Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HERBERT L. FIRING v. HONORABLE A. EVANS KEPHART (04/25/75)

decided: April 25, 1975.

HERBERT L. FIRING, PLAINTIFF,
v.
HONORABLE A. EVANS KEPHART, COURT ADMINISTRATOR, AND HONORABLE GRACE M. SLOAN, TREASURER OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS



Original jurisdiction in case of Herbert L. Firing v. Hon. A. Evans Kephart, Court Administrator, and Hon. Grace M. Sloan, Treasurer of the Commonwealth of Pennsylvania.

COUNSEL

Lee D. Mescolotto, with him Santangelo, Lewis & Mescolotto, for plaintiff.

Jeffrey G. Cokin, Deputy Attorney General, with him Israel Packel, Attorney General, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Dissenting Opinion by Judge Kramer.

Author: Blatt

[ 18 Pa. Commw. Page 580]

Herbert L. Firing (plaintiff) initiated suit in this Court on May 9, 1974 by filing a complaint in mandamus against the Honorable A. Evans Kephart, the Court Administrator of the Commonwealth of Pennsylvania and the Honorable Grace M. Sloan, the Treasurer of the Commonwealth (defendants). The complaint alleges that the plaintiff was elected to the position of District Justice (justice of the peace) for Magisterial District 38-2-01 in Lower Pottsgrove Township in Montgomery County for a six-year term which was to expire on January 1, 1976. On September 29, 1973 the plaintiff reached the age of 70 which the Pennsylvania Constitution in Article V, Section 16(b) prescribes as the age for mandatory retirement of justices, judges and justices of the peace. Upon being forced then to retire, however, the plaintiff requested that the defendants continue to pay his salary until January 1, 1976. When they refused, he brought this suit, asserting principally that Article V, Section 16(a), which guarantees that compensation for justices of the peace shall not be diminished during their terms of office unless by law applying generally to all salaried officers, required the payment of his salary until the end of his elected term. The defendants have filed preliminary objections, asserting, inter alia, a demurrer to the plaintiff's complaint.

Preliminary objections in the nature of a demurrer admit as true all facts which are well and clearly pleaded in the complaint but not conclusions or averments of law.

[ 18 Pa. Commw. Page 581]

The plaintiff here contends essentially that "during their terms of office," as used in Section 16(a), includes the entire six years from the date when the justice of the peace takes office, notwithstanding that his mandatory retirement age may occur before the six years of his term have expired. The defendants, on the other hand, argue that in the application of Section 16(a) the term of the justice of the peace expires on the date of his mandatory retirement.

In interpreting a constitutional provision, we must carefully consider its spirit and intention. Commonwealth ex rel. Attorney General v. Beamish, 309 Pa. 510, 164 A.615 (1932). We must also construe a constitutional provision so as to avoid an impracticable or unreasonable result. Duane v. Philadelphia, 322 Pa. 33, 185 A.401 (1936).

The purpose of prohibiting the diminishment of compensation for justices, judges, and justices of the peace would clearly seem to be to preserve the independence of the judicial branch of our government. The temptation to reduce judicial salaries in the face of an unpopular decision has by this means been removed from the legislature and, by the same token, judicial officers need not fear such retaliation. "Next to permanency in office nothing can contribute more to the independence of the judges than a fixed provision for their support. . . . In the general course of human nature, a power over a man's substance amounts to a power over his will and we can never hope to see realized in practice the complete separation of the judicial from the legislative power in any system which leaves the former dependent for pecuniary resource on occasional grants of the latter." Bailey v. Waters, 308 Pa. 309 at 314, 162 A.819 at 821 (1932) (quoting from Alexander Hamilton in The Federalist No. 79).

The word "term" in the context of Section 16(a), of course, is admittedly capable of differing interpretations. With respect to the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.