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decided: March 3, 1989.


Appeal from the Order of the Commonwealth Court entered on July 20, 1988, at No. 3255 C.D. 1986. Pa. Commonwealth Ct. , Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, and Papadakos, JJ. Stout and Flaherty, JJ., join in this opinion. Larsen, Zappala and Papadakos, JJ., concur in the result. McDermott, J., dissents.

Author: Nix; Per Curiam

[ 521 Pa. Page 318]


This is an appeal by the State Employees' Retirement Board ("SERB") from an order of the Commonwealth Court granting appellees' motion for summary judgment. Appellees are six active judges of the courts of common pleas of this Commonwealth, who entered judicial service after March 1, 1974, and the Pennsylvania Conference of State Trial Judges. The subject matter of this case concerns the constitutionality of the State Employees' Retirement Code of 1974, 71 Pa.C.S. §§ 5101-5956 ("1974 Code"), which reduced pension benefits for members of the Commonwealth judiciary taking office after March 1, 1974, and the 1983 amendment thereto, which increased the basic contribution without a corresponding increase in benefits.


The Retirement Code of 1959 ("1959 Code") established a comprehensive retirement system for state employees, including judges. Participation in the system was mandatory, taking effect upon commencement of state service. Regular state employees were entitled to Class A membership which required them to contribute 5% of their gross salary to the system and entitled them to retirement benefits based on a calculation using their final average salaries, their years of service, and a multiplier of 2%. See former 71 P.S. §§ 1725-301(1)(a) and 1725-401(1)(a).

All Commonwealth judges were required to contribute to the fund at statutorily prescribed levels. Judges had an option, however, to elect Class E-1 coverage which permitted them to contribute a higher percentage of their salaries and receive proportionately higher benefits than allowed by Class A. Class E-1 required a contribution of 10% of their gross salaries over the first ten years of service and 7.5% over the second ten years. See former 71 P.S. § 1725-301(1)(e). Benefits under Class E-1 were calculated by multiplying the judge's first ten years on the bench by the

[ 521 Pa. Page 319]

    judge's final average salary and then by a multiplier of 4%. Added to this figure was the product of the judge's additional years on the bench, final average salary, and a multiplier of 3%. See former 71 P.S. § 1725-401(1)(e).

Judges also had an option to participate in the system's Social Security Integration Plan ("SSI Plan"). The SSI Plan permitted judges to make an additional retirement fund contribution each year from earnings in excess of the Social Security wage base, and to receive additional corresponding benefits upon retirement. Social Security Integration benefits were calculated by multiplying the average of earnings in excess of the Social Security wage base by the number of years of SSI participation and then by 2%. The pension benefits of judges who assumed office prior to March 1, 1974, are calculated under the 1959 Code. Catania v. Commonwealth, 498 Pa. 684, 450 A.2d 1342 (1982).

The 1974 Code eliminated the option for judges to elect Class E-1 coverage and SSI participation. Additionally, the 1983 amendment to the 1974 Code increased the basic employee contribution from 5% to 6.25% of gross salary without a corresponding increase in the benefits level. Only judges assuming office after the effective date of the 1983 amendment are subject to the increased contribution rate. Association of Pennsylvania State College and University Facilities v. State System Higher Education, 505 Pa. 369, 479 A.2d 962 (1984).


Article V, section 16(a) of the Pennsylvania Constitution provides:

(a) Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.

Pa. Const. art. V, § 16(a).

A basic principle of our form of government is that the executive, the legislative and the judicial are independent,

[ 521 Pa. Page 320]

    co-equal branches of government. Zemprelli v. Daniels, 496 Pa. 247, 436 A.2d 1165 (1981). The division of these governmental powers prevents the danger of tyranny which is inherent in the concentration of absolute power in a single body. Beckert v. Warren, 497 Pa. 137, 439 A.2d 638 (1981). Nevertheless, the crucial function of the separation of powers principle is not separation per se, but rather the "checking" power each branch has over the others. See The Federalist No. 51 (J. Madison). As we explained in Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971):

A legislature has the power of life and death over all the Courts and over the entire judicial system. Unless the legislature can be compelled by the courts to provide money which is reasonably necessary for the proper functioning of the courts, our entire Judicial system could be extirpated, and the legislature could make a mockery of our form of ...

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