10 Month Rule for Judge Vacancy When Reaching Mandatory Retirement Age

In Barbieri v. Shapp, 476 Pa. 513, 383 A.2d 218 (1978), the Supreme Court created a second exception to the ten-month rule for vacancies created by a judge reaching mandatory retirement age.

The Supreme Court explained that such a vacancy is not unanticipated, as is a vacancy created by death or resignation.

Rather, the vacancy is created by the unalterable fact that the incumbent cannot stand for election because of his age.

In Jackson v. Davis 507 Pa. 626, 632, 493 A.2d 687, 690 (1985), the Supreme Court explained its earlier holding in Barbieri as follows:

The date of the judge's mandatory retirement was known from the day he was born, seventy years before.

Thus, we deemed the certain knowledge that a vacancy was mandated, a fact known and knowable to all well before any type of electoral process commenced, that on a given, ineluctable date a vacancy would occur, was sufficient to satisfy the need to know beforehand that a vacancy would exist; and we found that such certainty satisfied the intention and purpose of the ten month requirement.

One may choose his resignation for a host of reasons, or be compelled by unanticipated causes, all of which can take the electoral process by surprise and swallow that reasonable period given the public to consider matters of such importance.

On the other hand, one's seventieth birthday, however seeming remote, can be calculated by waning moons and rising suns almost quicker than it seems to come. Jackson, 507 Pa. at 631, 493 A.2d at 689.