Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1971, No. 2103, in case of Edward O. Ritenour v. Robert N. Peirce, Jr.
Harold Gondelman, for appellant.
James D. Morton, with him Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellee.
Bell, C. J., Jones, Eagen, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice O'Brien took no part in the consideration or decision of this case.
The Constitution of Pennsylvania, as last amended in 1968, provides that county officers (in counties other than Philadelphia) shall consist, inter alia, of prothonotaries and "clerks of the courts". Article IX, Sec. 4. By Section 15 of the Schedule of Article V,
these two offices were defined, until otherwise provided by law, as "the offices of prothonotary and clerk of courts of the court of common pleas of the judicial district. . . ." The case before us is a dispute as to whether under the new Constitution Robert N. Peirce, Jr., appellee, is the legally appointed and qualified clerk of the court of common pleas of the judicial district comprised of Allegheny County.*fn1
The facts have been stipulated: In November, 1968, appellant Ritenour was appointed "first deputy" in the office of the Clerk of Courts of Allegheny County by Thomas E. Barrett, the Clerk of Courts.*fn2 A first deputy, "during the necessary or temporary absence of his principal", is directed to "perform all the duties of such principal"; in addition, "in case of a vacancy", he is to perform such duties "until a successor is qualified".*fn3 At the municipal election in November, 1969, Mr. Barrett was re-elected for a second term in office, but died on November 17, 1969 before qualifying for his second term, which would have commenced in January, 1970. (The Senate of Pennsylvania was in session on the date of Mr. Barrett's death.) On November 20, 1969, Ritenour posted a bond required for the office of clerk of courts, and took an oath of office as "acting clerk of courts".*fn4
In February, 1970, Governor Shafer nominated Mr. Peirce to be Clerk of Courts and submitted his name to the Senate for confirmation. The Senate took no action on the nomination, and on November 19, 1970, adjourned.*fn5 On December 1, 1970, during the Senate
adjournment, the Governor appointed Peirce as Clerk of the Court of Common Pleas of Allegheny County and issued his commission as such, said appointment to run from December 1, 1970, until the first Monday of January, 1972, and until his successor shall be duly qualified. Peirce took the oath of office and filed the requisite bond on December 8, 1970. He then sought physical possession of the office in the County Court House so that he could undertake his duties as ...