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PAUL DELVITTO v. DOROTHY SHOPE (02/27/75)

decided: February 27, 1975.

PAUL DELVITTO, APPELLANT,
v.
DOROTHY SHOPE, AS COMMISSIONER OF THE COUNTY OF WESTMORELAND AND A MEMBER AND CHAIRMAN OF THE WESTMORELAND COUNTY RETIREMENT BOARD; JAMES R. KELLEY, COMMISSIONER OF WESTMORELAND COUNTY RETIREMENT BOARD; ROBERT SHIREY, COMMISSIONER OF WESTMORELAND COUNTY AND AS A MEMBER OF THE WESTMORELAND COUNTY RETIREMENT BOARD; ANDREW KRITSKY, MEMBER OF THE WESTMORELAND COUNTY RETIREMENT BOARD; AND WAYNE GONGAWARE, SECRETARY AND MEMBER OF THE WESTMORELAND COUNTY RETIREMENT BOARD, APPELLEES



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Paul Delvitto v. Dorothy Shope, as Commissioner of the County of Westmoreland and a member and Chairman of the Westmoreland County Retirement Board, James R. Kelly, Commissioner of Westmoreland County and as a member of the Westmoreland County Retirement Board, Robert Shirey, Commissioner of Westmoreland County and as a Member of the Westmoreland County Retirement Board, Andrew Kritsky, member of the Westmoreland County Retirement Board and Wayne Gongaware, Secretary and member of the Westmoreland County Retirement Board, No. 4055 in Equity.

COUNSEL

Franklin L. Bialon, with him Shire, Bergenstein & Bialon, for appellant.

H. Reginald Belden, Jr., for appellees.

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

Author: Blatt

[ 17 Pa. Commw. Page 438]

On January 27, 1972 the Board of County Commissioners (Commissioners) of Westmoreland County, a Third Class County, adopted a resolution requiring that the retirement system for county employees should provide for involuntary discontinuance from service at the age of 65. The resolution also provided that involuntarily discontinued employees would begin to receive, immediately after their separation from service, any benefits to which they would be entitled under the county retirement system. On December 15, 1972 the Westmoreland County Retirement Board (Retirement Board) adopted a motion authorizing payment of retirement benefits to all employees who fell within this policy previously set by the Commissioners.

On December 29, 1972 Paul Delvitto (plaintiff), a Deputy Sheriff, filed a complaint in a class action on behalf of himself and other county employees who would be affected by the actions of the Commissioners and the Retirement Board, seeking preliminary and permanent injunctions. The Court of Common Pleas of Westmoreland County issued a preliminary injunction, which was dissolved after the complaint was considered at a hearing and dismissed on May 1, 1973. The plaintiff then took exceptions which were dismissed, and an appeal to this Court followed.

The plaintiff argues first that the establishment of a mandatory retirement age violated his civil rights both under the Pennsylvania Constitution of 1968, Article 1, Section 26, and under the Fourteenth Amendment of the United States Constitution. Such claims were rejected by this Court in McIlvaine v. Pennsylvania State Police, 6 Pa. Commonwealth Ct. 505, 296 A.2d 630 (1972), affd.

[ 17 Pa. Commw. Page 439]

    on the opinion of the Commonwealth Court, 454 Pa. 129, 309 A.2d 801 (1973), appeal dismissed, 415 U.S. 986 (1974), and we are compelled to reach the same conclusion in the case before us.

The plaintiff asserts that the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq., enumerates "civil rights" which fall within the protection guaranteed by Article 1, Section 26, of the Pennsylvania Constitution of 1968, and this Act does, of course, refer to discrimination based on age. Even if we were to assume, however, that such statutorily created "civil rights" are to be automatically included within the protection of the Pennsylvania Constitution, by virtue of Article 1, Section 26, it must be noted that the statute by its own terms recognizes an exception where employment is terminated because of the terms or conditions of any bona fide retirement or pension plan. Section 5(a) of the Pennsylvania Human Relations Act, 43 P.S. § 955(a). Clearly a plan, such as the one involved here, which establishes an involuntary retirement at age 65 and provides for receipt of retirement benefits at that age, falls within this statutory exception.

The plaintiff argues that the Commissioners never considered the capability of individual employees who might be able to work effectively past the age of 65. He also asserts that the Commissioners never made an actuarial study to determine the effect of their action upon the retirement fund, although he states in his brief that the retirees presently receive an average monthly retirement allowance of $91.40. These arguments, however, relate merely to the wisdom of the Commissioners' ...


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