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ROGERS v. TUCKER ET AL. (06/24/71)

decided: June 24, 1971.

ROGERS
v.
TUCKER ET AL., APPELLANTS



Appeals from decree and judgment of Commonwealth Court, Commonwealth Docket Nos. 194 and 195, in cases of Theodore O. Rogers, et al. v. C. De Lores Tucker, secretary of the Commonwealth, et al.

COUNSEL

J. Shane Creamer, Attorney General, Israel Packel, Counsel to the Governor, for appellants.

Richard P. Brown, Jr., for appellees.

Bell, C. J., Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones, Mr. Justice Eagen, Mr. Justice Roberts and Mr. Justice Pomeroy concur in the result. Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: Bell

[ 443 Pa. Page 510]

On March 29, 1971, the Court entered the following Order: Judgment and Decree of the Commonwealth Court of Pennsylvania affirmed; Opinion to follow.

This case raises a difficult but very important Constitutional question: what is the date of election for the vacancy on the Commonwealth Court which was created by and occurred at the resignation of Judge Alexander F. Barbieri?

Judge Theodore O. Rogers was appointed by Governor Raymond P. Shafer on January 4, 1971, to fill the vacancy on the Commonwealth Court which was created by the resignation of Judge Barbieri on January 4, 1971. At the time of the vacancy, the Senate was not in session. See Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 281 A.2d 57 (1971), is "less" than ten months prior to the next municipal election which is to take place on November 2, 1971.

[ 443 Pa. Page 511]

Governor Shafer appointed Alexander F. Barbieri a Judge on the Commonwealth Court for an initial term ending the first Monday of January, 1972. Judge Rogers's commission stated that his term as a Judge of the Commonwealth Court was to terminate on the first Monday of 1974, which is the first Monday following the next municipal election which was scheduled to take place "more" than ten months after the vacancy (created by the resignation of Judge Barbieri) occurred.

Plaintiffs, Judge Rogers and certain citizens and taxpayers of Dauphin County, instituted an action in equity against the Secretary of the Commonwealth, and an action in mandamus against the Dauphin County Board of Elections, seeking (1) to have withdrawn the notices and orders issued respectively by the Secretary and the Board, which, inter alia, declared that an election to fill the vacancy on the Commonwealth Court would be held on November 2, 1971, and (2) a Court order or decree stating that no election would be held in 1971 for that Judicial office.

Defendants filed preliminary objections, contending that the facts alleged in the pleadings supported the notices, actions and orders for an election in November, 1971. The principal contention of the defendants is that " an appointment to fill a judicial vacancy cannot extend beyond the existing term of [ a resigned Judge ]*fn1 so as to defeat the constitutional right of the people to elect a judge for the ensuing term of office." The Commonwealth Court (consisting of four members), in a Per Curiam Order, i.e., a judgment and decree, unanimously sustained plaintiffs' complaints and granted the relief which they ...


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