No. 25 March Term, 1979, Appeal from the Decree dated February 9, 1979 filed by the Commonwealth Court of Pennsylvania at No. 2377 C.D. 1977
Allen N. Brunwasser, Pittsburgh, pro se.
Elisabeth S. Shuster, Deputy Atty. Gen., Robert Kelley, Harrisburg, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino, Larsen and Flaherty, JJ. O'Brien, J., did not participate in the consideration or disposition of this case. Manderino, J., did not participate in the decision of this case. Roberts, J., files a concurring opinion in which Flaherty, J., joins.
Appellant, Allen Brunwasser, filed an original action in the Commonwealth Court to enjoin appellee, Secretary of
the Commonwealth, from issuing a certificate of election to Allegheny County Common Pleas Judge I. Martin Wekselman. Alternatively, appellant seeks mandamus to force the Secretary to recall the certificate since it already has been issued and filed. The procedural facts underlying the instant action were succinctly set forth by President Judge Bowman in the opinion for the Commonwealth Court:*fn1
Judge Wekselman was elected to begin service as an Allegheny County Judge by winning both the Republican and Democratic nominations in the primary election held in May of 1977, and by receiving the majority of votes in the November, 1977, general election. Upon certification by the local election board of these election returns it then became the duty of the Secretary to issue a certificate of election to the successful candidate. Section 201(f) of the Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2621(f).
The gravamina of petitioner's complaint are allegations of a host of Election Code violations regarding campaign contributions to Judge Wekselman's campaign, as reflected in the expense accounts filed by him with the Allegheny County Board of Elections. These violations are purported to include alleged contributions from certain law firms, corporations, and unincorporated associations; the failure to appoint a named election committee or to file a campaign collection and expense return; and distribution of literature on election day.
It is petitioner's contention that notwithstanding the duty imposed upon the Secretary by Section 201(f) of the Election Code, Section 1851, 25 P.S. § 3551, prohibits the Secretary from issuing a certificate to Judge Wekselman under the extant circumstances, and so provides a basis for his cause of action. This Section directs:
"Any person who shall, while a candidate for office, be guilty of bribery, fraud or willful violation of any provision of this act, shall be forever disqualified from holding said office or any other office of trust or profit in this Commonwealth."
Now before us for consideration are preliminary objections filed by the Secretary initially raising our jurisdiction to entertain an equitable action in mandamus in view of Election Code ...