Leedom v. Thomas

373 A.2d 1329, 473 Pa. 193

• Court: Supreme Court of Pennsylvania
• Decided: June 3, 1977
• Docket: 344 Misc. Docket 21
• Status: Published

Opinions

PER CURIAM.

This action in quo warranto was commenced on February 24, 1977, invoking the original jurisdiction of this Court.¹ Relator John B. Leedom contends that he was duly elected to the office of district justice of the peace for magisterial district 7-2-01 and that he has been wrongfully denied his public office.

The writ of quo warranto is granted: respondent is removed from office and relator is declared entitled to the office to which he was elected. See Berardocco v. Colden, 469 Pa. 452, 366 A.2d 574 (1976).

NIX, J., dissents.

Opinions to follow.

OPINION OF THE COURT

ROBERTS, Justice.

This action in quo warranto was commenced in February 24, 1977, invoking the original jurisdiction of this Court.¹ Relator John B. Leedom contended that he was duly elected to the office of district justice of the peace for magisterial district 7-2-01 and that he had been wrongfully denied his public office. On April 22, 1977, this Court issued an order granting the writ of quo warranto and stating that opinions would follow.²

I

The facts are not disputed. In January 1975, the office of district justice of the peace for district 7-3-01 was held by Edward E. Dougherty. His term of office was to expire on January 5, 1976. By order of this Court, dated January 13, 1975, district 7-3-01 was reclassified and redesignated as district 7-2-01, effective January 5, 1976. On February 18, 1975, the election process for the position of district justice for the newly designated district 7-2-01 was initiated by a letter from the Secretary of the Commonwealth to the Bucks County Board of Elections, notifying the Board that the office was to be filled at the November 5, 1975 municipal election and that each eligible political party was to select its nominee at the May 20,1975 primary election.

On February 26, 1975, respondent William Thomas filed nominating petitions for the office of district justice on both the Democratic and Republican primary ballots. On March 6, 1975, relator Leedom and the incumbent district justice, Edward E. Dougherty, also filed cross-nominating petitions.

On April 23, 1975, Dougherty died. In the primary election of May 20, 1975, Leedom was nominated as the Republican Party candidate and Thomas was nominated as the Democratic Party candidate.

On June 9, 1975, the Governor nominated Thomas to fill the vacancy created by Dougherty’s death. The appointment was for a term ending the first Monday of January 1978.³ The Sentate confirmed the nomination on June 17, 1975. On June 24, 1975, the Senate passed a resolution to recall for further consideration its communication notifying the Governor of the confirmation. The Governor did not issue a commission to Thomas at this time.

By decision of the Bucks County Board of Elections, the office of district justice remained on the ballot in the municipal election. On November 5, 1975, Leedom was elected for a six year term commencing January 5, 1976. The Board of Elections issued a certificate of election to Leedom on November 24, 1975. Nevertheless, on December 16, 1975, the Governor issued a commission to Thomas for the office of district justice expiring on the first Monday of January 1978. Thomas took office on January 5, 1976 pursuant to the commission issued by the Governor.

On January 15, 1977, this Court’s decision in Berardocco v. Colden, 469 Pa. 452, 366 A.2d 574 (1976), was published in the Atlantic Reporter advance sheets. After learning of the decision, Leedom requested his commission for the office of district justice for district 7-2-01 from the Secretary of the Commonwealth. He also notified the Bucks County Board of Elections that since the office was filled in the 1975 municipal election, it should not appear on the 1977 ballot.

II

Under section 13(a) of article V of the Pennsylvania Constitution, judicial offices are filled by election.⁴ Section 13(b) provides that judicial vacancies “shall be filled by appointment by the Governor” and the appointee “shall serve for an initial term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs.”

In Berardocco v. Colden, 469 Pa. 452, 459, 366 A.2d 574, 577 (1976), this Court stated that the appointive process of section 13(b) was intended to fill vacancies “only until the office could again be filled by a popularly elected officer” and “was not intended to frustrate the electoral process.” Accordingly, we held that the ten month provision of section 13(b) does not apply when the normal election process for judicial office has commenced through the anticipated expiration of the incumbent’s term, even if the vacancy occurs less than ten months prior to the next municipal election. In that event, the appointment may be only for a term equivalent to what would have been the remainder of the previous term. 469 Pa. at 459, 366 A.2d at 577.

This case is controlled by our decision in Berardocco. Here, as in Berardocco, although the vacancy arose less than ten months before the 1975 municipal election, the normal election process had already been “triggered by the anticipated expiration of the incumbent’s term.” 469 Pa. at 457, 366 A.2d at 576. Thus; the “ten month” provision of section 13(b) is inapplicable. Thomas’ term of office as an appointed district justice of the peace ran only to January 5, 1976, the date that the previous incumbent’s term expired. Since Leedora was lawfully elected to the office for a six year term commencing January 5, 1976, he was entitled to assume office on that date.

Thomas seeks to distinguish Berardocco. He asserts that he ceased campaigning after he was nominated by the Governor to fill the vacancy created by Dougherty’s death and, therefore, a “normal election process” did not take place. We reject the contention that our decision in Berardocco rested on a finding that the parties had actively campaigned for the disputed office. We stated in Berardocco that the “ten month” provision of Pa.Const. art. V, § 13(b) was designed “to insure that the electoral process would be complete with a regularly conducted primary election, as well as a municipal election.” 469 Pa. at 459, 366 A.2d at 577 (footnote omitted). In this case, both the primary and municipal elections were duly conducted by the Bucks County Board of Elections. Thomas’ personal, strategic decision not to campaign in the municipal election in no way alters the regularity of the election and the applicability of Berardocco.

Thomas also raises the defense of laches. This defense bars relief when “the complaining party is guilty of want of due diligence in failing to institute his action to another’s prejudice.” Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 133, 221 A.2d 123, 126 (1966); accord, Thompson v. Curwensville Water Co., 400 Pa. 380, 162 A.2d 198 (1960); Commonwealth ex rel. Storb v. Schroll, 398 Pa. 354, 157 A.2d 179 (1960). A party asserting laches must demonstrate prejudice resulting from the lapse of time. Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975); Beaver v. Penntech Paper Co., 452 Pa. 542, 307 A.2d 281 (1973); Young v. Hall, 421 Pa. 214, 218 A.2d 781 (1966); Miller v. Hawkins, 416 Pa. 180, 205 A.2d 429 (1964); Brodt v. Brown, 404 Pa. 391, 172 A.2d 152 (1961). The question of laches is factual and is determined by examining the circumstances of each case. Siegel v. Engstrom, 427 Pa. 381, 235 A.2d 365 (1967); Wilson v. King of Prussia Enterprises, Inc., supra; Mulholland v. Pittsburgh National Bank, 418 Pa. 96, 209 A.2d 857 (1965).

Thomas argues that Leedom is guilty of laches because Leedom did not institute this action until February 1977. Thomas contends that he has been prejudiced by Leedom’s delay in the following ways: (1) he retired from the Pennsylvania State Police prior to the May 1975 primary election in order to run for the office of district justice; (2) he ceased campaigning after the Senate approved his nomination to fill the vacancy; and (3) he has devoted his full time to the responsibilities of his office and has attended courses and done outside reading to improve his skills.⁵ We conclude that Thomas has failed to establish that he was prejudiced during a period of inordinate delay.

Thomas resigned from the state police on April 2, 1975, before incumbent Dougherty’s death, the 1975 primary election and Thomas’ appointment to office by the Governor. Thus, his resignation preceded the material events which gave rise to this dispute and bears no relation to Leedom’s delay in bringing suit.

We also conclude that Thomas’ decision not to campaign in the municipal election cannot make out a defense of laches. Laches is founded on some change in the condition or relations of the parties which occurs during the period the complainant unreasonably failed to act. 2 J. Pomeroy, Equity Jurisprudence § 419d, at 177 (5th ed. 1941); see Kay v. Kay, supra; Wilson v. King of Prussia Enterprises, Inc., supra. It cannot be based on a change of position taking place before the complainant could have and reasonably should have brought suit. Here, it was reasonable for Leedom to wait until after the election to bring an action in quo warranto. Thomas had not yet assumed office. Since the purpose of quo warranto is to try the right of the defendant to presently exercise the office in dispute, Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966), an action at that time would have been premature.⁶ Leedom may also have lacked standing to institute an action before he won the municipal election. See generally Lehman v. Tucker, 470 Pa. 362, 368 A.2d 670 (1977). Instead of bringing suit, Leedom actively campaigned in the municipal election. This activity put Thomas on notice that Leedom believed himself entitled to the office if he won the election. Thus, during the period before Thomas took office, Leedom asserted his rights in a reasonable manner; Thomas’ failure to campaign is not attributable to any lack of diligence on Leedom’s part.⁷

Finally, the time and effort expended by Thomas in connection with the exercise of his duties of office do not establish that he was prejudiced by the delay.⁸ While these efforts are commendable, we cannot say that his attempt to conscientiously carry out his responsibilities constitutes prejudice sufficient to sustain the defense of laches.⁹ The time and effort Thomas expended amount to no more than performance of his duties, for which he was fully remunerated ¹⁰ and do not constitute a change in position. Nothing else in the record suggests that he suffered a prejudicial change in position during the period he held office.¹¹

For the reasons discussed above, Leedom was entitled to the writ of quo warranto issued by this Court on April 22, 1977.

NIX, J., filed a dissenting opinion.

1 . We hear this case pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 201(3), 17 P. S. § 211.201(3) (Supp.1976). See Berardocco v. Colden, 469 Pa. 452-454, n. 1, 366 A.2d 574-75 n. 1 (1976).

2 . Our order stated: “The writ of quo warranto is granted: respondent is removed from office and relator is declared entitled to the office to which he was elected.” Mr. Justice Nix dissented from the order granting the writ.

3 . Pa.Const. art. V, § 13(b) provides:

“A vacancy in the office of justice, judge or justice of the peace shall be filled by appointment by the Governor. If the vacancy occurs during the session of the Senate, 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. If the vacancy occurs during sine die adjournment of the Senate such appointment shall not require advice and consent of the Senate. The person so appointed shall serve for an initial term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs.’’ (emphasis added).

• On May 20, 1975, certain amendments to the Pennsylvania Constitution regarding judicial appointments were adopted. However, the amendments are not relevant to this case.

4 . Section 13(a) provides:

“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.”

5 . Thomas makes no claim that there has been any prejudice to the citizens who reside in the magisterial district as a result of Leedom’s delay in bringing this action. We do not believe that any problems which may arise from Thomas’ leaving office— which should be no more than the problems which normally arise when a district justice leaves office — outweigh the public policy in favor of having the citizens served by a constitutionally elected district justice.

6 . We note that in Berardocco, where Colden assumed office before the 1975 municipal election and Berardocco immediately instituted an action in quo warranto, we dismissed his complaint at that time without prejudice on the ground it was premature. 469 Pa. at 456, 366 A.2d at 575.

7 . Similarly, we reject Thomas’ contention that he has been prejudiced because he expended personal funds in pursuit of office. These expenses were incurred before his appointment by the Governor and certainly must have been incurred before the municipal election. Thus, they did not result from unreasonable delay by Leedom.

8 . Since we find no prejudice arose from Leedom’s delay in bringing suit after Thomas took office, it is unnecessary to determine whether Leedom failed to assert his rights with due diligence.

9 . Thomas’ reliance on Commonwealth ex rel. Storb v. Schroll, 398 Pa. 354, 157 A.2d 179 (1960), is misplaced. In Schroll, the trial court sustained the defense of laches raised in a quo warranto proceeding against an individual who had been holding the unsalaried position of School director for over two years prior to the suit. On the basis of the pleadings alone, the trial court found prejudice because defendant Schroll “must have” incurred some expenses in office and had contributed his “time, talents and energy” to the job. Id. at 359, 157 A.2d at 181. This Court reversed and remanded, reasoning that the pleadings alone were insufficient to establish the requisite prejudice. We stated the prejudice “should be a matter of proof, not conjecture or surmise.” Id. at 360, 157 A.2d at 182. The purpose of the remand was to ascertain the extent of Schroll’s efforts in this unsalaried position, whether he incurred any expenses or otherwise changed his position. Schroll did not establish that the exercise of official duties of office, by itself, is sufficient to establish prejudice and we decline to do so today.

10 . In this action, Leedom sought only a writ of quo warranto. At oral argument before this Court he stated that he would not seek back pay.

11 . Thomas asserts he has been prejudiced because: (1) if he is ousted from office he cannot run for district justice until 1981 and (2) since taking office, he has not sought outside employment. We disagree. Thomas’ inability to challenge Leedom until 1981 derives from Leedom’s lawful term of office, not the delay in bringing suit. Even if this action had been brought earlier, Thomas could not challenge Leedom until 1981. Nor has Thomas demonstrated that his employment opportunities diminished during the period he served as district justice. Thus, he is in no worse a position upon leaving office on the date of our mandate than he would have been had Leedom brought this action earlier.