Appeal from the order of the Court of Common Pleas of Washington County, Civil Action -- Law, No. 61 March Term, 1971, in case of Olga O. Woodward v. Washington County Board of Elections.
William C. Porter, Assistant County Solicitor, with him A. V. Campano, County Solicitor, for appellant.
Oliver N. Hormell, with him Hormell, Tempest, Simmons, Bigi & Melenyzer, for appellee.
Milton D. Rosenberg, with him W. Bryan Pizzi, II, and Bloom, Bloom, Rosenberg & Bloom, for John Mazza, intervenor.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer.
This case involves an appeal by the Washington County Board of Election (Board) from an Opinion and Order dated April 23, 1971, of the Court of Common Pleas of Washington County, directing the appellant to receive, nunc pro tunc, the nomination petitions of Olga O. Woodward,*fn1 appellee, for the office of Recorder of Deeds, for that county, and directing the appellant to print such petitioners' names on the Primary Election ballot for a vacancy in that office. The date for the Primary Election involved is May 18, 1971.
For purposes of clarity, it is necessary to set forth the pertinent facts in this case. John D. Woodward, deceased husband of appellee, was elected to the office of Recorder of Deeds in 1969 for a four-year term ending on the first Monday of January, 1974. He died May 24, 1970, thereby creating a vacancy. On December 1, 1970, the Governor appointed John Mazza*fn2 (intervenor -- herein referred to as Mazza)*fn3 to the vacancy in the office under a duly executed commission for a term to expire on the first Monday of January,
[ 2 Pa. Commw. Page 1751974]
. Mazza took his oath of office on January 2, 1971.
Because of the term set forth in the commission, the Board did not advertise (on February 25, 1971, as required by statute, 25 P.S. 2866) a vacancy in the office of Recorder of Deeds prior to the time statutorily set for the filing of nomination petitions. It is the statutory duty of the Board to determine the elective county offices to be filled by the election process. On March 9, 1971 (the last day for filing nomination petitions for the 1971 primary election) at 1:30 p.m., appellee presented to the Clerk of the Board five nomination petitions, with sufficient signatures, properly executed and acknowledged, together with the proper filing fee, to have her name printed on the 1971 Democratic Party Primary ballot for the office of Recorder of Deeds. The filing of these petitions was refused on the ground that no vacancy for the office existed.
Whereupon the appellee immediately protested and filed, on March 9, 1971, a complaint in mandamus (together with a separate and additional affidavit) praying for a judgment against the Board directing it to accept her nomination petitions, nunc pro tunc, as of March 9, 1971.
The Board filed its answer on March 22, 1971, and a hearing was held April 19, 1971, resulting in the Opinion and Order dated April 23, 1971, from which this appeal arises. This Court granted a supersedeas on April 26, 1971, as amended April 27, 1971 (which in effect permitted the lower court to direct the filing of the nomination petitions and the printing of ballots under bond and subject to the final disposition of this case). Argument was held on May 5, 1971, and on May 6, 1971, an order of this Court was issued reversing the order of the ...