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decided: March 1, 1989.


Appeals from the Order of the Commonwealth Court entered November 3, 1988, at No. 1420 C.D., 1988. P.A. Commw. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Stout, J., did not participate in the consideration or decision of this case. Papadakos, J., files a dissenting opinion.

Author: Nix

[ 520 Pa. Page 453]


Article V, section 16(b) of the Pennsylvania Constitution provides in part that "Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years." Pa. Const. art. V, § 16(b).*fn1 The instant appeals present us with a question which, at first glance, seems rhetorical: whether the foregoing provision in our state constitution is itself constitutional.

This matter began with an original action brought by Harold Gondelman in the Commonwealth Court, seeking a judicial declaration that the mandatory-retirement provision in Article V, section 16(b) is invalid. As the basis for his suit, Gondelman asserted that the age-based retirement provision amounts to impermissible age discrimination, that it therefore violates fundamental liberties guaranteed by

[ 520 Pa. Page 454]

    the Declaration of Rights set forth in in the Pennsylvania Constitution.

At the time Mr. Gondelman commenced his action, he was approximately sixty-five years of age. Although Mr. Gondelman is not a judge, but an attorney, his claim of harm was based on the proposition that, should he be appointed or elected to judicial office in 1989, he would be compelled to retire after just three years of service merely because he reached age seventy. According to Gondelman's complaint, the effect of Article V, section 16(b) is to deny to some individuals, solely because of their age, the opportunity of seeking or holding judgeships and enjoying the status and economic benefits that are concomitant to such office. As further support for his assertion that the age provision in Article V, section 16(b) constitutes invidious discrimination, he also contends that in no other branch of state government -- executive or legislative -- is an elected official compelled to retire at any particular age. In this connection, appellant Gondelman alleged that the challenged provision rests upon an unfounded premise that judicial officers undergo a significant diminution of their work-related capacities upon reaching the age of seventy.

The named defendant, Commonwealth of Pennsylvania, filed preliminary objections which included a demurrer, a challenge to Gondelman's standing, and a challenge to the court's subject matter jurisdiction. Prior to argument on the preliminary objections, four common pleas judges petitioned the Commonwealth Court for leave to intervene in the action as additional parties plaintiff, and were permitted to do so. The intervening judges were the Honorables Leon Katz, Robert A. Wright, John F. Rauhauser, Jr., and James F. Clark. Each of them will reach the age of seventy before the expiration of his current term of office. Desiring to complete the full remainder of their current terms, the intervenors joined in the discrimination challenge to the compulsory-retirement provision in section 16(b) of Article V. In that regard, the intervenors adopted or expanded upon the contentions already advanced by appellant Gondelman;

[ 520 Pa. Page 455]

    they additionally averred that the age-based retirement mandate violates the Equal Protection and Due Process clauses in the Fourteenth Amendment of the United States Constitution.*fn2

The plaintiffs filed a motion for summary relief, which the court scheduled for argument along with the defendant's preliminary objections. Upon consideration of those matters by the Commonwealth Court sitting en banc, the result was an order overruling the preliminary objections and also denying the plaintiffs' motion for summary relief.*fn3 Regarding the plaintiffs' motion, the Commonwealth Court concluded that they did state a cause of action for having the mandatory-retirement provision declared unconstitutional, but that there existed genuine issues of material fact which precluded summary relief. Gondelman v. Commonwealth, 120 Pa. Commw. 624, , 550 A.2d 814, 822 (1988).

The court's order, although granting the defendant a specified period of time for filing a responsive pleading to the plaintiffs' complaint, set forth the view that the controversy involved a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter. See Judicial Code, 42 Pa.C.S. § 702(b). We agreed with that view, and accordingly allowed the parties to immediately appeal to this Court for resolution of the central legal question involved.

Although we allowed both sides to appeal, and consolidated their appeals for argument and disposition, we shall for the sake of convenience refer to Gondelman and the intervenors as the "appellants" and to the Commonwealth as "appellee."

[ 520 Pa. Page 456]

As noted, the appellants' challenges to the validity of the retirement provision in Article V, section 16(b) of our state constitution rest upon their argument that the provision amounts to prohibited discrimination, under both the federal constitution and our own state constitution. We commence with the appellants' assertions based on the Equal Protection and Due Process clauses of the Fourteenth Amendment; because, if the challengers are correct in either of those respects, we need not address their arguments which are predicated upon our state constitution.


The essence of the instant complaint is that there has been an arbitrary and discriminatory classification established in our state constitution to the prejudice of older judges. Without regard to the actual physical and mental health of the individual jurist, upon reaching the age of seventy, he is forced to retire on that birthdate. The effect of this mandatory provision is to terminate automatically the elective term which he is serving without consideration for the length of time remaining before its expiration or the mental and physical capacity of the jurist to complete that term.*fn4 When the judge attains the specified age, the office is deemed vacated and the election process to fill that vacancy is triggered. It is asserted that the instant classification created in Article V, section 16(b) of our state constitution violates the equal protection provision of the Fourteenth Amendment of the federal constitution and therefore may not be permitted to stand.

The Supreme Court of the United States has increasingly focused upon the concept of equal protection to guarantee fair treatment to each individual in the exercise of fundamental rights and to assure against distinction based upon impermissible criteria. Since the often repeated quote of Justice Holmes, in Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584,

[ 520 Pa. Page 45771]

L.Ed. 1000 (1927), that the concept of equal protection should be considered as "the last resort of constitutional arguments," Id. at 208, 47 S.Ct. at 585, the Equal Protection Clause of the Fourteenth Amendment, and the equal protection concept which the Court has infused into the Fifth Amendment's Due Process Clause, have provided the constitutional tools for achieving legal equality among the diverse segments of our society.*fn5 This equal protection guarantee introduced a new concept in our constitutional analysis which governs all governmental actions which classify individuals for deferment benefits or burdens under the law. Unfortunately for the instant appellants, this protection has not been given the sensitivity by a majority of the United States Supreme Court as some of the members of that Court and other legal scholars might wish.


We begin the analysis with the recognition that an obvious discriminatory intent is rarely evident on the face of the statute or regulation. Thus the inquiry must focus upon an examination of the classification made and the proffered legislative purpose. The tighter the fit, the less likely a judicial tribunal will determine that the proferred legislative purpose serves merely as a guise for a discriminatory or arbitrary purpose. In this area judicial tribunals are ever sensitive that they are intruding in the traditional legislative domain of law making. This is a particularly significant concern in the instant appeal where we are focusing not on a legislatively designed classification, but rather on one adopted by the people of this Commonwealth to determine who may serve as judges in their courts.

[ 520 Pa. Page 458]

Absent a demonstration of the implication of a fundamental right, see, e.g., Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), or a suspect class, San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), this latter consideration would argue strongly for the least intrusive judicial assessment, which would be to presume the provision to be valid and sustain it if the classification drawn is rationally related to a legitimate state end. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981); United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-175, 101 S.Ct. 453, 459-460, 66 L.Ed.2d 368 (1980); Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976).

Any concern for a functional separation of powers is, of course, overshadowed if the classification impinges upon the exercise of a fundamental right, or affects a suspect class. Schweiker v. Wilson, supra; Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978). Appellant judges urge that a higher degree of scrutiny is mandated because the classification discriminates against older judges. It is asserted that the classification in question constitutes age discrimination. The Supreme Court has rejected age as being viewed as a suspect class as of this point in time, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); Vance v. Bradley, supra, even though persuasive arguments have been offered to support such a position. See, e.g., Murgia, supra. (Marshall, J., dissenting.)

In Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 at 313-14, 96 S.Ct. at 2567, 49 L.Ed.2d 520 (1976), the Court stated:

[ 520 Pa. Page 459]

While the treatment of the aged in this nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a 'history of purposeful unequal treatment' or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.

In the Murgia decision, the majority also expressly rejected "the proposition that a right of governmental employment per se is fundamental." Id. at 313, 96 S.Ct. at 2566, citing San Antonio School District 411 U.S. 1, 16, 93 S.Ct. 1278, 1287, 36 L.Ed.2d 16 (1973); Lindsey v. Normet, 405 U.S. 56, 73, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 ...

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