Henry T. Reath, Judith N. Renzulli, Philadelphia, for appellant.
Richard B. Klein, pro se.
LeRoy S. Zimmerman, Atty. Gen., Susan J. Forney, John G. Knorr, III, Sr. Deputy Attys. Gen., Andrew S. Gordon, Chief Deputy Atty. Gen., for appellee.
Nix, C.j., and Flaherty and McDermott, JJ. Larsen, Zappala and Papadakos, JJ., did not participate in the reconsideration and decision of these cases. McDermott, J., files a concurring and dissenting opinion.
On March 3, 1989, this Court handed down opinions announcing the judgment of the Court in the above captioned appeals granting the relief requested by the appellants therein*fn1 with one Justice dissenting in both matters.*fn2
This writer, joined by Justices Flaherty and Stout,*fn3 premised their result upon a breach of the constitutionally mandated requirement for adequate compensation to be paid to judges. Goodheart v. Casey, et al., 521 Pa. 316, 555 A.2d 1210 (1989). Mr. Justices Larsen, Zappala and Papadakos concurred in the result in Goodheart. In the second appeal, Mr. Justice Larsen authored an opinion joined by Mr. Justices Zappala and Papadakos premising the grant of relief upon a finding of a violation of the equal protection provisions of the Pennsylvania Constitution. Klein v. Employees Retirement System, 521 Pa. 330, 344-349, 555 A.2d 1216, 1223-26 (1989). In that appeal, this writer, joined by Justices Flaherty and Stout, filed a concurring opinion rejecting the equal protection theory as a valid basis for the grant of the requested relief and reaffirming the grounds relied upon in Goodheart. Klein, et al. v. Employees' Retirement System, supra, 521 Pa. at 348-349, 555 A.2d at 1226-27 (1989).
The instant opinion is written to address the issues that have been raised in the applications for reconsideration filed herein. This Court, after receiving the applications entered an order on May 9, 1989, granting them, in part, by directing the parties to brief the specific issues set forth in the applications for reconsideration. The Court denied the request for oral argument. After consideration of the briefs, for the reasons herein stated, we reaffirm our prior judgment entered in these matters.
As stated, the six Justices in the judgment entered were not in agreement on the theory supporting the result reached. The opinion announcing the judgment of the Court in Klein relied in part upon an equal protection theory concluding that the scheme creating a two-tiered class of judges based solely upon the date of entry into the system was arbitrary and unreasonable and thus offensive to the protection sought to be afforded under Article 1, § 1, Article 1, § 26 and Article 3, § 32 of the Pennsylvania Constitution.*fn4 Klein, et al. v. Employees' Retirement System, supra. The concurring Justices expressly agreed that the appellants therein were entitled to receive the same compensation as their colleagues serving on the same bench with them, notwithstanding their rejection of the equal protection argument. The arguments now being raised challenging the equal protection analysis merely rehash the disagreement fully considered by the Court prior to reaching its decision; and, thus, do not provide a persuasive basis for altering the judgment that has been entered.
The attack upon the rationale employed in the opinion announcing the judgment of the Court in Goodheart, in essence, challenges the implicit acceptance in that opinion that retirement benefits were a part of judicial compensation. The attempt to extract from Article 5, § 16(b), a distinction between salary and retirement compensation, cannot obscure the obvious fact that public retirement benefits are part of compensation for present services. Whether the compensation is received during the judge's years of actual service or during his retirement, Pennsylvania's case law is clear that all of the compensation is for present services. Catania v. Commonwealth, State Employees' Retirement Board, 498 Pa. 684, 690, 450 A.2d 1342, 1345
(1982); McKenna v. SERB, 495 Pa. 324, 333-34, 433 A.2d 871, 876 (1981).
We have said, and now reaffirm, that a public employe has a contract right to continued membership in a retirement fund, under the same rules and regulations prevailing at the time of his employment, which may not be qualified or altered by subsequent legislative enactment, Baker v. Retirement Board of Allegheny Co., 374 Pa. 165, 169, 97 A.2d 231 (1953).
The reason for this pension rule in Pennsylvania is that a public employe's compensation includes pension credits as well as salary. Accordingly, one who has rendered service for this agreed ...