dissenting.
The questionable reasoning employed by the majority to reach its result reflects a reluctance to accept the view that the State’s use of a patronage system in the management of its affairs has First Amendment implications. In the instant case the record does not reveal any dereliction of the employee that could have been the basis for the order of dismissal. To the contrary, the notice of dismissal recognized and commended appellant for his faithful service.1 Nevertheless, the majority sustains the dismissal because appellant has failed to establish that he was without fault. In so doing, the fundamental evidentiary principle that one cannot fairly be required to prove a negative has been ignored. See Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968); 9 Wigmore, Evidence, § 2468 (1940). By placing such an impossible burden of proof as a condition to relief, it renders illusory a principle it purports to recognize. My sympathies are with the result reached, but a faithful adherence to the pronouncements of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) requires a contrary result.
My personal views are reflected by Justice Powell:
*289History and long-prevailing practice across the country support the view that patronage hiring practices make a sufficiently substantial contribution to the practical functioning of our democratic system to support their relatively modest intrusion on First Amendment interests. The judgment today unnecessarily constitutionalizes another element of American life — an element certainly not without its faults but one which generations have accepted on balance as having merit. We should have heeded, instead, the admonition of Mr. Justice Holmes that “[i]f a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it. . .” Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, [10] 67 L.Ed. 107 (1922); see Walz v. Tax Commission, 397 U.S. 664, 678, 90 S.Ct. 1409, [1416] 25 L.Ed.2d 697 (1970).
Elrod v. Burns, supra, 427 U.S. 388-89, 96 S.Ct. 2696-97 (1976) (Powell, J. dissenting, joined by Burger, C. J. and Rehnquist, J.)
An employment at will has unnecessarily been given constitutional protections. Tenure laws and civil service protection provide the necessary continuity in public employment. I am satisfied that reasonable patronage practices preserve the democratic process and do not erode the efficiency of government. The development of patronage practices contributed to the desired demise of an aristocracy’s domination over political affairs. The erosion of that practice would reestablish the former aristocracy.
Nevertheless, the supremacy clause requires that we adhere to the Supreme Court’s interpretation of the Constitution. Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700, cert. denied, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1971); Commonwealth ex rel. Banks v. Hendrick, 430 Pa. 575, 243 A.2d 438 (1968); Commonwealth v. Robin, 421 Pa. 70, 218 A.2d 546 (1966). If we faithfully follow the precepts in Elrod and Branti, we have no recourse in this case but to grant the requested relief.
. Dear Mr. Branchick:
This is to advise you that in the course of my continuing review of key personnel and operations in the Department, I find that I am unable to retain you beyond close of business April 24, 1979.
Concerning your group life policy, Blue Cross/BIue Shield coverage, your earned unused annual leave and other matters, please contact the Personnel Office regarding your benefit rights.
I want you to know that I appreciate your past service to this department and you have my best wishes for success in all future endeavors.
Sincerely,
Myron L. Joseph