Original jurisdiction in case of Alan Frank v. C. DeLores Tucker.
Stanley A. Uhr, with him Pechner, Sacks, Dorfman, Wolffe, Moss & Rounick, Raymond Radakovich, and Frank & Radakovich, for plaintiff.
Melvin R. Shuster, Deputy Attorney General, with him Robert P. Kane, Attorney General, for defendant.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt.
[ 21 Pa. Commw. Page 384]
Prior to the primary election held on May 20, 1975, and pursuant to her statutory duties under the Pennsylvania Election Code,*fn1 the Secretary of the Commonwealth ascertained that nine judgeships of the Court of Common Pleas of Allegheny County are to be filled at the municipal election of November 4, 1975, and so notified the Allegheny County Board of Elections. Candidates for these judgeships, among them, Alan Frank, the plaintiff in the instant action, were selected at the May primary and will appear on the November ballot in Allegheny County.
Subsequent to the primary election, two vacancies occurred on the Allegheny County Court of Common Pleas. On June 15, 1975, a vacancy was created by the death of the late Honorable Arthur Wessel, Jr. Judge Wessel had been elected to a ten-year term at the municipal election held in November, 1973, and his term was not due to expire until the first Monday of January, 1984. On September 12, 1975, the Governor nominated the Honorable I. Martin Wekselman to fill the vacancy caused by Judge Wessel's death, which nomination has not yet been confirmed by the Senate.*fn2
A second vacancy occurred on August 31, 1975, upon the resignation of the Honorable Homer S. Brown. Judge Brown was elected to a ten-year term at the municipal
[ 21 Pa. Commw. Page 385]
election held in November, 1967, and his term was not due to expire until the first Monday of January, 1978. The Governor has not yet submitted to the Senate a nomination to fill this vacancy occasioned by Judge Brown's resignation.
On August 25, 1975,*fn3 plaintiff filed in this Court his complaint in mandamus seeking an order to compel the Secretary to certify to the Allegheny County Board of Elections an additional two judgeships to be filled at the forthcoming November 4, 1975 municipal election. Defendant promptly filed an answer to the complaint with new matter and plaintiff filed a reply to new matter. Then plaintiff filed a motion for summary judgment which was specially set down for argument before the Court en banc for October 6, 1975, on the October 1975 Argument List at Philadelphia, with briefs directed to be filed at time of argument. Argument was heard on that day and it is now for disposition.
A novel and important constitutional issue is posed, the resolution of which, it is asserted, will control the outcome of this proceeding. Its novelty has been spawned by the recently adopted constitutional amendment*fn4 to Article IV, Section 8, and Article V, Section 13(b) of the Pennsylvania Constitution. This issue goes to judicial vacancies which occur within ten months of the next municipal election and the application of the appointing power of the Governor to fill such vacancies. Prior to the recent constitutional amendment, ...