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HONORABLE VICTOR J. DINUBILE AND HONORABLE KENDALL H. SHOYER v. ROBERT F. KENT ET AL. APPEAL HONORABLE KENDALL H. SHOYER (03/17/76)

SUPREME COURT OF PENNSYLVANIA


decided: March 17, 1976.

THE HONORABLE VICTOR J. DINUBILE AND THE HONORABLE KENDALL H. SHOYER
v.
ROBERT F. KENT ET AL. APPEAL OF THE HONORABLE KENDALL H. SHOYER

COUNSEL

Blank, Rome, Klaus & Comisky, Marvin Comisky, Alan C. Gershenson, Philadelphia, for appellant.

Gerald Gornish, Deputy Atty. Gen., for appellees, Grace Sloan and State Employees' Retirement Bd.

William E. Zeiter, Jonathan Vipond, III, Philadelphia, for appellee, Robert F. Kent.

S. Regen Ginsburg, Philadelphia, for amicus curiae, Phila. Bar Assn.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 466 Pa. Page 573]

OPINION OF THE COURT

Appellant Kendall H. Shoyer*fn1 was reelected judge of the Court of Common Pleas of Philadelphia on November 6, 1973, and began his new term on January 7, 1974. He reached the age of seventy on November 24, 1974, and was retired as required by article V, section 16(b) of the Pennsylvania Constitution. Appellant sought a declaratory judgment in the Commonwealth Court claiming that he was entitled to receive benefits under section 401(4) of the State Employees' Retirement Code of 1959 (hereinafter section 401(4)).*fn2 The court determined that appellant is not entitled to such benefits.

[ 466 Pa. Page 5741969]

, shall retire upon attaining the age of seventy. We must determine the effect of article V on section 401(4).

In Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976) (J. 24 of 1976), we held that the term of a mandatorily retired member of the judiciary expires upon his retirement. Thus, the new judiciary article had a significant impact on section 401(4) not only by rendering retirement at age seventy mandatory but also by creating an alternate end, based on age, to the term for which a judge is elected. Because the attainment of age seventy before his term as a member of the judiciary would otherwise end ends the term, there is no "unexpired portion of his term" as defined in section 401(4). By reason of this alternate termination of a judge's term of office, the option provided in section 401(4) was available only to judges who voluntarily retired after twenty-five years of judicial service prior to attaining age seventy.*fn5 Accordingly, at the time appellant was reelected in 1973, section 401(4) offered him no benefits.

Appellant contends that apart from the proper interpretation of section 401(4), he is entitled to rely upon Attorney General Official Opinion No. 19 dated April 2, 1971. That opinion was addressed to another judge and concluded that the adoption of article V did not affect the benefits available under section 401(4) to judges elected after January 1, 1969. This contention is without merit.

The Attorney General is legal advisor to the State Employees' Retirement Board,*fn6 however, opinions

[ 466 Pa. Page 576]

    of the Attorney General are merely for the guidance of state officials acting in their executive capacity. It is the province of courts to adjudicate issues of law. Pennsylvania Liquor Control Board v. Kusic, 7 Pa. Commw. 274, 299 A.2d 53 (1973); Brotherhood of Railroad Trainmen Insurance Department, Inc. v. Smith, 74 Dauph. 346 (1960).

Order affirmed.*fn7


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