decided: October 3, 1980.
IN RE NOMINATION PAPER OF THOMAS ESLER AS CANDIDATE OF THE INDEPENDENT LEGISLATOR BODY FOR THE OFFICE OF REPRESENTATIVE IN THE GENERAL ASSEMBLY FOR THE 202ND LEGISLATIVE DISTRICT. APPEAL OF MARK B. COHEN
Appeal No. 80-3-730 from the Order of the Commonwealth Court at No. 2033 C.D. 1980, dated September 11, 1980; John A. MacPhail, Judge.
David Cohen, Philadelphia, for appellant.
James J. O'Connell, Herbert W. Salus, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., files a statement in support of the order of court. Nix, J., files a concurring statement. Larsen, J., files a dissenting statement.
[ 491 Pa. Page 287]
ORDER OF COURT
AND NOW, this 3rd day of October, 1980, the Order of the Commonwealth Court at No. 2033 C.D. 1980, dated September 11, 1980, is affirmed.
STATEMENT IN SUPPORT OF THE ORDER OF THE COURT
I join the Court's order affirming the Commonwealth Court in holding that the Secretary of the Commonwealth properly accepted the nomination paper of Thomas Esler and that Esler's name should thus appear on the November
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election ballot as the candidate of the Independent Legislator Body. As the Commonwealth Court correctly held, there is no basis in our case law or the Election Code for judicial inquiry into the relative independence of a candidate. This case is precisely the same as In re Morris, 491 Pa. 284, 420 A.2d 1044 (1980). Both are governed by Salera v. Tucker, 399 F.Supp. 1258 (E.D.Pa.1975), aff'd, 424 U.S. 959, 96 S.Ct. 1451, 47 L.Ed.2d 727 (1976), and by our decision in Packrall v. Quail, 411 Pa. 555, 192 A.2d 704 (1963). See also Ross Nomination Petition, 411 Pa. 45, 48, 190 A.2d 719, 720 (1963) ("The Election Code must be liberally construed so as not to deprive an individual of his right to run for office, or the voters of their right to elect a candidate of their choice").
NIX, Justice, concurring.
Although I dissented in In Re: Nomination Paper of John W. Morris, 491 Pa. 284, 420 A.2d 1044 (1980), the majority held, in that case, Salera v. Tucker, 399 F.Supp. 1258 (E.D.Pa.1975) was controlling. In deference to the decision of this Court in In Re: Morris, supra, and since I find no distinction between that decision and the issue presented here, I concur in the order of this case.
LARSEN, Justice, dissenting.
I dissent; Thomas Esler is no more an independent candidate than Jimmy Carter.
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