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JOHN G. WOLFE v. CLEM C. SWITAJ AND WINNIE WILLIAMS (05/02/85)

decided: May 2, 1985.

JOHN G. WOLFE, APPELLANT
v.
CLEM C. SWITAJ AND WINNIE WILLIAMS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of In Re: Nomination Petitions of Switaj and Williams, No. 784 Civil 1985.

COUNSEL

John C. Wolfe, for appellant.

Karen M. Balaban, Balaban and Balaban, for appellee.

Judges Doyle, Colins and Polladino, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 106 Pa. Commw. Page 2]

This is an appeal from a decision and order of the Court of Common Pleas of Cumberland County which dismissed a petition to set aside the nomination petitions of Clem C. Switaj and Winnie Williams for the office of Jury Commissioner on the Democratic ticket. John G. Wolfe (Objector) has raised numerous challenges to the notarization of the nomination petitions as well as to the information written on the petitions by the individual electors.

Respondent Switaj

Respondent Switaj, who needs two hundred fifty signatures on her nominating petitions, obtained two hundred eighty-five signatures. Fifteen signatures were stipulated to as being improper in some manner leaving a total of two hundred seventy signatures.*fn1 Objectors

[ 106 Pa. Commw. Page 3]

    contend first that Linda K. Otto-Wolfe, who notarized ten affidavits of circulators, changed her name because of marriage and failed to notify the Secretary of the Commonwealth of her name change within thirty days as is required by Section 10 of The Notary Public Law, Act of August 21, 1953, P.L. 1323, as amended, 57 P.S. § 156. This failure to notify the Secretary has been stipulated to. We are of the view, however, that this requirement of notification is merely for the convenience of the Secretary and does not abrogate the notary's power. Our position in this matter is supported by the implementation comment to Section 10 which states:

Section 10 requires notification when a notary's name is changed and is amended to eliminate the special provision in the case of the marriage or divorce of a female notary but to provide for a public record when a notary notifies the Secretary of the Commonwealth of any name change. Since a woman may resume her maiden name without a court decree, and since marriage no longer carries with it automatic change of name, these amendments [1978] simply insure that if a notary of either sex changes his name, a public record will be made of this fact. (Emphasis added.)

Additionally, Section 10 specifically states that a notary whose name changes because of marriage "may continue to perform official acts, in the name in which he or she was commissioned." Accordingly, we do not believe that the circulators' affidavits notarized under the notary's maiden name are defective at all and, hence, no amendment is necessary.

Objector next maintains that two notary publics also signed nomination petitions as electors and therefore that their notarizations of the circulators' affidavits do not comport with the requirements of the Pennsylvania Election Code (Election Code), Act of June 3, 1937,

[ 106 Pa. Commw. Page 4]

P.L. 1333, as amended, 25 P.S. §§ 2600-3591 that a circulator's signature on the nominating petition be properly notarized. Examination of the nominating petitions reveals that it is the circulator's affidavit which is notarized, not the signatures of the individual electors. We therefore believe that a notary's signing a nomination petition as an elector does not invalidate her notarial act on a nomination petition. We thus expressly reject Objector's argument that merely by being a signatory, the notary has a "direct interest" in the transaction which would prohibit notarization under Section 19(e) of The Notary Public Law, 57 P.S. § 165(e). Citizens Committee v. Board of Elections, 470 Pa. 1, 367 A.2d 232 (1976), which Objector cites, is not helpful. The notary publics in Citizens Committee were actively involved in an attempted recall election; they did much more than sign the recall petitions in their individual capacities as qualified electors. The mere signing of a petition is impliedly acceptable under Citizens Committee wherein Chief Justice Benjamin Jones stated, "when one steps beyond the point of signing his name to a petition and actually solicits other signatures, he has more than a general interest as a citizen in the outcome." Id. at 23, 367 A.2d at 243. Accordingly, the notarial acts were proper.

Objector next contends that with respect to two petitions, circulators' affidavits are lacking because the notary publics did not indicate their political subdivisions as required by Section 13 of The Notary Public Law, 57 P.S. § 159. This is an amendable defect and, contrary to Objector's argument, we find evidence of record which would support an amendment under the rationale of Elliott Nomination Petition, 26 Pa. Commonwealth Ct. 20, 362 A.2d 438, affirmed 466 Pa. 463, 353 A.2d 446 (1976). Specifically, the notarial seal, is, itself, evidence from which an amendment may be allowed. We note that although the trial court permitted

[ 106 Pa. Commw. Page 5]

    this defect to be amended within six days, no later finding was made as to whether such amendment in fact occurred. Therefore, we must remand for a finding on this point.*fn2

Although a remand is necessary, we will in the interest of time, consider Objector's other challenges to Respondent Switaj's petition. As we noted earlier, it is stipulated that ten duplicate signatures must be struck (the ten electors had previously signed Respondent Williams' petition); it is also stipulated that one signer was a Republican and that that name must be struck. The trial court also found credible testimony that four signers were not registered, bringing the total to fifteen names which must be struck. With respect to the other allegations that electors did not sign their signatures as those signatures appear on their registration cards or did not properly indicate their boroughs or townships, it is our view that a mailing address or a signature not identical to that appearing on the registration card is not improper and hence does not require amendment absent an allegation that the elector is not, in fact, the signer or that the elector does not, in fact, live at the noted address. No such allegations are made here. Thus, no amendment is necessary.

Finally, Objector attacks dates altered for four signatures and the use of ditto marks corrected by persons

[ 106 Pa. Commw. Page 6]

    unknown with respect to three signatures. The facts of the alteration and the use of ditto marks were stipulated to by Respondent Switaj. No evidence was presented which would clarify these matters or which would permit ...


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