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FRIENDS MCERLEAN APPEAL (10/03/68)

decided: October 3, 1968.

FRIENDS OF MCERLEAN APPEAL


Appeal from order of Superior Court, Oct. T., 1967, No. 1092, affirming order of Court of Quarter Sessions of Delaware County, Sept. T., 1967, No. A-28, in re petition for audit of account of "Friends of McErlean".

COUNSEL

William E. Mowatt, for appellant.

Edward F. Muller, Jr., for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Cohen.

Author: Jones

[ 431 Pa. Page 336]

Edward McErlean was a candidate at the primary election held on May 16, 1967 for nomination by the Democratic party for the office of county commissioner of Delaware County. Prior to the primary election, a political committee, entitled "Friends of McErlean", was formed to advance McErlean's candidacy.

After the primary election and, on June 21, 1967, the committee filed its election expense account. This account, under the Election Code,*fn1 was required to be filed within thirty days after the primary election and, in the instant situation, this account should have been filed on or before June 15, 1967. The committee's account, therefore, was filed six days after the statutory period had expired.

The Code*fn2 further provides that "within twenty days after the last day for filing any expense account" any five electors may petition the Court of Quarter Sessions for an audit of the account. In the case at bar, the twenty day limitation period for filing an audit petition expired on July 5, 1967. On August 1, 1967 -- forty-five days after the last day statutorily provided for filing the account*fn3 -- an audit petition was filed.

After the petition for an audit had been filed, McErlean's political committee (the committee) petitioned the Court of Quarter Sessions of Delaware

[ 431 Pa. Page 337]

County to dismiss the audit petition because it was untimely filed. On August 21, 1967, the court dismissed the petition, directed an audit be held and a proper account filed within twenty days and that any exceptions to the account be heard before the court. On August 30, 1967, the court amended its order, directed the Election Bureau to forthwith certify the June 21, 1967 account to the court for audit and appointed an auditor.

An appeal was taken to the Superior Court and that Court, in a per curiam opinion, affirmed the order of the court below with Judges Montgomery and Hoffman dissenting. We granted allocatur.

The positions taken by the respective parties are as follows: (1) the committee contends that the language of the statute is unequivocal as to the time of filing an audit petition, that the statute is mandatory and not directory, that the late filing of the audit petition prevented the court from taking jurisdiction to direct an audit and the fact that the account was tardily filed did not relieve the audit petitioners of compliance with the statutorily mandated time period; (2) the audit petitioners contend that the statute must be given a liberal construction, that the time limitation in the statute is ...


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