No. 722 January Term 1977, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 450 C.D. 1977
Albert C. Oehrle, Norristown, for appellant.
Paul J. Carey, Jr., Deputy Atty. Gen., Harrisburg, for appellee, Robert E. Casey.
Jonathan Vipond, III, Philadelphia, for appellee, Alexander F. Barbieri.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Nix, J., files a concurring opinion in which Flaherty, J., joins.
This is an appeal from an order of the Commonwealth Court denying appellant's motion for summary judgment and entering judgment for appellees on appellant's petition for review in the nature of mandamus.
The facts are as follows. Appellant, Leonard P. Flack, is a district justice of the peace for Magisterial District 38-2-20 located in Norristown, Montgomery County. Appellant began his first term of office on January 5, 1970, and commenced his second term on January 5, 1976. During his tenure in office, appellant's salary has been computed successively under the Magisterial Districts Act, Act of December 2, 1968, P.L. 1131, § 5, 42 P.S. § 1305, repealed by the Magisterial District Reform Act, Act of July 15, 1976, P.L. 1014, § 701(a)(2), 42 P.S. § 2701(a)(2), and the Magisterial District Reform Act, Act of July 15, 1976, P.L. 1014, § 206, 42 P.S. § 2206. Under both acts, the salary of a district justice was computed partly by reference to the population of his magisterial district. Hence, during appellant's first term of office, his salary, which is not part of the instant controversy, was $1,022.23 per month. This sum was determined on the basis of an annual salary of $6,000 plus forty cents for each resident of his district. The Court of Common Pleas of Montgomery County, on December 19, 1969, had certified that appellant's district contained a population of 15,667, and his salary was computed accordingly.
On January 4, 1971, this court ordered a recertification of the population of all magisterial districts using figures derived from the 1970 United States census. The recertification figures for Montgomery County were approved on January 31, 1975, and became effective the first Monday of January, 1976, coinciding with the new terms of all district justices, including appellant, elected in 1975.
Appellant's district, however, was inadvertently omitted from this recertification.
According to the United States census taken in 1970, appellant's district had experienced a decline in population. At the commencement of appellant's second term the population of his district was 12,723. Notwithstanding the population decline in his district, appellant, for the first six months of his second term, continued receiving a salary based upon the older, higher population figure.
On July 1, 1976, pursuant to the Magisterial District Reform Act appellant's salary was increased to $1,533.35 per month, based upon an annual rate of $9,000.00, plus sixty cents for each resident of the district. This increase, too, was computed using the pre-1970 population figure.
The error in the recertification was discovered and a corrected recertification which included the corrected population figure for appellant's district, was issued on July 1, 1976. Later, the fact that an incorrect salary had been paid to appellant was also discovered, and, on December 6, 1976, the Court Administrator, one of the appellees herein, informed appellant that he would, in the future, be paid the lower salary which recertification demanded, and directed that appellant undertake to return the overpayments he had received from the beginning of his second term.
Appellant filed a petition for review in the nature of mandamus in the Commonwealth Court, claiming that the actions of the Court Administrator violated Article V, § 16 and Article III, § 27 of the Pennsylvania Constitution. In denying appellant's motion for summary judgment, and entering judgment for appellees, the Commonwealth Court held that appellees had violated neither constitutional provision. The court also held appellant was liable only for those overpayments made after July 1, 1976, the date on which the corrected recertification was issued. Appellant appeals the finding of constitutionality.
Appellant relies upon Article V, § 16 of the Pennsylvania Constitution for support. That constitutional provision mandates:
"Justices, judges, and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth."
Appellant asserts the action of appellees amounts to a diminution of compensation during his ...