Original jurisdiction in case of The Honorable Raymond Pace Alexander, The Honorable Raymond V. Bolger and The Honorable Peter F. Hagan, on behalf of themselves and all others similarly situated, v. The Honorable A. Evans Kephart, Court Administrator, and The Honorable Grace M. Sloan, Treasurer of the Commonwealth of Pennsylvania.
Marvin Comisky, with him Alan C. Gershenson and, of counsel, Blank, Rome, Klaus & Comisky, for plaintiffs.
Melvin R. Shuster, Deputy Attorney General, with him Israel Packel, Attorney General, for defendants.
Isidor Ostroff, with him Ostroff & Lawler, for amicus curiae, Philadelphia Bar Association.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.
[ 13 Pa. Commw. Page 169]
Plaintiffs are three Retired Judges of the Courts of the Commonwealth who have brought the present action pursuant to Rule 2230 Pennsylvania Rules of Civil Procedure as members of the class of Retired Judges "called back to perform duties," on behalf of themselves and all other Retired Judges in the Commonwealth.*fn1
[ 13 Pa. Commw. Page 170]
Plaintiffs filed the instant action in Mandamus against the Court Administrator and the State Treasurer to compel payment to Retired Judges at the rate of $125 for each day of service. The Defendants filed Preliminary Objections, in the nature of a demurrer, to this Complaint in Mandamus which were overruled by an Opinion and Order of this Court filed November 2, 1973.*fn2 Plaintiffs then filed a Motion for Judgment on the Pleadings, alleging that the only issues in dispute are legal ones fully amplified in the pleadings and during oral argument on the Preliminary Objections before this Court. Defendants then filed a Motion for Summary Judgment with accompanying affidavits and exhibits.
The facts of this case are fully laid out in our opinion disposing of the Defendants' Preliminary Objections, so we do not feel compelled to again recite them.
The issue in this matter is whether Senate Resolution No. 100 which rejected the Commonwealth Compensation Commission report on proposed raises for the Executive, Legislative and Judicial Branches to the extent that such report increases the salary of any such person greater than $2500, applies to that part of the Commission's report on the proposed increase for Retired Judges from $75 to " $125 per court day."*fn3
Defendant argues, in effect, that any compensation which goes beyond reimbursement for expenses must be considered "salary." Since the $125 per court day paid to the Retired Judges exceeds expenses, this ...