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LAWRENCE H. CURRY v. A. RUSSELL PARKHOUSE ET AL. (10/08/76)

SUPREME COURT OF PENNSYLVANIA


decided: October 8, 1976.

LAWRENCE H. CURRY, APPELLANT,
v.
A. RUSSELL PARKHOUSE ET AL.

COUNSEL

Sheldon W. Farber, Norristown, for appellant.

Roger B. Reynolds, Sol., Joseph Smyth, Asst. Sol., Norristown (Withdrawn), for appellees.

Howard M. Holmes, Asst. Atty. Gen., for Attorney General Robert Kane.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.

Author: Per Curiam

[ 468 Pa. Page 543]

OPINION OF THE COURT

In 1975, appellant, a candidate for election as a Commissioner of Montgomery County, instituted an action in the Court of Common Pleas of Montgomery County against the County Board of Elections seeking injunctive and declaratory relief to the end that certain provisions of the Absentee Ballot Law, Act of December 6, 1975, P.L.

[ 468 Pa. Page 5441405]

, No. 301, as amended, 25 P.S. ยง 3146.1 et seq. (Supp.1976-77), be held invalid under the United States and Pennsylvania Constitutions. This appeal stems from an order of the court of common pleas dismissing the complaint and dissolving a preliminary injunction that restrained the Elections Board from distributing ballots issued pursuant to the statute.*fn1

We are met at the threshold with the trial court's view that appellant lacks sufficient standing to maintain this action. See Kauffman v. Osser, 441 Pa. 150, 271 A.2d 236 (1970). However, we reach neither the merits of this appeal nor the standing issue because we conclude that appellant's victory in the 1975 general election renders the case moot;*fn2 any possibility of appellant suffering an injury because of the alleged unconstitutionality of the statute has been obviated. Absent extraordinary circumstances, this Court has long held that moot questions will not be decided. See Epstein v. Pincus, 449 Pa. 191, 296 A.2d 763 (1972); Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966); cf. Pa.R.A.P. 1972. This appeal does not present an extraordinary situation, as where the question is capable of repetition yet evading

[ 468 Pa. Page 545]

    review. See, e.g., Wiest v. Mt. Lebanon School District, 457 Pa. 166, 169 n. 1, 320 A.2d 362, 364 n. 1 (1974).

Order affirmed.

NIX, Justice (dissenting).

I dissent. I cannot agree with the application of the doctrine of mootness in this instance, and I would reach the merits which I believe raise serious constitutional questions.

MANDERINO, Justice (dissenting).

I dissent. I would hold that the facts of this case present a situation that is capable of repetition, yet evading review and therefore not subject to the mootness doctrine.

In Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974), this Court concluded that where members of a graduating class attacked a commencement program as violative of the United States and Pennsylvania Constitutions, an appeal would not be dismissed when there was only a ten day period between the announcement of the commencement program and the commencement exercises. Although the members of the class had graduated by the time the appeal was heard, we realized that the short time period between the announcement and the exercises would otherwise effectively deny appellate review of that type of litigation.

In Wiest, supra, this Court cited Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), wherein the Supreme Court of the United States concluded that the normal 266 day human gestation period was so short that a pregnancy would come to term before the usual

[ 468 Pa. Page 546]

    appellate process was complete. In that case, involving a woman's right to have an abortion the court concluded:

"If termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid . . . Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be 'capable of repetition, yet evading review.'" 410 U.S. at 125, 93 S.Ct. at 713.

As applied to the facts in this case it is obvious that the short period of time between the placing of a candidate's name on the ballot and the actual election may be so short as to effectively foreclose appellate review of the Absentee Ballot Law. Thus, the issue of invalid absentee ballots under the Absentee Ballot Law might never be decided by this Court, unless the losing candidate instituted the action. Even in that case review would be doubtful if the situation was one wherein the losing margin was greater than the number of absentee ballots cast. In such a situation the losing candidate would face a serious hurdle of the requisite standing. As noted by the Supreme Court of the United States in Roe, supra: "Our law should not be that rigid."

Accordingly, I would reverse the order of the Court of Common Pleas of Montgomery County which dismissed the complaint and dissolved the preliminary injunction.


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