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SCHLURAFF v. RZYMEK (03/16/65)

decided: March 16, 1965.

SCHLURAFF
v.
RZYMEK, APPELLANT



Appeal from judgment of Court of Common Pleas of Erie County, Feb. T., 1964, No. 326, in case of Robert S. Schluraff v. Louis J. Rzymek and William O. Hill, Jr., County Commissioners and members of Salary Board, et al.

COUNSEL

John M. McLaughlin, County Solicitor, for appellants.

Lindley R. McClelland, with him Byron A. Baur, and Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice O'Brien join in this dissenting opinion.

Author: Cohen

[ 417 Pa. Page 145]

In Commonwealth ex rel. Hanson v. Reitz, 403 Pa. 434, 170 A.2d 111 (1961), Bowers v. Pennsylvania Labor Relations Board, 402 Pa. 542, 167 A.2d 480 (1961), and Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354 (1956), we held that where the legislature creates a public office and provides that the holders of that office shall be appointed for fixed terms with staggered expiration dates, the presence of staggered terms indicates a legislative intent that the holders of the office are not removable by the appointor at his pleasure.

Here the lower court relied for its decision on Reitz, Bowers and Watson. It did so improperly since the officer involved in this litigation was appointed to the Board for the Assessment and Revision of Taxes for a fixed term expiring simultaneously with the terms of the other appointees to the Board and thus does not come within the staggered term rule of the above cases. The Board of Commissioners for a Third Class County is empowered by Article VI, § 4 of the Pennsylvania Constitution to dismiss a member of the Board for the Assessment and Revision of Taxes at its pleasure and neither the staggered term doctrine nor Article XII, § 1 of our Constitution insulates him from such dismissal.

[ 417 Pa. Page 146]

Judgment reversed and remanded for further action by the court below consistent with this opinion.

Disposition

Judgment reversed.

Concurring Opinion by Mr. Justice Jones:

Believing that the Board of Commissioners of Erie County had the power to dismiss at pleasure Schluraff, an appointed member of the Board for the Assessment and Revision of Taxes of Erie County, I concur in the result reached in the majority opinion.

However, I must disassociate myself from the reasoning in the majority opinion which seeks to differentiate between the impact of a staggered or rotated term provision in a statute and a definite or fixed term provision in a statute as indicative of a legislative purpose to condition the terms or tenure of appointees to a legislatively created office. Despite our previous rulings to the contrary in Commonwealth ex rel. Houlahen v. Flynn, 348 Pa. 101, 34 A.2d 59 and Commonwealth ex rel. Reinhardt v. Randall, 356 Pa. 302, 51 A.2d 751, our Court held in Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354, Bowers v. Pennsylvania Labor Relations Board, 402 Pa. 542, 167 A.2d 480 and Commonwealth ex rel. Hanson v. Reitz, 403 Pa. 434, 170 A.2d 111: "that where the legislature creates a public office and provides that the holders of that office shall be appointed for fixed terms with staggered expiration dates, the presence of staggered terms indicates a legislative intent that the holders of the office are not removable by the appointor at his pleasure."*fn*

In Bowers and Reitz I dissented on the ground that such staggered term provisions do not indicate any such legislative intent and to that view I still adhere. In Bowers, in dissenting, I stated (576): "if a staggered ...


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