Patrick W. Kittredge, Philadelphia, for appellant.
D. Michael Emuryan, Assistant District Attorney, Media, with him Ralph B. D'Iorio, Assistant District Attorney, Media, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Hoffman, J., files a concurring opinion in which Cercone, J., joins in Part I. Cercone, J., joins in the opinion as well as Part I of Hoffman, J.'s concurring opinion. Van der Voort, J., concurs in the result.
[ 255 Pa. Super. Page 352]
Appellant was convicted of violating § 3234 of the Pennsylvania Election Code.*fn1 On this appeal he contends that the lower court should have granted his motion in arrest of judgment because the statute under which he was convicted does not apply to his conduct, namely, placing an advertisement in reply to an opponent's advertisement without first giving notice to the opponent. We agree and therefore reverse.*fn2
Appellant was Chairman of the Committee to Elect James R. Hanlon, Republican candidate for Township Supervisor of Upper Providence, Pennsylvania, in an election scheduled for November 4, 1975. On Wednesday, October 29, 1975, supporters of the Democratic candidate, Larry D'Antonio, ran an advertisement critical of Hanlon in Towntalk Newspaper, a weekly publication. No prior notice was given to Hanlon that this advertisement was to be run.
[ 255 Pa. Super. Page 353]
On the day that the advertisement appeared, Hanlon authorized his Committee to run an advertisement in reply. This reply advertisement*fn3 was placed with the Delaware County Daily Times on Friday, October 31, and was run on Monday, November 3, without prior notice to D'Antonio.
A week after the election, one of D'Antonio's supporters filed a private criminal complaint charging that by failing to notify D'Antonio of the reply advertisement before it was published Hanlon and appellant had violated § 3234. Following a finding of guilt in a summary proceeding before a District Magistrate, appellant took an appeal to the Delaware County Court of Common Pleas. The case was submitted on stipulated facts, and on April 9, 1976, the lower court found appellant guilty as charged. Post-verdict motions were denied, and appellant was sentenced to pay a fine of $1.00 and costs of prosecution. This appeal followed.
§ 3234 of the Election Code provides, in pertinent part:
(a) No candidate for public office, . . . or party acting on his behalf, shall place any advertisement referring to an opposing candidate . . . to be . . . 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 . . . unless he has first given a copy . . . and reasonable notice to the opposing candidate and the County Board of Elections . . . in sufficient time for a reply advertisement to be published . . . at the same approximate time or in the same issue of the publication . . . as the original advertisement and prior to the election. . . .
(b) The reasonable notice referred to in subsection (a) . . . shall be given in writing by registered mail . . . .
Thus, the Code contemplates three steps: 1) the preparation of an "advertisement"; 2) registered mail notice "to the
[ 255 Pa. Super. Page 354]
opposing candidate"; and 3) delivery of the notice "in sufficient time for a reply advertisement to be published . . . at the same approximate time or in the same issue of the publication . . . as the original advertisement and prior to the election." It is only notice of the "advertisement" that is required.
The purpose of requiring notice of the advertisement is to enable an opposing candidate to prepare and have published a reply advertisement. To read "advertisement" and "reply advertisement" as meaning the same thing, as the lower court did, would create a procedure that a candidate might not be able to comply with, and that in any case would be contrary to the purpose of the statute.
Suppose A is running against B. On Saturday, four days before election, A sends B registered mail notice of an advertisement to run on Monday (i. e., "during the forty-eight hours immediately prior to [the] election"). B receives the notice on Monday, just in time to prepare his reply advertisement to run in later editions of the Monday paper (i. e., "at the same approximate time or in the same issue of the publication . . . as the original advertisement"). However, according to the lower court's reading of the statute, before B may run his reply he must send A notice of his intent to do so. B obeys subsection (b)*fn4 and sends this notice by registered mail; A will receive it on Tuesday at the earliest, which will be too late for A to run a reply to B's reply "at the same approximate time or in the same issue of the publication . . . as the original advertisement and prior to the election."
Thus, the difficulty with the lower court's reading of the statute is that it envisions an infinite series of notices and counter-notices, whereas the statute envisions a finite series, limited by the terminus of Election Day. The consequence ...