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HONORABLE ROBERT W. TREMBATH v. HONORABLE ALEXANDER F. BARBIERI AND HONORABLE GRACE M. SLOAN (03/18/77)

decided: March 18, 1977.

THE HONORABLE ROBERT W. TREMBATH, PLAINTIFF
v.
THE HONORABLE ALEXANDER F. BARBIERI AND THE HONORABLE GRACE M. SLOAN, DEFENDANTS



Original jurisdiction in case of The Honorable Robert W. Trembath v. The Honorable Alexander F. Barbieri and The Honorable Grace M. Sloan.

COUNSEL

David B. Disney, with him Francis B. Haas, Jr., and McNees, Wallace & Nurick, for plaintiff.

Jonathan Vipond, III, for defendant, Barbieri.

Gerald Gornish, Deputy Attorney General, with him Melvin R. Shuster, Deputy Attorney General, J. Justin Blewitt, Jr., Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant, Sloan.

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

Author: Kramer

[ 29 Pa. Commw. Page 339]

This case is intended to come within the original jurisdiction of this Court under the provisions of Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.401(a)(1). The action was commenced by the filing of a Complaint in Mandamus. The Plaintiff, The Honorable Robert W. Trembath, requested this Court to order the Court Administrator, The Honorable Alexander F. Barbieri, and The State Treasurer, The Honorable Grace M. Sloan, to make payment to him of his proper compensation due under the June 22, 1972 Report of the Commonwealth Salary Commission. After the pleadings had been completed, the matter was put before this Court on motion for judgment on the pleadings. There are no disputes as to the facts of the case nor the applicable law. The issue before the Court is a narrow one, involving the interpretation of those statutes providing for payments to retired or former judges recalled to service after their retirement.

Judge Trembath retired as a judge of the Court of Common Pleas of Wyoming County on November 30, 1971, after a distinguished career on the bench in service of the people of the Commonwealth. He elected to retire in the middle of a 10-year term pursuant to an option found in Section 401(4) of the State Employes' Retirement Code of 1959, Act of June 1, 1959, P.L. 392, as amended, formerly at 71 P.S. § 1725-401, repealed by the Act of March 1, 1974, P.L. 125.*fn1 Though Section 401(4) has been repealed, its provisions continue for those judges who exercised their

[ 29 Pa. Commw. Page 340]

    retirement option prior to its repeal.*fn2 As a result, Judge Trembath received approximately $27,000 a year, the salary he was receiving at the time of his retirement. In return, Judge Trembath agreed to hold himself available for judicial duties, as he has done at all times pertinent to the resolution of the issue in this case.

The dispute as to Judge Trembath's proper compensation arises as a result of the Commonwealth

[ 29 Pa. Commw. Page 341]

Salary Commission's Report of June 22, 1972. Issued pursuant to the Act of June 16, 1971, P.L. 157, No. 8 (repealed), the report provided for the payment of a per diem of $125 per court day, to "retired judges called back to perform duties." Appendix to 46 P.S. § 6 (repealed). Judge Trembath urges that the language of Section 401(4) ...


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