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COUNTY ALLEGHENY ET AL. v. COMMONWEALTH PENNSYLVANIA (01/05/83)

decided: January 5, 1983.

COUNTY OF ALLEGHENY ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, LEROY ZIMMERMAN AND ROBERT COLVILLE, RESPONDENTS



Original jurisdiction in case of County of Allegheny, a political subdivision, Tom Foerster, Cyril H. Wecht, M.D., J.D. and William R. Hunt, M.D. v. Commonwealth of Pennsylvania, LeRoy Zimmerman and Robert Colville.

COUNSEL

James H. McLean, County Solicitor, with him Robert L. McTiernan, Assistant County Solicitor, for petitioners.

Allen C. Warshaw, Deputy Attorney General, Chief of Special Litigation, with him Marlene W. Jackson, Deputy Attorney General, for respondents.

President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Doyle.

Author: Doyle

[ 71 Pa. Commw. Page 33]

This case is before us on a motion for summary judgment under Pa. R.C.P. No. 1035 in a declaratory action which names the Commonwealth as a defendant and seeks resolution of an apparent conflict between provisions in the Second Class County Code (Code), Act of July 28, 1953, P.L. 723, as amended, 16 P.S. §§ 3101-6302 and the federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634 (1976).

No relevant facts are in dispute. The Commissioners of Allegheny County determined that for economic reasons it was necessary to reduce the force of the Allegheny County Fire Department by twelve firemen. Section 4519 of the Code provides in pertinent part:

If, for reasons of economy or other reasons, it shall be deemed necessary by the board of county commissioners to reduce the number of policemen in the police force or firemen or fire inspectors, then such reduction in numbers shall be made in the following manner: (1) if there are any policemen, firemen or fire inspectors eligible for retirement under the terms of any retirement or pension system or law, then such

[ 71 Pa. Commw. Page 34]

    reduction in numbers shall be made by retirement, if the party to be retired has served in the police force or as a fireman or fire inspector for a period of at least twenty-five years and reached the age of fifty-five years or over; (2) if the number of policemen, firemen or fire inspectors eligible for retirement is insufficient to effect the reduction in numbers decided upon by the board of county commissioners, . . . then the reduction shall be made by furloughing the last policeman, fireman or fire inspector, including the probationers, that have been appointed . . . and continue in numerical order until the reduction decided upon the board of county commissioners has been effected.

16 P.S. § 4519 (emphasis added). The ADEA, on the other hand, prohibits the discharge of or discrimination against an employee because of age. It does permit an employer to "observe the terms of a bona fide seniority system or any bona fide employee benefit plan. . . ." 29 U.S.C. § 623(f)(2), but in 1978 Congress amended the section to provide that "no such seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of age of such individual; . . ." 29 U.S.C. § 623(f)(2), as amended (1978). The Code and the ADEA each provide penalties for violation by employers.

Currently, two County firemen would qualify for compulsory retirement under the Code provision and another ten firemen would be furloughed. If the ADEA forbids the involuntary retirement of these two eligible firemen, two other firemen in addition to the ten would be ...


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