Barbieri v. Shapp

368 A.2d 721, 470 Pa. 463, 1977 Pa. LEXIS 540
Supreme Court of Pennsylvania·Decided January 25, 1977·No. 3733 Miscellaneous Docket·Published·Cited by 13 cases

Opinions

OPINION

JONES, Chief Justice.

This is a Petition for Review of a governmental determination filed pursuant to the new Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1501 et seq. At issue is the possible extension, for one year, of the judicial term of office of William F. Cercone, Judge of the Superior Court of Pennsylvania. Our resolution of this question will determine the time in which Judge Cercone may file his declaration of candidacy for retention pursuant to Article V, Section 15(b), of the Pennsylvania Constitution and set the date on which he must run, if he should choose to do so, for retention election.

[465] Judge Cercone was duly elected to the office of Judge of the Superior Court of Pennsylvania on November 5, 1968, and was inducted into office on the first Monday of January 1969 (January 6, 1969). He has been serving as a Judge of the Superior Court since that time. Article V, Section 15(a), of the Pennsylvania Constitution provides in part that “[t]he regular term of office of justices and judges shall be ten years . . .” and were it not for a change wrought by the new Judiciary Article, Article V of the Pennsylvania Constitution, adopted in 1968, Judge Cercone could run for reelection in 1978 for a term commencing on the first Monday of January 1979. Section 13(a) of the new Judiciary Article, however, affected the election process by requiring that all judges be elected at municipal elections which, pursuant to Article VII, Section 3, of the Pennsylvania Constitution, are strictly held in odd-numbered years. For judges who were elected previously in even-numbered years this constitutional change created problems which were recognized by the framers of the new Judiciary Article. To allow for a smooth transition from the former to the present judicial system, Section 2 of the Schedule to Article V provides for the extension of judgeships which would naturally “expire on the first Monday of January in an odd-numbered year” to “the even-numbered year next following.” Thus, a judge elected under the old Constitution may comply with the Constitution and run for retention election “at the municipal election immediately preceding the expiration of the term of office . . . .” Pa.Const. art. 5, § 15(b) (emphasis supplied).

We must decide whether Section 2 of the Schedule to Article V applies to petitioner, Judge Cercone. Judge Cercone believes that it does so apply and wrote to petitioner, Judge Alexander F. Barbieri, Court Administrator of Pennsylvania, on June 9, 1976, asking Judge Barbieri to obtain for him from respondents, Milton J. [466] Shapp, Governor of the Commonwealth of Pennsylvania,1 and C. DeLores Tucker, Secretary of the Commonwealth,2 a new and corrected commission as a Judge of the Superior Court continuing in effect until the first Monday of January 1980. On June 23, 1976, Judge Barbieri joined in this request and forwarded a copy of Judge Cercone’s letter to the respondents. By letter dated July 9, 1976, and- on the advice of the Attorney General, Governor Shapp refused to amend the commission in the absence of a definitive decision on the question presented by the courts. This Petition for Review was then filed in the Commonwealth Court, which had jurisdiction to hear the petition.3 Because we deemed the issue presented to be of immediate public importance, we granted the parties’ Joint Application to Assume Plenary Jurisdiction.4

When the framers of the revised Article V met in convention they intended that the Schedule to that Article would serve as a bridge between the old and new judicial systems:

“The Convention is empowered to include in its recommendations those provisions which it deems essential to provide against difficulty in moving from one system to another. The transfer from a prevailing judicial order into a new one is quite likely to involve grave problems of compensation, election, tenure, jurisdiction, the transfer of powers etc., and unless provision is made in advance for the elimination of such [467] problems, confusion, uncertainty and inconvenience may result.
The traditional means for disposing of problems of this nature is a provision or series of provisions called the ‘Schedule’ which makes all necessary adjustments in the movement from one condition to another . ” The Pennsylvania Constitutional Convention 1967-68, Reference Manual No. 5, p. 7 (emphasis supplied).

The Schedule, as adopted, was expressly given “the same force and effect” as the provisions of Article V (see Pa. Const, art. 5, Schedule), and it included a section which authorizes the adjustment of judicial terms of Superior Court judges:

“The present terms of all judges of the Superior Court which would otherwise expire on the first Monday of January in an odd-numbered year shall be extended to expire in the even-numbered year next following.” Pa.Const. art. 5, Schedule, § 2 (emphasis supplied)

Because the effective date of the article and schedule was January 1, 1969,5 five days before the induction of Judge Cercone, respondents contend that his term is arguably not a “present” term subject to extension. We conclude otherwise for the reasons stated below.

The word “present” is defined by the Schedule: “where the word ‘present’ appears it speaks from the effective date hereof.” Pa.Const. art. 5, Schedule (emphasis supplied). Webster’s Third New International Dictionary gives as the first meaning of the word “from,” “to indicate a starting point.” Thus, when the word “present” is used in the Schedule, it speaks from January 1, 1969, continuing thereafter so long as the Schedule remains in effect. As it is used in Section 2, the word “present” is not confined to terms of Superior Court judges which existed or were in effect on the single day [468] of January 1,1969, but includes, as well, terms which commenced after the effective date of the new Constitution.

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Barbieri v. Shapp, 368 A.2d 721, 470 Pa. 463, 1977 Pa. LEXIS 540 (Pa. 1977).

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