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decided: October 3, 1973.


Appeal from order of Commonwealth Court, No. 282 C.D. 1971, in case of Joseph F. McIlvaine v. Pennsylvania State Police.


Boyd H. Walker, for appellant.

J. Andrew Smyser, Deputy Attorney General, with him Israel Packel, Attorney General, for appellee.

Sanford Kahn, for Pennsylvania Human Relations Commission, amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Manderino took no part in the consideration or decision of this case. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix joins in this dissenting opinion.

Author: Pomeroy

[ 454 Pa. Page 130]

In July, 1970, appellant Joseph McIlvaine, having reached the age of sixty, was involuntarily retired 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

[ 454 Pa. Page 131]

Code of 1929, Act of April 9, 1929, P. L. 177, 71 P.S. ยง 65(d).*fn1 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. Commonwealth Ct. 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 invalid as (1) unreasonable and discriminatory; (2) violative of appellant's civil rights under the Pennsylvania constitution*fn2 and the

[ 454 Pa. Page 132]

Pennsylvania Human Relations Act;*fn3 and (3) violative of the Fourteenth Amendment to the Federal Constitution. The Commonwealth Court rejected all three arguments (6 Pa. Commonwealth Ct. 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, 303-4, 269 A.2d 871 (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, utilization 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

[ 454 Pa. Page 133]

    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,*fn4 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 (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. Commonwealth Ct. 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. Commonwealth Ct. 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).


Order affirmed.*fn*

[ 454 Pa. Page 134]

Dissenting Opinion by Mr. Justice Roberts:

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. Commonwealth Ct. 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 ...

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