Plenary jurisdiction in cases of J. Shane Creamer, Attorney General v. Twelve Common Pleas Judges, a Judge of the Commonwealth Court and a Justice of the Supreme Court of Pennsylvania; James H. J. Tate, Mayor of City of Philadelphia, and a taxpayer of the City of Philadelphia, on his behalf and on behalf of all the taxpayers of the said City v. Honorable D. Donald Jamieson, President Judge, Court of Common Pleas of Philadelphia, John E. Walsh, Jr., Herbert W. Salus, Jr.; and William J. C. O'Donnell, as an individual, as an officer of court of the Court of Common Pleas of the 15th Judicial District, on his own behalf and on behalf of that class of persons who have matters pending before said court v. Thomas A. Pitt, Jr., an additional law Judge of the 15th Judicial District.
Israel Packel, Counsel to Governor, for petitioner, Honorable J. Shane Creamer, Attorney General.
Levy Anderson, City Solicitor, with him Matthew W. Bullock, Jr., First Deputy City Solicitor, and John Mattioni, Deputy City Solicitor, for petitioner, Honorable James H. J. Tate, Mayor of City of Philadelphia.
William J. C. O'Donnell, petitioner, in propria persona.
Edward Friedman, with him Dechert, Price & Rhoads, for respondents, Honorable Alexander F. Barbieri, Honorable Theodore O. Rogers, Honorable Warren G. Morgan, Honorable John C. Dowling, Honorable Thomas D. Gladden and Honorable Louis D. Stefan.
Edward Friedman and I. Raymond Kremer, for respondents, Honorable John E. Walsh, Jr., and Honorable Herbert W. Salus, Jr.
Edward Friedman, with him Victor S. Jaczun, for respondent, Honorable Robert M. Mountenay.
Edward Friedman, with him Guy G. deFuria, for respondents, Honorable Domenic D. Jerome and Honorable Robert A. Wright.
Edward Friedman, with him Charles L. Casper, for respondent, Honorable Robert H. Aston.
James E. Beasley, for respondent, Honorable Paul J. Cody.
William H. Lamb, with him Susan P. Windle, and Lamb, Windle & McErlane, for respondent, Honorable Thomas A. Pitts, Jr.
Bell, C. J., Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones, Mr. Justice Eagen, and Mr. Justice Pomeroy in Support of per Curiam Order. Opinion by Mr. Chief Justice Bell Supporting in Part and Opposing in Part the Results Announced in the per Curiam Order. Mr. Justice O'Brien and Mr. Justice Roberts join in this Opinion. Mr. Justice Barbieri took no part in the consideration or decision of these cases.
The Court has unanimously determined that the gubernatorial appointments to judicial vacancies of Justice Barbieri, Judge Rogers, Judge Salus, Judge Stefan, Judge Jerome, Judge Wright, Judge Cody and Judge Gladden were valid.
The Court being equally divided in its determination of the validity of the gubernatorial appointments of Judge Morgan, Judge Mountenay, Judge Pitt, Judge Dowling, Judge Aston and Judge Walsh, the unexpected question presented is what action, if any, is to be taken. The principle is well established in this Commonwealth as well as many other jurisdictions that, when an appellate court is equally divided, the judgment, order or decree of the court below will be affirmed. See, 5B C.J.S., Appeal & Error § 1844(b) (1958). However, in the cases at bar, this Court, by order dated March 11, 1971, with Mr. Justice Roberts dissenting, under its King's Bench power and under the Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, Art. II, § 205, 17 P.S. §§ 211, 205 (1971), assumed plenary jurisdiction without the previous adjudication of any other court. Accordingly,
there is no judgment, order or decree to affirm, modify or reverse.
Mr. Justice Barbieri could not participate in the consideration or decision of these matters as his present position as an Associate Justice of this Court is contested herein.
In First Congressional Dist. Election, 295 Pa. 1, 144 Atl. 735 (1928), two election return judges were divided over the question whether certain ballot boxes should be opened. Before this Court on a writ of prohibition, it was pertinently stated: "When a legal or semi-legal tribunal consists of only two members, neither one of them can perform an affirmative act changing, or which may change, an existing condition; for it takes a majority of the whole body to do this, and one is not a majority of two. It is a universal rule that when a judicial or semi-judicial body is equally divided, the subject-matter with which it is dealing must remain in status quo : [citation omitted]." (Emphasis added.) 295 Pa. at 12-13. 144 Atl. at 739. See, also, Summers v. Kramer, 271 Pa. 189, 114 Atl. 525 (1921); Madlem's Appeal, 103 Pa. (7 Out.) 584 (1883). The rule is not different when this Court, exercising its King's Bench power and the authority vested in it under the Appellate Court Jurisdiction Act, is equally divided. Therefore, the requested relief cannot be granted.
Gubernatorial appointments to judicial vacancies of Justice Barbieri, Judge Rogers, Judge Salus, Judge Stefan, Judge Jerome, Judge Wright, Judge Cody and Judge Gladden unanimously held to be valid; as to the gubernatorial appointments of Judge Morgan, Judge Mountenay, Judge Pitt, Judge Dowling, Judge Aston, and Judge Walsh, the relief requested by petitioners was not granted.
Opinion by Mr. Justice Jones, Mr. Justice Eagen, and Mr. Justice Pomeroy in Support of per Curiam Order:
As a result of the opinion in opposition to the order, six common pleas judges, who have been performing judicial duties for many months, would be removed from office by reason of a highly technical and restricted reading of the Constitution of our Commonwealth. Such result would ignore both the rationale and wisdom of a prior decision of this Court as well as the
sound construction of a fairly similar constitutional provision in the United States Constitution by the federal courts.
The pivotal issue presented on these appeals is the validity of the gubernatorial appointments of fourteen judges and such validity, in turn, depends on when each vacancy in judicial office occurred in the constitutional sense. By choosing a date suspended in time, those in opposition to the order disserve the judiciary and make the validity of each appointment turn not on the merits of the appointees but on the fortuitous first date of the judicial vacancy. We would hold that the vacancy occurs not only on the first date but continues to occur until the vacancy is filled by gubernatorial appointment. Therefore, we believe all fourteen judges were validly appointed.
In construing the terms of the new Article V, § 13 (b), of the Constitution, our starting point should, it seems to us, be the law as it was before the adoption of the new Article by the electorate on April 23, 1968. Prior to 1968, the appointive powers of the Governor were contained exclusively in Article IV, § 8, of the Constitution. That Article provided in relevant part: ". . . [The Governor] may, during the recess of the Senate, fill vacancies happening in offices to which he appoints . . . and fill vacancies happening in . . . any . . . elective office he is authorized to fill. If the vacancy happens during the session of the Senate . . . he [the Governor] shall nominate to the Senate, before its final adjournment, a proper person to fill the vacancy."*fn1
In Commonwealth ex rel. Lafean v. Snyder, 261 Pa. 57, 104 Atl. 494 (1918), this provision was construed to mean that a vacancy in an appointive office which first came into existence during a session of the Senate, but was not filled during the session, continued to exist or to "happen" after adjournment of the session, and so could be filled by appointment without senatorial confirmation; and this was so even though the appointee's name had been submitted to but specifically rejected by the Senate.*fn2
With this the state of the applicable law, the Constitutional Convention of 1967-68 proposed, in accordance with the terms of its call (Act No. 2 of 1967), a new Judiciary Article, and this new article was adopted
by the electorate on April 23, 1968. This article, unlike its predecessor, included a section dealing with the filling of judicial vacancies, and a corresponding change was made in Article IV, § 8, to make that section inapplicable to such vacancies. The new section, § 13 (b), is as follows: "A vacancy in the office of justice, judge or justice of the peace shall be filled by appointment by the Governor. If the vacancy occurs during the session of the Senate, the appointment shall be with the advice and consent of two-thirds of the members elected to the Senate, except in the case of justices of the peace which shall be by a majority. If the vacancy occurs during sine die adjournment of the Senate such appointment shall not require the advice and consent of the Senate. The person so appointed shall serve for an initial term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs."
During the session of the Senate which commenced on January 5, 1970, and terminated by adjournment on November 17, 1970, six judicial vacancies occurred in courts of common pleas of the Commonwealth, one each in January, February, March and April and two in September. The Governor filled these vacancies in December, when the Senate was not physically nor (as the entire Court agrees) technically in session.*fn3 As we have seen, under our constitutional law as it existed previous to 1968, these appointments would have been entirely within the Governor's power. The question, then, is whether the changes effectuated by the Constitutional Convention of 1967-68 deprived the Governor
of the power which, since the Constitution of 1838, he had had with respect to judicial appointments. This requires an examination of the verbal changes that the appointive provision of the new Article V (§ 13(b)) made in the appointive provision of Article IV (§ 8).
As reference to the above quoted portions of the relevant sections will show, the new provision substitutes the word "occurs" for the words "happening" and "happens". (It also substitutes the term "sine die adjournment" for the word "recess".) As we view them, these are basically editorial changes, not changes in substance, for "occur" and "happen" are universally recognized as synonymous.*fn4 Moreover, the use of the present tense implies a continuity or timelessness in the event or state of affairs being considered, as distinguished from a single event relating only to a definite moment in time.*fn5 Had the drafters wished to change the prior law, it would have been easy enough to interpose the word "first" before "occurs", or to have used a past tense form, such as ...