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ALEXANDER F. BARBIERI v. MILTON J. SHAPP (04/22/77)

decided: April 22, 1977.

ALEXANDER F. BARBIERI, INDIVIDUALLY AND ACTING IN HIS OFFICIAL CAPACITY AS THE COURT ADMINISTRATOR OF PENNSYLVANIA, PETITIONER
v.
MILTON J. SHAPP, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, ET AL., RESPONDENTS



Original jurisdiction in case of Alexander F. Barbieri, individually and acting in his official capacity as the Court Administrator of Pennsylvania, v. Milton J. Shapp, Governor of the Commonwealth of Pennsylvania; C. Delores Tucker, Secretary of the Commonwealth of Pennsylvania; Louis C. Mete, Commissioner of the Bureau of Elections, Commissions and Legislation for the Commonwealth of Pennsylvania.

COUNSEL

Jonathan Vipond, III, with him Eve L. Cutler, for petitioner.

Vincent X. Yakowicz, Solicitor General, with him Melvin R. Shuster, Deputy Attorney General, Alan M. Bredt, Deputy Attorney General, Gerald Gornish, Deputy Attorney General, Robert P. Kane, Attorney General, and Lawrence J. Beaser, Counsel to the Governor, for respondents.

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

Author: Bowman

[ 29 Pa. Commw. Page 596]

By petition for review in the nature of a complaint in equity and for declaratory judgment filed March 2, 1977, the Court Administrator of Pennsylvania seeks a declaration by this Court with appropriate relief that four identified judicial offices should be filled by the elective process in this year 1977 and not by the appointive process inasmuch as the incumbents during this year will attain the age of seventy years thereby creating vacancies in these judicial offices.

Petitioner would have us conclude that Article V, Section 10, of the Pennsylvania Constitution, as applied to the facts, requires such a result.

The matter is before us on respondents' motion for judgment on the pleadings,*fn1 an accelerated briefing

[ 29 Pa. Commw. Page 597]

    schedule and an advancement of argument. The facts are not in dispute. Four judges of various courts of common pleas presently serving their offices will each attain the age of seventy years between now and the forthcoming municipal election of November 8, 1977. These judges are: Hon. Alexander F. Barbieri, 1st Judicial District (Philadelphia County), elected to serve a term of office expiring the first Monday of January 1984; Hon. Lawrence A. Monroe, 7th Judicial District (Bucks County), elected to serve a term of office expiring the first Monday of January 1982; Hon. J. Quint Salmon, 36th Judicial District (Beaver County), elected to serve a term of office expiring the first Monday of January 1982; and Hon. Albert H. Heimbach, 56th Judicial District (Carbon County), elected to serve a term of office expiring the first Monday of January 1980.

The elective process as prescribed by the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. ยง 2600 et seq., for the municipal election year 1977, provides for these significant events and dates:

February 15, 1977 -- Last day for the Secretary of the Commonwealth to send to county boards of election written notice designating the public offices for which candidates are to be nominated at the primary;

February 15, 1977 -- First day to circulate nomination petitions and to ...


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