Gondelman v. Com.

• Decision Date: 03 November 1988
• Citation: 120 Pa.Cmwlth. 624,550 A.2d 814
• Parties: , 48 Fair Empl.Prac.Cas. (BNA) 420 Harold GONDELMAN, on his own behalf and on behalf of all others similarly situated, Petitioner, v. COMMONWEALTH of Pennsylvania, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 814

550 A.2d 814

120 Pa.Cmwlth. 624, 48 Fair Empl.Prac.Cas. (BNA) 420

Harold GONDELMAN, on his own behalf and on behalf of all others similarly situated, Petitioner, v. COMMONWEALTH of Pennsylvania, Respondent.

Commonwealth Court of Pennsylvania.

Argued Oct. 5, 1988.

Decided Nov. 3, 1988.

Harold Gondelman, Pittsburgh, pro se.

LeRoy S. Zimmerman, Atty. Gen., Gregory R. Neuhauser, Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Harrisburg, for respondent.

Henry T. Reath, Duane, Morris & Heckscher, Philadelphia (Intervention Permitted), for Leon Katz.

Henry T. Reath, Duane, Morris & Heckscher, Philadelphia (Intervention Permitted), for Robert A. Wright.

Before CRAIG, DOYLE, COLINS, PALLADINO, McGINLEY and SMITH, JJ.

OPINION IN SUPPORT OF DENYING SUMMARY RELIEF AND OVERRULING

PRELIMINARY OBJECTIONS

PALLADINO, Judge.

Harold Gondelman filed a petition for review, in the nature of a complaint for declaratory judgment, in this court's original jurisdiction. Gondelman seeks to have this court declare unconstitutional section 16(b) of article V of the Pennsylvania Constitution, which mandates retirement of all judges at age 70.¹ The Commonwealth responded to this petition by filing preliminary objections containing two objections. One objection challenges this court's subject matter jurisdiction to consider Gondelman's petition on the basis that Gondelman, because he is not currently a judge nor running for election, does not have standing to raise the constitutionality of the mandatory retirement of judges at age 70. The other objection is in the nature of a demurrer and alleges that the petition fails to state a cause of action upon which relief can be granted.

Prior to argument on the preliminary objections, Judge Leon Katz of the Court of Common Pleas of Philadelphia County and Judge Robert A. Wright of the Court of Common Pleas of Delaware County (Intervenors) sought permission to intervene in this action. Both the Commonwealth and Gondelman consented to the intervention; this court granted permission to intervene. Gondelman and Intervenors (Petitioners) then filed a motion for summary relief which was scheduled for argument with the preliminary objections.

Intervenors are judges who will reach the age of 70 before the expiration of their terms of office. At oral argument the Commonwealth indicated that because of the intervention it would not pursue the preliminary objection to subject matter jurisdiction. The matters which are before us for resolution, therefore, are whether the petition states a cause of action and if so, whether, as a matter of law, section 16(b) of article V of the Pennsylvania Constitution is unconstitutional. For the reasons which follow, we would propose to overrule the Commonwealth's preliminary objections and deny Petitioners' motion for summary relief.

Initially we note that a preliminary objection in the nature of a demurrer will be sustained only where the complaint is clearly insufficient to establish any right to relief and any doubt must be resolved in favor of the pleader. County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985). On the other hand, summary relief² may not be granted unless the moving party is entitled to judgment as a matter of law. See Aiken v. Radnor Township Board of Supervisors, 83 Pa.Commonwealth Ct. 190, 476 A.2d 1383 (1984). For summary relief to be granted it must be clear that there are no issues of material fact and any doubt must be resolved in favor of the non-moving party. See Wolgemuth v. Kleinfelter, 63 Pa.Commonwealth Ct. 395, 437 A.2d 1329 (1981).

Petitioners challenge the constitutionality of article V, section 16(b) of the Pennsylvania Constitution under the Pennsylvania and United States Constitutions. Two challenges are made under the Pennsylvania Constitution. The first is that mandatory retirement of judges at age 70 violates the guarantees of article I, section 1.³ The second is that mandatory retirement discriminates against judges in the exercise of a civil right in violation of article I, section 26.⁴ The challenge under the United States Constitution is that mandatory retirement of judges at age 70 violates the equal protection and due process clauses of the fourteenth amendment.⁵ Additionally, Intervenors allege that the mandatory retirement of judges at age 70 violates the Federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. We will address the viability of each of these challenges in the following order: (1) Pennsylvania Constitution; (2) ADEA; (3) United States Constitution.

I. PENNSYLVANIA CONSTITUTION

Article V, section 16(b) of the Pennsylvania Constitution, mandating retirement of judges at age 70, was adopted by the electors of Pennsylvania on April 23, 1968.⁶ The challenges to the constitutionality of the mandatory retirement of judges at age 70, Pa. Const. art. V, § 16(b), based on article I, sections 1 and 26, are premised on an assertion that the rights in article I have "superior mandatory force" and prevail over provisions contained in the remainder of the Pennsylvania Constitution. As authority for this argument, article I, section 25 of the Pennsylvania Constitution is referenced. This section states:

To guard against transgressions of the high powers which we have delegated, we declare that everything in this Article is excepted out of the general powers of government and shall remain inviolate.

It is contended that the "general powers of government" include those provisions in the remainder of the Pennsylvania Constitution. We can not agree. Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924), is cited in support of the proposition that article I, section 25⁷ elevates article I to a superior position over the other provisions of the Pennsylvania Constitution. However, the Pennsylvania Supreme Court in Armstrong was not determining whether article I was of superior force. The issue before the court in Armstrong was whether a constitutional provision limiting the submission of constitutional amendments to no "oftener than once in five years" prohibited the advertisement of an amendment for submission to the electors on November 4, 1924 because a constitutional amendment had been submitted and approved on November 6, 1923.⁸ The court held that this provision was to be followed and prohibited the submission of the proposed amendment to the electors in 1924. The court stated that the five year provision could not be used to challenge a constitutional amendment after it had been voted on and approved by the required majority of the electors. The supremacy of article I over the remainder of the constitution was not at issue.

The supremacy of article I over another portion of the Pennsylvania Constitution, using the proposition now set forth in article I, section 25, was raised in Collins v. Commonwealth, 262 Pa. 572, 106 A. 229 (1919). At issue in Collins was the constitutionality of the Act of May 10, 1917, P.L. 159, which permitted Ida Collins to bring suit against the Commonwealth for damages that might be due as a result of the death of her husband while driving on a state highway. Article III, section 7 of the Pennsylvania Constitution of 1874 prohibited the General Assembly from passing a special law "regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding." Article I, section 11 of the Pennsylvania Constitution of 1874 provided, in pertinent part, that "[s]uits may be brought against the commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct."

Collins argued that the special law permitting her to sue the Commonwealth could not be held unconstitutional under article III, section 7 because article I, section 11 permitted the General Assembly to allow suit and, because of article I, section 26,⁹ that right could not be restricted. The Pennsylvania Supreme Court, while noting that article I, section 26 might give the article I sections containing those "inalienable rights expressly reserved to the people" a special significance, held that "section 26 does not give to the clause quoted from section 11 an independent position in our scheme of government, but leaves it to be construed in connection with all other relevant constitutional provisions." 262 Pa. at 576, 106 A. at 231.

More recently the Pennsylvania Supreme Court has considered the impact of article I in the Pennsylvania Constitution, although not in connection with its supremacy over another constitutional provision. In Western Pennsylvania Socialist Workers v. Connecticut General Life Ins. Co., 512 Pa. 23, 28-29, 515 A.2d 1331, 1334 (1986), the court describes a constitution, and the Pennsylvania Constitution in particular, as follows:

The primary purposes of a constitution are to establish a government, define or limit its powers and divide those powers among its parts.... State constitutions ... typically establish governments of general powers, which possess all powers not denied by the state constitution.... Our state constitution functions this way and restrains these general powers by a Declaration of Rights [Article I]. (Citations omitted.)

The supreme court noted that the provision found in article I, section 25 has, without material change, been a part of the Pennsylvania Constitution since 1776 and that it acts to "limit our state government's general power." Id. at 30, 515 A.2d at 1335.

We conclude that the effect of article I, section 25 is not to raise article I to a superior position over the remainder of the Pennsylvania Constitution. Rather, its effect is to prohibit the government, defined by the remainder of the Constitution, from acting in any manner to limit or restrain those rights set forth in article I. This concept has been aptly described as follows:

[A] declaration of rights as we have called it in Pennsylvania, is a...