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MARSTON v. KLINE (03/08/73)

decided: March 8, 1973.

MARSTON, ET AL.
v.
KLINE, ET AL.



Original jurisdiction in case of David W. Marston, Carmen Quanti, and Robert Becker, on their own behalf and on behalf of all others similarly situated v. Ernest P. Kline, Lieutenant Governor of the Commonwealth of Pennsylvania, and C. Delores Tucker, Secretary of the Commonwealth of Pennsylvania, and Francis B. Patterson and Louis Menna and Eugene E. J. Maier, individually and as members of the County Board of Elections of Philadelphia County.

COUNSEL

Louis W. Fryman, with him William Austin Meehan, for plaintiffs.

Israel Packel, Attorney General, with him Lawrence J. Beaser, Deputy Attorney General, for defendants, Kline and Tucker.

John M. McNally, Jr., First Deputy City Solicitor, with him Martin Weinberg, City Solicitor, for defendants, Patterson, Menna and Maier.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt.

Author: Per Curiam

[ 8 Pa. Commw. Page 144]

This is an election case coming within the original jurisdiction of this Court in accordance with the provisions

[ 8 Pa. Commw. Page 145]

    of Article IV, Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.401(a)(1). The case was commenced by the filing of a complaint on February 13, 1973, by David W. Marston, Carmen Quanti and Robert Becker, on behalf of themselves and on behalf of all other qualified electors of the Second Senatorial District of Pennsylvania similarly situated, as a class (plaintiffs).

The defendants are: (1) Ernest P. Kline, Lieutenant Governor of the Commonwealth, who is charged with the duty of issuing Writs of Election for the holding of special elections to fill vacancies which occur in either House of the General Assembly (See Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, art. VI, § 628, as amended, 25 P.S. § 2778); (2) C. Delores Tucker, the Secretary of the Commonwealth, who is charged with the duty of certifying to the County Boards of Elections the names of candidates for special elections (See 25 P.S. § 2621); and (3) the three named members of the County Board of Elections of Philadelphia County, who are charged with the duty of carrying out all of the provisions of the Election Code for special elections within that county (See 25 P.S. § 2642). All of these defendants will be referred to herein collectively as defendants.

None of the facts alleged in the complaint are in dispute.*fn1 The complaint sets forth the following pertinent facts:

1. The Honorable Benjamin R. Donolow was elected to the office of State Senator for the Second Senatorial District of the Commonwealth of Pennsylvania on November 3, 1970 to serve for a term of four years, expiring on November 30, 1974.

[ 8 Pa. Commw. Page 1462]

. On November 27, 1972, Senator Donolow died, creating a vacancy in the office.

3. At the time of his election in 1970, Senator Donolow's Senatorial District consisted of the 8th, 15th, 24th, 29th, 30th, 36th and 48th wards of the City and County of Philadelphia (old Second Senatorial District). Senator Donolow's District was part of a reapportionment plan for the Pennsylvania General Assembly promulgated by the Pennsylvania Supreme Court on February 4, 1966. See Butcher v. Bloom, 420 Pa. 305, 216 A.2d 457 (1966).

4. Under the provisions of Article II, Section 17 of the Pennsylvania Constitution of 1968, the Pennsylvania Legislative Reapportionment Commission, on December 29, 1971, filed its Final Reapportionment Plan for the Pennsylvania General Assembly. This final plan became law on June 5, 1972, when the Supreme Court of Pennsylvania denied various appeals challenging the constitutionality of the plan. See Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 293 A.2d 15 (1972).

5. Under the Final Plan, the new Second Senatorial District consists of the following wards and parts of wards of the City and County of Philadelphia:

Wards (complete) 8, 15, 26, 29, 30, 36 and 48

Wards 24 (1st, 2nd, 3rd, ...


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