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MCILVAINE v. PENNSYLVANIA STATE POLICE (11/10/72)

decided: November 10, 1972.

MCILVAINE
v.
PENNSYLVANIA STATE POLICE



Original jurisdiction in case of Joseph F. McIlvaine v. The Pennsylvania State Police.

COUNSEL

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

Curtis M. Pontz, Deputy Attorney General, with him J. Shane Creamer, Attorney General, for defendant.

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

Author: Bowman

[ 6 Pa. Commw. Page 507]

In this mandamus action we had heretofore dismissed the Commonwealth's preliminary objections in the nature of a demurrer because it was not entirely clear and free from doubt that plaintiff had failed to state a cause of action. McIlvaine v. State Police, 3 Pa. Commonwealth Ct. 478 (1971). In doing so, we observed that plaintiff was faced with the formidable task of proving the statute in question to be arbitrary or discriminatory. It is now before us on the merits after defendant's answer to the complaint and the filing of a stipulation of facts entered into by the parties in lieu of an evidentiary hearing. Plaintiff's proof as established by the stipulated facts is inadequate to make out his case.

The agreed-to facts disclose that plaintiff, Joseph F. McIlvaine, joined the Pennsylvania State Police on March 20, 1933, and served continuously therein until July 7, 1970, on which day he attained the age of sixty years, enjoyed the rank of captain, was in good physical condition and was the commanding officer of a troop. The following day he was notified by the Commissioner that he was dropped from the roles of the Pennsylvania State Police effective midnight July 7, 1970, in accordance with and solely because of Section 205 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, 71 P.S. ยง 65, subsection (d)*fn1 of which

[ 6 Pa. Commw. Page 508]

    provides: "(d) Any member of the Pennsylvania State Police, except the Commissioner and Deputy Commissioner, regardless of rank, who has attained or who shall attain the age of sixty years, shall resign from membership in the said police force: Provided, however, That the provision of this paragraph shall not apply to members of the State Police Force who upon attaining the age of sixty years shall have less than twenty years of service. Upon completion of twenty years of service, the provision of this paragraph shall become applicable to such persons."

In seeking reinstatement to membership and rank in the Pennsylvania State Police, plaintiff contends that the statute mandating his retirement is invalid (a) as unreasonable and discriminatory, (b) as violative of his civil rights as protected by the Pennsylvania Human Relations Act*fn2 and as guaranteed by Article I, Section 26, of the Pennsylvania Constitution of 1968, and (c) as violative of his Fourteenth Amendment rights under the Federal Constitution.

In advancing these contentions, plaintiff recognizes that mandatory retirement of police officers by reason of age has long been recognized in Pennsylvania when the legislative enactment is uniformly applied and the test of reasonableness is not offended. Soltis Appeal, 390 Pa. 416, 135 A.2d 744 (1957); Boyle v. Philadelphia, 338 Pa. 129, 12 A.2d 43 (1940).

In Boyle, involving an ordinance providing for compulsory retirement at age sixty-five of all patrolmen in the Police Bureau and all hosemen and laddermen in the Fire Bureau, our Supreme Court said: ". . . Of course, in the absence of express statutory prohibition, the power is inherent in ...


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