McIlvaine v. Pennsylvania State Police

Decision Date03 October 1973
Citation454 Pa. 129,309 A.2d 801
PartiesJoseph F. McILVAINE, Appellant, v. The PENNSYLVANIA STATE POLICE.
CourtPennsylvania Supreme Court

Donald H. Lipson, Boyd H. Walker, Walker, Thomas &amp Karess, Allentown, for appellant.

J Andrew Smyser, Deputy Atty. Gen., Sanford Kahn, Harrisburg for appellee.



POMEROY, Justice.

In July, 1970, appellant Joseph McIlvaine, having reached the age of sixty, was involuntarily retried from the Pennsylvania State Police after some 37 years of service. In all respects other than his chronological age, appellant was admittedly suitable for continued employment. His dismissal was by the Commissioner of Police, acting pursuant to Section 205 of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, 71 P.S. § 65(d). [1] Shortly after dismissal, appellant filed a petition for declaratory judgment in the Commonwealth Court, praying that the court construe and declare unconstitutional the cited provision of the Administrative Code and that the defendants (the Commissioner of the Pennsylvania State Police and the Secretary of the Commonwealth) be directed to continue to employ the plaintiff until such time as he should submit his resignation or attain age 65. In dismissing the suit, the Commonwealth Court held that although the doctrine of sovereign immunity was not a bar, in this type of case, to recovery against the state and its officers (Philadelphia Life Ins. Co. v. Commonwealth, 410 Pa. 571, 190 A.2d 111 (1963)), nevertheless, as a result of 'the doleful history of declaratory judgments in Pennsylvania', such a suit was improper because 'there exists another available and appropriate remedy'. McIlvaine v. McKetta, 1 Pa.Cmwlth. 262, 268 (1971). Thereupon, following the advice offered in the Commonwealth Court opinion, appellant commenced in the same forum the instant suit in mandamus.

Appellant both below and here has contended that Section 205(d), supra, is inval- id as (1) unreasonable and discriminatory; (2) violative of appellant's civil rights under the Pennsylvania constitution [2] and the Pennsylvania Human Relations Act; [3] and (3) violative of the Fourteenth Amendment to the Federal Constitution. The Commonwealth Court rejected all three arguments (6 Pa.Cmwlth. 505, 296 A.2d 630 (1972)) and this appeal followed.

At the outset, we feel obliged to speak to the procedural aspects of this litigation. Through mandamus, appellant seeks to compel a public official (the Pennsylvania State Police Commissioner) to disregard and act directly contrary to the plain directive of the statute by continuing to employ him, a member of the State Police Force, beyond the age of sixty years. This is precisely the antithesis of what mandamus is designed to accomplish. As we said in Philadelphia Presbytery Homes, Inc. v. Abington Board of Commissioners, 440 Pa. 299, 303--304, 269 A.2d 871, 873 (1970): 'Mandamus to compel a governmental ministerial officer to act in disobedience of the requirements of the relevant statute, before there has been a judicial pronouncement of the Act's invalidity, is not the normal procedure for testing the constitutionality of a statute.' See also Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970); Booz v. Reed, 398 Pa. 172, 157 A.2d 170 (1960).

Under normal circumstances, ultilization of a remedy so completely inappropriate would be fatal, and would foreclose any treatment of the merits. Appellant's case, however, does not fit any normal pattern. When the Commonwealth Court dismissed the declaratory judgment suit, it relied, quite correctly, on the then applicable holdings of this Court that a suit for a declaratory judgment is an extraordinary as opposed to alternate remedy. See, e.g. C. H. Pitt Corp. v. INA, 435 Pa. 381, 257 A.2d 857 (1969); Sheldrake Estate, 416 Pa. 551, 207 A.2d 802 (1965); McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222 (1962). Since there were other available and adequate remedies, [4] plaintiff was in the wrong store, as it were. He was advised, however, to pursue mandamus, which, as has already been pointed out, is wholly inappropriate.

Considered in light of our recent decision in Friestad v. Travelers Indemnity Co., 452 Pa. 417, 306 A.2d 295 (decided June 2, 1973) which established declaratory judgment as an alternate remedy, and overruled the line of cases relied on in the first Commonwealth Court opinion, 1 Pa.Cmwlth. 262, the effect of our dismissal of the present action on the ground of mistaken remedy would be to kick this plaintiff from pillar to post without any fault whatever on his part. Rather than causing him the loss of time and money entailed in starting all over again, we choose to treat the instant action as one requesting declaratory relief. So viewed, we affirm the order of the Commonwealth Court on the opinion of President Judge Bowman. 6 Pa.Cmwlth. 505, 296 A.2d 630 (1972). See also Soltis Appeal, 390 Pa. 416, 135 A.2d 744 (1957); Boyle v. Philadelphia, 338 Pa. 129, 12 A.2d 43 (1940).

MANDERINO, J., took no part in the consideration or decision of this case.

EAGEN, J., concurs in the result.

ROBERTS, J filed a dissenting opinion in which NIX, J., joins.

ROBERTS, Justice (dissenting).

After thirty seven years of service to the Commonwealth, Joseph McIlvaine was involuntarily retired. The majority concedes that 'appellant was admittedly suitable for continued employment.' Nevertheless, in adopting the opinion of the Commonwealth Court, the majority upholds McIlvaine's dismissal. It is undisputed that the sole reason for appellant's discharge was the fact that he had attained the age of sixty. I cannot join in this arbitrary termination of a concededly competent public servant.

I agree with the majority that in view of the rather bizarre procedural history of the case it should be treated as an action for declaratory relief. See Friestad v. Travelers Indemnity Co., 452 Pa. 417, 306 A.2d 295 (1973); McIlvaine v. McKetta, 1 Pa.Cmwlth. 262 (1971). However, I am compelled to dissent from the majority's conclusion that McIlvaine's involuntary termination is constitutionally and statutorily permissible. In my view the action of the Commonwealth violated the Pennsylvania Constitution, Article, I, Section 26, as well as the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.


The opinion of the Commonwealth Court, adopted today by the majority states that '(t)o reach the conclusion plaintiff would have us reach . . . we would have to hold that the Pennsylvania Human Relations Act prohibits discharge from employment by reason of age without exception, a conclusion which the statute does not permit us to reach.' McIlvaine v. Pennsylvania State Police, 6 Pa.Cmwlth. 505, 512, 296 A.2d 630, 633 (1972). Were this the only available analysis of this case, I would join the majority in denying declaratory relief. However appellant readily admits that the Human Relations Act itself makes provision for two exceptions to its general prohibition againt age discrimination.

'It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or in the case of a fraternal corporation or association, (or except where) based upon applicable security regulations established by the United States or the Commonwealth of Pennsylvania: . . .

'(a) For any employer because of the race, color, religious creed, ancestry, Age, sex or natioanl origin of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges or employment, if the individual is the best able and most competent to perform (sic) the services required.' [1]

This statutory provision abundantly illustrates that it is not every 'discharge from employment by reason of age' which the Act prohibits. It being clear that only certain age-inspired discharges violate the Act, the question is whether appellant McIlvaine's involuntary retirement, mandated by Section 205(d) of the Administrative Code [2] violates his rights as declared by the Human Relations Act.

If, as the majority asserts, this case involved only the interpretation and harmonization of two seemingly contradictory statutes, one might be persuaded to rely on the Court's pre-1968 pronouncements on mandatory retirement in public employment. [3] However, such reliance is no longer within our power in view of the 1968 constitutional amendment which necessarily invalidates Section 205(d) of the Administrative Code.

Article I, Section 26 of the Pennsylvania Constitution, adopted May 16, 1967, declares unconstitutional discrimination by the Commonwealth.

'Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.'

The Commonwealth does not, nor could it reasonably deny that the rights of public employees are constitutionally protected. [4] Furthermore, the Human Relations Act declares that,

'(t)he opportunity for an individual to obtain employment for which he is qualified, and to obtain all the accommodations, advantages, facilities and privileges of any place of public accommodation and of commercial housing without discrimination because of race, color, religious creed, ancestry, age, sex or national origin are hereby recognized as and declared to be civil rights which shall be enforceable as set forth in this act.' [5]

Thus, the right to employment free from age discrimination is a civil right protected by both the Human...

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