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THOMAS ESSLER ET AL. v. WILLIAM R. DAVIS (08/27/80)

decided: August 27, 1980.

THOMAS ESSLER ET AL., PETITIONERS
v.
WILLIAM R. DAVIS, SECRETARY OF THE COMMONWEALTH ET AL., RESPONDENTS. JAMES L. BUCKMAN ET AL., PETITIONERS V. WILLIAM R. DAVIS, SECRETARY OF THE COMMONWEALTH ET AL., RESPONDENTS



Original jurisdiction in cases of Thomas Essler, Joseph Eldridge, William J. Devlin, Individually and on behalf of Philadelphia Republican City Committee v. William R. Davis, Secretary of the Commonwealth, and Richard Anderson, Commissioner of Elections; and James L. Buckman, Samuel Rymer, Roy Dixon, Herbert W. Salus, Jr., William J. Devlin, Individually and on behalf of Philadelphia Republican City Committee v. William R. Davis, Secretary of the Commonwealth, and Richard Anderson, Commissioner of Elections.

COUNSEL

James J. O'Connell, with him Vito F. Canuso, Jr., and Herbert W. Salus, Jr., for petitioners.

Velma A. Boozer, Assistant Attorney General, with her David F. Phifer, General Counsel, for respondents.

President Judge Crumlish. Memorandum Opinion by President Judge Crumlish.

Author: Crumlish

[ 53 Pa. Commw. Page 581]

These two petitions for review in the nature of mandamus actions, consolidated for argument, involve an interpretation and application of Section 979 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, Art. IX, § 979, as amended, 25 P.S. § 2939, concerning substituted nominations for public office. We reject both petitions.

On June 16, 1980, nomination petitions were filed in the office of the Secretary of the Commonwealth for Republican candidates, James L. Buckman, Second Congressional District of Pennsylvania, United States Congress, and Thomas Essler, Pennsylvania State Legislator, 202nd House Legislative District. The Commissioner of Elections for the Commonwealth, by letter dated June 24, 1980, notified the Chairman of the Philadelphia Republican City (County) Committee that the Election Code precluded acceptance of the Nomination Certificates as filed. The Commissioner explained that Section 979 does not allow substituted

[ 53 Pa. Commw. Page 582]

    nominations where either a candidate's withdrawal arose before the primary or where no nomination had been made, but applies only to those circumstances where nominated candidates had withdrawn or died after the primary.

Since each case turns upon a differing set of factual circumstances, we will deal with them separately.

Buckman Petition -- No. 1573 C.D. 1980

On or before February 11, 1980, the last date for filing nomination petitions for the Republican Primary Election to be held April 22, 1980, Irwin N. Wardlaw filed for the Office of United States Congressman for the Second District of Pennsylvania. On February 20, 1980, the last date for withdrawing petitions, Wardlaw filed a withdrawal of his nominating petition. Consequently, no candidate appeared on the April 22nd Republican Primary Ballot. Subsequent to the Primary Election, the Republican City Committee filed the nomination certificate for Congressional candidate Buckman.

Petitioners argue that this refusal to allow Buckman's nomination certificate causes undue hardship to the electorate of the Second Congressional District by destroying the political identity of one of the candidates. They contend that the Commissioner inadvertently and erroneously subverts the Election Code's clear intent to preserve the party system and dramatically ...


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