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decided: December 1, 1977.



Susan L. Carroll, James D. Crawford, Schnader, Harrison, Segal & Lewis, Philadelphia, for appellant.

Gretchen Sohn Reed, Beaver, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts, J., files a dissenting opinion joined by Packel, J. Pomeroy, J., files a dissenting opinion.

Author: Nix

[ 475 Pa. Page 572]


The issue raised in this appeal is whether an elected common pleas court judge is entitled to any salary and emoluments of his office for the period between the date the term of the office was to commence and the date when he actually took the oath of office, where his ascension to the bench was delayed because of a dispute over his right to hold that office and where during that interim period he continued in the practice of law and received income therefrom. Alternatively, it is contended that in any event there must be a set-off of the income earned from the practice of law during the period that his right to hold the office was being contested.

Robert C. Reed, appellee herein, sought election to the position of Judge of the Court of Common Pleas of the Thirty-Sixth Judicial District in the Municipal Election of November 6, 1973. After that election a dispute arose which prevented the certification of the vote and ultimately came before this Court for resolution. See, In re Recount of Ballots, 457 Pa. 279, 325 A.2d 303 (1974). On October 12, 1974, after the conclusion of the aforementioned litigation and the certification of Judge Reed's election to the office of judge, his commission of office was duly issued by the Governor and recorded on October 21, 1974. On the 21st of October, Judge Reed took his oath of office and commenced the performance of his judicial duties.

Thereafter, being unable to resolve the question of his status between the time that his statutory term began (January 7, 1974) and the time that he took the oath of

[ 475 Pa. Page 573]

    office (October 21, 1974), Judge Reed commenced an original action in mandamus in the Commonwealth Court against the Honorable Grace M. Sloan, then State Treasurer of the Commonwealth of Pennsylvania, and the Honorable Alexander F. Barbieri, Court Administrator of Pennsylvania. In that action, Judge Reed sought, inter alia, payment of the salary for his judicial office for the period from January 7, 1974 to October 21, 1974. The Commonwealth Court granted Judge Reed's Motion for Summary Judgment and ordered that appellant, Alexander F. Barbieri, approve the payment to Judge Reed of $31,538.36 as judicial compensation for the contested period.*fn1 The Commonwealth Court further directed Ms. Sloan to pay upon receipt of a properly approved requisition the stated sum. Judge Barbieri filed an appeal to this Court from the decision of the Commonwealth Court*fn2 asserting that the monies earned by Judge Reed from the practice of law between January 7, 1974 and October 21, 1974, should be set-off against the amount awarded to Judge Reed by the Commonwealth Court.*fn3

The pertinent constitutional and statutory provisions require that the terms of office for an elected judge of the Court of Common Pleas shall commence the first Monday of

[ 475 Pa. Page 574]

January next succeeding their election and that they shall be commissioned accordingly. Art. V, §§ 15(a) and 16(a) of the Constitution of Pennsylvania; Act of April 15, 1851, P.L. 648, § 11, as amended, 17 P.S. § 8; Act of April 30, 1874, P.L. 118, § 1, as amended, 17 P.S. § 9. The appellant does not dispute that the term of office for this judgeship began the first Monday of January after the November municipal elections, nor could such a challenge succeed in view of the above cited constitutional and statutory authorities. Our prior cases have also established the general proposition that an elected official who assumes office after a contested election is entitled to compensation as if he had served from the statutory commencement of his elected term. See Tarner v. Chambersburg Borough School District, 338 Pa. 417, 12 A.2d 106 (1939); Marshall v. Uniontown Borough School Dist., 262 Pa. 224, 105 A. 78 (1918); Jones v. Dusman, 246 Pa. 513, 92 A. 707 (1914); Rink v. Phila., 15 W.N.C. 345 (1884). This rule has been applied even where another individual has received compensation for rendering the service for the period of time in question. Marshall v. Uniontown Borough School, supra.

The theory upon which these decisions are premised is that the right of the holder of the office to receive the compensation annexed to the office is legislative (or constitutional as in this case) and not contractual. Following this reasoning the salary belongs to the officer de jure regardless of whether he or a de facto officer discharged the responsibilities of the office during the disputed period. Cooke v. Roberts, supra. See also Commonwealth ex rel Shoemaker v. Thomas, 328 Pa. 19, 195 A. 103 (1937); Jones v. Dusman, supra. Extending this reasoning to the question of whether the de jure office holder is entitled to his salary subject to set-off of earnings from other sources this Court concluded:

"The distinction is based on the theory that no contractual relationship exists between the governmental unit and a public official, and that the compensation, being incidental to the office which the official holds, is governed by the right to the office, and cannot be diminished

[ 475 Pa. Page 575]

    by the application of the doctrine of mitigation of damages which is based on the existence of a contractual relationship. See: Seltzer v. Reading, supra; Coble v. Metal Township School District, 178 Pa. Super. 301, 116 A.2d 113; Note, 150 A.L.R. 100."

Vega v. Burgettstown Boro., 394 Pa. 406, 410, 147 A.2d 620, 622 (1958).

[ 475 Pa. Page 576]

Appellant does not question the foregoing authority*fn4 but argues that Judge Reed waived or forfeited his right to judicial compensation because he engaged in the private practice of law during the period in question. We are urged to distinguish the instant facts from the holding of Vega v. Page 576} Burgettstown Borough, supra, because of the prohibitions of Art. V, § 17 of the Pennsylvania Constitution and Canon 5 of the Code of Judicial Conduct. To focus the instant issue in proper perspective it must be emphasized that the general rule does not permit a diminishment of the compensation due to a public official by the application of the doctrine of mitigation of damages. Vega v. Burgettstown Borough, supra. Starting from this premise it is clear that the appellant must demonstrate that the manner in which these outside funds were generated necessitates the carving of an exception to the general rule.

Art. V, § 17 of the Pennsylvania Constitution provides in pertinent part:

"(a) Justices and judges shall devote full time to their judicial duties, and shall not engage in the practice of law, . . ."

Further, Canon 5 of the Code of Judicial Conduct implements this constitutional prohibition by providing in Section F that a judge should not practice law. However, in both instances the prohibition is applicable to one who is actually serving as a judicial officer. As noted by this Court as early as 1892, the "right 'to practice as an attorney and counselor at law' did not cease until he actually assumed the judicial office by taking the prescribed oath." Kelly v. Herb et al., 147 Pa. 563, 565, 23 A. 889 (1892) (Emphasis added). See also Simmons v. Tucker, 444 Pa. 160, 281 A.2d 902 (1971). Therefore Judge Reed's actions in continuing his practice of law during the period between January 7, 1974 and October 21, 1974 were unquestionably proper and not in any way violative of the incompatibility prohibition. A requirement that an attorney ...

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