Original jurisdiction in the Commonwealth Court of Pennsylvania in case of John K. Baronett (a/k/a J. K. Baronett) v. C. Delores Tucker, Secretary of the Commonwealth.
John K. Baronett, petitioner, for himself.
Jeffrey G. Cokin, Deputy Attorney General, with him Robert P. Kane, Attorney General, for respondent.
Retos and Symors, for intervening respondent.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Blatt.
[ 26 Pa. Commw. Page 560]
John K. Baronett (Baronett) brought a Petition for Review of the refusal by the Secretary of the Commonwealth (Secretary) to accept his nomination papers for a position on the November, 1976, general election ballot. Now before this Court are the Secretary's preliminary objections in the nature of a demurrer.
Baronett was an unsuccessful candidate in the April 27, 1976, Democratic Primary for Representative in the General Assembly from the 47th Legislative District. On June 14, 1976, subsequent to his primary defeat, he submitted nomination papers so that his name would be placed on the general election ballot as the nominee of the Federalist Body, an independent political group, for the same office. The Secretary refused to accept Baronett's papers pursuant to Section 976 of the Pennsylvania Election Code (Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2936, which provides in part:
"No nomination petition, nomination paper or nomination certificate shall be permitted . . . (e) in the case of nomination papers, if the candidate named
[ 26 Pa. Commw. Page 561]
therein has filed a nomination petition for any public office for the ensuing primary, or has been nominated for any such office by nomination papers previously filed . . . ." (Emphasis added.)
Baronett argues that this section does not bar the filing of nomination papers by a candidate defeated in the preceding primary and that, therefore, his papers should have been accepted. We do not agree.
The term "ensuing primary," as used in the Code,*fn1 must be interpreted in conjunction with Section 953, 25 P.S. § 2913, which sets out the rules with respect to the place and time of filing nomination papers. It is true, of course, that the time requirement of Section 953(c), specifically establishing the seventh Wednesday prior to the primary as the last day on which nomination papers may be filed, has been struck down as an unconstitutional infringement on the rights of independent candidates. Salera v. Tucker, 399 F. Supp. 1258 (E.D. Pa. 1975), aff'd mem., U.S. , 96 S.Ct. 1451 (1976). It is also true that, as a result of the Salera, supra, holding, which permits the nomination papers of independent candidates to be filed anytime before August 21, Baronett's nomination papers were timely. Clearly, however, the term "ensuing primary" was originally intended to refer to that primary following the filing of both nomination petitions ...