Original jurisdiction in the case of In Re: Nomination Petitions of Michael A. O'Pake as Candidate for the Democratic Nomination for the Office of Attorney General of Pennsylvania and as Candidate for the Democratic Nomination for Senator in the General Assembly from the 11th District Representing Part of Berks County.
Gregory M. Harvey, of counsel, Morgan, Lewis & Bockius, for petitioners.
James D. Crawford, with him Bernard G. Segal, of counsel, Schnader, Harrison, Segal & Lewis, for respondent.
Judge Rogers. Memorandum and Order by Judge Rogers.
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Todd Alan East, William John Ertel, Jeannette Louise Franco and Peter Mike Laspopoulos, hereinafter called objectors, have filed a petition to set aside the Nomination Petitions of Michael A. O'Pake as candidate for the Democratic Nomination for Attorney General of Pennsylvania, and as that party's candidate for Senator in the General Assembly from the 11th District representing part of Berks County. No question is raised as to the standing of any of the objectors and at our hearing evidence was adduced affirmatively showing Mr. Laspopoulos to have standing.
Senator O'Pake has indeed filed Nomination Petitions to have his name printed on the ballots and ballot labels assigned to the Democratic Party at the Primary Election of April 22, 1980 as a candidate for the office of Attorney General of Pennsylvania and also for the office of Senator from the 11th District. Article II, Section 6 of the Pennsylvania Constitution provides that no person holding any office in the Commonwealth to which a salary is attached shall be a
[ 54 Pa. Commw. Page 464]
member of the General Assembly. Article IV, Section 6 provides that no person holding any office under the Commonwealth shall exercise the office of Attorney General. Therefore, the offices for which Senator O'Pake seeks nomination are incompatible.
However, Senator O'Pake has publicly declared that if he is nominated as the Democratic Party candidate for both offices in the Primary and if he is elected to both offices in the General Election to be conducted November 4, 1980, he will not qualify for the office of Senator from the 11th District but he will qualify for the office of Attorney General. This course will create a vacancy in the office of Senator for the 11th District, which would be filled by a Special Election to be conducted in the 11th District. The candidate of the Democratic Party in such election would be chosen by the Democratic State Executive Committee.
Although in their petition to set aside Senator O'Pake's Nomination Petitions the objectors ask that we set aside both petitions, their counsel at our oral argument suggested that if they should prevail an appropriate remedy would be to afford Senator O'Pake 72 hours in which to decide for which of the two offices he desired to remain the candidate of the Democratic Party. We are not put to a choice of remedies because we have concluded that there is no impediment in Pennsylvania law to a person's candidacy for nomination to two incompatible offices.
Section 910(d) of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2870(d), requires each candidate to file with his Nomination Petition his affidavit stating "that he is eligible for such office." The objectors do not have recourse to the Constitution. Their case is founded on Section 910(d). They say it is impossible for a candidate ...