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THOMAS MARTIN AND EDWARD BERNARD ROSENFELD v. JAMES J. HAGGERTY (09/29/88)

decided: September 29, 1988.

THOMAS MARTIN AND EDWARD BERNARD ROSENFELD, PETITIONERS
v.
JAMES J. HAGGERTY, SECRETARY OF STATE OF THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original Jurisdiction in the case of Thomas Martin and Edward Bernard Rosenfeld v. James J. Haggerty, Secretary of State of the Commonwealth of Pennsylvania; William P. Boehm, Commissioner of the Elections Bureau; David S. Owens, Jr., Corrections Commissioner; Glenn R. Jeffes, former Corrections Commissioner; and LeRoy S. Zimmerman, Attorney General.

COUNSEL

Michael R. Dillon, with him, David W. Folts, and Joseph A. Torregrossa, Morgan, Lewis & Bockius, for petitioners.

Amy Zapp, Deputy Attorney General, with her, John G. Knorr, III, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judge MacPhail, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 120 Pa. Commw. Page 135]

Before us are the preliminary objections of Respondents*fn1 to a class action petition for review addressed to our original jurisdiction and filed by Thomas Martin and Edward Bernard Rosenfeld.

Petitioners are inmates confined in state correctional institutions. They allege that while they have been incarcerated, Respondents have denied them the right to vote by refusing to allow them to register, not allowing them to vote at their place of residence, by failing to provide polling facilities in the various correctional institutions and by denying them the use of absentee ballots.

[ 120 Pa. Commw. Page 136]

On February 9, 1988, Petitioners filed a petition for review on behalf of themselves and others "who are confined in state correctional institutions and are denied the right to register and vote." Petitioners seek a declaratory judgment that they have the right to register and vote under the state Constitution and request injunctive relief which would enable them to do so.

Respondents have raised the following preliminary objections: (1) that the petition for review fails to state a claim for which relief may be granted; (2) that Petitioners have misjoined Respondents, Owens, Jeffes,*fn2 and Zimmerman; and (3) that the county boards of elections are indispensable parties to the action and therefore the petition should be dismissed.

We will first address the merits of Respondents' demurrer, keeping in mind that such a preliminary objection admits all well-pleaded facts in the pleading as well as all reasonable inferences deducible therefrom. Further, a demurrer may not be sustained unless it is clear from the face of the pleading that the law will not permit the recovery sought. E.Z. Parks, Inc. v. Larson, 91 Pa. Commonwealth Ct. 600, 604 n.4, 498 A.2d 1364, 1367 n.4 (1985), aff'd per curiam, 509 Pa. 496, 503 A.2d 931 (1986).

The petition characterizes the class as all those confined in state correctional institutions who are otherwise qualified electors. Therefore the class, which has not yet been certified pursuant to Pa. R.C.P. No. 1707,*fn3 could

[ 120 Pa. Commw. Page 137]

    conceivably consist of convicted misdemeanants and pretrial detainees as well as convicted felons.*fn4 However, it appears that in Pennsylvania, convicted misdemeanants and pre-trial detainees confined in a penal institution are permitted to register and vote. 1974 Op. Atty. Gen. No. 47.*fn5 Further, Petitioners' brief addresses the issue of whether convicted felons have the right to vote under the state Constitution.*fn6 ...


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