Appeals from orders of Court of Common Pleas of Northumberland County, Sept. T., 1965, Nos. 947 and 948, in cases of George F. Perles v. Fred E. Hoffman, W. Fred Kohler, Jr., and Oscar Kehler, acting as Northumberland County Board of Elections; and William H. Bradley v. Same.
Philip Baskin, with him Leonard R. Apfelbaum, and Baskin, Boreman, Sachs & Craig, for appellants.
Preston L. Davis, County Solicitor, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen concurs in the result. Mr. Justice Jones dissents. Concurring Opinion by Mr. Justice Cohen, October 25, 1965. Dissenting Opinion by Mr. Justice Roberts.
These are consolidated appeals from Orders of the Court of Common Pleas of Northumberland County which dismissed two complaints in mandamus. The Court below refused to order the County Board of Elections (1) to accept a withdrawal by William H. Bradley, the Democratic nominee for office of County Controller, and (2) to accept George F. Perles as the substitute nominee.
William H. Bradley was duly nominated at the primary election held May 18, 1965. During the summer, Mrs. Bradley became seriously ill with a respiratory disease diagnosed during the first week in August as emphysema. She was advised by her physician to move to a dry climate. Bradley then decided to withdraw as a candidate and to move with his wife and eight children to Albuquerque, New Mexico.*fn1
August 9th was the eighty-fifth day before the general election in November 1965, and the last day for withdrawal of a candidate, as provided by § 978 of the Election Code.*fn2 Bradley prepared a letter of withdrawal
dated Friday, August 6th, and signed by him on Monday, August 9th, on which day the letter was handed by him to Kehler, one of the three members of the Board of Elections. It was delivered to Kehler in the office of the County Board of Elections.
Kehler did not present Bradley's letter to the Board of Elections until three days later, viz., August 12th, during which period he showed the letter to the County Democratic Committee. That Committee chose George F. Perles as successor candidate to Bradley at its meeting on Wednesday, August 11th. The reason given by Kehler for the three-day delay was that it was desirous that the letter be presented to the Board when the Chairman, who was absent on August 9th, was present.
The Board refused to accept the withdrawal on the grounds that delivery to a board member rather than to the office of the County Board of Elections was not a valid legal delivery.
The substitution of Perles was refused by the Board and by the lower Court solely on the ground that Bradley had not properly and validly withdrawn as a candidate and therefore no vacancy existed.
The parties stipulated that if Bradley's withdrawal were found to be valid, the selection of Perles would have been accepted by the Board of Elections, since the substitution petition was properly and timely presented.*fn3 The net result of the decisions of the Board of Elections and of the lower Court is that the Democratic Party would have either no candidate or a likely-nonresident candidate on the ballot in the November election and the ...