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STARKEY v. SMITH (COMMONWEALTH (11/18/71)

decided: November 18, 1971.

STARKEY
v.
SMITH (COMMONWEALTH, APPELLANT)



Appeal from decree of Court of Common Pleas of Centre County, Oct. T., 1971, No. 6, in case of Thomas G. Starkey, Margaret Y. Meyer, M. I. Claster, Max E. Hartswick, and J. Daniel Getz v. George C. Smith, J. Doyle Corman, Jr., and Grover A. Spearly et al.

COUNSEL

J. Justin Blewitt, Jr., Deputy Attorney General, with him Edward Weintraub, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth, appellant.

John W. Blasko, with him McQuaide, Blasko, Brown & Geiser, for appellee.

Richard L. Campbell, with him John R. Miller, and Miller, Kistler & Campbell, for appellees.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Per Curiam

[ 445 Pa. Page 120]

This is an appeal from a decree of the Court of Common Pleas of Centre County issued on October 26, 1971, granting a mandatory preliminary injunction. That decree, in effect, directed the Centre County Board of Elections to strike from the rolls of registered electors one hundred and ninety-five student registrants. The decree further directed the Board of Elections to determine the propriety of the registration of certain other student registrants. As a result of the Board of Elections' investigation, approximately three hundred and fifty more student registrants were struck from the Centre County rolls of registered electors.

All of the students struck had been previously registered pursuant to a Supplemental Temporary Restraining

[ 445 Pa. Page 121]

Order issued on September 16, 1971, by the United States District Court for the Eastern District of Pennsylvania in Fair v. Osser, C.A. No. 71-2212. That order extended the period of registration for students for five days beyond the date upon which it would have otherwise expired.

At the request of the Commonwealth, which had been permitted to intervene in the proceedings in the Court of Common Pleas, Mr. Justice Roberts granted a supersedeas on November 1, 1971, ordering inter alia, that the approximately five hundred and fifty students whose registrations are disputed be permitted to vote in the November 2, 1971, election and that their votes be segregated pending argument before this Court on the validity of the trial court's decree.

The basic question before this Court is whether plaintiff-appellees' challenge to the validity of the student registrations is a cause of action cognizable in equity. We conclude that it is not. The Pennsylvania election statutes provide an adequate, complete and appropriate statutory remedy for challenging registrations. Act of April 29, 1937, P. L. 487, § 34, as amended, 25 P.S. § 951-34.*fn*

[ 445 Pa. Page 122]

Nor are we persuaded by appellees' contention that the stipulation and order entered into on September 27, 1971, in the federal proceeding of Fair v. Osser, supra, precluded the Board of Elections from following the voter registration challenge procedures specified in the election statutes. That stipulation and order made it clear that any student was to be permitted to register ". . . at his college residence, provided such student meets the residential qualifications of an elector as set forth in all other sections of the Constitution of Pennsylvania and the Pennsylvania Election Code of 1937." (Emphasis added).

Moreover, even if we were convinced, and we are not, that the procedure followed by the plaintiff-appellees was appropriate, a reading of the record indicates that there was no evidence introduced to show that any individual student registrant could be struck under the provision of the Pennsylvania election statutes for striking registered electors. Act of April 29, 1937, P. L. 487, § 34, as amended, 25 P.S. § 951-34. Absent such evidence, there is no basis for the decree.

Accordingly, the decree of the Court of Common Pleas is vacated and the record remanded with directions to dismiss the complaint and to order that all ballots cast by registered student electors in Centre County pursuant to the special supersedeas of November 1, 1971, be tabulated and the results of said balloting be incorporated with the official returns of the general balloting in Centre County on November 2, ...


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