Appeal from order of March 9, 1972 of Commonwealth Court setting aside Nomination Petition, in re Nomination Petition of Cecil B. Moore.
Ronald M. McCaskill, for appellant.
Gregory M. Harvey, with him Morgan, Lewis & Bockius, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Nix.
This appeal is from an order of the Commonwealth Court sustaining objections to and setting aside nomination petitions to have the name of appellant, Cecil B. Moore, certified for printing upon the official primary ballot of the Democratic Party as a candidate for the office of Representative in Congress from the 3rd Congressional District of the Commonwealth of Pennsylvania. Following argument, we entered a final order (Mr. Justice Nix dissenting) affirming the disposition below and noting that an opinion would follow.
The appellant does not challenge the lower court's determination on the merits;*fn1 his sole contention is that
the lower court lacked jurisdiction to continue the hearing first fixed in this matter in order to afford the respondent-objector, William J. Green, additional opportunity to effect service of process of his objections to the nominating petitions.
The pertinent facts as found by the Commonwealth Court and reported in its opinion in support of the order sustaining respondent's petition to set aside the nomination petitions are as follows: On February 15, 1972, the last day allowable by statute,*fn2 appellant filed with the Secretary of the Commonwealth and with the Commonwealth Court the nomination petitions on his behalf, directed to the Democratic Congressional Primary Election to be held April 25, 1972. On February 22, the respondent, a Democrat and the incumbent Representative for the 3rd Congressional District, filed objections to the Moore nomination petitions. The following day, February 23, the court ordered that a hearing on the objections be held February 28 and directed that notice of the time and place of said hearing, together with a copy of the objections, be served personally upon the appellant or upon an adult member of his family by February 25. The hearing was convened on February 28 as ordered, at which time appellant's attorney entered a "special appearance" to challenge the manner of personal service on his client. Respondent introduced an affidavit of service of one Stephen K. Lubell, supplemented by Lubell's direct testimony, to the effect that on the 24th of February Lubell had entered appellant's law office in Philadelphia and there handed copies of the objections and the notice of
hearing to one Jones, who held himself out as an agent authorized to receive service.*fn3
The trial judge before whom the hearing was held, apparently in response to the appellant's challenge to the service of process but without ruling that service was improper or inadequate, upon his own motion continued the hearing until March 1, and directed that service be made on or before February 29.*fn4 At the same time he amended the earlier order to allow service not only upon the candidate personally or an adult member of his family, but also upon a person in charge of appellant's law office or place of business. Service was effected shortly after noon on February 29 when copies of the objections and court order of February 28 were handed to appellant personally. On March 1, counsel for appellant again appeared specially to contest jurisdiction. This time he did not dispute the return of personal service, but asserted that the court was without power to issue its February 28 order continuing the hearing and allowing further time for service. Upon conclusion of his argument, counsel for appellant withdrew and ...