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NOMINATION PETITION GLORIA M. MORGAN. ROBERT DOUGLASS BURDICK (05/05/81)

decided: May 5, 1981.

IN RE: NOMINATION PETITION OF GLORIA M. MORGAN. ROBERT DOUGLASS BURDICK, APPELLANT. IN RE: NOMINATION PETITION OF GLORIA M. MORGAN. ROBERT DOUGLASS BURDICK, APPELLANT. IN RE: NOMINATION PETITION OF RICHARD SHOHEN. ROBERT DOUGLASS BURDICK, APPELLANT. IN RE: NOMINATION PETITION OF TOM BANNON. ROBERT DOUGLASS BURDICK, APPELLANT. IN RE: NOMINATION PETITION OF JOSEPH A. COSCIA. DIANE B. HOGG, APPELLANT


Appeals from the Orders of the Court of Common Pleas of Montgomery County in the cases of In Re: Nomination Petition of Gloria M. Morgan, No. 81-4738; In Re: Nomination Petition of Gloria M. Morgan, No. 81-4740; In Re: Nomination Petition of Richard Shohen, No. 81-4741; In Re: Nomination Petition of Tom Bannon, No. 81-4742; and In Re: Nomination Petition of Joseph A. Coscia, No. 81-4747.

COUNSEL

Philip J. Berg, for appellants.

Ilene Verbit Goldberg, with her John T. Action, P.C., for appellees, Gloria M. Morgan, Richard Shohen and Tom Bannon.

No appearance for appellee, Joseph A. Coscia.

Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Memorandum Opinion by Judge Rogers.

Author: Rogers

[ 59 Pa. Commw. Page 163]

We have consolidated for consideration and disposition five appeals from separate orders of the Court of Common Pleas of Montgomery County dismissing the respective Petitions to Challenge and Strike the Nominating Petition of each individual appellee. In cases 764 C.D. 1981, 765 C.D. 1981, 766 C.D. 1981 and 767 C.D. 1981, the appellant/challenger is Robert Douglass Burdick. In case 768 C.D. 1981, the appellant/challenger is Diane B. Hogg. Philip J. Berg, Esquire, argued all the cases for the appellants and Ilene Verbit Goldberg, Esquire, argued all but case No. 768 C.D. 1981 for the appellees. No appearance was entered for the appellee in No. 768 C.D. 1981.

In each case, the appellant timely filed the Petition to Challenge and Strike on March 17, 1981. By order of the lower court dated March 18, 1981, per President Judge Richard S. Lowe, a hearing on each petition was scheduled for March 20, 1981. The court further ordered "that a copy of the within Petition and this Order be served upon Respondent . . . by personal service made by any adult individual." In each order, the name of the appropriate respondent, i.e., the person named in the particular nominating petition, was inserted where we have placed an ellipsis in the above quoted portion of the court's order.

[ 59 Pa. Commw. Page 164]

Service of the petition to challenge and strike and of the court's order of March 18, 1981 was made upon the appellee in each case as follows: 764 C.D. 1981, 765 C.D. 1981 and 767 C.D. 1981 -- handed to an adult at the home of the appellee; 766 C.D. 1981 and 768 C.D. 1981 -- left in the front door at the home of the appellee. At the hearing on March 20, 1981, the court dismissed all of the appellants' petitions on the ground that personal service upon each of the appellees, as required by the court's order of March 18, 1981, had not been effected. These appeals followed.

Before proceeding to the appellants' contentions, we must dispose of the appellees' motion to dismiss the appeals, orally presented at argument before this Court. Appellees first assert that the appellants' appeals must be dismissed because they were not filed within two (2) days after entry of the lower court's order of March 20, 1981, dismissing the appellants' petitions, as required under Section 976 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2936. However, the two day filing limitation contained in Section 976 is applicable only when the lower court enters an order concerning a nomination petition which has been rejected in the first instance by the filing authorities on the ground that the political party or political body referred to in the nominating petition advocates the violent overthrow of the government of this Commonwealth or of the United States. Petitions objecting to or challenging a nomination petition are governed by Section 977 of the Election Code, 25 P.S. § 2937, which is silent on matters concerning appeals from the lower courts. Therefore, in such cases, appeals from the lower courts are governed by Rule 903(c)(2) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 903(c)(2), which provides that appeals from a lower court in matters arising under the Election Code must

[ 59 Pa. Commw. Page 165]

    be taken within ten (10) days after the entry of the lower court's order. Appellants' appeals from the lower court's order of March 20, 1981, were filed on ...


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