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ALAN FRANK v. ETHEL ALLEN (10/10/79)

decided: October 10, 1979.

ALAN FRANK, PETITIONER
v.
ETHEL ALLEN, D.O., SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Original jurisdiction in case of Alan Frank v. Ethel Allen, D.O., Secretary of the Commonwealth.

COUNSEL

Stanley A. Uhr, with him Pechner, Dorfman, Wolffe, Rounick & Cabot, for petitioner.

R. Darryl Gilchrist, Assistant Attorney General, with him Edward L. Biester, Jr., Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by President Judge Bowman.

Author: Bowman

[ 46 Pa. Commw. Page 394]

A petition for review invoking our original jurisdiction,*fn1 an answer to the petition followed by a stipulation

[ 46 Pa. Commw. Page 395]

    of facts and petitioner's motion for summary judgment pose another controversy over the interpretation and application of provisions of our Constitution relating to the election of judges and the appointment power of the Governor to fill vacancies in judicial office.*fn2

On June 15, 1979, Judge (now Justice) John P. Flaherty, Jr. resigned his judgeship on the Allegheny County Court of Common Pleas to become, by appointment, a Justice of the Supreme Court of Pennsylvania. Thereafter, in response to a request by petitioner, respondent declined to certify this vacancy as one to be filled by the elective process for the municipal election year 1979 culminating in the municipal election to be conducted hereafter on November 6, 1979. Rather, the respondent advised petitioner that the vacancy was one to be filled by gubernatorial appointment. Hence this suit. We view the position taken by respondent as a governmental determination affording a basis for one to invoke our original jurisdiction. Pa. R.A.P. 102, 1511 and 42 Pa. C.S. § 761(a)(1).

The Pennsylvania Election Code (Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2601 et seq., is a comprehensive statute establishing the elective process in Pennsylvania encompassing a system of party primaries, party candidacies to be selected in party primaries, candidacy of independent candidates, the election of candidates for public office by the voters and a host of related subjects. As mandated by the Constitution, Pa. Const. art. V, § 13(a), art. VII,

[ 46 Pa. Commw. Page 396]

§§ 2, 3, the Code provides for municipal elections in odd numbered years and for the election of judges of the several judicial districts in municipal election years.

As applied to the year 1979, it is a municipal election year in which the elective process, pursuant to the provisions of the Code, was initiated with respect to candidates for party primaries in April; the party primaries were held on May 15, 1979, and the municipal election will be conducted on November 6, 1979, at which time the voters will elect to an ...


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