areas, responding to emergency situations such as accidents and crimes, and enforcing the laws of the Commonwealth and ordinances of the borough. An officer must be "alert, have good judgment, be in good physical condition and be able to react quickly to situations", including the use of force to protect himself, citizens in the community, property and apprehending and restraining persons suspected of criminal activity.
The physical condition of the police force is particularly important in this borough not only because of the difficulty in arranging substitute coverage but also because the small size of the force makes backup help to an officer responding to an emergency situation often unavailable. Inability of any one police officer within the department to perform his functions effectively could result in serious, adverse consequences to the personal welfare of fellow officers, community residents and property.
By affidavit defendants also established the debilitating effects of superannuation.
A medical doctor, the director of physical medicine at Lancaster General Hospital, described the aging process to include several bodily changes and their effects. For example, the decrease in cardiovascular and pulmonary reserves, principally affecting endurance and stamina, impairs engagement in prolonged activities such as fast walking, jogging, running, chasing and any prolonged contact or struggle with others involving dragging, pushing or pulling. Prompt reaction to various stimuli takes more time. Diminution in strength, visual acuity and hearing competence also results. Finally, changes in the prostate gland require more frequent urination and consequent interruption of duty, which for a police officer could occur during surveillance or, more importantly, during apprehension of a criminal suspect or protection of the community.
As noted above, defendants must establish that the mandatory retirement policy was reasonably necessary to the normal operation of the "particular business", 29 U.S.C. § 623(f)(1), which, for the borough of Manheim, includes the unique responsibility of protecting the safety and welfare of citizens and property within the community and maintaining law and order. Given the uniform allocation of duties among borough officers, plaintiff's job fits well within this definition. Defendants have established not only that these duties required optimal physical conditioning but also that their mandatory retirement policy is "reasonably necessary" to accomplish that purpose. Importantly, the Act requires that the employer's age requirement be reasonably, not absolutely or wholly, necessary. To demand more than this showing would, in effect, rewrite the legislation itself. See Andrus v. Allard, 444 U.S. 51, 100 S. Ct. 318, 62 L. Ed. 2d 210 (1979) (interpretation of federal statutes requires ascertainment of Congressional intent from the "plain language" of the statute), Malat v. Riddell, 383 U.S. 569, 86 S. Ct. 1030, 16 L. Ed. 2d 102 (1968) (words of statutes should be interpreted in their "ordinary, everyday" sense). Cf. Mount Joy Construction Co. v. Schramm, 486 F. Supp. 32 (E.D.Pa.), aff'd, 639 F.2d 774 (3d Cir. 1980) and Mikkilineni v. United Engineers & Constructors, Inc., 485 F. Supp. 1292 (E.D.Pa.1980) (interpreting federal regulations in light of their "plain language"). The scant human resources of the Manheim borough police department impose upon the individual members of the force burdens which larger police forces do not confront. Within this context considerations of public safety merit paramount concern. See Usery v. Tamiami, 531 F.2d at 238 (where safety of fellow employees and third parties is threatened "the employer must be afforded substantial discretion in selecting specific standards which, if they err at all, should err on the side of preservation of life and limb") (emphasis added). In fact, a House report compiled during enactment of amendments to the ADEA listed law enforcement as an area in which the bona fide occupational qualification would be justified. See H.R.Rep.No.527, 95th Cong., 2d Sess. (1977). Particularly where the law enforcement department is small and the abilities and characteristics of individuals therein consequently have disproportionate effects on each other and the duties they perform, substantial discretion should be afforded to the police department to make and implement this type of decision. Defendants have also shown a factual basis for believing that substantially all persons within the excluded class would be unable to perform effectively the duties which this particular job entailed. The affidavit of the doctor in connection with the one from the police chief sufficiently meets this burden within the present circumstances.
Interestingly, numerous courts have sustained regulations which provide for mandatory retirement for police officers. In Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976), the court held that a statute requiring retirement of all state police officers at the age of fifty years did not defend the Equal Protection Clause of the Fourteenth Amendment. In Malmed v. Thornburgh, 621 F.2d 565 (3d Cir. 1980), the court sustained the legality of a Pennsylvania constitutional provision which required retirement of state judges at the age of seventy years. See also Gardner v. Borough of Sayre, 28 Pa.Cmwlth. 130, 367 A.2d 814 (1977) (where the court found no violation of the Pennsylvania Human Relations Act of 1955, as amended, 43 P.S. § 951 et seq., in a borough ordinance requiring involuntary retirement of police officers at the age of sixty years) and McIlvaine v. Pennsylvania State Police, 6 Pa.Cmwlth. 505, 296 A.2d 630 (1972), aff'd, 454 Pa. 129, 309 A.2d 801 (1973), appeal dismissed, 415 U.S. 986, 94 S. Ct. 1583, 39 L. Ed. 2d 884 (1974), (comparing the similarities of the ADEA and Pennsylvania Human Relations Act, the court rejected a challenge to the Administrative Code of 1929, 71 P.S. § 65(d), which provided for mandatory retirement of state police officers at the age of sixty years). Approval of mandatory retirement provisions within these contexts, however, does not mandate a like result here. These cases decided only that the questioned retirement requirements did not offend the Equal Protection Clause of the Fourteenth Amendment. Notwithstanding, "legislation authorized by § 5 of the Fourteenth Amendment can prohibit practices which pass muster under the Equal Protection Clause". Arritt v. Grissell, 567 F.2d at 1272. Congress relied upon § 5 in enacting the ADEA. Carpenter v. Commonwealth of Pennsylvania, 508 F. Supp. 148, (E.D.Pa., 1981) and cases cited therein. Therefore, the ADEA could outlaw conduct consonant with the Equal Protection Clause.
Having established adequately the bona fide occupational qualification, the borough, through its police department, could discriminate along otherwise illegal lines without reference to the actual physical condition of the terminated employee, plaintiff. Marshall v. Westinghouse Electric Corp., supra. This conclusion does not signal disagreement with the laudable purposes of the ADEA or approval of carving feckless exceptions which eventually could decimate or undermine the rule; rather, it acknowledges the unique and invaluable role of effective law enforcement in modern society, the teleological implications of a contrary result, and the occasionally ineluctable, though nonetheless regrettable, cost of vindicating the integrity of the law and enhancing the public weal at individual expense. As Mr. Justice Cardozo wrote, "adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even handed administration of justice in the courts". Nature of the Judicial Process, 34 (1921). Defendant's motion for summary judgment will be granted.
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