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ALBERT J. BERARDOCCO v. RICHARD COLDEN (07/06/76)

decided: July 6, 1976.

ALBERT J. BERARDOCCO, RELATOR,
v.
RICHARD COLDEN, JR., RESPONDENT



COUNSEL

Kassab, Cherry & Archbold, Carmen P. Belefonte, Media, for relator.

Cecil Maidman, Deputy Atty. Gen., Robert P. Kane, Atty. Gen., Lawrence Silver, Deputy Atty. Gen., Chief, Civil Litigation, Melvin R. Shuster, Deputy Atty. Gen., for respondent.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 469 Pa. Page 454]

OPINION OF THE COURT

This action in quo warrantor was commenced on January 5, 1976, by relator, Albert J. Berardocco, invoking the original jurisdiction of the Supreme Court.*fn1 Relator contends that he was duly elected to the office of district justice of the peace for magisterial district 32-1-17 in Delaware County on November 5, 1975, and that he has been wrongfully denied his public office. Respondent, Richard Colden, Jr., contends that the election is of no effect because he was appointed by the Governor to the office in question for a term extending until January 1978. We hold that the appointment did not terminate the election process, and that relator was properly elected for a six-year term commencing January 5, 1976.

[ 469 Pa. Page 455]

The facts are not in dispute. Prior to March 10, 1975, Frank T. Hazel was the duly elected district justice of the peace. His term of office was to expire January 5, 1976. As a consequence of this expiration date, and without regard to any vacancy in the office, the process of electing a district justice of the peace was set in motion on February 18, 1975.*fn2 By letter of that date, the Secretary of the Commonwealth notified the Delaware County Board of Elections that the office was to be filled at the November 5, 1975, municipal election and that each eligible party was to select its nominee at the May 20, 1975, primary election. On or about March 5, 1975, relator filed the necessary petitions to become a candidate for the office in question on both the Republican and Democratic primary ballots. On March 10, 1975, respondent also cross-filed nominating petitions for that office. On the same day, March 10, 1975, Frank T. Hazel, the incumbent, resigned his commission.

On or about April 14, 1975, during the course of the primary campaign, the Governor nominated respondent for the office of district justice of the peace for a term ending on the first Monday of January 1978. The Governor forwarded the nomination to the Senate for confirmation.

[ 469 Pa. Page 456]

The primary election was held, resulting in the nomination of relator as the Republican Party candidate and of respondent as the Democratic Party candidate. On June 2, 1975, the Senate confirmed the appointment, and on June 24, 1975, respondent assumed the office of district justice of the peace. On June 24, 1975, relator filed a complaint in quo warrantor in the Supreme Court, seeking to have the appointment of respondent declared invalid. On September 25, 1975, we filed a per curiam order dismissing the complaint without prejudice on the ground that it was premature.

On November 5, 1975, the municipal election was held, and relator was elected to the office of district justice of the peace for a six-year term beginning on January 5, 1976. Relator instituted this action because the Governor would not issue his commission even though the certified election returns declared him the winner.

Sections 13(a) and 13(b) of article V (hereinafter the "Judiciary Article") of the Pennsylvania ...


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