No. 80-3-352, Appeal from the order of Montgomery County Court of Common Pleas of January 2, 1980, No. 79-22231
Lawrence Alexander, Harrisburg, for appellants.
Marc B. Kaplin, Philadelphia, for appellees.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Eagen, C. J., concurs in the result. Roberts, J., filed a dissenting opinion in which Nix, J., joined.
A general election, including the office of tax collector of Whitpain Township, was held on November 6, 1979. On November 19, 1979, in the Court of Common Pleas of Montgomery County, Civil Division, a petition to contest the election was filed by the defeated tax-collector candidate Maria Olshansky and certain named registered electors (hereinafter called appellants) against the winning tax-collector Charles Cannon, the Montgomery County Election Board, the Whitpain Township Republican Campaign Committee and its Chairman, Charles Lewis (hereinafter called appellees). A $1,000 bond was filed by appellants on November 21, 1979. In preliminary objections, appellees alleged that appellants' bond was improper and therefore requested the lower court to dismiss appellants' petition to contest the election. By order dated January 2, 1980, the lower court dismissed appellants' petition on the grounds that appellants' bond had failed to comply with the Election Code's bonding provision, Act of June 3, 1937, P.L. 1333, art. XVII, § 1759, as affected, 25 P.S. § 3459 (Supp.1979-80).*fn1 Appellants appealed the dismissal of their petition to contest the election directly to this Court.
Appellants first contend that the bond which they filed was not so substantially or materially defective as to warrant dismissal by the lower court for failure to satisfy the Election Code's bonding provision. This provision provides:
Whenever a petition to . . . contest election of any class shall be presented . . . to the court, it shall be the duty of said petitioners, within five days thereafter, to file a bond, signed by at least five of the said petitioners in such sum as the . . . said court shall designate, with two or more individual sureties of a corporate surety to be approved by the . . . court or judge, conditioned for the payment of all costs which may accrue in said contested . . . election proceeding, in case the said petitioners by decree shall be adjudged liable to pay said costs, and if the said bond shall not be filed, as herein provided, the said petition to contest the . . . election shall be dismissed. (emphasis supplied).
In light of the express language of this provision, appellants' contention lacks all merit for, as the record unambiguously demonstrates and as the lower court set forth in its thorough opinion, appellants' bond deviated from the Election Code's requirements in the following significant respects:
(1) said bond was not signed by at least five petitioners, in fact it was not signed by any of the petitioners; (2) the amount of the bond was not designated by the court, in fact no request was made to any judge to designate a bond in any amount (3) the corporate surety was not approved by the court, nor was such approval ever sought; and (4) said bond was not conditioned for the payment of all costs which may accrue in the contested election proceeding. (Opinion of lower court at 9).
Such deficiencies are clearly sufficient to warrant dismissal of the petition to contest the election since, as the facial language of the Election Code's bonding provision explicitly mandates, "if the said bond shall not be filed, as herein provided, the said petition to contest the ...