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decided: January 18, 1980.


Original jurisdiction in case of I. Raymond Kremer, Charles P. Mirarchi, Jr., and Eugene Gelfand, Judges of the First Judicial District and Francis J. Catania (President Judge) and Joseph T. Labrum, Jr., Judges of the Thirty-second Judicial District and John W. O'Brien, Judge of the Fifth Judicial District and Milton O. Moss and Horace A. Davenport, Judges of the Thirty-eighth Judicial District on behalf of themselves and all other Judges similarly situated, Petitioners v. Alexander F. Barbieri, Court Administrator of Pennsylvania and Robert E. Casey, State Treasurer of the Commonwealth of Pennsylvania, Respondents.


Marvin Comisky, with him Lawrence J. Beaser, Larry Haft and Robert C. Daniels, for petitioners.

Kathleen M. Quinn, for Alexander F. Barbieri, respondent.

Jonathan Vipond, III, with him Vincent X. Yakowicz, Deputy Counsel, Louis G. F. Retacco, Chief Counsel, for Robert E. Casey, respondent.

William E. Woodside, for House of Representatives.

James H. Cawley, for Senate.

Gilbert Nurick, with him Francis B. Haas, Jr., William M. Young, of McNees, Wallace and Nurick, for Pennsylvania Bar Association, Amicus Curiae.

Stephen M. Feldman, with him J. Craig Currie, for Philadelphia Bar Association, Amicus Curiae.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, Craig and MacPhail. Judges Mencer and DiSalle did not participate. Dissenting Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Rogers.

Author: Per Curiam

[ 48 Pa. Commw. Page 560]

For reasons which may well be obvious, we would have much preferred that this case be decided elsewhere.

It is true that the petitioning judges and the petitioning association to which they belong, as well as all of the judges in whose behalf the petition is filed, are trial court and not appellate court judges. Nevertheless, our own position as appellate court judges may well appear to entail a conflict of interest. This we regret.

In addition, all of the petitioners -- individually and collectively -- are our colleagues in the judicial system of the Commonwealth of Pennsylvania. We know and respect them all and we understand the problems which they face in meeting their obligations now that the inflationary spiral has substantially reduced the purchasing power of their judicial salaries. Naturally, we would regret having to rule against them if our reading of the applicable law should so require.

Moreover, we realize that our own personal experience may color our evaluation of the factual data presented

[ 48 Pa. Commw. Page 561]

    here, for we have ourselves experienced the problems encountered by the petitioners and all others whose fixed incomes have not kept pace with rising prices. Yet, of course, we must not permit this personal experience to influence our legal conclusions.

Finally, the fact that we do not have either the General Assembly or the Governor before us here concerns us greatly. The only parties who were joined as respondents by the petitioners are the State Court Administrator and the State Treasurer, yet clearly neither of these officials can take any action whatever with respect to paying out higher judicial salaries to trial judges unless funds are appropriated for that purpose by the General Assembly and unless such appropriation is either approved by the Governor or readopted by the General Assembly over his veto. Consequently, we must regretfully rule on this petition in the absence of having had the parties before us whose participation would have been most helpful if not indeed necessary.*fn1

Posture of the Case

As indicated above, the petitioners are individual trial judges and the Pennsylvania Conference of State Trial Judges, which is an association of trial judges, and their petition is in the nature of a complaint in mandamus against the State Court Administrator and the State Treasurer (respondents). They had previously petitioned the Supreme Court to assume extraordinary jurisdiction and that petition was denied, so we are therefore required to exercise our jurisdiction under Section 761 of the Judicial Code, 42 Pa. C.S. ยง 761. An affidavit as to certain facts has been filed along with the petition by the petitioners and all

[ 48 Pa. Commw. Page 562]

    parties have joined in a stipulation of facts which includes their agreement that the pleadings are closed and that there is no genuine issue as to any material fact. Amicus Curiae briefs have been filed by the General Assembly in support of the respondents and by the Pennsylvania and Philadelphia Bar Associations in support of the petitioners. Both the petitioners and the respondent State Treasurer have moved for summary judgment.

The Commonwealth Compensation Commission Report

On January 30, 1979, the Commonwealth Compensation Commission (Commission) issued a report on compensation adjustments for cabinet officers, legislators and legislative officers, and justices and judges, which contained a recommendation, along with a recommended salary increases for members of the General Assembly and cabinet officers, that "annual salaries of justices and judges . . . be increased by 15 percent, which figure represents an average increase of seven and one-half percent for the next two years." 9 Pa. B. 1029, 1033. Pursuant to the enabling legislation which governs the Commission's operations,*fn2 the report was scheduled to take effect with the force of law unless it was rejected by the General Assembly within 30 days of its submission.

On February 13, 1979, the State Senate passed a concurrent resolution which rejected the Commission report in its entirety, and on February 20, 1979, the State House of Representatives concurred in the Senate resolution. As a result, the petitioners here and the judiciary in general were denied an increase in their compensation, even though the report specifically noted that all of the increases which it proposed

[ 48 Pa. Commw. Page 563]

    were required because "the purchasing power of top State officials has been seriously eroded by continuing inflation as measured by an estimated price increase of 55.7 percent [since 1972]." 9 Pa. B. 1029.

In support of their request to us that we issue a writ of mandamus directing the respondents to increase trial judge salaries to the level recommended by the Commission, the petitioners argue that the General Assembly's rejection of the Commission report was invalid because its members voted on the resolution without disclosing their personal interest in it. This argument is premised on the restriction in Article III, Section 13 of the Pennsylvania Constitution which provides that:

A member who has a personal or private interest in any measure or bill proposed or pending before the General Assembly shall disclose the fact to the House of which he is a member, and shall not vote thereon.

Because the members of the General Assembly would have received a salary increase had the report become effective, the petitioners contend that the members had a personal interest in the matter. The petitioners note, however, that the legislative journals indicate no member's disclosure of the fact of his interest in the matter. They conclude therefore that the votes taken on the matter were invalid, that the legislative attempt to reject the Commission report was void, and that the report therefore became law at the expiration of the prescribed 30-day period for legislative action thereon.

We must reject this argument as without merit.

In the first place, our Constitution specifically gives to the members of the General Assembly the power to set the compensation for members of the General Assembly. Article II, Section 8 provides:

The members of the General Assembly shall receive such salary and ...

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