Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1966, No. 3530, in case of William H. Geary, Jr. v. Retirement Board of Allegheny County.
Walter A. Koegler, for appellant.
Anthony J. Martin, for appellee.
Raymond Kleiman, Deputy Attorney General, and Edward Friedman, Attorney General, for Commonwealth, intervenor.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen dissents.
The question before the Court in this appeal is the constitutionality of the Act of December 16, 1965,
P. L. 1115, § 2, 16 P.S. § 4710(b) (Supp. 1967) which reduced to fifty-five the age at which Allegheny County policemen are entitled to receive a retirement allowance after twenty or more years of service. Prior to the enactment of the Act of December 16, 1965, Allegheny County policemen, like all other employees of that county, were entitled to receive retirement allowance after twenty or more years of service only after the age of sixty, Act of July 28, 1953, P. L. 723, § 1710, as amended, Act of May 31, 1955, P. L. 111, § 1.
Plaintiff William H. Geary was born on December 9, 1908 and by 1966 had been employed continuously as a member of the police force of Allegheny County for a period in excess of thirty-three years. On May 11, 1966, at the age of fifty-seven, Geary notified the Retirement Board of Allegheny County of his intention to retire voluntarily on June 30, 1966 and made application for a retirement allowance under the provisions of the Act of December 16, 1965. The retirement board denied plaintiff's application on June 20, 1966 and two days later the instant action of mandamus was instituted by Geary in the Court of Common Pleas of Allegheny County to compel the board to grant his application. The court of common pleas dismissed plaintiff's complaint on the ground that the Act of December 16, 1965 violates federal and state constitutional guarantees of due process*fn1 and prohibitions of the impairment of the obligation of contracts.*fn2
In support of this conclusion the court below and the retirement board here rely on the opinions of this Court in Eisenberger v. Harrisburg Police Pension Comm'n, 400 Pa. 418, 162 A.2d 347 (1960); Harvey v. Allegheny County Retirement Bd., 392 Pa. 421, 141 A.2d 197 (1958); Hickey v. Pittsburgh Pension Bd.,
Pa. 300, 106 A.2d 233 (1954); Baker v. Retirement Bd. of Allegheny County, 374 Pa. 165, 97 A.2d 231 (1953); and Kane v. Policemen's Relief & Pension Fund, 336 Pa. 540, 9 A.2d 739 (1939).*fn3 In the Hickey and Kane cases this Court decided that the Legislature might not constitutionally terminate the retirement allowance of public employees, who had already become eligible therefor, when those employees obtained new government employment. In the Baker case the Court indicated that it would similarly be unconstitutional for the Legislature, as to employees who were in the process of fulfilling eligibility requirements, to condition receipt of retirement allowances upon willingness to refrain from obtaining employment in government after eligibility. The Harvey and Eisenberger cases stand for the proposition that the Legislature may, as to employees who are in the process of fulfilling eligibility requirements, constitutionally pass statutes increasing the length-of-service or the age requirements only if those measures also enhance the actuarial soundness of the fund to which the affected employees belong. The decisions in all these cases were grounded on this Court's conclusion that public ...