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JOSEPH RUSSO v. PHILADELPHIA COUNTY BOARD ELECTIONS (04/04/88)

decided: April 4, 1988.

JOSEPH RUSSO, APPELLANT
v.
PHILADELPHIA COUNTY BOARD OF ELECTIONS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Joseph Russo v. Philadelphia County Board of Elections, No. 6481, February Term, 1988.

COUNSEL

Joseph Russo, appellant, for himself.

Pamela P. Cohen, for appellee, Democratic City Committee.

Ralph J. Teti, Chief Deputy City Solicitor, for appellee, Board of Elections.

Judge Colins, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Concurring Opinion by Judge Barbieri. Dissenting Opinion by Judge Colins. Judge Colins dissents.

Author: Kalish

[ 115 Pa. Commw. Page 194]

Appellant, Joseph Russo, appeals from an order of the Court of Common Pleas of Philadelphia County which denied his request to set aside his withdrawal petition as a candidate for membership in the Democratic Executive Ward Committee for the 39th Ward of the City of Philadelphia.

Appellant contends that he was coerced into withdrawing his petition under pressure of Councilman Tayoun and others. The trial judge, after a hearing at which appellant was not represented by counsel, indicated that although there was pressure, "this does not seem to me to rise to that pressure which would warrant the vacating of the withdrawal." Notes of Testimony at 48. The court, without making any findings of fact, concluded that the withdrawal was filed knowingly, intelligently and voluntarily and that appellant knew what he was doing.

Of course, determining the credibility of the witnesses and the weight of their testimony is always for the fact finder. However, deductions, conclusions, and inferences drawn from those facts are always reviewable on appeal. Brooks v. Conston, 356 Pa. 69, 51 A.2d 684 (1947). The appellate court can competently draw the appropriate inferences and conclusions from the facts,

[ 115 Pa. Commw. Page 195]

    regardless of the action of the trial court. Kemp v. Majestic Amusement Co., 427 Pa. 429, 234 A.2d 846 (1967).

Section 914 of the Pennsylvania Election Code (Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. ยง 2874, provides that "[n]o candidate may withdraw any withdrawal notice already received and filed, and thereby reinstate his nomination petition." However, "the [Pennsylvania] Election Code must be liberally construed so as not to deprive an individual of his right to run for office, or the voters of their right to elect a candidate of their choice." Perles v. Hoffman, 419 Pa. 400, 405, 213 A.2d 781, 784 (1965) (emphasis added). Since appellant could be deprived of the fundamental right to run for office, due process requires that he be advised of his right to be represented by counsel.

The net result of refusing appellant's belated withdrawal of his withdrawal petition would be to deny the electors a choice between two bona fide candidates. Yet, at the same time, having exercised his option of withdrawal, the electorate has a right to demand of him not to play fast and loose with the orderly election process. There appears to be no such intent here. An allegation of coercion and duress may be a legally sufficient reason to vitiate the original ...


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