No. 59 E.D. Misc. Docket 1978; No. 60 E.D. Misc. Docket 1978
Joseph Hugh O'Donnell, Jr., Philadelphia, for petitioners.
Jonathan Vipond, III, Philadelphia, for respondent.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., files a dissenting opinion in which Pomeroy, J., joins.
Petitioners, Philip Novalski and Ann E. Daly, employees of the Traffic Court of Philadelphia, are duly nominated candidates in the May 16, 1978 primary election for Democratic Committeeperson in the 62nd Ward, Divisions 18 and 12, respectively. On March 24, 1978, the President Judge of the Traffic Court of Philadelphia notified petitioners that if they did not petition to withdraw as candidates before March 31, 1978, petitioners' employment would be terminated. The President Judge's action was prompted by certain regulations promulgated by the Administrator of the Pennsylvania court system which regulations prohibit partisan political activities by court-appointed employees.*fn1
On March 27, 1978 petitioners filed petitions to withdraw from their respective candidacies, and on that same date the Philadelphia Court of Common Pleas ordered the Philadelphia City Commissioners to accept these petitions to withdraw. Petitioners seek a writ of prohibition to vacate this order directing the City Commissioner to accept the petitions
to withdraw from candidacy.*fn2 For the reasons and under the conditions set forth below, we grant petitioners' writ.
The lower court's order to the City Commissioners to accept petitioners' petition to withdraw from candidacy was issued after March 14, 1978, the last day of this election year upon which candidates are permitted under the Election Code to withdraw nominating petitions. 25 P.S. §§ 2873(d), 2874 (1963 & Supp. 1977-78). We hold that the lower court exceeded its jurisdiction when it ordered the acceptance of petitioners' petitions to withdraw from candidacy at a time when the statutory period for such a withdrawal had elapsed, absent a statutory basis for doing so. Accordingly, the lower court's order is vacated. Moreover, the presence of petitioners' names on the ballot for the May 16th primary election shall in no way be construed as a violation of the regulations of the State Court Administrator or any Traffic Court directives implementing those regulations. Petitioners are directed not to actively seek election, and in the event that they are elected, they must immediately resign from their offices if they continue in their present employment. See Ottaviano v. Barbieri, 478 Pa. 235, 386 A.2d 527 (1978).