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DENNIS E. THIEMANN v. RICHARD L. THORNBURGH (04/12/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 12, 1979.

DENNIS E. THIEMANN, PETITIONER
v.
RICHARD L. THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; ETHEL D. ALLEN, D.O., SECRETARY OF THE COMMONWEALTH; LOUIS C. METE, COMMISSIONER OF THE BUREAU OF LEGISLATION, COMMISSIONS AND ELECTIONS, DEPARTMENT OF STATE, COMMONWEALTH OF PENNSYLVANIA AND MICHAEL J. EAGEN, CHIEF JUSTICE, SUPREME COURT OF PENNSYLVANIA, RESPONDENTS

Original jurisdiction in case of Dennis E. Thiemann v. Richard L. Thornburgh, Governor of the Commonwealth of Pennsylvania; Ethel D. Allen, Secretary of the Commonwealth of Pennsylvania; Louis C. Mete, Commissioner of Legislation, Commissions and Elections, Department of State, Commonwealth of Pennsylvania; and Michael J. Eagen, Chief Justice, Supreme Court of Pennsylvania.

COUNSEL

Burton D. Morris, with him Baskin & Sears, for petitioner.

Robert E. Kelly, Deputy Attorney General, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judges DiSalle, Craig and MacPhail did not participate. Memorandum Opinion by President Judge Bowman. Judge Crumlish, Jr. dissents and being of the opinion that such election should be held in 1979, would grant the relief sought.

Author: Bowman

[ 42 Pa. Commw. Page 17]

By petition for review in the nature of mandamus and declaratory judgment filed March 19, 1979, petitioner, Dennis E. Thiemann, as a qualified elector, seeks a declaration by this Court with appropriate relief that the election of the successor to the Chief Justice of Pennsylvania whose elective term expires on the first Monday of January, 1981, be conducted in this municipal election year 1979, with the successful candidate to the office of Justice of the Supreme Court of Pennsylvania to be commissioned and to assume office on the date of the expiration of the term of the elective office of the present Chief Justice.

Prior to the filing of this cause of action, we had specially fixed argument for March 20, 1979, in the case of Barbieri v. Thornburgh, No. 394 C.D. 1979. The cases were consolidated for argument and oral argument was heard on March 20, 1979. An Order was issued

[ 42 Pa. Commw. Page 18]

    in this case and the companion case on March 26, 1979 (Judge Crumlish, Jr. dissenting) with the notation that an opinion would follow.

An opinion is being handed down today in the companion case of Barbieri v. Thornburgh, No. 394 C.D. 1979, which discusses and resolves the issue raised in this case as one of the several alternative solutions to the issues raised in that case. It shall, therefore, to the extent applicable constitute our opinion in this case in support of the Order heretofore issued.

Per Curiam Order

Now, March 26, 1979, the petition for review in the nature of mandamus and for declaratory judgment, in which the relief sought is to declare that the vacancy to be created on the first Monday of January, 1981, resulting from the expiration of the term of Chief Justice Michael J. Eagen is to be filled by the 1979 primary and municipal election process and directing respondents to so notify election officials and take all other steps necessary to effectuate the same, is hereby dismissed.

Opinion to follow.

Judge Crumlish, Jr. dissents and being of the opinion that such election should be held in 1979, would grant the relief sought.

Disposition

Election and appointment procedure established.

19790412

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