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decided: December 16, 1980.


Original jurisdiction in case of Edward P. Zemprelli, State Senator v. Richard L. Thornburgh, Governor.


Michael T. McCarthy, Chief Counsel to the Majority Caucus, with him Ronald W. Andidora, Assistant Counsel to the Majority Caucus, for petitioner.

David H. Allshouse, Deputy Attorney General, with him Allen C. Warshaw, Deputy Attorney General, Chief, Civil Litigation, and Harvey Bartle, III, Acting Attorney General, for respondent.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Blatt, Craig, MacPhail and Williams, Jr. Judge Rogers did not participate. Opinion by Judge Craig. Judge Williams, Jr. Concurs in result only. Concurring and Dissenting Opinion by Judge MacPhail. President Judge Crumlish joins in this concurring and dissenting opinion.

Author: Craig

[ 55 Pa. Commw. Page 332]

In our previous opinion in this case, Zemprelli v. Thornburgh, 47 Pa. Commonwealth Ct. 43, 407 A.2d 102 (1979) (Zemprelli I) we decided the preliminary objections which respondent, the Governor of the Commonwealth of Pennsylvania, had interposed against this action in which petitioner, as a member of the Senate of Pennsylvania, seeks enforcement of Section 8(b) of Article IV of the Pennsylvania Constitution, providing in part that:

[ 55 Pa. Commw. Page 333]

(b) The Governor shall fill vacancies in offices to which he appoints by nominating to the Senate a proper person to fill the vacancy within 90 days of the first day of the vacancy and not thereafter.

In Zemprelli I, we overruled the preliminary objections, holding that petitioner has standing to bring the action, that the question is a justiciable one and that the 90-day provision of the constitution is mandatory as to the timeliness of nominations and not merely directory.

In examining the feasibility and appropriateness of a judicial remedy, as one of the criteria of justiciability prescribed by Baker v. Carr, 369 U.S. 186 (1962) and Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977), we gave serious consideration to problems of application which could arise and concluded (1) that, with respect to each successive governor, the 90-day period, as to any given vacancy, commences not earlier than the first day of such vacancy within each governor's term, and (2) that, as to the present Governor, we should initially apply the mandatory time limit only prospectively, by holding that no 90-day period shall start earlier than the effective date of the final judicial order in this case.

After our decision in Zemprelli I, respondent filed an answer and new matter, and petitioner filed a reply to the new matter. Each party has now filed a motion for summary judgment, with supporting affidavits. Both motions agree that there are no material facts now in dispute.

Petitioner does not question our previously-expressed view that each governor should have the benefit of the running of the entire 90 days within his respective term, but he (a) argues that a governor should be required to fill every vacancy within 90 days, without an option of inaction, and (b) asks that we

[ 55 Pa. Commw. Page 334]

    reconsider the approach of giving only prospective effect to our order in this case.

Our initial concern, however, must be with the questions raised by respondent, which, in view of our basic substantive conclusion in Zemprelli I, holding the 90-day time limit to be mandatory, are primarily in the nature of affirmative defenses, as follows:

1. Is petitioner barred from obtaining relief by the doctrine of judicial estoppel?

2. Is petitioner's cause barred by laches?

3. Under Pa. Const. art. IV, ยง 8(b), does a vacancy exist when the previous incumbent holds over after the end of a term of office?

4. If vacancies do not exist in the holdover situations, since the few remaining vacancies (among the offices named in this action) had not been in existence for as long as 90 days when this suit was commenced, is this proceeding moot -- or, perhaps more properly, is it premature?

We will initially consider the respondent's four questions and then, as the fifth and sixth questions respectively, the petitioner's issues concerning executive inaction and prospective application.

1. Judicial Estoppel

Is petitioner barred from relief here because petitioner, in his capacity as a Senator of the Commonwealth of Pennsylvania, has, by actions and statements at various times, taken positions inconsistent with the legal conclusion espoused by petitioner here?

Respondent's pleadings and affidavits as to the facts on this point can be summarized in substantially the words used in respondent's brief, which state that, at various times, petitioner has voted to confirm post-90-day nominations (during the term of the previous

[ 55 Pa. Commw. Page 335]

Governor), argued on the Senate floor that the 90-day provision was directory only (also during the previous gubernatorial term), then sponsored a resolution stating that Senate action on nominations made after 90 days would be unconstitutional, argued that the Senate could waive the 90-day limitation if it so desired, and now claims herein that the 90-day provision is mandatory and that gubernatorial failure to submit nominations within 90 days is a nullification of senatorial authority.

As legal authority, respondent quotes Wade v. Woodings-Verona Tool Works, Inc., 469 F. Supp. 465, 467 (W.D. Pa. 1979) to the effect that

[ A ] party may be precluded by a prior position taken in litigation from later adopting an inconsistent position in the course of a judicial proceeding. Scarano v. Central R. Co. New Jersey, 203 F.2d 510, 513 (3d Cir. 1953). (Emphasis in original.)

The same quotation describes the doctrine as applicable whenever a litigant plays "fast and loose" with the courts.

The difficulty with respondent's contention is that none of petitioner's allegedly inconsistent actions and statements, which all were in the course of senatorial proceedings, constitute "a prior position taken in litigation"; therefore none of those actions or statements come within the concept described in the authority on which respondent primarily relies.

Neither respondent's research, nor ours, has uncovered any authority for the proposition that a lawmaker is barred from ultimately taking a position in litigation contrary to that which he has previously taken in the legislative halls.*fn1 No legally operative

[ 55 Pa. Commw. Page 336]

    principle has yet countered the philosophical dictum by which Ralph Waldo Emerson has, over the years, comforted judges along with legislators and executives, stating that a "foolish consistency is the hobgoblin of little minds."*fn2

Judicial estoppel is not effective as a defense in this case.

2. Laches

Does the doctrine of laches bar this action as to three of the offices named in the petition for review, which refers to a vacancy which occurred on the Pennsylvania Game Commission as early as January 18, 1977, on the Pennsylvania Turnpike Commission as early as June 4, 1977 and on the Pennsylvania Liquor Control Board as early as March 7, 1978 -- all substantially before respondent Governor took office on January 16, 1979 and before the petition for review was filed in May 1979?

As is well understood, laches is applicable as a bar when protracted delay extends beyond the point at which an adverse party, in reliance upon the lack of a demand, reasonably makes a change of position. Leedom v. Thomas, 473 Pa. 193, 200, 373 A.2d 1329, 1332 (1977), defines laches as a ...

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