Oliver N. Hormell, with him Hormell, Tempest, Simmons, Bigi & Melenyzer, for plaintiff.
Israel Packel, Special Assistant Attorney General, with him J. Shane Creamer, Attorney General, for Defendant.
Edward Friedman, Dechert Price & Rhoads, Davis G. Yohe, Peacock, Keller, Yohe & Day, for intervenor.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Wilkinson. Concurring Opinion by Judge Kramer.
[2 Pa. Commw. 190 Page 191]
The narrow issue before this Court in this case is whether the commissioning by the President of the United States of a Pennsylvania common pleas judge as a federal district judge, without a resignation by the judge or his assuming of the duties of his office as a federal district judge, constitutes his holding office within the meaning of the prohibition of section 17(a) of Article V of the Pennsylvania Constitution. We hold that it does not.
[2 Pa. Commw. 190 Page 192]
The arguments of the plaintiff are directed to the prohibitions of the Act of May 15, 1847, P.L. 186, § 1, as amended, 65 P.S. 1. However, this Act's application is to local officers and applies to "the office or appointment of justice of the peace, notary public, mayor, recorder, burgess or alderman of any city, corporate town or borough, resident physician of the lazaretto, constable, judge, inspector or clerk of election under this Commonwealth ". (Emphasis supplied.) Manifestly this refers to "judge, inspector or clerk of election" as election officials and not to judges of the several courts of the Commonwealth. Nevertheless, plaintiff's arguments apply with equal validity or invalidity to the prohibition of Article V, section 17(a) of the Pennsylvania Constitution.
Transparently, the abuse to be prevented by the constitutional prohibition was the assuming of duties incompatible with the duties of justice or judge of the courts of Pennsylvania.
On December 8, 1970, Honorable Barron P. McCune, then a judge of the Court of Common Pleas for Washington County, 27th Judicial District, was nominated by the President of the United States to the office of U.S. District Judge for the Western District of Pennsylvania. On December 16, 1970, the nomination was confirmed by the United States Senate and on December 18, 1970, Judge McCune was commissioned a federal judge. Admittedly, he continued to perform actively his duties as a common pleas judge until December 31, 1970. He did not take his oath of office or otherwise become invested or assume his duties as a federal district judge until January 22, 1971.
In the meanwhile, on December 28, 1970, Judge McCune notified the Governor of Pennsylvania of his intention to accept the appointment as a federal district judge and to resign effective 12:01 a.m., ...