Appeal from the Order of the Court of Common Pleas of Allegheny County in case of International Association of Firefighters; McKeesport City Firefighters, Local Union No. 10, an unincorporated association, by Robert Matwick, President and Trustee ad Litem; and Trustee ad Litem; and Gary Kirshner, James Zuzo, Fred Bray, Richard Dellatenna, Leonard Stinebaugh, Ronald Liberatore, Charles Pratt, Thomas Balin, Kenneth Forsythe, William Chappell and Harry Drye, Individuals v. City of McKeesport; Thomas J. Fullard, Mayor of the City of McKeesport; John Pribanic, James Heatherington, Nick Skezas, Leon Kulsa, Caroline Waters, Joseph Bendel and Thomas O'Neil, Councilmen of the City of McKeesport, No. G.D. 76-01385.
Mord C. Taylor, Jr., for appellants.
Joseph J. Pass, Jr., with him Edward H. Walter, and Jubelirer, Pass & Intrieri, for appellees.
Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Mencer.
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On January 1, 1976, the City of McKeesport reduced the number of firefighters by 11, laying off the
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individuals with the least amount of seniority. At the time, at least 11 other firefighters were eligible for retirement under the City's Firemen's Retirement Pension Plan. Those firefighters who were laid off subsequently instituted an action in mandamus in the Court of Common Pleas of Allegheny County, alleging that the layoffs were in violation of Section 11 of the Act of May 31, 1933, P.L. 1108, as amended, 53 P.S. § 39871 (Section 11), which requires that firemen entitled to a pension be laid off before other firemen. The City defended by contending (1) that Section 11 had been repealed by Section 12(a) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 962(a) (PHRA), as inconsistent with Section 5(a) of the PHRA, 43 P.S. § 955(a), and (2) that Section 11 is inconsistent with the Federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. § 623(a). These contentions were rejected by the lower court which then granted appropriate relief to the plaintiffs.*fn1 The City appealed to this Court, raising the same two issues. We affirm.
The PHRA and the ADEA prohibit an employer from discharging any individual "because of" the individual's age. Section 11, however, does not require the layoff of any individual because of age ; rather, it requires individuals to be laid off because of the fact that they are eligible for pensions, and therefore will not be without a source of income. See Schultz v. Piro, 40 Pa. Commonwealth Ct. 395, 397 A.2d 484 (1979). Indeed, as noted by Judge MacPhail writing for this Court in the latter case, Section 11 does not
[ 41 Pa. Commw. Page 136]
even necessarily operate to retire the oldest members of the force, since those members may not have served a sufficient number of years to entitle them to a pension.
The ADEA recognizes the value of bona fide pension plans and, indeed, even allows mandatory retirement of all employees pursuant to such plans. 29 U.S.C.A. § 623(f)(2); United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977).*fn2 Section 5(a) of the PHRA specifically does not apply to terminations of employment "because of the terms or conditions of any bona fide retirement or pension plan." Section 5(a)(1) of the PHRA, 43 P.S. § 955(a)(1).
Section 11 does not require that employees be terminated because of age, but because of their eligibility for a pension under the terms of a bona fide pension plan. Therefore, it is not inconsistent with ...