*1 resolve tbe record remanded such action will for action such other disputed facts, appropriate those supplied) resolved require.” (Emphasis facts emphasized apparent portion It tbe readily appel- our that material order, by ellipsis covered lant’s answers conten- presentation, their effectively disputed tion. court below has now resolved the facts and the action required by taken the resolved facts. of this dis-
Our. review record discloses abuse of cretion error of law deter- and, consequently, mination below be disturbed. will Nilles Guiden, v. 419 Pa. 2dA. and cases cited (1965), therein.
Order affirmed.
Mr. Justice Musmanno dissents. Appellant,
Perles, v. Hoffman. Bradley, Appellant, v. Hoffman. *2 Mus- Before 1965. October Argued 11, J.,C. Bell, Roberts, O’Brien Eagen, Cohen, manno, Jones, JJ. October refused 1965.
reargument Leonard, him R. Apfelbaum, with Baskin, Philip for Craig, appellants. Sachs d Boreman, Baskin, appellees. County Preston L. Davis, Solicitor, Mr. Chief October Opinion Justice Bell, 1965: appeals These are consolidated from Orders County Court of Common Pleas of Northumberland complaints which dismissed two mandamus. County Elec-' below refused to order the (1) accept Brad- tions H. William ley, the Con- Democratic nominee for office of (2) accept George F. Per les the sub- troller, stitute nominee. pri Bradley duly
William H. nominated at mary May During election held summer, 1965. respiratory Bradley seriously Mrs. became ill awith diagnosed during August disease emphysema. the first week physician move
She was advised her to dry Bradley to a climate. as then decided to withdraw eight and to a candidate move with his wife and chil Albuquerque, dren to New Mexico.* August eighty-fifth gen day 9th was the the before day for eral election November and the last 1965, provided by §978 of a of-the withdrawal candidate, prepared Bradley of Election letter with- Code.** * Bradley the children moved Au- Mrs. and to' New Mexico on yet Bradley gust 18th, has not moved. but ** §§2938, 1333, §§978, 981(a), L.P. P.S. Act of June provisions amended, pertinent of follows: the which are as . shall be with the . written withdrawals filed . . . . Such “[§978] days previ- eighty-five (85)- county at least eléctions ... of board municipal day general election. withdraw- the or Such of to the ous county any ... received the office of must be- to be als effective ordinary closing said later than the hour of of elections board filing day same. last on office nomination, (a) certificates to'fill vacancies Substituted “[§981] primaries nominated at of candidates withdrawal caused county proper papers filed with the . . . shall be by nomination or seventy-five days (75) least at before ... elections of board ,” municipal election . . . general or day Friday, August signed by drawal dated him and 6th, Monday, August day on was on which the letter 9th, by him handed to one of the three members Kehler, the Board of Elections. It was delivered to Kehler in the office of of Elections. Board, present Bradley’s
Kehler did not letter to the days August three Elections until 12th, later, viz., during period County- he shelved letter George Committee. That Democratic Committee chose Bradley F. its meet- Perles as successor candidate at by- ing August given Wednesday, on 11th. The reason three-day delay it desirous Kehler for the was that was presented that the letter to the Board when present. August on who absent 9th, was Chairman, accept on the The Board refused the withdrawal grounds delivery to a board member rather than- County Board of Elections was to the office of the not. legal delivery. a valid Board: was refused Perles
The substitution solely ground that Brad- and the lower Court candi-, validly properly ley withdrawn as a had not vacancy existed. date and therefore Bradley’s stipulated parties if The of Perles would the selection valid, to be found accepted by Board of since Elections, have been presente timely properly petition substitution of the Board of the decisions net result d.* is that the Democratic lower Court Elections likely-non Party no candidate either have *4 in the November elec the ballot on candidate resident people no real that district would have the tion and choice or candi vote for opportunity to exercise a. choice. their date principle by in present is controlled Al case
The Mayor Pa. 305, Substitute toona * 12th, had neither been nor August the ballots ordered On printed. propri (1964). In the
If the substitution directory only, be held there would as was provision inconsistency apparent if the withdrawal mandatory. apply- reasoning §978is considered equally applies to the other. In both ing one to the mandatory practical of a and literal result cases deprive provision be to construction between candidates. real choice of a voters §2941, * 1333, §981, §1006, L. P.S. P. June Act of amended, §2966. any provides: ** sub soon “As Code 1006. Section duly nominated, any time at have been shall candidate stituted printing started, day his of ballots on prior place of that of candidate who substituted shall name ours) (emphasis, or withdrawn.” died has
405 and an To obtain freedom of fair election choice, objectives election return the purposes honest Election purposes objectives Code; these in has accord with This Court public policy. sound libera that “the Election Code must held, we repeat, lly* as not an individual deprive construed so to run for their right his the voters of right office, a candidate of their choice.” Ross Nomination elect Petition, 411 A. See Pa. 2d 720 45, 48, (1963). Substitute Nom Mayor also to the same effect, Commissioner Case, ination supra; 413 Pa., Substitute Nomination A. 2d 750 Pa. (1955). of the Court are reversed and the
The Orders below is di- Northumberland County Board of Elections of William H. from Bradley to remove name rected election sub- forthcoming general the ballot F. the name of Perles. George therefor stitute Eagen in the result. concurs Mr. Justice dissents. Mr. Jones Justice Opinion Concurring Octo- Mr. Cohen, Justice 1965: ber opinion
I in the result and join concur I circumstances ordinary under majority. Therefore, Since, further. no occasion to say anything would have implications misconstrues the dissent however, further ob- I am to make a the Altoona case, impelled servation. that in the Altoona case reveals clearly record limita- filed beyond was
the withdrawal in Altoona (be- of the majority the writer tion in Perles) sought here the dissent author ing objection since no indicating that a footnote justify * Italics, ours. issue to the late withdrawal imposed our Court. and not before
concern to us
out
dissent
I pointed
my
*6
late
the
permitted
Board of Elections which
County
adjudi-
as a quasi-judicial body
does
sit
withdrawal
but rather
forces as it
contending
wishes,
cating
Its
mandates.
out
carry
legislative
agency
executive
v.
368
Thomas,
ministerial only. Shroyer
duties
though
even
(1951). Hence,
In lan support of interpretation its of the statutory guage as on relies directory, May A. 2d Substitute Nomination 413 Pa. that, 371 (1964), and that line of which suggest cases the Election Code See a liberal construction. given Ross Nomination A. 2d 719 Pa. Petition, re In such cases cited therein. (1963), my view, misplaced. liance is
In with Court was concerned this supra, with the section of the Election Code deals substitution of a the creation of nominee following L. (a), See Act of June P. vacancy. 3, 1937, §981 *7 In concerned 25 the instant P.S. we case, §2941. distinguishable with the separate a section with dealing the of and problem the timeliness of withdrawal id. at 25 P.S. creation of the itself. See vacancy §978, to applicable Not substi- only are the sections §2938. but tution and separate distinct, rele- reveals that the considerations moments reflection inapposite. vant their construction are equally to this Court with a situa- presented Altoona, supra, the major parties of tion in the candidate one which race.2 Thus a va- from the mayoralty had withdrawn only explained issue, can be reaches result which by assuming sub that lack decided silentio significance. acknowledgement As I view merits without issue, necessary ac- case, to reach this it is not the instant opinion matter. cordingly I offer 2 interposed withdrawals objections to of the either No permitted them. of Elections in n.1, Case, Mayor 413 Pa. 307 Substitute permitting with (1964). action in such Its n.1 372 2dA. of their timeliness and the issue contested drawals in Altoona. this Court before filing caney mandatory A existed. construction of provisions Pennsylvania under Election Code, deny “in those to substitution, so as circumstances, reality, . . . have election in advance resolved the polls” and not intended at the where such matters were Mayor to be resolved. Altoona Substitute Nomination (1964). We 413 Pa. 196 A. 2d 305, 313, Legislature could not concluded, therefore, requirements filing substitution have intended the deny the to been construed a fashion as to have so freedom of choice the election.3 voters In of that the instant construction case, however, pertaining timeliness of the election code to the section being mandatory would have no such withdrawals to names result. Were we affirm the court below, primary regularly nominated in the of both candidates appear on the ballot. That freedom election would present in choice was not Altoona and which the preserve election code seeks would not be denied the County by of Northumberland such affirmance. voters seeking not the candidate withdrawal will Whether conjecture. a matter of mere if elected is Yet the serve majority, to conclude that order the instant case is prompted governed by the same considerations which indulges just specula- in Altoona, our decision such majority ignores provisions doing, In those tion. so directly more code suited meet that of the election presented question. that Altoona noted no novel It should previous that decision had late substitu This Court *8 to voters choice which the election to secure order tion provide. to See Commissioner Substitute intended code 372, (1955). My disagree Pa. A. 2d 750 disposition majority’s of the instant ease should ment with any propriety indicating belated doubts as to the of taken be County Commissioner Substitute Nomination Case decisions.
4Ó9 exposes tbe possible contingency4 time and at tbe same political un- possibility of abuse electorate to the practices. desirable majority various is that the
What the to realize fails extremely numer time limitations in the election code, designed provide statutory calendar to ous, proc only orderly of elective for the administration potentially many to obviate ess but instances, also, practices. purport to time at I do not this abusive object, analyze I do limitations but each of the various reason of the to extension the indiscriminate however, ing such of without the Altoona case analysis. my limi time
In of the a careful consideration view, majority needless that the tation here involved reveals ly disrupts legislative there timetable and election great aWere to the electorate. disservice does prior any to time to at candidate withdraw tempted party may contrive leaders the election, in order to the election secure such belated withdrawals might unable to withstand otherwise be those who scrutiny exposure public of a more extended major parties campaign. to secure be both able Were in the from subservient candidates lated withdrawals any public would be denied then the election, same possible light meaningful of time lack choice thorough and consideration of examination for a qualifications candidates. of the substituted potential equally to be con abuse, realistic
A more today, possible the decision rendered made demned, party opportunity afforded leaders to test the determining public whether sentiment winds impose unqualified propitious office- time is thereby nullify primary public and seeker the intervention some fortuitous If due election. 1955, 323, 9, §409, August §409; P. L. 16 P.S. see Act See §409, July L. 16 P.S. §3409. P. Act also *9 op disability strong sucli as or of a the death event, ponent particu public a a late attraction to tide prospects party victory lar for of one side label, pressure significantly improved, great may now brought duly to to bear nominee with selected person qualified party in favor of whom the draw a less po may Unfortunately, leaders seek to reward. these possibilities tential abuses realistic under are now Pennsylvania majority’s reading Election Code. of the majority support those cases which The seeks from provide liberally con- that the Code “must be Election deprive right of his not an individual strued so as right a of their to elect to run for or the voters office, Ross Petition, candidate their choice.” (1963). 411 Pa. A. 2d Neither 45, 48, present in is the instant these factual circumstances I fear that construction which Moreover, case. adopts promote long today run nei- will over Court promote objectives. may it well Rather, ther of these complete disregard, guise liberality, for under provide thereby in the time limitations code all the advantage may to those who seek subvert unfair an process. By affording opportunity the democratic maneuvering, today this denies the for such elec- protection spirit liberality which torate majority designed What has done in to afford. ef- nullify time in all the limitations the code fect is purposes appreciation of the for a full without justifies provided. The many its con- requirement filing withdrawal as struction necessary an directory to avoid unreasonable result. approach my an unfortunate such that no In view, compliance requiring obtain with result such statutory explicit command. pointed Justice out his dissent As Cohen too much to ask of a “it is candidate disrupt unduly machinery the election he he if wishes to if before withdraw that he at act, all, certain confronted with date. electorate is not right- and it unavoidable case of death, vacancy *10 with- demands that no fully vacancy election drawal than less before sixty-five days [the can- period provided then Code]; otherwise, proc- play didates could fast and with our election loose here.” esses and make of them as was done mockery Pa. Substitute Mayor (Emphasis 2d 375-76 (1964). 196 A. 314-15, presented added.) Although relevant the issues perti- these observations particularly nent raised instant case. those finding supports since record Accordingly, was not timely, finding I affirm the ac- does contest, and the Elec- of the court below tion tions.
Commonwealth v. R. S. Noonan, Inc.,
Appellant.