Original jurisdiction in case of Leonard P. Flack v. Alexander F. Barbieri, Court Administrator, and Robert E. Casey, State Treasurer. Petition for review in the nature of mandamus in the Commonwealth Court of Pennsylvania to restore former salary to district justice.
Albert C. Oehrle, with him Wilson, Oehrle & Drayer, for petitioner.
Jonathan Vipond, III, with him Eve L. Cutler and Alan A. Bredt, for respondents.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson, Jr.
[ 32 Pa. Commw. Page 171]
The petitioner in this case is a District Justice of the Peace for Magisterial District 38-2-20, located in Norristown. He is here seeking summary judgment on his petition for review in the nature of a complaint in mandamus. The petitioner contends that the respondents, the Court Administrator and the State Treasurer, have wrongfully diminished his salary during his term in office in violation of Article V, § 16, and Article III, § 27, of the Pennsylvania Constitution.
Petitioner began his first term in office on January 5, 1970, and completed that term on January 4, 1976. During this period, the petitioner received a monthly salary of $1,022.23. This salary was computed under Section 5 of the Magisterial Districts Act, Act of December 2, 1968, P.L. 1131, 42 P.S. § 1305, repealed by Section 701(a)(2) of the Magisterial District Reform Act (Reform Act), Act of July 15, 1976, P.L. 1014, 42 P.S. § 2701(a)(2), which provided a justice of the peace with an annual salary of $6,000 plus the product of the population of his magisterial district times forty cents. The Court of Common Pleas of Montgomery County on December 19, 1969 had certified that petitioner's district contained a population of 15,667, and his salary was computed accordingly.
[ 32 Pa. Commw. Page 172]
During the first six months of petitioner's second term in office, January 5, 1976 through June 30, 1976, his monthly salary remained at $1,022.23. On July 1, 1976, as alleged in paragraph 12 of the Petition for Review and admitted in the Answer, petitioner's salary was increased to $1,533.35 per month, under the provisions of Section 206 of the Reform Act, 42 P.S. § 2206. The Reform Act provided that the annual salary of a district justice would be $9,000 plus the product of the population of his magisterial district times 60 cents. This was clearly in error for the Reform Act did not become effective until 60 days after July 15, 1976, when the Governor signed the bill, i.e., September 13, 1976. See, The Statutory Construction Act of 1972, 1 Pa. C.S. § 1701(b)(2); 1973 Op. Atty. Gen. No. 71.
The petitioner was paid this new salary, still based on a population figure of 15,667 persons, through November of 1976. Then, on December 6, 1976, the Court Administrator informed the petitioner that his salary would be lowered to $1,386.15 per month, and that arrangements should be made for the return of alleged overpayments to the petitioner for the period from January 1976 through November 1976.
The decrease in salary arose from a recertification of the population in petitioner's district, which used 1970 census figures and set the total number of persons living in petitioner's district at 12,723.*fn1 A statewide
[ 32 Pa. Commw. Page 173]
recertification of magisterial districts using 1970 census figures had been ordered by the Pennsylvania Supreme Court on January 4, 1971. The recertification figures for Montgomery County were approved on January 31, 1975, and became effective the first Monday of January 1976. This recertification, however, ...