Consolidated actions in Mandamus and Equity filed as original jurisdiction actions. Preliminary objections filed by defendants.
Richard P. Brown, Jr., with him Samuel C. Harry and Morgan, Lewis and Bockius, for plaintiffs.
Israel Packel, Counsel to the Governor, with him J. Shane Creamer, Attorney General, for defendants.
President Judge Bowman and Judges Crumlish, Jr., Kramer and Wilkinson, Jr.
[1 Pa. Commw. 337 Page 339]
Because of the important issue involved and the urgency for prompt disposition this Court sat specially to hear argument in the above consolidated cases on March 8, 1971. After hearing argument and deliberating, a per curiam order and judgment was entered the same day, the essence of which declared that the Secretary of the Commonwealth had unlawfully certified that the office of Judge of the Commonwealth Court now held by Judge Theodore O. Rogers was subject to the elective process in the forthcoming municipal election.
An appeal has been taken to the Supreme Court of Pennsylvania from our order and judgment. Pursuant to Rule 63 of the Supreme Court there follows a statement, in the form of an opinion, of the reasons for the order and judgment entered.
These consolidated cases, one in equity and one in mandamus, with identical party litigants, raise a unique and narrow constitutional question with an undisputed factual background.
Pursuant to Section 3 of The Commonwealth Court Act of January 6, 1970, P.L. (Act No. 185-1969), 17 P.S. 211.3, Judge Alexander Barbieri was appointed by the Governor as one of the first judges of the Commonwealth Court for a term to expire the first Monday of January, 1972. On January 4, 1971, Judge Barbieri submitted his resignation as a judge of the Commonwealth Court to take effect as of the time he was duly sworn as Justice of the Pennsylvania Supreme
[1 Pa. Commw. 337 Page 340]
Court. Judge Barbieri was appointed and sworn as a Justice of the Supreme Court on January 4, 1971. January 4, 1971 is less than ten months prior to the next municipal election, which will take place November 2, 1971.
Plaintiff, Judge Theodore O. Rogers, was appointed by the Governor January 4, 1971 to fill the vacancy on the Commonwealth Court created by the resignation of Judge Barbieri. His commission specifies that his term is to end on the first Monday of January, 1974, which date is the first Monday of January following the next municipal election more than ten months after the vacancy occurred.
On February 24, 1971, defendant Secretary of the Commonwealth issued to all county Boards of Election in the Commonwealth a written notice, certifying that on November 2, 1971 there will be an election for the office of one Judge of the Commonwealth Court. That notice relates to the seat on the Commonwealth Court now held by Judge Rogers. Pursuant to the notice of the Secretary of the Commonwealth, on March 2, 1971 defendant Dauphin County Board of Elections published a notice declaring that there will be an election on November 2, 1971 for the office of Judge of the Commonwealth ...