# Gondelman v. Commonwealth

> Commonwealth Court of Pennsylvania · November 3, 1988 · 120 Pa. Commw. 624

URL: https://www.frixlaw.com/law-library/cases/9650075

## Case

- **Full name:** Harold Gondelman, on His Own Behalf and on Behalf of All Others Similarly Situated, Petitioner v. Commonwealth of Pennsylvania, Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** November 3, 1988
- **Citations:** 120 Pa. Commw. 624; 550 A.2d 814; 48 Fair Empl. Prac. Cas. (BNA) 420; 1988 Pa. Commw. LEXIS 856
- **Precedential status:** Published
- **Opinion:** Concurrence by Craig
- **Judges:** Palladino, Colins, Craig, Doyle, Crumlish, Barry, McGinley, Smith
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Concurring Opinion by
Judge Craig:
This opinion signifies joinder in Judge Palladinos Opinion In Support of Denying Summary Relief and Overruling Preliminary Objections, and also offers a brief concurring supplement, with respect to:
1. The undesirable concept of discarding a state constitutional provision ratified by the electorate on the basis of a judicial determination that another provision of the same constitution has greater weight; and
2. The strength and weakness of the decision of the United States Court of Appeals on the federal constitutional questions.
The Pennsylvania Constitution
A ratification vote of the Pennsylvania electorate adopted the Pennsylvania Constitution provision, Pa. Const. Art. V, § 16(b), mandating the retirement of judges at age 70.
By ratification votes of no greater or lesser significance, the Pennsylvania electorate adopted Art. I, §1, the inherent rights provision, and Art. I, §26, the provision forbidding discrimination.
Therefore, it is indeed sound to reject the concept that the judiciary could have power to elevate any provision of the state constitution over another provision of the same fundamental law of the Commonwealth, when all provisions have been equally ordained by vote of the electorate.
*643 The judiciary should avoid substituting its view as to the relative weight of various constitutional provisions, in place of the necessarily equal import of voter ratification of all provisions.
The United States Constitution
Of course, a state court must recognize that a federal constitutional provision, adopted by the people of the nation, can prevail over a state constitutional provision ratified by the electorate of a single state.
However, because the decisions of the United States Court of Appeals, although persuasive, are not binding upon us as to the federal due process and equal protection issues presented here, overruling of the Commonwealths preliminary objections is sound.
Moreover, in Malmed v. Thornburgh, 621 F.2d 565 (3d Cir.), cert. denied, 449 U.S. 955 (1980), the Court of Appeals, having reversed the district court on the legal matter of burden of proof, need not have entered judgment for the Commonwealth, as it did, but could have remanded the case for a new trial.
A decision that this court receive evidence in this case, giving attention to the persuasive view of the Court of Appeals as to the burden of proof, is therefore the proper course for this court to take in lieu of rendering a final judgment either way at this juncture.
In Maimed, the Court of Appeals stated:
In sum, the district court erroneously placed a burden on the appellants [Commonwealth] to rebut a limited argument by appellees [judges].
The correct approach would have been to require the appellees to prove that the Pennsylvania Constitutional Convention had no reasonable basis for believing the four reasons stated for the adoption of the mandatory retirement provision.
*644 See Vance v. Bradley, 440 U.S. at 112, 99 S.Ct. at 951. . . .
Vance v. Bradley, 440 U.S. 93 , 99 S.Ct. 939 (1979) involved a federal law requiring foreign service personnel to retire at age 60.
Accordingly, the reception of evidence pursuant to the foregoing guidance is a sound course.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650075. Public record. Not legal advice.