Alexander F. Barbieri v. Milton J. Shapp

Four common pleas judges reached mandatory retirement age in the summer and fall of 1977. Pa.Const. art. V, ? 16(b). Appellees, the Governor, the Secretary of the Commonwealth, and the Commissioner of the Bureau of Elections, Commissions, and Legislation, did not list these judgeships for election at the November, 1977, municipal elections. The Election Code requires that all positions to be filled at the municipal election be listed by the thirteenth Tuesday before Primary Day. This year the thirteenth Tuesday was February 15, 1977. On March 1, 1977, appellant, the Court Administrator of Pennsylvania, filed a petition for review in the Commonwealth Court, asking that appellees be required to list these judgeships for election. Appellees responded that under Pa.Const. art. V, ? 13(b), these judgeships should not be listed this year, but should be filled by gubernatorial appointment until the November, 1979, municipal election. The Commonwealth Court granted appellees motion for judgment on the pleadings and dismissed