Concurring Opinion by
Judge Kramer:Although I agree with the majority that the plaintiff, in this case, cannot prevail, I feel constrained to state the limited grounds on which I base my conclusion.
*514First, I must state that I find, no difficulty with the fact that Section 205 of The Administrative Code of 1929, Act of April 9,1929, P. L. 177, as amended, 71 P.S. §65 provides an exception for the Commissioner and Deputy Commissioner of the Pennsylvania State Police from mandatory retirement at sixty years of age. These positions constitute a separate reasonable classification. I also accept that it is proper and permissible to require all other State Policemen to retire at sixty years of age. As the majority aptly establishes, a mandatory retirement age is permitted when it is a “bona fide occupational qualification.”
However, the different treatment of two policemen of the same age presents a different question. While an age limitation may be a valid occupational qualification, to extend that limitation for members of the State Police who have not attained twenty years’ service cuts at the heart of the issue. If one policeman is permitted to work until he reaches seventy years of age, surely the mandatory retirement of others at age sixty becomes suspect as a bona fide occupational qualification. I recognize, as does the majority, that this provision is apparently directed toward retirement eligibility. While this is an admirable objective, the statute is, nonetheness, discriminatory on its face. The majority focuses on the heavy burden of proof placed upon the appellant and finds that he fails to meet the necessary burden. I would draw, instead, on the United States Supreme Court cases requiring states to bear the heavy burden of justifying legislation which patently discriminates on the basis of race or color,1 for I think it is now time to include age, together with sex, as a suspect criterion. See Pittsburgh Press Employment Advertising Discrim*515ination Appeal, 4 Pa. Commonwealth Ct. 448, 287 A. 2d 161 (1972).
In view of my position concerning the use of age as a basis for legislative classification, I concur solely on the ground that in 1919 the Legislature established the age qualifications for appointment to the State Police Force, i.e., that applicants be between the ages of twenty-one and forty years. See Section 8 of the Act of June 8, 1919, P. L. 366, as amended, 71 P.S. §1193(a). The forty year age limitation, having been in effect since the year 1919, eliminates the possibility of different treatment with respect to members of the Force; and therefore the issue becomes moot. I respectfully concur.
See Kramer v. Union School District, 395 U.S. 621, 628 n. 9 (1969) ; Loving v. Virginia, 388 U.S. 1, 9 (1967) ; Korematsu v. United States, 323 U.S. 214, 216 (1944).