Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Petition to have the question of local option for the granting of malt and brewed beverage wholesale distributor's and importing distributor's licenses placed upon the official ballot for the primary election in the Borough of Sharon Hill, Misc. Dkt. No. A-34, Page 163 of 1979.
Michael P. Dignazio, for appellant.
Richard C. Tinucci, for appellee.
Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.
[ 61 Pa. Commw. Page 405]
This is an appeal from an order of the Court of Common Pleas of Delaware County which granted leave to certain electors*fn1 of the Borough of Sharon Hill to file additional signatures nunc pro tunc on their petition to place a local liquor referendum on the primary election ballot of May 15, 1979.
The referendum, authorized by Section 472 of the Liquor Code,*fn2 47 P.S. § 4-472, permits municipal electorates to decide whether or not liquor licenses shall be granted to wholesale distributors of malt and brewed beverages within the municipality. On March 6, 1979, the final day for the filing of referendum petitions, the electors filed their liquor referendum petition with the Delaware County Board of Elections. The petition contained 498 signatures. Within the time permitted by statute, Fairview Associates, Inc.,
[ 61 Pa. Commw. Page 406]
a beer distributor licensed to operate in the Borough, filed a motion to strike the petition on the ground that it contained an insufficient number of signatures.
Section 472 of the Liquor Code requires that a petition for a liquor referendum shall have a number of signatures "equal to at least twenty-five per centum of the highest vote cast for any office in the municipality . . . at the last preceding general election." It is undisputed that the highest number of votes cast in the Borough in the relevant preceding election was 2,292 votes, and that the referendum petition, therefore, needed a minimum of 573 signatures, of which it was 75 signatures shy at the time of filing.
The court below allowed an amendment nunc pro tunc on the ground that the electors' error was made in reasonable reliance on incorrect information provided by the Board of Elections, having found that the electors, prior to filing their petition, were advised by the Board of Elections that only 345 signatures were required. The electors attempted to verify this figure and were again advised by an employee of the Board of Elections that they needed 345 signatures, and, in reliance on the Board's information, the electors filed a petition containing only 498 signatures. Fairview Associates, Inc., has appealed the court's order which permitted an amendment, contending that the electors' failure to obtain the proper number of signatures was a fatal, non-amendable defect.
Section 976 of the Election Code,*fn3 25 P.S. § 2937, provides that nomination petitions shall be set aside when they contain an insufficient number of signatures. It is well settled, moreover, that when a party presents an election petition containing a fatal defect, amendment may not then be ...