Appeal from the Order of the State Civil Service Commission in case of Violet M. Goodley v. Delaware County Child Care Services, Appeal No. 2660.
William J. Flannery, with him Thomas H. Lane, of counsel, Morgan, Lewis & Bockius, for petitioners.
Earl R. Dryer, Assistant Attorney General, with him Barbara G. Raup, Assistant Attorney General, for respondent.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 53 Pa. Commw. Page 334]
Delaware County (County) appeals here from an order of the State Civil Service Commission (Commission) which prohibited the County from retiring Violet M. Goodley (respondent) on reaching her 65th birthday.
On May 30, 1973, the County entered into a contract with the Department of Public Welfare (DPW) which was part of a series of grant-in-aid contracts between the County and the DPW. Among other things, the contract provided for the classification of all positions in the County's Child Care Services Program under the terms of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.1 et seq. The parties also agreed in the contract that the Act and the Rules of the Commission would apply to Child Care Services personnel with the following exception:
With respect to annual and sick leave, holidays, and retirement, the County Child Welfare Agency and Mental Health and Mental Retardation Program should adhere to prevailing county practice. (Emphasis added.)
It has been the practice of the County to retire all county employees at the age of 65, and the respondent, who had been employed by the County in its Child Care Services Program, was advised that she would be retired effective November 24, 1978 because of having reached her 65th birthday. She appealed this action to the Commission, which held that the action
[ 53 Pa. Commw. Page 335]
was discriminatory and therefore impermissible under Section 905.1 of the Act, 71 P.S. § 741.905a, which provides:
No officer or employee of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action with respect to the classified service because of labor union affiliations or because of race, national origin or other non-merit factors.
The Commission's position is that age is a non-merit factor and, that being so, the County's dismissal of the respondent on age grounds alone was impermissible. The County argues, however, that the contract rather than the Commission's interpretation of Section 905.1 must prevail here,*fn1 and that the contract ...