Original jurisdiction, in re determination of President Judge for the 30th Judicial District, and original jurisdiction, Miscellaneous Docket No. 2724, in re determination of President Judge for the 36th Judicial District.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen concurs in the result.
F. Joseph Thomas, Judge of the Court of Common Pleas of the 30th Judicial District, has presented a petition to this Court requesting us to take original jurisdiction in this matter and decide that, in spite of the longer continuous Judicial service of Judge P. Richard Thomas, they must cast lots for priority of commission and resultingly the office of President Judge of the Court of Common Pleas of the 30th Judicial District.
John N. Sawyer, Judge of the Court of Common Pleas of the 36th Judicial District, has presented a similar petition to this Court requesting us to take original jurisdiction and decide whether he or Judge Ralph F. Scalera, who was appointed by the Governor on June 16, 1964 and served continuously thereafter, is entitled to priority of commission and consequently to be President Judge of the Court of Common Pleas of the 36th Judicial District. Both Judge Scalera and Judge Sawyer were elected for a 10-year term at the general election in November, 1965.
Because of the time element and the importance of the issues involved, this Court, under and by virtue of our King's Bench power, hereby takes original jurisdiction of both these petitions. These petitions raise the same questions and the same issues and will be considered together.
On January 6, 1964, the Governor of Pennsylvania appointed P. Richard Thomas a Judge of the Court of Common Pleas in the 30th Judicial District to serve until the first Monday in January, 1966; and on September 5, 1964, because of the death of President Judge Mook, P. Richard Thomas was appointed by the Governor to be President Judge of said Court. P. Richard Thomas served as Judge and subsequently President Judge from the time of his respective appointments.
P. Richard Thomas and F. Joseph Thomas were each elected to the Court of Common Pleas in said District at the general election in November, 1965 for a 10-year term, commencing the first Monday in January, 1966. On that date, F. Joseph Thomas began for the first time his service as a Judge.*fn1
Does Judge P. Richard Thomas's prior and longer continuous Judicial service entitle him to seniority or must they cast lots?
The Constitution of Pennsylvania is clear and unambiguous on the issue here involved. Article V, § 17, provides: "Should any two or more judges of the Supreme Court, or any two or more judges of the court of common pleas for the same district, be elected at the same time,*fn2 they shall, as soon after the election as convenient, cast lots for priority of commission, . . ." The fairness and wisdom of this provision in situations like the present may be doubted,*fn3 but its language
gives no support to the inclusion of prior judicial service except when a President Judge of a Court shall be re-elected.*fn4 On the contrary, the Constitution provides in the clearest language that when two or more Judges of the Supreme Court or for the Court of Common Pleas for the same District are elected at the same time, they must cast lots for priority of commission.
Attorney General Thomas D. McBride rendered an Opinion on August 4, 1958, reported in 15 Pa. D. & C. 2d 8, in which he stated that when two Common Pleas Judges are elected for the same Judicial District at the same election, prior Judicial service was irrelevant and could not be counted in the determination of priority of commission. The present Attorney General, Walter E. Alessandroni, relying on Commonwealth ex rel. Reeder v. Pattison, 109 Pa. 165,*fn5 rendered an Opinion on December 13, 1965 which overruled Attorney General McBride's prior Opinion and ...