Original jurisdiction in case of The Honorable Victor J. DiNubile and The Honorable Kendall H. Shoyer, Petitioners, v. Robert F. Kent, Deputy Court Administrator of the Commonwealth of Pennsylvania, The Honorable Grace Sloan, Treasurer of the Commonwealth of Pennsylvania, Respondents, and State Employees' Retirement Board, Party Defendant.
Marvin Comisky, with him Alan C. Gershenson and, of counsel, Blank, Rome, Klaus & Comisky, for petitioners.
Gerald Gornish, Deputy Attorney General, with him Raymond Kleiman, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondents.
S. Regen Ginsburg, with him Raymond D. Rubens and Isidor Ostroff, for amicus curiae, Philadelphia Bar Association.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Concurring Opinion by Judge Kramer. Dissenting Opinion by Judge Crumlish, Jr.
[ 19 Pa. Commw. Page 440]
The Honorable Victor J. DiNubile and the Honorable Kendall H. Shoyer (petitioners) were reelected judges of the Court of Common Pleas of Philadelphia County on November 6, 1973. They were administered the oath of judicial office on January 7, 1974. On both of these dates, the pertinent part of Section 401(4) of the State Employes' Retirement Code of 1959, Act of June 1, 1959, P.L. 392, as amended (codified at 71 P.S. § 1725 -- 401(4) (Supp. 1974-75)), that is in question here read as follows:
"(4) Any member of Class E or E.1 who has retired, who has either actively served in such office by virtue of appointment or election for at least twenty-five (25) years continuously or otherwise regardless of age, or who has attained the age of seventy (70) years, who has served at least one full elected term or ten (10) years in the aggregate as a judge continuously or otherwise, and who shall hold himself in readiness to advise with his successor and his colleagues of the court of which he had been a member, and to perform such duties as may be imposed upon him as judge, special master, referee, auditor, or examiner, in such ways as he may reasonably be able to do, as assigned by the Chief Justice of the Supreme Court, may elect to receive during a period of time equal to the unexpired portion of his term or until death, whichever first occurs, a sum equal to the salary he was receiving immediately prior to his retirement."
On March 1, 1974, a new State Employees' Retirement Code, Act of March 1, 1974, P.L. , No. 31, 1 Pa. Leg. Serv. '74, was adopted and the above quoted portion of the State Employes' Retirement Code of 1959 was repealed except in so far as otherwise provided. The Savings Clause in the new State Employees' Retirement Code, § 3, provides in pertinent part:
[ 19 Pa. Commw. Page 441]
"In order to assure an orderly transition, the following provisions of repealed law shall be saved and applicable as specified:
"(1) The rights provided in section 401(4) of the act of June 1, 1959 (P.L. 392, No. 78), relating to additional retirement benefits for certain judges shall continue to apply to those members of Class E or E-1 who have exercised the option therein contained prior to the effective date [March 1, 1974] of this act."
Petitioner Kendall H. Shoyer attained the age of seventy years on November 24, 1974 and petitioner Victor J. DiNubile attained the age of seventy years on February 5, 1975. Petitioners filed a petition for declaratory judgment to which respondents filed an answer.*fn1 Thereafter, petitioners filed a motion for declaratory judgment on the pleadings. The controversy ...