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decided: December 15, 1983.


Appeal from the Order of the Court of Common Pleas of Snyder County in the case of Thomas C. Clark, District Attorney, Richard T. Nornhold, Sheriff, Richard G. Schuck, Prothonotary and Clerk of Courts of Snyder County v. Chester T. Troutman, Guy E. Mitterling, and Stanley T. Williams, Commissioners of Snyder County and T. W. Erdley, Treasurer of Snyder County, and Snyder County, No. 991 of 1978.


Edward G. Mihalik, Jr., for appellants.

Charles J. Ax, Jr., for appellees.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge MacPhail. Dissenting Opinion by Judge Barry.

Author: Macphail

[ 79 Pa. Commw. Page 84]

Thomas C. Clark and other elected public officials of Snyder County (Appellants) appeal from the May 4, 1982 order of the Court of Common Pleas of the 17th Judicial District, Snyder County Branch, which sustained the petition to stay execution and the petition to open judgment, of the Commissioners and Treasurer of Snyder County (Appellees). The court of common pleas in its order also dismissed Appellants' action in mandamus, vacated its own order of November 21, 1978, and terminated writs of execution on the 1978 order. Appellants seek a reversal of the trial court's order and a remand so that they may recover amounts unpaid under the judgment entered on the order of the trial court dated November 21, 1978.

The original action in the trial court arose after the legislature passed an amendatory act to the general

[ 79 Pa. Commw. Page 85]

    salary provisions,*fn1 providing salary increases for elected county officials. Appellants, who were elected to office in 1975, filed an action in mandamus in October 1978, seeking the salary increases provided by Act 223. In November 1978, both parties to the mandamus action submitted a petition for declaratory judgment,*fn2 which resulted in the order of November 21, 1978, that Appellants be paid annual salaries at the rate established by Act 223.*fn3 On July 5, 1979, Appellants filed a

[ 79 Pa. Commw. Page 86]

    praecipe for final judgment pursuant to which the prothonotary entered the following on the docket, "Final judgment is hereby entered".*fn4 Neither the order nor the judgment was appealed. The Appellants were paid the increased salaries from October 20, 1978, until the Appellees reduced the salaries to their original levels for the pay period ending July 6, 1979.

Our Supreme Court, in Bakes v. Snyder, 486 Pa. 80, 403 A.2d 1307 (1979), decided June 29, 1979, held that our Constitution*fn5 prohibits salary increases to an elected public official during his tenure. County officials, such as the Appellants in the instant case, fall within this prohibition. Id.

Following the Bakes decision, the Appellees reduced the Appellants' salaries to their prior levels. Appellants issued a writ of execution on July 31, 1979 for the difference between the salaries due under Act 223 and the salaries actually paid to Appellants for the pay period ending July 6, 1979, the sum of $423.09. Appellees, on September 28, 1979 filed petitions to open judgment and stay execution, whereupon the trial court entered its order of May 4, 1982, the subject of this appeal.*fn6

[ 79 Pa. Commw. Page 87]

Absent any other proceedings, there is no doubt the trial court is correct in deciding that Appellants, in light of Bakes, would not be entitled under Act 223 to receive salary increases after June 29, 1979. The more difficult question in the instant case arises because Appellants have a final, unappealed judgment under which they are entitled to the increases.*fn7 That the judgment was a result of a misinterpretation of law does not alter its finality. The facts of the present case do not fall within the provisions of Restatement (Second) of Judgments § 71 (1980), wherein it is said that a judgment which results from a mistake of fact or law may be avoided under certain conditions. As we have said, the nature of the mistake here was one of misinterpreting the law, which is not a condition set forth in Restatement (Second) of Judgments § 71 (1980).

Restatement (Second) of Judgments § 17 (1980) instructs us that a valid and final personal judgment is conclusive between the parties except on appeal or other direct review. As we have noted, there was no appeal from the judgment entered on the trial court's order of November 21, 1978. If we permit that judgment to be set aside now because of the decision in Bakes, nothing would prohibit the reopening or invalidation of any judgment when the interpretation of a law upon which that judgment is based is subsequently

[ 79 Pa. Commw. Page 88]

    and substantially changed. Such a result would create chaos in the law.*fn8

Appellees contend that our decision in Kestler, 66 Pa. Commonwealth Ct. 1, 444 A.2d 761 (1982), resolves the instant question. In Kestler, an adjudication by the court of common pleas*fn9 resulted in payment to county officials of Elk and Cameron Counties of the increased salaries enacted in Act 223. Subsequent to the Bakes decision, Elk and Cameron Counties sought a judicial determination of whether the officials should refund the increases thus received.*fn10 In reversing

[ 79 Pa. Commw. Page 89]

    the court of common pleas' decision that those officials need not refund the increases they received prior to Bakes, this Court did not discuss the effect of a preceding judgment, therefore, our decision there could not be controlling here.*fn11 This is a distinction with a difference between Kestler and the case which we now decide.

The Appellees in the instant case had ample opportunity to appeal the initial judgment against them. They failed to do so. It was only the subsequent Bakes decision by our Supreme Court which prompted them to act. "That a subsequent change in the judicial view of the law shall have no effect on a valid prior adjudication of the rights of the parties is a necessary and logical deduction from the basic policy of the doctrine of res judicata." In re: Estate of Tower, 463 Pa. 93, 101-02, 343 A.2d 671, 675 (1975). Appellees offer no argument that res judicata is inapplicable; instead, they appeal to the inherent power of the court to act where equity so requires. In fact, there are equitable considerations on both sides of this litigation.

We recognize that public policy is concerned with the outcome of this case, but we cannot use public policy to shrug off the distinctions between the facts of the instant case and those cited as authority by Appellees.*fn12

[ 79 Pa. Commw. Page 90]

For the foregoing reasons, we hold that Appellants are entitled to the writ of execution they secured on August 1, 1979; that the trial court erred when it opened the judgment based upon Bakes ; and, that the trial court, having ordered relief on the mandamus action pursuant to which judgment was taken, was without authority thereafter to dismiss the mandamus action "without proceedings to open".

Appellees urge that we order Appellants to refund the increased salaries which they have received, but Appellees failed to raise the issue below and have failed to cross-appeal.*fn13 Moreover, in light of our discussion and holding above, further consideration of this issue is unnecessary.

Order reversed.


The order of May 4, 1982, of the Court of Common Pleas of the 17th Judicial District, Snyder County Branch, is reversed.



Dissenting Opinion by Judge Barry:

I dissent. It is difficult to object to the logic of the excellent majority opinion. I cannot, however, sanction the violation of an oath to uphold the Pennsylvania Constitution. I believe that obligation is greater than upholding the sanctity of a judgment. I would affirm the orders of the 17th Judicial District, Snyder County Branch, and not consider such affirmance a precedent for any other case which attempts to open a judgment unless the facts are similar to the instant case and a constitutional question is similarly involved.

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