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HERBERT L. FIRING v. HON. A. EVANS KEPHART (03/17/76)

decided: March 17, 1976.

HERBERT L. FIRING, APPELLANT,
v.
HON. A. EVANS KEPHART, COURT ADMINISTRATOR, AND HON. GRACE M. SLOAN, TREASURER OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEES



COUNSEL

Santangelo, Lewis & Mescolotto, Lee D. Mescolotto, Pottstown, for appellant.

Jeffrey G. Cokin, Deputy Atty. Gen., for appellee, Hon. Grace M. Sloan.

William E. Zeiter, Jonathan Vipond, III, Philadelphia, for appellee, Court Administrator.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Eagen

[ 466 Pa. Page 562]

OPINION OF THE COURT

In November, 1969, Herbert L. Firing, plaintiff-appellant in this action, was reelected District Justice of the Peace for Magisterial District 38-2-01, and in January, 1970, he began to serve his new term. His seventieth birthday occurring on September 29, 1973, however, he was mandatorily retired, as required by Article V, Section 16(b) of the Pennsylvania Constitution. He subsequently filed a complaint in mandamus in the Commonwealth Court against the State Court Administrator and the Treasurer of the Commonwealth alleging that he had been elected to a six-year term of office which did not expire until January 1, 1976, and that Article V, Section 16(a) of the Constitution provides that the compensation of justices, judges, and justices of the peace shall not be diminished during their terms of office unless by law applying to all salaried officers of the Commonwealth; he asked that defendants [appellees] be ordered to pay the salary allegedly due him for the period subsequent to his retirement, which they had refused to pay. Appellees filed preliminary objections in the nature of a demurrer,*fn1 and the Commonwealth Court, with one judge dissenting, sustained the preliminary objections. See Firing v. Kephart, 18 Pa. Commw. 578, 336 A.2d 470 (1975). This appeal followed.*fn2

Initially, appellant urges that it was error to sustain appellees' preliminary objections. He argues that "the Defendants' obligation by demurring to Plaintiff's complaint is to show with certainty that the law will not permit

[ 466 Pa. Page 563]

    a recovery by the Plaintiff," and that "Defendants' position is based on their conclusion as to what the law means and does not show with certainty that the law will not permit a recovery by the Plaintiff . . . or that his claim is totally devoid of merit." Appellant, however, misconceives the function of preliminary objections in our jurisprudence.

We have held that preliminary objections in the nature of a demurrer admit as true only such facts as are well-pleaded, material, and relevant and only such inferences as are reasonably deducible from such facts, that they admit neither conclusions of law nor inferences unwarranted by the admitted facts nor argumentative allegations nor expressions of opinion, and that they will be sustained only in those cases which are clear and free from doubt if to sustain them would result in the denial of the claim or the dismissal of the suit. Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446, 160 A.2d 539 (1960), cert. denied 364 U.S. 288, 81 S.Ct. 50, 5 L.Ed.2d 38 (1960). By demurring to appellant's complaint in the instant case, appellees admitted as true the facts that appellant had been elected to the office of District Justice and that he served in that capacity until his mandatory retirement upon attaining the age of seventy, but they did not admit that his term was one of six years, since the extent of that term was a conclusion of law dependent upon the legal interpretation of the Constitutional requirement that justices of the peace be retired upon attaining the age of seventy.

Appellant nevertheless suggests that because the Constitution itself is not completely clear and free from doubt on this issue, the preliminary objections in the nature of a demurrer should not have been sustained, since such objections should be sustained only in cases which are clear and free from doubt. The test, however, is not whether the ...


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