decided: April 4, 1988.
JOSEPH RUSSO, APPELLANT
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.
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.
[ 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. § 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 withdrawal, since under such circumstances the withdrawal may have been involuntary and hence not a valid withdrawal.
To succeed in his action, appellant must produce evidence showing an immediate and complete legal right to set aside his withdrawal after the expiration of the prescribed time. We have no way of knowing, without the necessary findings of fact, whether the trial court's conclusion was a reasonable and rational one based on the facts.
Consequently, this matter will be remanded to the trial court to make findings of fact sufficient to enable
[ 115 Pa. Commw. Page 196]
this Court to review the matter. Because of the imminence of this election case, the trial court shall hold a hearing within seven days of the filing of this opinion and the results shall be transmitted to this Court within two days thereafter.
Now, March 30, 1988, the order of the Court of Common Pleas of Philadelphia County, No. 6481, February Term, 1988, dated March 1, 1988, is reversed, and this matter is remanded for a further hearing consistent with the opinion.
Reversed and remanded. Hearing held. Findings issued. Reinstatement of candidate ordered.
Concurring Opinion by Judge Barbieri:
I concur in the result reached by Senior Judge Kalish, because I believe that the Appellant, uncounseled and apparently not advised of his right to legal counsel, or right to a continuance, was not granted sufficient time by the trial court to prepare and present his case and may thereby have been denied due process. Appellant pro se presented his instant petition with a rule returnable to the motion judge on March 1, 1988. The record shows this rule was signed by the motion judge who directed Appellant to serve the petition on Appellees and docketed by the prothonotary at 10:21 a.m. The rule returnable and hearing was set for 2:00 p.m. on March 1, 1988. Three and one half hours is simply insufficient to accomplish service of the petition, subpoena witnesses and prepare for an election hearing, particularly when Appellant is unrepresented by counsel.
Dissenting Opinion by Judge Colins:
I dissent. The Election Code is clear that once a candidate withdraws a nominating petition, he may not
[ 115 Pa. Commw. Page 197]
re-enter the election. Appellant presented no testimony which, if believed, would negate his withdrawal ab initio so that appellant could re-enter the race. I would affirm the trial court in its conclusion that appellant's testimony, if believed, would not warrant the vacating of the withdrawal.
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