OFFICIAL OPINION NO. 19

OFFICIAL OPINION NO. 19 Judges-Retirement benefits. 1. Article V, Section 16 (b) of the Constitution of Pennsylvania which became effective on January 1, 1969, continued the distinction previously contained in the law between "former judges'· and "retired judges." 2. Retired judges fall into two basic classes as set forth in the Act of July 31, 1968, 71 P. S. § 1725-401 ( 4) for the purpose of compensation: (1) those who have served a collective total of 25 years; and (2) those who have attained the age of 70 and have ''served at least one full elected term or ten (10) years in the aggregrate as a judge continuously or otherwise" and who hold themselves available for assignment. 3. Judges falling under class 2 as outlined above are eligible to receive a sum equal to the salary they were receiving immediately prior to their retirement upon attaining the age of 70. OPINIONS OF THE ATTORNEY GENERAL 37 Harrisburg, Pa., April 2, 1971 Honorable Benjamin W. Schwartz Court of Common Pleas 516 City Hall Philadelphia, Pennsylvania 19107 Dear Judge Schwartz: I have given careful consideration to your inquiry concerning the retirement benefits you are entitled to upon reaching the age of 70 which you attained on November 27, 1970. At the Municipal Election in November, 1969, you were elected by the voters of Philadelphia County for a second term of ten years to commence on the first Monday of January 1970. Additionally, you have advised the Chief Justice of the Supreme Court of your availability for assignment since November 27, 1970, and have, in fact, continued to serve in the Family Court in Phila- delphia pursuant to your assignment there by the Chief Justice. Article V, Section 16 (b) of the Constitution of Pennsylvania which became effective on January 1, 1969, provides: "Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years. Former and retired justices, judges and justices of the peace shall receive such compensation as shall be provided by law." It is clear that the new Constitution continued the distinction previously contained in the law between "former judges" and "retired judges." A former judge may be designated and assigned by the Chief Justice of the Supreme Court to serve temporarily in a court of record and may be compensated under the Act of August 31, 1966, P. L. 47, 17 P. S. § 790.101 et seq. provided, among other things (none of which are here relevant) that he has served at least one term and has not been defeated for re-election. Nowhere does the Act of August 31, 1966, refer to the age of a former judge. Retired judges, on the other hand, fall into two basic classes as set forth in the Act of July 31, 1968, 71 P. S. § 1725-401(4) for the purpose of compensation: ( 1) those who have served a collective total of 25 years; and (2) those who have attained the age of 70 and have "served at least one full elected term or ten ( 10) years in the aggregate 38 OPINIONS OF THE ATTORNEY GENERAL as a judge continuously or otherwise" and who hold themselves avail- able for assignment. Your case falls under class (2) as outlined above. Your letter of November 27, 1970, to former Attorney General Fred Speaker indicates that, having held yourself available for assignment as required by law, you chose to exercise the election available to you under the Act of July 31, 1968, 71 P. S. § 1725-401(4) which provides that a retired judge: ". . . may elect to receive during a period of time equal to the unexpired portion of his term . . . a sum equal to the salary he was receiving immediately prior to his retirement." Accordingly, you are advised that you are eligible to receive a sum equal to the salary you were receiving immediately prior to your retirement which occurred on November 27, 1970, when you attained the age of seventy. Sincerely yours, J. SHANE CREAMER, Attorney General.