Concurring and Dissenting Opinion by
Judge Colins:I agree with the result reached in the opinion in support of denying summary relief and overruling preliminary objections insofar as it overrules the preliminary objections based upon its interpretation of the U.S. Constitution. I further agree with the conclusion that ADEA does not apply to elected judges within the Commonwealth of Pennsylvania.
However, I must strongly disagree with the position set forth in the opinion in support of denying summary relief and overruling preliminary objections that Article I of the Pennsylvania Constitution does not prohibit age discrimination such as that which is presently before the Court; i.e., a determination based solely upon ones birthdate without any consideration of the individual’s ability to perform his/her duties.
The “Declaration of Rights,” contained in the Constitution of 1776, was enacted fifteen years prior to the adoption of the Bill of Rights contained in the U.S. Constitution. These rights were later incorporated into Article IX of the Constitutions of 1790 and 1838 and were again codified as Article I of the. Constitution of 1874.
It is clear, upon thorough analysis, that the protections afforded by the original Bill of Rights were meant to remain inviolate unless specifically retracted or abolished by future amendments to the Constitution.
The retirement provision, as adopted in 1968 by Article V, Section 16(b), does not, even arguably, purport *645to abolish, amend, or delete the original Bill of Rights which has been the cornerstone of the Commonwealths existence. Yet, the net effect of Article V, Section 16(b) is to confiscate a property right in employment, created by the voters and commissioned by the Governor, upon an individuals reaching his/her seventieth birthday.
The instant scenario, simply put, is that in a technical or “housekeeping” amendment, generated by the Constitutional Convention of 1968, a constitutional provision has been created which is in direct conflict with the protections contained in the Commonwealths Bill of Rights.
This is a matter of first impression; however, the fact that those guarantees contained in the Bill of Rights may be superior to other constitutional guarantees was first recognized by our Supreme Court in Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924), which declared that, although the Constitution “should contain only that which is fundamental, we are constantly made aware of the fact that many details are embodied in it which more properly belong in legislation . . . [bjecause of these facts, all that is said in the Constitution is not of the same mandatory force; in the nature of things, some of the detailed provisions must be treated as directory only.” Id. at 216, 126 A. at 266 (citations omitted). This argument was succinctly made in Section 2 of petitioner Katz’ brief and should be the proper rationale for the decision of this Court.
It is beyond argument that the Constitution of 1968, insofar as it relates to mandatory age discrimination against elected judges, is not based upon a rational distinction. Yet, without this rational distinction, petitioner Katz and other dedicated servants in the future will be stripped of their salaries, offices, careers, and, in many instances, their dignity, despite having commissions signed by the Governor of the Commonwealth indicat*646ing that they were elected to serve in their offices to dates well beyond that of their forced retirement.
In conclusion, I reiterate my position that a constitutional amendment, enacted subsequent to the Commonwealths original Bill of Rights cannot impair or impede any rights guaranteed by said bill unless the amendment clearly declares to do so.
In this opinion, I, by no means, mean to detract from the scholarly and prosaic opinion in support of denying summary relief and overruling preliminary objections. This is obviously an issue of first impression upon which reasonable people will differ.
This grave constitutional question must, and no doubt will, eventually be decided by the Supreme Court of the Commonwealth.
I would grant summary judgment in favor of the petitioners, as well as overrule the respondents preliminary objections.
Judges McGinley and Smith join in this opinion.