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CLAYTON FOX v. ANDREW J. WATSON (12/27/73)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 27, 1973.

CLAYTON FOX, JOHN I. MCKENNEY, MARY ELLISON, EDGAR E. HUFF, GRACE P. KIRKPATRICK, BERNELL C. BRUBAKER, CHARLES T. ZEIDERS, COLE T. GITTMAN, JR., CRAIG LOUGHERY AND NORAH M. COPE, INDIVIDUALS, PLAINTIFFS,
v.
ANDREW J. WATSON, MARY ALICE BACKMAN AND CHESTER LITZ, INDIVIDUALS, DEFENDANTS

Original jurisdiction in case of Clayton Fox, John I. McKenney, Mary Ellison, Edgar E. Huff, Grace P. Kirkpatrick, Bernell C. Brubaker, Charles T. Zeiders, Cole T. Gittman, Jr., Craig Loughery and Norah M. Cope, Individuals, v. Andrew J. Watson, Mary Alice Backman and Chester Litz, Individuals.

COUNSEL

William H. Naugle, with him Naugle & Sullivan, for plaintiffs.

Herbert G. Rupp, Jr., with him Rupp & Meikle, for defendants.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 11 Pa. Commw. Page 298]

This is an action in quo warrantor tried without a jury. The issue is whether plaintiffs Clayton Fox, John I. McKenney, Mary Ellison, Edgar E. Huff and Grace P. Kirkpatrick are officers of the Constitutional Party of Pennsylvania, or whether the posts of State Chairman, State Secretary and State Treasurer are held respectively by the defendants Andrew J. Watson, Mary Alice Backman and Chester Litz. The issue arises from certain meetings conducted after the spring primary held in April 1972.

Findings of Fact

1. The Constitutional Party was at all times relevant hereto a political party as that term is defined and used in the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, 25 P.S. § 2601 et seq.

2. The Rules of the Constitutional Party at all times relevant provided for the election of two state committee persons from each state senatorial district or where a senatorial district included more than one county or parts of counties two from each such county.

[ 11 Pa. Commw. Page 2993]

. At the primary election held in April of 1972 only 15 persons were elected to the office of state committee person of the Constitutional Party. These persons included the plaintiffs McKenney, Huff, Kirkpatrick, Brubaker, Zeiders, Gittman, Loughery and Cope. Also included in these 15 elected state committee persons was the defendant Litz.

4. The defendant Andrew J. Watson was, at and before the spring primary of April 1972, the duly qualified Chairman of the Constitutional Party. The plaintiffs are opposed to Mr. Watson's leadership of the party.

5. At all times relevant, the following rules of the Constitutional Party were effective:

"Rule II, Section 1 '. . . . The members of the Constitutional State Committee shall be elected in even numbered years by Senatorial districts. . . .'

"Rule II, Section 9 'In case the electors of any Senatorial District composed of one county shall fail to elect a member of the State Committee or a vacancy exists for any cause, the respective County Committee of the County in which the Senatorial District is situated shall appoint with the approval of the Executive State Committee any qualified elector a member of the State Committee. . . .'

"Rule XI, Section 4 'Any vacancy happening or existing in the Constitutional Party organizational structure by reason of death, withdrawal, resignation, disqualification or dismissal or any other cause, shall be filled by the Executive State Committee, which Committee shall have authority to fill such vacancy.'"

6. A meeting of the executive state committee of the Constitutional Party was convened on May 6, 1972.

7. At its meeting of May 6, 1972 the executive state committee approved eleven persons appointed to the state committee by county committees within senatorial districts which had not elected state committee persons.

[ 11 Pa. Commw. Page 300]

In addition, the executive state committee appointed about 51 persons to the state committee from senatorial districts in which there had been no one elected and from which no appointments were made by county committees.

8. The organizational meeting of the state committee of the Constitutional Party was held on May 27, 1972. The purpose of the meeting, inter alia, was to elect officers of the Constitutional Party.

9. At the May 27, 1972 meeting a credentials committee approved the seating of not only the 15 elected state committee people but also those persons appointed by county committees and by the executive state committee at the May 6th meeting of that body. The plaintiff, John I. McKenney, challenged the report of the credentials committee with respect to six of the persons seated by that committee. None of these challenges were on the ground that the appointment to the state committee of any persons other than those who had been elected at the spring primary was unlawful.

10. After the meeting of May 27, 1972 was opened and after the report of the credentials committee and the action of that committee on challenges, some of the plaintiffs and apparently other persons present moved that the executive state committee should be directed to conduct another meeting, apparently to consider the appointment of other or additional persons to the state committee. This was defeated by the meeting. Thereupon the plaintiffs McKenney, Huff, Cope, Loughery, and one Van Ess, proxy for plaintiff Gittman, left the meeting.

11. The state committee meeting continued and the defendant Andrew J. Watson was elected state chairman, the defendant Mary Alice Backman was elected state secretary, and the defendant Chester Litz was elected state treasurer.

[ 11 Pa. Commw. Page 30112]

. The group which left the state committee meeting on May 27, 1972 and persons sympathetic with them called a meeting for August 19, 1972 to which only the fifteen members of the state committee elected in the spring primary were invited. Eight persons attended and these eight persons chose as the officers of the State Committee the plaintiffs Clayton Fox as Chairman, John I. McKenney as Vice-chairman, Mary Ellison as Secretary, Edgar E. Huff as Treasurer, and Norah M. Cope as Assistant Secretary.

Discussion

The plaintiffs contend that under the Pennsylvania Election Code and the rules of the Constitutional Party no one other than the persons elected at the spring primary were eligible to be members of the state committee and that no persons should have been permitted to vote at the May 27, 1972 meeting except the 15 elected state committee people. It follows, they argue, that the election of the defendants at that meeting was invalid and that the persons elected in August by eight of the 15 elected state committee people are the only duly qualified officers of the party. This conclusion, as one of their witnesses admits, was arrived at subsequent to the May 6th and May 27th, 1972 meetings respectively of the executive state committee and of the full state committee, as the result of research in the law and the rules of the party. Our research compels the opposite conclusion.

The statutory law regarding political parties is found at Article VIII of the Pennsylvania Election Code, commencing at Section 801, 25 P.S. § 2831. Section 804 of the Code, as amended by the Act of December 22, 1971, P.S. 613, § 4, 25 P.S. § 2834 provides: "Each political party shall be directed by a State committee, to be chosen in such a manner and for such a term of office as party rules may provide. The members

[ 11 Pa. Commw. Page 302]

    of the State committee shall meet for organization not later than the sixth Wednesday following their election, at such hour and place as shall be designated by the State Chairman of each political party. The State committee of each political party may make such rules for government of the party in the State, not inconsistent with law, as it may deem expedient; and may also revoke, alter or renew, in any manner not inconsistent with law, any present or future rules of such political party. No such rules shall be effective until a certified copy thereof has been filed in the office of the secretary of the commonwealth." Section 805 of the Code, 25 P.S. § 2835 provides: "Vacancies happening at any time in offices of the State committee shall be filled according to the rules of the party."

The rules of the Constitutional Party, set forth in our finding number five above, provide for election of state committee persons, appointment by county committees and for the filling of vacancies by the state executive committee. In the instant case, 15 members were elected as provided by Rule II, Section 1, eleven members were appointed by county committees as provided by Rule II, Section 9, and about 51 were appointed by the executive state committee as provided by Rule II, Section 4. These procedures were consistent with the Code and the party's rules. As to the eleven appointed by county committees, Rule II, Section 9 is explicit. As to the 51 appointed by the executive state committee, the failure of the electorate or county committee to choose members resulted in vacancies subject to appointment by Rule XI, Section 4. Commonwealth v. Dickert, 195 Pa. 234, 45 A. 1058 (1900). See also Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 281 A.2d 57 (1971); and Staisey v. Tucker, 7 Pa. Commonwealth Ct. 649, 300 A.2d 518 (1973).

The plaintiffs argue from sections of the Code referring generally to the election of party officers that

[ 11 Pa. Commw. Page 303]

    only the electorate may choose state committee persons. They ignore Sections 804 and 805 giving political parties the power to choose committee members and to fill vacancies in this office by their own rules.

Having concluded that the appointments of committee members by the county committees and the executive state committee were regular, we are not required to consider the effect of the total failure of the plaintiffs to protest the legality of such appointments at the executive state committee meeting or to object to the credentials of any of the appointees at the organization meeting.

Conclusions

(1) The persons appointed members of the state committee of the Constitutional Party by county committees and the executive state committee in May 1972, were duly constituted members of that body entitled to vote at the organization meeting held May 27, 1972.

(2) The defendants were validly elected officers of the Constitutional Party at the organization meeting of the state committee on May 27, 1972.

(3) The meeting held August 19, 1972 attended by some members of the state committee was not a lawful meeting of the state committee of the Constitutional Party and the claims of such of the plaintiffs as assert to be party officers by virtue of actions of that meeting are invalid.

Order

And now, this 27th day of December, 1973, the Prothonotary is ordered to enter judgment for the defendants and against the plaintiffs, upon praecipe:

(1) if no exceptions hereto are filed within twenty (20) days after notice of the filing hereof as provided by Pa. R.C.P. No. 1038(d); or

(2) if the parties shall sign a waiver of the right to file exceptions as provided by Pa. R.C.P. No. 1038(e).

Disposition

Judgment for defendants and against plaintiffs.

19731227

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