OPINION BY MR. JUSTICE JONES, June 27, 1951:
These appeals are from a judgment in an action of mandamus which a number of former employees of the City of Allentown (a city of the third class) instituted against the Allentown Officers' and Employees' Retirement Board and the individual members of the board. The city's retirement system and the administering board were created by ordinance enacted May 1, 1946, pursuant to authority conferred by the Third Class City Employees Retirement Law of May 23, 1945, P.L. 903, 53 PS §§ 12198-4371 to 4384 incl. The ordinance incorporated, by adoption, the material provisions of the Act. The plaintiffs sought to compel the defendants to award them retirement pay to which they claim they are entitled by virtue of the ordinance. All of the claims are asserted under the provision supplied by Sec. 4(b) of the Retirement Act.
So much of Section 4(b) as is presently material provides as follows: "Section 4 . . . (b) Where an officer or employe shall have served for twelve (12) years, or more, and his tenure of office or employment shall be terminated without his voluntary action before the expiration of twenty (20) years of service, he shall, in such event, during the remainder of his life, be entitled to receive such portion of the full compensation as the period of his service up to date of its termination bears to the full twenty-year period of service; where an officer or employe who has served for twenty (20) years, or more, and his tenure of office or employment shall be terminated without his voluntary
The employment of the plaintiffs was terminated by the city without voluntary action on their part. At the times of the termination of their services, all of the six plaintiffs had been employed by the city for more than 12 years but less than 20 years; and four of them were past 60 years old.
It is apparent that all of the plaintiffs qualify for immediate retirement under the language of Section 4(b) as written. But, the section contains no age limitation at which employees may be retired when their services have been dispensed with involuntarily. The plaintiff-appellant (Altieri) contends that, despite the fact he was but 39 years old when his services were terminated by the city, he was entitled forthwith, as a 17-year employee, to retirement pay, as measured by the Act, for the remainder of his life. The learned court below expressed the opinion that, if such were the only possible interpretation of Section 4(b), then it was violative of both Sections 18 and 11 of Article
The question primarily involved in this case is whether Section 4(b) of the Retirement Act is complete and workable. The answer to that question is in the negative and is dispositive of the controversy. A fixed age for the commencement of retirement is a requisite of the system. As was said in Retirement Board of Allegheny County v. McGovern, 316 Pa. 161, 173, 174 A. 400, "retirement acts are based on the theory of an adjusted compensation for time and service, payable in the future, provided the employee serves the required length of time and reaches the required age" (Emphasis supplied). Section 4(b) is, therefore, incomplete and unenforceable. The provision expresses no intent that payment of involuntary retirement benefits
The plaintiff-appellant argues that the age at which retirement is to commence under Section 4(b) is when the employee's services are terminated without voluntary action of his own. The contention is obviously untenable. No such intent is to be imputed to the legislature. A retirement system is supposed to bear some reasonable relation not only to the length of the public service of the recipients but also to the fact that they "have reached an age where through decreased earning power because of impairment of mental or bodily vigor, they are compelled to separate themselves from active service." Retirement Board of Allegheny County v. McGovern, supra, at p. 164; see also Kurtz v. Pittsburgh, 346 Pa. 362, 373, 31 A.2d 257. While the matter last above quoted was said with respect to voluntary retirement, the requisite justification for involuntary retirement can be no less. Termination of a public employee's services for political reasons is to be guarded against through Civil Service rather than by retirement at public expense regardless of the recipient's age or condition. The construction of Section 4(b) which the plaintiff-appellant advocates would, if adopted, produce glaring inequities in favor of involuntary retirement over voluntary retirement. Such inequities and discrimination are manifest and need
The judgment under review at No. 137 is reversed and here entered for the defendant; the question raised at No. 140 has thus become moot and the appeal is therefore dismissed.
Alexander Altieri, age 39, service began September 15, 1932, terminated January 27, 1950, for a tenure of 17 years and 4 months.
Charles A. Reber, age 68, service began January 1, 1938, terminated January 31, 1950, for a tenure of 12 years and 1 month.
Harry Hiller, age 59, service began in 1932, terminated June 29, 1946, for a tenure of 14 years and 5 months.
William N. Heilman, age 62, service began January 15, 1938, terminated March 31, 1950, for a tenure of 12 years and 2½ months.
Kate A. Hartman, age 67, service began January 15, 1938, terminated June 15, 1950, for a tenure of 12 years and 5 months.
Albert J. Eddy, age 61, service began August 1, 1936, terminated June 15, 1937, for a tenure of 13 years and 10½ months.