# Zemprelli v. Thornburgh > Commonwealth Court of Pennsylvania · December 16, 1980 · 55 Pa. Commw. 330 URL: https://www.frixlaw.com/law-library/cases/9516232 ## Case - **Full name:** Edward P. Zemprelli, State Senator, Petitioner v. Richard L. Thornburgh, Governor, Respondent - **Court:** Commonwealth Court of Pennsylvania - **Decided:** December 16, 1980 - **Citations:** 55 Pa. Commw. 330; 423 A.2d 1072; 1980 Pa. Commw. LEXIS 1936 - **Precedential status:** Published - **Opinion:** Concurring in part by MacPhail - **Judges:** Crumlish, Wilkinson, Mencer, Blatt, Craig, MacPhail, Williams, Rogers, Besult - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9516232 ## Opinion text CoNCUEBING AND DISSENTING OPINION BY JUDGE MacPhail : I concur with the majority opinion except as to the issue covered in Part 5 thereof; that is, whether the language of Article IV, Section 8(b) requires the Governor to make appointments which he is authorized by law to make. Although I joined with the majority in Zemprelli I, I now feel that our language in that opinion to the effect that the constitutional amendment does not require the Governor to act to fill vacancies he does not choose to fill, is incorrect. In concluding that the language in the amendment deals not with any compulsion upon the Governor to act where he does not choose to act, but rather upon *350 the limitation of time within which he must act if he does choose to act, the majority relies upon grammatical construction, the “statutory bind” of compelling the Governor to act where he cannot do so after the ninety day limitation has expired and the availability of alternative means to compel the Governor to act. Neither of the two cases cited by the majarity to support the availability of such alternative means of enforcement deal with the constitutional duty of a governor to make appointments to fill existing vacancies. The radical surgery performed by those who drafted the amendatory language in the first sentence of subsection (b) seems to me to indicate that a determined effort was being made to assure that vacancies would be filled and that they would be filled promptly. The traditional hedging between the Governor and the legislature over whose move was next with respect to gubernatorial appointments was sought to be avoided and to me the language plainly fulfills that purpose. If we fail to give mandatory meaning to the words “the governor shall fill vacancies, ’ ’ the executive branch of government will still be able to thwart the intent of the legislature which presumably acts for the people in determining how many persons shall serve on the various commissions and boards where the Governor has appointive power. The failure to appoint will automatically reduce the number of such persons. Since I see no alternative means of compelling the Governor to act, I feel that this constitutional vehicle must be used and was intended for that purpose. The fact that any legal remedy pursued to compel the Governor to act appears to be futile because it can’t be instituted until ninety days have elapsed and the Governor is prohibited from acting thereafter should not deter us from holding that the governor has the duty to act. While legal remedies may be un *351 available, I am persuaded that the duty imposed upon the Governor will be fulfilled as any other constitutional duty by those who are elected to the highest office in the Commonwealth. In those instances where there is a failure to perform that duty, I am likewise persuaded that the people will act as they have in the past where high officials fail to perform their constitutional duties. I would grant summary judgment to the petitioners without the limitation imposed by the majority opinion. President Judge Crumlish joins in this concurring and dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9516232. Public record. Not legal advice.