Ittel, Jr. et al. v. Tucker et al

Full title: Ittel, Jr., et al. v. Tucker, et al

Court: Commonwealth Court of Pennsylvania

Date published: Mar 13, 1973

302 A.2d 872 (Pa. Cmmw. Ct. 1973)

302 A.2d 872

Opinion

Argued March 12, 1973

March 13, 1973

Gubernatorial judicial appointment — Elections — Terms of office — New judgeships — Act of 1971, December 29, P. L. ___, No. 167 — Constitution of Pennsylvania, Article V, Section 13(b) — Words and phrases — Vacancy — Filling vacancies.

1. Action by the Governor in appointing judges to additional judgeships created by the Act of 1971, December 29, P. L. ___, No. 167, does not constitute tile filling of judicial vacancies so as to require that the terms of such appointees would expire and elections would be required at the times specified in the Constitution of Pennsylvania, Article V, Section 13(b), such section being applicable only to appointments to fill vacancies.

2. A vacancy in a judicial office occurs at the date when an incumbent in the office dies, resigns, retires, is removed or when his term ends, and the original appointment to a newly created judgeship does not constitute the filling of a vacancy.

Argued March 12, 1973, before Judges WILKINSON, JR., MENCER and BLATT, sitting as a panel of three.

Original jurisdiction, No. 231 C.D. 1973, in case of Frank W. Ittel, Jr., Robert N. Peirce, Jr., Richard J. Stampahar and Frank J. Staud, individually and on behalf of all the qualified electors of the County of Allegheny v. C. Delores Tucker, Secretary of the Commonwealth of Pennsylvania, Leonard C. Staisey, Thomas J. Foerster and William R. Hunt, Members of the Board of Commissioners of Allegheny County, Louis Sparvero, I. Martin Wekselman, Livingstone Johnson and Nathan Schwartz, Judges of the Court of Common Pleas of Allegheny County. Petition in the Commonwealth Court of Pennsylvania for declaratory judgment challenging the constitutionality of a statute and to declare commissions issued thereunder invalid. Held: Petition allowed. Act and commissions thereunder declared valid.

Rochelle S. Friedman, with her Frank W. Ittel, Jr., for petitioners.

Lawrence J. Beaser, Deputy Attorney General, with him Israel Packel, Attorney General, for respondents, Tucker, Sparvero, Wekselman, Johnson and Schwartz.

William R. Caroselli, Assistant County Solicitor, with him Anthony V. DeCello, Assistant County Solicitor, and Francis A. Barry, County Solicitor, for respondents, Staisey, Foerster and Hunt.

OPINION PER CURIAM, March 13, 1973:

For the reasons set forth in our opinion filed in Allegheny County Commissioners, et al. v. C. DeLores Tucker, 7 Pa. Commw. 649, ___ A.2d ___, filed February 20, 1973, we enter the following

ORDER

AND NOW, March 13, 1973, the Petition for Declaratory Judgment is allowed, and we hereby declare that the Act of December 29, 1971, P. L. 630, No. 167, Section 3, 17 Pa.C.S.A. § 790.63, is constitutional, and declare further that the commissions issued by C. DeLores Tucker, Secretary of the Commonwealth, to respondents Louis Sparvero, I. Martin Wekselman, Livingstone Johnson, and Nathan Schwartz are valid.