MHDUT <uninisspaaelnencbacaptbcdamenliptanateth indians lictameb nce incie tial 3, 8

McIlvaine v. Pennsylvania, 309 A2d 801, appeal dism.

415 U.S. 986 ..... Sidssetplbanidlastihadihitupaaiesangdbeoasioh wiatisseaen 8

Nurenberg v. Ward, 84 Mise2d 80; 375 NYS2d 785;

reversed 51 AD2d 1022, 371 NYS2d 412 00000000... 5, 7

Rubino v. Gheest, 512 F2d 430 oo n.ntnon nn. ccccccceoseeee 2, 8,11

Weisbrod v. Lynn, 383 F.Supp. 933 (D.C. 1974) aff’d

GO Ts Oe sce plies laputaienlnceabisteoadpoads 8

Weiss v. Walsh, 324 F.Supp. 75; aff’d 461 F2d 846;

cert. den. 409 U.S. 1129, reh. den. 410 U.S. 970 ........ 8

Statute :

Section 510, New York State Education Law .............. 2, 4,5

na

In THE

Supreme Cout of the United States

Octoser TgerM, 1978

Docket No. 78-240

Lois PaLMER,

Petitioner,

—against—

Frank Ticcione, Epwarp Hayes, Bensamin GIAMBALVO,

Wriuiam O’ConneLL, Wiiuuiam GarciuLo, Roeert Jacos

anp N. Pavut Buscemi, and THe Scuoot Boarp or THE

Copiague Union Free Scuoou District #5,

Respondenis.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

Introduction

This brief is submitted in opposition to the petition for

certiorari and, for the reasons set forth herein, it is urged

that the Court decline to review the decision of the Court

of Appeals for the Second Circuit.

Preliminary Statement

This action is brought by a teacher in the Copiague

Union Free School District, Suffolk County, New York,

who was retired shortly after the completion of the 1974-

2

75 school year, the year in which she attained the age o:

seventy years. The retirement was directed by Section

510(1)(b) of the New York State Education Law. Peti-

tioner claims that her involuntary retirement, based solely

on age, is in violation of her rights to equel protection

and due process under the Fourteenth Amendment.

There is no dispute as to the facts in this case. Prior

to her retirement, petitioner served the school district as

a tenured teacher, assigned to teach kindergarten. Her

supervisors deemed her service to be satisfactory. There

is no factual issue as to petitioner’s ability to do the job

at the time of her retirement.

Opinions Below

Honorable Edward R. Neaher, Judge of the United

States District Court for the Eastern District of New

York, dismissed the complaint for want of a substantial

federal question. (433 F. Supp. 653) In arriving at this

conclusion the Court discussed the leading cases on in-

voluntary or mandatory retirement, including the numer-

ous instances where the Supreme Court dismissed appeals

for want of a substantial federal question. Judge Neaher

then cited the decision of the Court of Appeals for the

Second Circuit in Rubino v. Ghezzi, 512 F2d 431, which

rejected as insubstantial the claim that mandatory retire-

ment at age seventy violates the Due Process and Equal

Protection Clauses. (433 F. Supp. at 654)

Judge Neaher went on to dispose of the remaining con-

tentions raised by the petitioner, including the claimed

distinction between mandatory and discretionary retire-

ment statutes. As to the latter the Court relied on the

holding of the Supreme Court of the State of New York,

Appellate Division, Second Department, in Harren vy. Mid-

dle Island Central School District No, 12, 49 AD2d 879,

373 NYS2d 20, which specifically rejected the purported

distinction raised by petitioner between mandatory and

discretionary retirement.

The Court of Appeals for the Second Circuit, in an

opinion by Hays, C.J., affirmed the dismissal of the com-

plaint. In so doing, that Court relied on a number of deci-

sions dealing with compulsory retirement for employees

involved primarily with mental skills. In all of those cases

the respective courts rejected the equal protection and due

process challenges raised by petitioner. Included in the

discussion was the Second Circuit’s most recent decision

in Johnson v. Lefkowitz, 566 F2d 866 (2d Cir., 1977). Judge

Hays went on to discuss Gault v. Garrison, 569 F2d 993

(7th Cir., 1977), the only exception to this uniform line

of decisions and a case which involved mandatory retire-

ment of a teacher at age 65.

The rationale in Gault was both distinguished and re-

jected by the Second Circuit. Rejection was premised on

prior decisions which had sustained compulsory retire-

ment statutes in like and similar situations and on the

too narrow conception by the Gault court of the possible

rational bases for a compulsory retirement statute. In

Gault the Seventh Circuit, relying on Massachusetts Board

of Retirement v. Murgia, 427 U.S. 307, assumed in using

the rational basis test that the strongest justification for

a retirement law for teachers is to remove those who are

unfit. Thus, it ordered an evidentiary hearing to determine

the teacher’s fitness to teach; such fitness to be determined

in the context of teaching ability rather than physical abil-

ity. The Second Circuit properly recognized that teaching

ability is not the only criterion to be considered in apply-

ing the rational basis test. Indeed, Judge Hays articulated

several other possible criteria such as providing employ-

4

ment opportunities for young teachers who will bring fresh

ideas and new techniques to the classrooms or to open up

more places for minorities.

The factual distinction between the two cases recog-

nized by the Second Circuit involved the age at which

retirement became mandatory. In Gault the teacher was

retired at age 65, as opposed to 70 years in the instant

action.

Finally, the Court cenied pendent jurisdiction over the

State claims raised by petitioner, relegating her to the

State courts for their consideration.

Pertinent Statute

As here pertinent, Section 510 of the Education Law

reads as follows:

§510(1)(b). “Any member who has attained age seventy

may be retired at his own request or at the request

of his employer if he or his employer files with the

retirement board a statement duly attested setting

forth at what time subsequent to the execution and

filing thereof retirement is desired, and if throughout

the year immediately preceding the filing of such state-

ment he shall have been in service as a teacher in this

state. The retirement board shall retire said member

as of the date so specified or as of such other time

within thirty days thereafter as the retirement board

may find advisable.”

POINT I

Petitioner’s retirement pursuant to the provisions

of the Education Law of the State of New York, §510

(1)(b), was not in violation of her constitutional

rights.

The validity of involuntary retirement of public em-

ployees, with but one exception, has been uniformly upheld

in both state and federal forums. That exception, Gault v.

Garrison, 569 F2d 993, is discussed in Point II of this

brief.

The New York State Courts have had the opportunity

to pass on the validity of §510(1)(b) of the Education

Law, as well as §70(c) of the New York State Retirement

and Social Security Law; and in both instances have up-

held the right of the governmental agency to require an

employee to retire at age seventy. Harren v. Middle Is-

land Central School District, n.o.r., Sup. Ct., Suf. Co.

(Tasker, J., Sept. 1974); aff'd 49 AD2d 879, 373 NYS2d

20; Nurenberg v. Ward, 84 Mise2d 80, 375 NYS2d 785,

reversed 51 AD2d 1022, 381 NYS2d 412.

The Harren case offers the same fact pattern as the case

at bar; a teacher who was retired at age seventy pursuant

to §510(1)(b) of the Education Law. Special Term dis-

missed the petition in the Article 78 proceeding.* In so

doing, that Court rejected most, if not all, of the conten-

tions raised in this action. As here pertinent, the Court

stated:

“Petitioner’s contentions are without substance. The

cited sections of the tenure acts, §§3012, 3020 and

* A copy of the Special Term opinion is attached as Appendix

nd . re

6

3020a deal with removal or dismissal of a tenured or

non-tenured teacher. They have no application to

termination of service by compulsory retirement on

account of age. (Humbeutel v. City of New York, 125

N.Y.S.2d 198, aff'd 283 App. Div. 1011, aff'd 308 N.Y.

904; Peopie v. Scannel, 53 App. Div. 161, aff'd 164

N.Y. 572; Geary v. Phillips, 53 Mise.2d 337; ef. Pettit

v. McCabe, 60 Mise.2d 127) * * *

“Petitioners contentions under the cited federal act are

likewise without substance. 29 USCA §630 limits the

application of the [Federal Age Discrimination in

Employment Act} to persons between 40 and 65 years

of age. Obviously, the statute has no application to

the 70 year old petitioner.

“Petitioner’s vague contention of violation of her Four-

teenth Amendment rights (and presumably those se-

cured under N.Y. State Constitution 1 §11), is not

supported by any specific allegations, other than the

contention that the retirement of petitioner because

of her age is discriminatory. It is, however well

settled that differentiation based on age is permis-

sible if it is based on some rational foundation and

does not result in invidious discrimination between

classes of persons (Marino v. Town of Ramapo, 68

Mise.2d 44 at page 61-62 and cases cited therein). The

Legislature has prescribed as an occupational quali-

fication, (see: Mcllvane v, Pennsylvania State Police,

296 Atl.2d 630 aff'd 309 Atl2d 801, App. Dism. 94

S.Ct. (1583), that persons in the employ of the State

or its municipalities, with some exceptions, shall retire

at age 70 (Retirement and Social Security Law §70

subd. b; see also Constitution Article 6, §25 and Ju-

diciary Law §23; compare 5 U.S.C.A. 68335 with re-

spect to federal employees). The distinction between

7

the cited statutes and Education Law §510 subd, 1b,

is the substantially greater degree of discretion vested

in employers (Education Law §501 subd. 3) of public

school teachers as compared to other municipal em-

ployers, the State or the Federal government. Pett-

tioner has not cited, nor has the Court been able to

locate, any authority which would render the legisla-

tive policy unconstitutional based on the aforesaid

distinctions. * * * (Emphasis supplied)

The Appellate Division of the Supreme Court of New

York State affirmed the dismissal of the teacher’s petition

in the following brief memorandum:

“On the record in this appeal, there is no evidence of

constitutional discrimination. A mandatory retirement

policy at age 70 is not unconstitutional under present

standards, and this record does not reveal anything

other than a statutorily authorized mandatory retire-

ment policy.” Harren v. Middle Island Central School

No. 12, 49 AD2d 879, 373 NYS2d 20 (2nd Dept., 1975).

Nurenberg v. Ward, supra, involved a challenge to the

mandatory retirement provisions of §70(c) of the Retire-

ment and Social Security Law. Here too the petitioner,

a licensed psychiatrist, was retired at age 70. In uphold-

ing the statutory right to mandate the petitioner’s retire-

ment, the Court stated (51 AD2d at 1023):

“There being a valid State objective in maintaining the

quality of performance of State employees, and there

being a general relationship between advancing age

and decreasing ability to respond to the demands of

a job, it must be concluded that the challenged classi-

fication of persons who have attained the age of 70

8

years does not violate the equal protection guarantee

(ef. Murgia v. Massachusetts Board of Retirement,

376 F.Supp. 753, 386 F.Supp. 179, affd. 421 U.S. 972,

95 S.Ct. 1972, 44 L.Ed.2d 464) Nor do we find that

there has been an interference with liberty and prop-

erty of such a nature as would cause us to invoke the

requirements of procedural due process (see Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 92

S.Ct. 270, 33 L.Ed.2d 548). * * *”

See also Johnson v. Lefkowitz, 566 F2d 866; Weiss v. Walsh,

324 F. Supp. 75, aff'd 461 F2d 846, cert. den. 409 U.S. 1129,

reh. den. 410 U.S. 970; Rubino v. Ghezzi, 512 F2d 431, cert.

den. 423 U.S. 891; Cannon v. Guste, —— F.Supp. ——

(E.D.La., 1975), aff’d 423 U.S. 898).

Most pertinent to the issues raised by petitioner and in

response thereto is the rationale of Judge Kaufman in

Johnson, supra:

“At the heart of Johnson’s complaint in his claim that

§70 violates the equal protection clause and creates

an impermissible, irrebuttable presumption. Yet, these

very contentions have been rejected in a variety of

contexts by virtually every court considering them,

including the Supreme Court and this court. See

Massachusetts Board of Retirement v. Murgia, 427

U.S. 307 (1976) (mandatory retirement of state police

officers at age fifty); McIlvaine v. Pennsylvania, 415

U.S. 986 (1974) (mandatory retirement of state police

officers at age sixty); Rubino v. Ghezzi, 512 F.2d 431

(2d Cir.), cert. denied, 423 U.S. 891 (1975) (mandatory

retirement of state court judges at age 70); Weiss-

“These cases uniformly instruct that age is not a sus-

pect classification requiring strict scrutiny of the

state’s scheme of age restrictions. See also Weiss v.

Walsh, 324 F. Supp. 75 (S.D.N.Y. 1971), aff’d, 461

F.2d 846 (2d Cir. 1972), cert. denied, 409 U.S. 1129

(1973). And, in addition, they clearly establish that

the Constitution does not afford any individual a pro-

tected right to public employment. See also Board of

Regents v. Roth, 408 U.S. 564 (1972). Accordingly,

the state need not articulate a rational basis for its

statutory scheme. It would appear without question

that §70 is reasonably related to legitimate state inter-

ests in efficiency and economy. A mandatory retire-

ment policy allows department heads to plan the train-

ing and advancement of their employees, and motivates

young workers to acquit themselves well and to pro-

gress through the ranks. And the statute before us,

which permits some employees to continue in their

jobs until the age of 78, serves these legitimate state

purposes without needless prejudice to the greater

number of qualified employees.

“Johnson’s argument that §70 establishes an irrebut-

table presumption is substantially the same as his

equal protection claim. Moreover, it is now clear that

the applicability of the so-called irrebuttable presump-

tion doctrine is limited to those cases involving sus-

pect classifications, See Frontiero v. Richardson, 411

U.S. 677 (1973); Note, The Irrebuttable Presumption

Doctrine in the Supreme Court, 87 Harv. L. Rev. 1534

(1974).” (footnote omitted) (566 F2d at 868-69)

Challenges to mandatory retirement are neither novel

nor new, especially with respect to teachers. For example,

in 1938, the United States Supreme Court dismissed an

appeal from the Supreme Court of Oregon, in a case in-

brod v. Lynn, 383 F. Supp. 933 (D.D.C. 1974), aff’d

420 U.S. 940 (1975) (mandatory retirement of federal

civil service employees at age seventy).

= <r

10

volving the right to retire a teacher upon reaching the age

of 65 years. Campbell v. Aldrich, 79 P2d 257, 305 U.S.

559. In that case, the Oregon Supreme Court stated (79

P2d at 261):

“Whether such legislation is wise is not for this court

to determine. It is sufficient to say that we do not

consider such compulsory retirement of teachers arbi-

trary or unreasonable * * * It is beside the question

that the plaintiffs are efficient and well qualified to

teach. Laws are not enacted to fit individuals.”

We submit that in light of the foregoing cases which

deal specifically with termination of service based on reach-

ing the age of retirement, the cases cited by petitioner

dealing with the rights of inividuals to teach under other

circumstances are inapposite. The Courts, in dealing with

mandatory or involuntary retirement laws, have recog-

nized that they constitute an exception to the general rule

concerning the property rights of teachers and that there

exist overriding State and Federal policies which foster

and, indeed, encourage the concept of mandatory retire-

ment. (See Johnson v. Lefkowitz, supra.)

The foregoing clearly establishes that petitioner has not

made out a cause for relief either under State or Federal

Law. Neither her rights to equal protection of the laws

nor due process were violated. The complaint was prop-

erly dismissed on the merits by both the District Court

and the Court of Appeals. Accordingly, certiorari should

be denied.

11

POINT II

Certiorari should not be granted based on the pre-

sumed conflict in holdings between the Second and

Seventh Circuits in Palmer and Gault v. Garrison.

In Point II of petitioner’s brief in support of her peti-

tion for certiorari she asserts that the application should

be granted based on the so-called conflicting decisions of

the Second and Seventh Circuits in Palmer and Gault v.

Garrison, 569 F2d 993.

In the first instance, we disagree that a conflict exists.

While it is true that the two cases are similar in many

respects, there is one major difference. The retirement age

in Gault is 65 years, as opposed to 70 in Palmer. This is

significant when it is recognized that the national policy

is toward extending the maximum age limit for mandatory

retirement from 65 to 70. See Gault v. Garrison, 569 F2d

at 999, dissenting opinion of Pell, C.J. See also the dis-

cussion by Judge Hays of the recent amendments to the

Age Discrimination in Employment Act of 1967. (Palmer

v. Ticcione, slip opinion, pp. 3068-70)

In any event, we submit that even if no distinction can

be made between the two cases, a conflict of decisions be-

tween circuits is not a sufficient reason for granting cer-

tiorari where the issues posed for review are not signifi-

eant. As we have shown in Point I, supra, the question of

mandatory or involuntary retirement has been before the

Supreme Court on numerous occasions and in each in-

stance the retirement and the law upon which it was based

were upheld. Most pertinent in this respect is the lan-

guage of the Second Circuit in Rubino v. Ghezzi, 512 F2d_

at 433:

12

“* * * We are of the opinion that the issue of age re-

strictions upon the term of office of state judges is

properly one for the legislative or electoral processes

of the State of New York and that the effort to clothe

it in constitutional garb is frivolous. We therefore

affirm the dismissal of the complaint.”

We submit, therefore, that further consideration of this

issue by the Supreme Court is not required.

CONCLUSION

There is no basis for certiorari and the Court should

decline to review the decision of the Court of Appeals

for the Second Circuit.

Respectfully submitted,

Henry A. WEINSTEIN

Attorney for Respondent

CHARLES D. MAURER

Henry A. WEINSTEIN

Of Counsel

APPENDIX

_v\

eee es TEI nmr a ae

Appendix “A”

(Opinion of Tasker, J. Dated September, 1974)

SUPREME COURT

OF THE STATE OF NEW YORK

County or SUFFOLK

Index No. 12656/74

In the Matter of the Application of

Autce Harren,

Petitioner,

—against—

Mipptg Istanp CenrraL Scroor District No. 12,

Respondent.

Evcene M. Kavurman, Esq.

Attorney for Petitioner

} 260 Park Avenue South

New York, N. Y. 10010

Davi E. Satxag, Esq.

Attorney for Respondent

61 Hilton Avenue

Garden City, N. Y. 11530

Petitioner, who attained age 70 on January 22, 1974,

brings this proceeding pursuant to CPLR Article 78 to

annul a determination of respondent retiring petitioner

from service because of her attainment of age 70. Respon-

dent, by notice dated July 23, 1974, pursuant to F4anca-

la

2a

Appendix “A”

tion Law §510, subd. 1b directed to the New York State

Teachers Retirement Board and in accordance with a board

policy adopted December 10, 1964 which mandates retire-

ment at age 70, requested petitionez’s retirement as of

September 1, 1974.

Petitioner contends that compulsory retirement of a

tenured teacher violates Education Law §§3012, 3020 and

3020a, as well as Article LX, §11 of the collective bargain-

ing agreement between respondent and the Middle Island

Teachers Association; and that respondent’s request that

petitioner be retired on account of age violates the Four-

teenth Amendment of the United States Constitution and

the Federal Age Discrimination in Employment Act (29

USCA §621 et seq.).

Respondent asserts its right to request petiticner’s re-

tirement under the cited section, and long established pol-

icy.

Petitioner’s contentions are without substance. The cited

sections of the tenure acts, §§43012, 3020 and 3020a deal with

removal or dismissal of a tenured or non-tenured teacher.

They have no application to termination of service by com-

pulsory retirement on account of age. (Humbeutel v. City

of New York, 125 N.Y.S. 2d 198 aff'd 283 App. Div. 1011

aff'd 308 N.Y. 904; People v. Scannel, 53 App. Div. 161,

aff'd 164 N.Y. 572; Geary v. Phillips, 53 Misc. 2d 337; ef.

Pettit v. McCabe, 60 Mise. 2d 127). Similarly, Article IX

§11 of the collective bargaining agreement has no applica-

tion. Petitioner has not been “disciplined, dismissed, re-

duced in rank or compensation, or deprived of any pro-

fessional advantage that the without just cause”. The Leg-

islature has determined; as a matter of public policy, that

respondent may request petitioner’s retirement upon her

attaining age 70 (Education .Law §510 subd. 1b) compare

3a

Appendix “A”

Retirement and Social Security Law §70 subd. b). Re-

spondent’s exercise of its statutory right in this respect

does not fall within the foregoing language (cf. Legislative

Conference of City Univ. of N.Y. v. Board of Higher Edu-

cation, 38 App. Div. 2d 478 aff'd 31 N.Y.2d 926).

Petitioner’s contentions under the cited federal act are

likewise without substance, 29 USCA §630 limits the ap-

plication of the act to persons between 40 and 65 vears

of age. Obviously, the statute has no application to the

70 year old petitioner.

Petitioner’s vague contention of violation of her Four-

teenth Amendment rights (and presumably those secured

under N.Y. State Constitution 1 $11), is not supported by

any specific allegations, other than the contention that the

retirement of petitioner because of her age is discrimina-

tory. it is, however, well settled that differentiation based

on age is permissible if it is based on some rational foun-

dation and does not result in invidious discrimination be-

tween classes of persons (Marino v. Town of Ramapo, 68

Mise. 2d 44 at pages 61-62 and cases cited therein). The

Legislature has prescribed, as an occupational qualifica-

tion (see: MclIlvane v. Pennsylvania State Police, 296 Atl

2d 630 aff’d 309 Atl 2d 801, App. Dism. 94 S.C.T, 1583),

that persons in the employ of the State or its municipali-

ties, with some exceptions, shall retire at age 70 (Retire-

ment and Social Security Law §70 subd. b.; see also: Con-

stitution Article 6, §25 and Judiciary Law §23; compare:

5 U.S.C.A, §8335 with respect to federal employees). The

distinction between the cited statutes and Education Law

§510 subd. 1b, is the substantially greater degree of dis-

cretion vested in employers (Education Law §501 subd. 3)

of publie school teachers as compared to other municipal

employers, the State or the Federal government. Peti-

4a

Appendix “A”

tioner has not cited, nor has the Court been able to locate,

any authority which would render the legislative policy

unconstitutional based on the aforesaid distinctions. (See

contra: MclIlvane v, Penn. State Police, supra.) In view

of the Court’s finding with respect to the exercise of dis-

cretion vested in respondent, questions as to the validity

of the respondent’s policy adopted in December of 1964

need not be passed upon.

Respondent may have judgment dismissing the petition.

The stay of arbitration sought by the answer is denied

without prejudice, since the party seeking arbitration,

Middle Island Teachers’ Association is not a party to this

proceeding.

Settle judgment.

J.S.C.

(Typed Copy)