HARRISBURG, Pa. (Legal Newsline) -- The Pennsylvania Supreme Court has agreed to hear a case challenging the state's mandatory retirement age for judges.

According to a one-page order filed in Tilson v. Corbett et al. March 28, the court will review and decide whether Pennsylvania's mandatory retirement age is discriminatory and violates the state constitution.

Under the Pennsylvania Constitution, judges must retire at the end of the year in which they reach age 70. They may continue working as senior judges. However, as senior judges, they do not receive the same salary or benefits.

In Tilson, Montgomery County Court Judge Arthur Tilson argues that the constitutional requirement is at odds with the Pennsylvania Constitution's guarantee of equal rights.

According to the court's order, the case will be heard during its May session in Harrisburg.

Meanwhile, a federal judge has stayed a separate but related case over the requirement.

Judge John E. Jones III, for the U.S. District Court for the Middle District of Pennsylvania, wrote in a three-page order last week that the federal case should be put on hold until the state Supreme Court makes a decision in Tilson.

Jones said Tilson "raises state constitutional claims that largely mirror the federal constitutional claims raised in the matter sub judice."

"That action and this one, metaphorically, are two trains proceeding on parallel tracks and, with the recent scheduling of oral argument before the Supreme Court of Pennsylvania, the Tilson train is rapidly pulling ahead," he wrote.

In the "dual interests of judicial economy and conservation of counsels' resources," the judge said he believed a stay is warranted.

Jones said he is staying the federal case for 90 days so the parties can "focus their efforts on the approaching oral arguments" before the state Supreme Court.

Senior Judge Benjamin Lerner and Judge John Herron, both of Philadelphia, and Northampton County Judge Leonard Zito filed their complaint in the federal court in January.

"The mandatory retirement provision unfairly and arbitrarily deprives Pennsylvania justices and judges of their employment solely on the basis of age, rather than on the basis of any rational or reasonable test of physical, mental or professional ability, contrary to federal law as set out in the Fourteenth Amendment to the United States Constitution," they wrote in their 19-page amended complaint.

"The mandatory retirement provision deprives Pennsylvania justices and judges of their property interest in their continued employment solely on the basis of age without conferring upon them a pre-termination opportunity to be heard or a post-termination opportunity to contest their ability to serve competently in the roles to which they were elected by the people of the Commonwealth."

Lerner was forced to retire in January last year. Herron will be forced to retire in January 2015. Zito will be forced to retire in January 2014.

Like the state case, the named defendants in the federal suit include Gov. Tom Corbett, Secretary of State Carol Aichele, Treasurer Robert McCord and Zygmont Pines, court administrator.

In December, Corbett and Aichele had Lerner -- originally filed in November in Pennsylvania's Commonwealth Court -- moved to the federal court.

Philadelphia attorney Alexander Bilus, who is representing the judges, told The Morning Call Friday that the federal case could become moot if the state Supreme Court sides with the judges.

The judges in both cases want the mandatory retirement provision nullified and declared invalid, and have the courts enjoin the defendants from enforcing the provision.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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