No. 20 E.D. Misc. Dkt. 1985.
Michael J. Stack, Jr., Stack & Gallagher, Stephen P. Gallagher, Philadelphia, for petitioner.
William R. Davis, Secretary of the Commonwealth, Mollie A. McCurdy, Harrisburg, for respondent.
Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a dissenting opinion in which Larsen, J., joins. Nix, C.j., did not participate in the consideration or decision of this matter.
Petitioner is a judge of the Court of Common Pleas of Philadelphia who desired to be a candidate for election to the seat on the Commonwealth Court of Pennsylvania vacated by the resignation of Judge Robert Williams on February 6, 1985. On that date petitioner initiated a declaratory judgment action in the Commonwealth Court requesting the court to declare that the vacant seat be filled at the 1985 municipal election and order respondent, the Secretary of the Commonwealth, to send to the county board of each county a written notice designating the vacant seat as one for which candidates were to be nominated at the May 21, 1985 primary election.*fn1 On February 8, 1985, a petition to assume plenary jurisdiction was filed with this Court. The petition was granted on March 1, 1985 and argument was heard on March 7, 1985.*fn2 On March 12, 1985, we issued an order denying petitioner's requested relief.
The question before us is how and when that vacancy may be filled. The Constitution plainly gives the answer. Section 13 of Article V of the Pennsylvania Constitution provides:
§ 13. Election of justices, judges and justices of the peace; vacancies
(a) Justices, judges and justices of the peace shall be elected at the municipal election next preceding the commencement of their respective terms of office by the electors of the Commonwealth or the respective districts in which they are to serve.
(b) A vacancy in the office of justice, judge or justice of the peace shall be filled by appointment of the Governor. The appointment shall be with the advice and consent of two-thirds of the members elected to the Senate, except in the case of justices of the peace which shall be by a majority. The person so appointed shall serve for a term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs or for the remainder of the unexpired term whichever is less, except in the case of persons selected as additional judges to the Superior Court, where the General Assembly may stagger and fix the length of the initial terms of such additional judges by reference to any of the first, second and third municipal elections more than ten months after the additional judges are selected. The manner by which any additional judges are selected shall be provided by this section for the filling of vacancies in judicial offices. (Emphasis added).
Reduced to its simplest terms, an election is required to fill a vacancy at the next municipal election that occurs more than ten months after the vacancy arises. In the case sub judice, the vacancy occurred on February 6, 1985. The 1985 municipal election is scheduled for November 5, 1985, approximately nine months ...