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HARTMANN v. PETERSON (05/04/70)

decided: May 4, 1970.

HARTMANN
v.
PETERSON, APPELLANT



Appeal from order of Court of Common Pleas of Delaware County, No. 14817 of 1969, in case of Anne E. Hartmann v. Lois Peterson.

COUNSEL

Jack Brian, with him John M. Gallagher, Jr., and Richard, Brian & DiSanti, for appellant.

Murray S. Eckell, with him Eckell, Sparks & Monte, for appellee.

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

Author: O'brien

[ 438 Pa. Page 292]

Appellee attempted to bring this action in equity by a petition to the court below for a rule to show cause why the appellant should not be enjoined from taking her elected office as Commissioner for the Selection of Jurors for the County of Delaware. The gravamen of appellee's petition was that appellant, during her primary election campaign, had made certain improper promises in the form of cash and services to the Democratic Party of Delaware County.

Appellant filed preliminary objections and a motion to dismiss, challenging the jurisdiction of the court below on two grounds: that the action was not properly commenced and that the Election Code provides an exclusive remedy for the wrongs of which appellee complains. The court below dismissed appellant's preliminary objections and denied her motion to dismiss. This appeal followed.

We need not reach the question of whether the Election Code provides an exclusive remedy. This case should have been dismissed by the court below because it was not properly commenced.

Appellee attempted to begin this action by filing a petition for a rule upon appellant to show cause. Appellee filed no formal complaint or summons in this equity action.

Pennsylvania Rule of Civil Procedure 1007, which is incorporated into the Rules for Equity by Pennsylvania Rule of Civil Procedure 1501 provides as follows: "An action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons,

[ 438 Pa. Page 293]

(2) a complaint, or (3) an agreement for an amicable action."

Nowhere do the rules provide for commencing an action by a petition. Appellee has apparently relied upon Pennsylvania Rule of Civil Procedure 1531(a), which states: "(a) A court shall issue a preliminary or special injunction only after written notice and hearing unless it appears to the satisfaction of the court that immediate and irreparable injury will be sustained before notice can be given or a hearing held, in which case the court may issue a preliminary or special injunction without a hearing or without notice. In determining whether a preliminary or special injunction should be granted and whether notice or a hearing should be required, the court may ...


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