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WALSH v. TUCKER (03/28/73)

decided: March 28, 1973.

WALSH
v.
TUCKER, ET AL.



Original jurisdiction in case of the Commonwealth, Francis D. Patterson, Eugene Edw. J. Maier, Louis Menna, and the Philadelphia County Board of Elections.

COUNSEL

I. Raymond Kremer, with him, of counsel, Kremer, Krimsky & Luterman, P.C., for plaintiff.

Lawrence J. Beaser, Deputy Attorney General, with him Israel Packel, Attorney General, for defendant, Tucker.

Harry Wolov, Deputy City Solicitor, with him Martin Weinberg, City Solicitor, for defendant, County Board of Elections.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, John Patrick Walsh v. C. Delores Tucker, Secretary of Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 8 Pa. Commw. Page 183]

By this mandamus action plaintiff, whose term of judicial office as President Judge of the Traffic Court of Philadelphia expires the first Monday of January, 1974, would have this Court declare that he may seek another term of office through the retention election process prescribed by Article V, Section 15(b), of the Pennsylvania Constitution rather than have the office filled through the political election process prescribed by Section 13 of Article V. Taking the position that plaintiff had failed to timely file the necessary declaration of intention to seek retention election, the Secretary of the Commonwealth, one of the defendants, has heretofore certified that the office is to be filled by the political election process.

The narrow issue is whether or not plaintiff timely filed a declaration of candidacy as prescribed by Article V, Section 15(b), of the Constitution, which in relevant part provides: "A justice or judge elected under section thirteen (a), appointed under section thirteen (d) or retained under this section fifteen (b) may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over elections on or before the first Monday of January of the year preceding the year in which his term of office expires. If no declaration is filed, a vacancy shall exist upon the expiration of the term of office of such justice or judge, to be filled by election under section thirteen (a). . . ."

The issue is before us on plaintiff's motion for summary judgment pursuant to Pa. R.C.P. No. 1098 and

[ 8 Pa. Commw. Page 184]

    on defendants' preliminary objections in the nature of a demurrer. Both plaintiff and defendant Tucker filed affidavits of various individuals concerning the mailing and receipt of a particular letter, discussed hereinafter, and events alleged to have occurred thereafter. The propriety of the use of affidavits to support or oppose a motion for summary judgment under Pa. R.C.P. No. 1098 is doubtful. However, we need not decide this question, nor having decided that their use is proper, then proceed to resolve disputed fact issues, if any, thus raised, for we believe the essential facts necessary to determination of the basic issue are not in dispute. Also, for purposes of passing upon defendants' preliminary objections we accept as true all well-pleaded factual averments of plaintiff's complaint.

It is not disputed that plaintiff was eligible to file for retention election and that the Secretary of the Commonwealth is the appropriate election official "who under law shall have supervision over elections" of judges. By letter dated December ...


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