Appeal from order of Court of Common Pleas of Luzerne County, No. 9390 of 1973, in case of Commonwealth of Pennsylvania v. Frank J. Wadzinski.
James F. Geddes, Jr., for appellant.
Joseph J. Van Jura, Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Hoffman, J., dissents. Dissenting Opinion by Jacobs, J. Dissenting Opinion by Spaeth, J.
[ 239 Pa. Super. Page 78]
Appeal is taken to this Court from an Order of the Court of Common Pleas denying relief upon appellant's petition for certiorari to that court from a judgment of a Magistrate.*fn1 Following hearing the Magistrate found appellant guilty of a violation of the Act of June 3, 1937, P.L. 1333, Art. XVI, § 1614, as amended (25 P.S. § 3234), which provides in pertinent part as follows:
"(a) No candidate for public office . . . shall place any advertisement referring to an opposing candidate for the same office which is to be broadcast or published during the forty-eight hours immediately prior to an election or published in a weekly newspaper or periodical during the eight days immediately prior to an election, with a television or radio broadcasting station, newspaper or periodical, unless he has first given a copy of the material to appear or to be used in the advertisement to the opposing candidate and the County Board of Elections of the county where the advertisement is to be placed in sufficient time for a reply advertisement to be published or broadcast at the same approximate time or in the same issue of the publication or on the same radio or television broadcast as the original advertisement and prior to the election in question."
Complaint was brought before a Magistrate by one E. Edward Gorka, Mayor of Nanticoke, who was opposed in the 1973 election by appellant, the charge being a violation of this Act, viz: "that the defendant, Frank J. Wadzinski . . ., on November 5, 1973, did unlawfully at 2:05 P.M. to 2:10 P.M. make a paid political broadcast 48
[ 239 Pa. Super. Page 79]
hours prior to election day, November 6, 1973, from Radio Station WNAK 730 - Nanticoke, Pa., which referred to E. Edward Gorka, his opposing candidate for the office of Mayor . . . -" without giving prior notice to his opposing candidate or to the Bureau of Elections. The Magistrate held a hearing on December 5, 1973. Witnesses were heard and a tape recording of the questioned radio broadcast was played and the tape introduced into evidence. The Magistrate took the case under advisement and by letter mailed on December 7, notified the defendant by certified mail that he was adjudged guilty and fined twenty-five ($25.00) dollars and ordered to pay the costs. On December 12th, appellant petitioned the Court of Common Pleas for certiorari which was allowed by the Court of Common Pleas of Luzerne County on the same day. The appellant raises three issues:
(1) That there were such irregularities in the proceedings before the Magistrate as to justify the setting aside of the conviction;
(2) That the Act under which the charge was brought is unconstitutional; and
(3) That the admission into evidence by the Magistrate of the tape ...