Appeals from the Orders of the Court of Common Pleas of Lancaster County in cases of In Re: Contest of Election on Yes/No Study Home Rule and Election of Government Study Commissioners, Docket No. 15, Page 136, and In Re: Equity Suit To Set Aside Referendum on Yes/No Study Home Rule and Election of Government Study Commissioners, Equity Docket No. 15, Page 172.
William H. Naugle, with him Naugle & Sullivan, for appellants.
John B. Rengier, with him Rengier, Musser & Stengel, S. R. Zimmerman, III, and Geisenberger, Zimmerman, Pfannebecker & Gibbel, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. (No. 656 C.d. 1973 submitted on briefs, May 22, 1973.) Opinion by President Judge Bowman.
[ 10 Pa. Commw. Page 450]
Before us are two appeals from orders of the Court of Common Pleas of Lancaster County in which it (1) dismissed a petition of twenty-eight voters who sought to set aside a referendum election favorable to the creation of a home rule study commission for county government and the election of eleven members to such a commission and (2) sustained preliminary objections to a complaint in equity by another voter raising substantially the same issues and seeking identical relief.*fn1 The referendum question and the election of commission members for such a study is provided for by the Home Rule Charter and Optional Plans Law, Act of
[ 10 Pa. Commw. Page 451]
April 13, 1972, P.L. , Act No. 62, 53 P.S. § 1-101 et seq. (hereinafter referred to as HRCL).
The initial pleading in each of these cases alleges various acts of commission and omission on the part of the county commissioners, county and local election officials and others pertaining to the presentation to the electorate of the referendum question; the election of study commission members incident thereto and the conduct of the election itself; all of which is asserted to violate various provisions of the HRCL and the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, 25 P.S. § 2600 et seq., incorporated by reference into the first mentioned statute.
The issues raised in the election contest proceedings were never joined. The petition was filed November 27, 1972; the lower court by order dated November 28, 1972, dismissed the petition not only without the benefit of an answer or other pleading in response thereto, but also apparently without oral argument or submission of briefs.
With one exception, the substantive issues raised by the complaint in equity were never reached. It was filed January 31, 1973; preliminary objections raising a question of jurisdiction and in the nature of a demurrer were filed February 20, 1973, which objections were sustained and the complaint dismissed after argument by order dated April 19, 1973.
In the election contest proceedings the lower court concluded that a referendum question contest was not among the category of election contests subject to judicial review under the Pennsylvania Election Code, citing Gunnett v. Trout, 380 Pa. 504, 112 A.2d 333 (1955), and Greene Township Malt Beverage License Referendum Contest, 331 Pa. 536, 1 A.2d 670 (1938). As to the issues raised concerning the election of members ...