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JOSEPH F. MCILVAINE v. FRANK MCKETTA AND JOSEPH J. KELLEY (03/18/71)

decided: March 18, 1971.

JOSEPH F. MCILVAINE
v.
FRANK MCKETTA AND JOSEPH J. KELLEY, JR.



Petition for a declaratory judgment in the Court of Common Pleas of Dauphin County in case of Joseph F. McIlvaine v. Frank McKetta and Joseph J. Kelley, Jr. Transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.

COUNSEL

Donald H. Lipson, with him Boyd H. Walker, and Walker, Walker & Thomas, for plaintiff.

Barry A. Roth, with him J. Shane Creamer, Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Rogers.

Author: Rogers

[1 Pa. Commw. 262 Page 263]

Joseph F. McIlvaine commenced this action by filing a petition for declaratory judgment under the provisions of the Act of 1923, June 18, P.L. 840, as amended and supplemented, 12 P.S. 831, et seq. The Attorney General of the Commonwealth of Pennsylvania appeared for the respondents, Frank McKetta and Joseph J. Kelley, Jr., and filed so-called Preliminary Objections in which he moved for the dismissal of the petition on the ground that the suit is against the Commonwealth without its consent because it is against the Commissioner of the Pennsylvania State Police (McKetta) and the Secretary of the Commonwealth (Kelley) acting in their official capacities. The respondents' pleading, which if properly titled would have been denominated an answer, raises a question of law as authorized by the Act of 1935, May 22, P.L. 228, Section 5, 12 P.S. 851. It is appropriate to treat it as a demurrer with the effect that the averments of fact contained in the petition are accepted as true for the purpose of disposing of the matter at hand. Melnick v. Melnick, 147 Pa. Sup. 564, 25 A.2d 111 (1942).

The petitioner has been a member of the Pennsylvania State Police in good standing since March 20, 1933, having advanced from the position of private to that of captain. He attained the age of sixty years on July 8, 1970, but is physically and mentally able to continue to perform the duties of a state police officer and desires to do so. If required to resign upon attainment of the age of sixty years, the petitioner will receive less retirement benefits than he would receive if able to pursue his employment until he reached the age of sixty-five. By statute, hereinafter referred to, the Commonwealth has required members of the state police who have attained sixty years of age and have completed twenty years of service to resign from membership.

[1 Pa. Commw. 262 Page 264]

Other than for state police, and for fish wardens, who, by order of the Fish Commission must retire at age sixty-two, there is no statewide mandatory retirement policy affecting employes of the Executive Department.

Petitioner contends that the statute which requires his retirement (Section 205 of the Administrative Code of 1929, April 9, P.L. 177, as amended, 71 P.S. 65) denies him his civil right to earn a living and deprives him of rights granted by the Fourteenth Amendment to the Constitution of the United States, the Constitution of Pennsylvania, and, inter alia, Article I, Section 26 of the Pennsylvania Constitution which last prohibits denial by the Commonwealth of the enjoyment of a civil right and discrimination against any person in the exercise of a civil right.

The prayer for relief asks that the Court construe the cited provisions of the Administrative Code and declare it unconstitutional and that the defendants be directed to continue to employ the petitioner until such time as he submits his resignation or attains the age of sixty-five.

The petitioner in his brief contends that the sole issue before the Court is whether the respondents are immune from this suit and persuasively argues that they are not. We believe, however, that there exists in limine the critical and preemptive issue of whether this petition for declaratory judgment may be maintained.

We will nevertheless in the interest of pointing the way to an ultimate decision on the merits, first lay aside the problem of whether the petition for declaratory judgment is a proper form of action, and address ourselves to the question whether the absence of ...


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