filed: April 25, 1985; Released for publication October 17, 1986.
PETITION TO SET ASIDE NOMINATION PETITION OF JUSTIN JOHNSON (REPUBLICAN PARTY BALLOT).
C. Kent Price, Esq., Lee C. Swartz, Esq., HEPFORD, SWARTZ, MENAKER & MORGAN, Thomas B. Kenworthy, Esq., MORGAN, LEWIS & BOCKIUS for petition.
Mark D. Schwartz, Esq. for Justin M. Johnson.
Honorable Joseph T. Doyle, Judge.
MEMORANDUM OPINION AND ORDER
This case, which is in our original jurisdiction, is before us following a reversal and remand by the Pennsylvania Supreme Court. Petitioners/Objectors filed a Petition to Set Aside the Nomination Petition of Justin Johnson for the office of Judge of the Superior Court on the Republican Party ballot. Justin Johnson (Respondent) filed various preliminary objections including an objection that the Petition to Set Aside the Nomination Petition was fatally defective because no verification was filed within the prescribed statutory period. We opined that the total absence of verification was a fatal defect which deprived us of subject matter jurisdiction; accordingly, we dismissed the case with prejudice. The Supreme Court, in a per curiam order, In Re: Nomination Petition of Justin Johnson, (No. 21 W.D. 1985, filed April 22, 1985), reversed and remanded for consideration of the remaining issues. Accordingly, we now proceed to rule on the remaining preliminary objections.
Respondent objects to the Petition to Set Aside the Nomination Petition because it refers to the Republican State Committee for the Republican party as being organized pursuant to Section 803 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2833 (Election Code). The Section of the Election Code referred to was, as alleged in the preliminary objections, expressly repealed by Section 3 of the Act of December 22, 1971, P.L. 614. But, even though Section 803 was, in fact, repealed, it is well known by common experience that the Republican Party was in existence prior to 1971. We therefore take judicial notice of this fact. This preliminary objection is, accordingly, overruled.
Respondent next maintains that the Petition to Set Aside the Nomination Petition is violative of Pa. R.C.P. No. 1018.1, and Pa. R.A.P. 3709 in that it lacks a notice to defend. It is our view, however, that the absence of this notice is not fatal and, hence, does not require striking the petition. In a case where notice to defend is lacking, a respondent is adequately protected by being relieved from the duty to answer. Hercoform Marketing, Inc. v. Brown, 75 D. & C. 2d, 394 (1975). In fact, Respondent did file an Answer to the Petition to Set Aside the Nomination Petition on March 28, 1985. This preliminary objection is therefore also overruled.
Next Respondent maintains that pursuant to Section 977 of the Election Code the last day upon which a hearing could be scheduled in this matter was on March 22, 1985, that is, ten days after the last day to file nominating petitions, viz., March 12, 1985. Section 977, 25 P.S. § 2937, provides:
All nomination petitions and papers received and filed within the periods limited by this act shall be deemed to be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically getting forth the objections thereto, and praying that the said petition or paper be set aside. A copy of said petition shall, within said period, be served on the officer or board with whom said nomination petition or paper was filed. Upon the presentation of such a petition, the court shall make an order fixing a time for hearing which shall not be later than ten days after the last day for filing said nomination petition or paper, and specifying the time and manner of notice that shall be given to the candidate or candidates named in the nomination petition or paper sought to be set aside.
The nomination petition in the instant case was filed with the Secretary on March 12, 1985 and the Petition to Set Aside the Nomination Petition was presented to this Court on March 19, 1985. Therefore, under a strict reading of Section 977, the ten day period for the hearing would elapse on March 22, 1985. This strict reading of the statute would require scheduling the hearing, serving the Respondent, and holding the hearing all within three days. This would be an almost impossible task. Not fortuitously, the ten day limit has been construed by the Pennsylvania Supreme Court as directory rather than mandatory. See Moore Nomination Petition, 447 Pa. 526, 291 A.2d 531 (1972); American Labor Party Case, 352 Pa. 576, 44 A.2d 48 (1945); Socialist Labor Case, 332 Pa. 78, 1 A.2d 831 (1938). Therefore, a March 29, 1985 hearing does not violate Section 977 and this preliminary objection is accordingly overruled.
Respondent next complains that Petitioners have included a "catch all clause" in their Petition to Set Aside the Nomination Petition and alleges that such clause is violative of Pa. R.C.P. No. 1019(a) and (f) and Sections 976 and 977 of the Election Code, 25 P.S. § 2936 and § 2937. The offending clause reads, "[p]etitioners further reserve the right to raise, at the time of hearing, any and all additional defects in the Nomination Petition which are in the nature of those set forth hereinbefore and which are not in conformity with the requirements of the Election Code." We agree that this clause is violative of Section 977 of the Election Code which Section requires that objectors specifically set forth their objections and, accordingly, we sustain this ...