filed dissenting opinion.
I respectfully dissent.
The majority concludes that the Governor must act within a reasonable time in issuing a death warrant under 61 P.S. § 2123 and that mandamus is therefore available to compel him to do so. This conclusion is reached even though the statute in question provides no time frame within which the Governor must act. The majority rejects the Governor’s argument that gubernatorial delay with respect to the issuance of a death warrant is encompassed within the Governor’s constitutional power to grant reprieves. The majority concludes thát that power is not relevant until after the issuance of a death warrant. However, the language of the constitution contains no such limitation. The constitution states only that the Governor shall have the power to grant reprieves and does not limit that power until after a death warrant has been issued.
As the majority notes, a reprieve is simply the temporary relief from, or the postponement of execution of criminal punishment or sentence. The Governor’s delay in issuing a death warrant has the effect of granting temporary relief from the execution of the sentence and is therefore the equivalent *549of the grant of a reprieve. To compel him to issue such a warrant is therefore an interference with his power of reprieve and is a violation of the doctrine of separation of powers.
In Moore Nomination Petition, 447 Pa. 526, 291 A.2d 531 (1972), a congressional candidate argued that this court did not have jurisdiction of a challenge to his nomination petition because the court did not schedule a hearing on the objections within ten days of the last day on which the nomination petition could be filed. Section 977 of the Pennsylvania Election Code 1 states that the court “shall” schedule a hearing no later than ten days after the last day for filing the nomination petition. The Supreme Court held that the scheduling of the hearing was a purely judicial function and that the language in the Code was therefore directory and not mandatory.
Here we have an analogous situation where the petitioner is asking this court to interfere with a purely executive function, the decision whether to grant a death warrant. This case presents an even stronger situation than Moore for the conclusion that the language in the statute is directory because the statute contains no time limit for the Governor to take action.
The cases cited by the majority in support of its holding are clearly distinguishable. In Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982), the Supreme Court held that where statutory language provided that a stay of a regulation shall be granted by the judiciary when the Attorney General so requests, the courts were not left with any discretion as to whether to grant the stay. Zimmerman did not involve the interference with a purely judicial function and did not involve an attempt to force the courts to act within a timeframe not specified in a statute.
In Zemprelli v. Thornburgh (Zemprelli II), 55 Pa.Commonwealth Ct. 330, 423 A.2d 1072 (1980), this court was asked to interpret article IV, § 8(b) of the Pennsylvania Constitution which states that “The Governor shall fill vacancies in offices to which he appoints by nominating to the Senate a proper person to fill the vacancy within 90 days of the first day of the *550vacancy and not thereafter.” We held that the 90-day time limit is mandatory and that the Governor cannot make an appointment after the time limit has expired.
Zemprelli II involved a constitutional provision delineating a specific timeframe for the Governor to take action. In the present case, we have an attempt to enforce statutory language which gives no specific timeframe, and the result of such enforcement will be the interference with a constitutionally granted discretionary executive power. It is very instructive that the court in Zemprelli II did not hold that the Governor was compelled to fill vacancies. The court merely held that if the Governor did not fill such vacancies within 90 days, he could not do so thereafter because of the clear language of the constitution. The court recognized that the Governor retained the executive prerogative to leave vacancies unfilled.
The majority also cites Keystone Chapter, Associated Builders and Contractors, Inc. v. Thornburgh, 92 Pa.Commonwealth Ct. 646, 500 A.2d 211 (1985), in which this court held that the Governor’s duty to appoint an advisory board for administration of the Wage Act was mandatory because failure to do so would constitute an improper veto of a program created by the legislature. Again, that case did not involve the interference with a constitutionally created executive function. In the present case the Governor’s delay in issuing death warrants in particular cases will not result in an improper veto of the Death Penalty Procedures Act or of the death penalty itself. It is simply an exercise of the Governor’s proper executive powers.
Finally, I wish to note that mandamus is available only where the party seeking the order has a clear legal right to relief. I do not see how the petitioners in the present case can be said to have a clear right to relief when the statute in question does not create a time limit for the Governor to act.
For the foregoing reasons, I would deny the motions for peremptory judgment and sustain the Governor’s preliminary objections.
. Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2937.