Ottaviano v. Barbieri

386 A.2d 527, 478 Pa. 235, 1978 Pa. LEXIS 615

• Court: Supreme Court of Pennsylvania
• Decided: April 28, 1978
• Docket: No. 52 E.D. Miscellaneous Docket 1978
• Status: Published

Opinions

OPINION

PER CURIAM.

Petitioner, Ralph Ottaviano, as an employee of the Traffic Court of Philadelphia, filed a Petition for Writ of Prohibition directed against the Honorable Alexander Barbieri, Administrator for the court system of Pennsylvania and the Honorable Louis Vignola, President Judge of the Traffic Court of Philadelphia. This action was prompted by the issuance of a directive by respondent Vignola, dated March 22, 1978, advising all employees of the Traffic Court that within seven (7) days of the notice they were to “cease and desist all Partisan Political Activity or face removal from active employment status at the Philadelphia Traffic Court.” It was further determined that said directive was issued pursuant to a series of regulations promulgated by respondent Barbieri.

Petitioner is presently serving as a member of the Fifth Ward Democratic Executive Committee after having been duly elected in the primary election in the Spring of 1976. Petitioner’s term of office will expire on May 22, 1978. Prior to the receipt of the March 22nd directive, petitioner had filed as a candidate for the same office, to be filled in the primary election of May 16, 1978 for a term of two years. It was further established that the March 22nd directive was issued after the time prescribed under the Election Code within which candidates would be allowed to withdraw nominating petitions and to have their names removed from the ballot. 25 P.S. §§ 2873(d), 2874 (1963 & Supp. 1977-78).

In the instant action petitioner has challenged the Administrator’s right, to promulgate the aforementioned regulations and further asserts that the belated communication of the Traffic Court directive to him has caused an unreasonable hardship to him and to the constituents within his Ward.

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We find our decision in In Re: Prohibition of Political Activities, 473 Pa. 554, 375 A.2d 1257 (1977) to be controlling. Therefore, we grant petitioner’s third prayer, i. e., that the respondents be prohibited from preventing petitioner from serving the remainder of his elected term, which is scheduled to terminate on May 22, 1978. Said prohibition bars any type of disciplinary action by respondents against petitioner for the performance of his duties in that office for the remainder of the present term. Petitioner’s remaining requests are denied. Since the statutory period during which petitioner could have withdrawn his name as a candidate in the May 16, 1978 primary has elapsed, the presence of petitioner’s name on that ballot shall in no way be construed as a violation of the regulations of the State Court Administrator or the directive of the President Judge of the Traffic Court. However, petitioner is directed not to actively seek re-election, and in the event that he is re-elected, he must immediately resign his office if he continues in his present employment.

ROBERTS, J., files a dissenting opinion. POMEROY, J., files a dissenting opinion. MANDERINO, J., did not participate in the consideration or decision in this case.

Petitioner conceded at oral argument that the constitutionality of the regulations prohibiting political activities by court employees was determined adversely to his position by our decision in In Re: Prohibition of Political Activities, 473 Pa. 554, 375 A.2d 1257 (1977).