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NOMINATION PETITION JUSTIN JOHNSON (04/25/85)

COMMONWEALTH COURT OF PENNSYLVANIA


filed: April 25, 1985; Released for publication October 17, 1986.

IN RE: NOMINATION PETITION OF JUSTIN JOHNSON

PETITION TO SET ASIDE NOMINATION PETITION OF JUSTIN JOHNSON (REPUBLICAN PARTY BALLOT).

COUNSEL

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.

Author: Doyle

MEMORANDUM OPINION AND ORDER

BY JUDGE DOYLE

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 The Section of the Election Code referred to was, as alleged in the preliminary objections, expressly repealed by Section 3 of the Act of December 22, 1971, P.L. 614. But, even though Section 803 was, in fact, repealed, it is well known by common experience that the Republican Party was in existence prior to 1971.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 preliminary objection and strike the offending clause. This would not, however, foreclose to Petitioners the right to petition to amend their petition to include after discovered factual allegations.

Having disposed of the preliminary objections, we now reach the merits. Petitioners complain, in essence, that Respondent has failed to comply with Section 912 of the Election Code. Section 912 requires a candidate such as Respondent to obtain on his nominating petitions signatures of "at least one hundred registered and enrolled members of the proper party in each of at least five counties of the State." 25 P.S. § 2872. Petitioners allege that Respondent obtained signatures in ten counties as follows:*fn1

Dauphin County 361

Allegheny County 247

Westmoreland County 120

Blair County 110

Washington County 108

Erie County 46

Cumberland County 45

Lancaster County 29

Bedford County 10

Clarion County

As is readily evident there are only five counties in which Respondent allegedly had over one hundred signatures. Accordingly, if in any one of those five counties enough names are stricken to cause the total to fall below one hundred, Respondent will not meet the criteria of Section 912 of the Election Code.

The petitions from Blair County contain one-hundred and ten signatures (NT 4,5). The director for voter registration in Blair County credibly testified that the voter registration records for Blair County are under her care, custody and control and that these records are prepared under her supervision. (NT 25). She further testified that the persons who do not vote for two years are "purged" from the registration files. (NT 11). Prior to being purged, however, voters are advised by mail that their registration will be cancelled if they do not return, within thirty days, a "purge card" which card is sent to them advising them of their impending cancellation. (NT 12, 15-17, 19-20). The witness further explained that when these purge cards are not returned, this information is entered into a computer which generates a cancellation report. (NT 22-23). The cancellation report is then checked against the voter registration cards. (NT 27).*fn2

This witness explained that her personal examination of the registration files revealed that Pauline Balestino and Richard Balestino had both been purged because of failure to vote within two years and failure to return the purge cards. (NT 21-22). She further stated that the purging occurred prior to the time each of these two persons signed Respondent's nominating petition. (NT 12-13). Accordingly, we find that when these two individuals signed the nominating petition they were not registered voters and therefore their names must be stricken.

The witness further testified that her personal examination of the registration files revealed that three of the persons whose names appeared on a nominating petition (Margaret Keagy, Steven Betz and Maureen Conrad) (NT 10-11, 28-29) were not registered voters. Therefore their names must be stricken.

Finally, the witness testified that her personal examination of the registration files revealed that six of the signatories to the nominating petition (Timothy Reilly, Gordon Williams, Betty Williams, Timothy Welsh, Lillian Welsh and David J. Mason) (NT 27-31) were registered Democrats. Because the nomination petition is one for the office of Superior Court Judge on the Republican ballot, these names are not of the "proper party" and must be stricken.

When the above eleven names are subtracted from the one hundred and ten signatures appearing on the Blair County nomination petitions, only ninety-nine names remain. Accordingly, Respondent does not have one hundred names from at least five counties and thus his nomination petition does not meet the strictures of the Election Code. We therefore grant the Petition to Set Aside the Nomination Petition of Justin Johnson for Judge of the Superior Court on the Republication ballot.

Order

AND NOW, this

25th day of April, 1985, the Petition to Set Aside the Nomination Petition of Justice Johnson for the office of Judge of the Superior Court of Pennsylvania on the Republican ballot is hereby granted and the Secretary of the Commonwealth is directed to refrain from certifying to the proper officials the name of Justin Johnson as a candidate for the office of Judge of the Superior Court on the Rupublican ballot at the primary election to be held on May 21, 1985.


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