Reed v. Sloan

381 A.2d 421, 475 Pa. 570, 1977 Pa. LEXIS 931

• Court: Supreme Court of Pennsylvania
• Decided: December 1, 1977
• Docket: 67
• Status: Published

Opinions

OPINION OF THE COURT

NIX, Justice.

The issue raised in this appeal is whether an elected common pleas court judge is entitled to any salary and emoluments of his office for the period between the date the term of the office was to commence and the date when he actually took the oath of office, where his ascension to the bench was delayed because of a dispute over his right to hold that office and where during that interim period he continued in the practice of law and received income therefrom. Alternatively, it is contended that in any event there must be a set-off of the income earned from the practice of law during the period that his right to hold the office was being contested.

Robert C. Reed, appellee herein, sought election to the position of Judge of the Court of Common Pleas of the Thirty-Sixth Judicial District in the Municipal Election of November 6,1973. After that election a dispute arose which prevented the certification of the vote and ultimately came before this Court for resolution. See, In re Recount of Ballots, 457 Pa. 279, 325 A.2d 303 (1974). On October 12, 1974, after the conclusion of the aforementioned litigation and the certification of Judge Reed’s election to the office of judge, his commission of office was duly issued by the Governor and recorded on October 21, 1974. On the 21st of October, Judge Reed took his oath of office and commenced the performance of his judicial duties.

Thereafter, being unable to resolve the question of his status between the time that his statutory term began (January 7, 1974) and the time that he took the oath of office (October 21,1974), Judge Reed commenced an original action in mandamus in the Commonwealth Court against the Honorable Grace M. Sloan, then State Treasurer of the Commonwealth of Pennsylvania, and the Honorable Alexander F. Barbieri, Court Administrator of Pennsylvania. In that action, Judge Reed sought, inter alia, payment of the salary for his judicial office for the period from January 7, 1974 to October 21, 1974. The Commonwealth Court granted Judge Reed’s Motion for Summary Judgment and ordered that appellant, Alexander F. Barbieri, approve the payment to Judge Reed of $31,538.36 as judicial compensation for the contested period.¹ The Commonwealth Court further directed Ms. Sloan to pay upon receipt of a properly approved requisition the stated sum. Judge Barbieri filed an appeal to this Court from the decision of the Commonwealth Court² asserting that the monies earned by Judge Reed from the practice of law between January 7, 1974 and October 21, 1974, should be set-off against the amount awarded to Judge Reed by the Commonwealth Court.³

The pertinent constitutional and statutory provisions require that the terms of office for an elected judge of the Court of Common Pleas shall commence the first Monday of January next succeeding their election and that they shall be commissioned accordingly. Art. V, §§ 15(a) and 16(a) of the Constitution of Pennsylvania; Act of April 15, 1851, P.L. 648, § 11, as amended, 17 P.S. § 8; Act of April 30, 1874, P.L. 118, § 1, as amended, 17 P.S. § 9. The appellant does not dispute that the term of office for this judgeship began the first Monday of January after the November municipal elections, nor could such a challenge succeed in view of the above cited constitutional and statutory authorities. Our prior cases have also established the general proposition that an elected official who assumes office after a contested election is entitled to compensation as if he had served from the statutory commencement of his elected term. See Tarner v. Chambersburg Borough School District, 338 Pa. 417, 12 A.2d 106 (1939); Marshall v. Uniontown Borough School Dist., 262 Pa. 224, 105 A. 78 (1918); Jones v. Dusman, 246 Pa. 513, 92 A. 707 (1914); Rink v. Phila., 15 W.N.C. 345 (1884). This rule has been applied even where another individual has received compensation for rendering the service for the period of time in question. Marshall v. Uniontown Borough School, supra.

The theory upon which these decisions are premised is that the right of the holder of the office to receive the compensation annexed to the office is legislative (or constitutional as in this case) and not contractual. Following this reasoning the salary belongs to the officer, de jure regardless of whether he or a de facto officer discharged the responsibilities of the office during the disputed period. Cooke v. Roberts, supra. See also Commonwealth ex rel Shoemaker v. Thomas, 328 Pa. 19, 195 A. 103 (1937); Jones v. Dusman, supra. Extending this reasoning to the question of whether the de jure office holder is entitled to his salary subject to set-off of earnings from other sources this Court concluded:

“The distinction is based on the theory that no contractual relationship exists between the governmental unit and a public official, and that the compensation, being incidental to the office which the official holds, is governed by the right to the office, and cannot be diminished by the application of the doctrine of mitigation of damages which is based on the existence of a contractual relationship. See: Seltzer v. Reading, supra; Coble v. Metal Township School District, 178 Pa.Super. 301, 116 A.2d 113; Note, 150 A.L.R. 100.”

Vega v. Burgettstown Boro., 394 Pa. 406, 410, 147 A.2d 620, 622 (1958).

Appellant does not question the foregoing authority ⁴ but argues that Judge Reed waived or forfeited his right to judicial compensation because he engaged in the private practice of law during the period in question. We are urged to distinguish the instant facts from the holding of Vega v. Burgettstown Borough, supra, because of the prohibitions of Art. V, § 17 of the Pennsylvania Constitution and Canon 5 of the Code of Judicial Conduct. To focus the instant issue in proper perspective it must be emphasized that the general rule does not permit a diminishment of the compensation due to a public official by the application of the doctrine of mitigation of damages. Vega v. Burgettstown Borough, supra. Starting from this premise it is clear that the appellant must demonstrate that the manner in which these outside funds were generated necessitates the carving of an exception to the general rule.

Art. V, § 17 of the Pennsylvania Constitution provides in pertinent part:

“(a) Justices and judges shall devote full time to their judicial duties, and shall not engage in the practice of law,

Further, Canon 5 of the Code of Judicial Conduct implements this constitutional prohibition by providing in Section F that a judge should not practice law. However, in both instances the prohibition is applicable to one who is actually serving as a judicial officer. As noted by this Court as early as 1892, the “right ‘to practice as an attorney and counselor at law’ did not cease until he actually assumed the judicial office by taking the prescribed oath.” Kelly v. Herb et al., 147 Pa. 563, 565, 23 A. 889 (1892) (Emphasis added). See also Simmons v. Tucker, 444 Pa. 160, 281 A.2d 902 (1971). Therefore Judge Reed’s actions in continuing his practice of law during the period between January 7, 1974 and October 21, 1974 were unquestionably proper and not in any way violative of the incompatibility prohibition. A requirement that an attorney must terminate his practice before a final determination of his right to the judicial office has been made would be an arbitrary rule-,⁵ and insensitive to the practical needs of an individual in such a situation.

The appellant attempts to distinguish Kelly v. Herb, supra, since it was decided under the Constitution of 1874 and preceded the Constitutional Amendments of 1968 and the Code of Judicial Conduct of 1974. However, the reasoning of Kelly was followed (although the decision was not cited) in Simmons v. Tucker, supra, which was decided after the Constitutional amendments of 1968.

“It is our view that one does not hold office as a federal judge until the oath of office is administered and that the date of the issuance or acceptance of the federal commission, while relevant in other contexts, . . ., is not relevant to a discussion of this Commonwealth’s constitutional and statutory incompatibility provisions.” Id., 444 Pa. at 164, 281 A.2d at 904.

Nor are we impressed with appellant’s argument that an appearance of impropriety is created by allowing Judge Reed to receive his judicial salary for the questioned period without a set-off for the funds he received from private practice during that time frame. The impropriety could only arise from the improper performance of his judicial responsibilities because of a competing interest related to his private practice. Where he did not discharge any judicial duties nor was he vested with the authority to perform such duties no such impropriety could occur. In such a situation any suspicion of impropriety would be groundless. We find no basis for concluding that the public trust in the integrity and independence of our judiciary would be in any way fostered by the position urged by appellant.

The fundamental fallacy in appellant’s argument is the failure to distinguish between the concurrent holding of two incompatible positions and the right to payment of salary for an office where there has been an involuntary deferred assumption of that position. The evil sought to be avoided by the incompatibility provisions is the improper performance of the duties of the office which might be inspired by the holding of an incompatible position. The fact that the person derives income from the incompatible position is only significant in that it might provide the incentive to improperly discharge the responsibilities of the public office. In the context of a deferred assumption of office it is therefore clear that the receipt of salary during the period during which the office holder was prevented from discharging the duties of the office could in no way occasion the harm sought to be avoided by our doctrine of incompatible offices.

The Order of the Commonwealth Court granting appellant’s motion for summary judgment is affirmed.

ROBERTS, J., files a dissenting opinion joined by PACK-EL, J. POMEROY, J., files a dissenting opinion,

1 . This case was appropriate for a ruling on a motion for summary judgment on the pleadings since there were no issues of fact which remain unresolved. See Coal Operators Casualty Co. v. C. T. Easterby & Co., Inc., 440 Pa. 218, 221, 269 A.2d 671, 672 (1970); and Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120, 262 A.2d 851, 853 (1970).

2 . We entertained jurisdiction of this appeal pursuant to Section 203 of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 203, 17 P.S. § 211.203 (Supp. 1977-78).

3 . Prior to the commencement of the suit, the State Treasurer sought and received an Official Opinion from the Attorney General of the Commonwealth of Pennsylvania which concluded that Judge Reed was entitled to his salary and other emoluments of office from January 7, 1974 without any set-off from income earned during the period prior to his taking of the oath of office. Pursuant to this opinion, the State Treasurer did not oppose Judge Reed’s claim before the Commonwealth Court and is not participating in the instant appeal before this Court. See Act of April 9, 1929, P.L. 177, art. V, § 512, as amended, Dec. 17, 1970, P.L. 935, No. 292 § 1, 71 P.S. § 192 (Supp. 1977-78).

4 . The dissenting opinion of Mr. Justice ROBERTS addresses the issue of whether a judge who was unable to assume office because of a contested election should receive compensation for that interim period during which time he performed no judicial services. This issue is not properly before this Court, since it is not the issue raised by appellant. Commonwealth v. Branham, 467 Pa. 605, 359 A.2d 766 (1976); Phillips H. F., Inc. v. Continental Bank, 467 Pa. 43, 354 A.2d 542 (1976); School Dists. of Deer Lakes & Allegheny Valley v. Kane, 463 Pa. 554, 345 A.2d 658 (1975); Benson v. Penn Central Transportation Company, 463 Pa. 37, 342 A.2d 393 (1975); Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975). Appellant concedes the proposition that an elected official is entitled to compensation in that situation, as if he had served from the statutory commencement of his elected term. The issue raised by appellant is whether this right to be compensated was forfeited by appellee by his engaging in the private practice of law during this interim period; and alternatively, whether the judicial compensation should be set off by income earned from the practice of law during this period.

While we are of the view that the merits of this issue are not before the Court in this case and, therefore, not properly considered here, we suggest that the dissent’s reliance on Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1974) is clearly misplaced. Firing involved the question of the right of a justice of the peace to receive a salary from the date that the office holder reached 70 years of age to the date upon which the term would otherwise have terminated. As expressed in Firing, a term of office is considered to have ended upon reaching age 70 or upon the expiration of six years, whichever occurs first. Article V, sections 15(a) and 16(b) of the Pennsylvania Constitution. If a justice of the peace reaches age 70 first, the term is ended and thus there is no basis for a claim for further compensation. The factual posture in Firing bears no similarity to the instant situation where the result of the dispute establishes that appellee was in fact entitled to have held the office from the commencement of the stated term.

5 . As Canon 5 suggests the reason for the prohibition against judges practicing law is to avoid the risk of conflict with his judicial duties. Obviously, no such conflict can possibly arise until he has assumed the responsibilities of the office of judge. Simmons v. Tucker, supra.