Com. v. Suplee

• Citation: 255 Pa.Super. 351,387 A.2d 85
• Parties: COMMONWEALTH of Pennsylvania v. Robert SUPLEE and James R. Hanlon. Appeal of Robert SUPLEE.
• Decision Date: 13 April 1978
• Court: Pennsylvania Superior Court

Page 85

387 A.2d 85

255 Pa.Super. 351

COMMONWEALTH of Pennsylvania v. Robert SUPLEE and James R. Hanlon.

Appeal of Robert SUPLEE.

Superior Court of Pennsylvania.

Argued Sept. 14, 1976.

Decided April 13, 1978.

Patrick W. Kittredge, Philadelphia, for appellant.

D. Michael Emuryan, Asst. Dist. Atty., Media, with him Ralph B. D'Iorio, Asst. Dist. Atty., Media, for Com., appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

Appellant was convicted of violating § 3234 of the Pennsylvania Election Code. ¹ On this appeal he contends that the lower court should have granted his motion in arrest of judgment because the statute under which he was convicted does not apply to his conduct, namely, placing an advertisement in reply to an opponent's advertisement without first giving notice to the opponent. We agree and therefore reverse. ²

Appellant was Chairman of the Committee to Elect James R. Hanlon, Republican candidate for Township Supervisor of Upper Providence, Pennsylvania, in an election scheduled for November 4, 1975. On Wednesday, October 29, 1975, supporters of the Democratic candidate, Larry D'Antonio, ran an advertisement critical of Hanlon in Towntalk Newspaper, a weekly publication. No prior notice was given to Hanlon that this advertisement was to be run.

On the day that the advertisement appeared, Hanlon authorized his Committee to run an advertisement in reply. This reply advertisement ³ was placed with the Delaware County Daily Times on Friday, October 31, and was run on Monday, November 3, without prior notice to D'Antonio.

A week after the election, one of D'Antonio's supporters filed a private criminal complaint charging that by failing to notify D'Antonio of the reply advertisement before it was published Hanlon and appellant had violated § 3234. Following a finding of guilt in a summary proceeding before a District Magistrate, appellant took an appeal to the Delaware County Court of Common Pleas. The case was submitted on stipulated facts, and on April 9, 1976, the lower court found appellant guilty as charged. Post-verdict motions were denied, and appellant was sentenced to pay a fine of $1.00 and costs of prosecution. This appeal followed.

§ 3234 of the Election Code provides, in pertinent part:

(a) No candidate for public office, . . . or party acting on his behalf, shall place any advertisement referring to an opposing candidate . . . to be . . . published during the forty-eight hours immediately prior to an election or published in a weekly newspaper or periodical during the eight days immediately prior to an election . . . unless he has first given a copy . . . and reasonable notice to the opposing candidate and the County Board of Elections . . . in sufficient time for a reply advertisement to be published . . . at the same approximate time or in the same issue of the publication . . . as the original advertisement and prior to the election. . . .

(b) The reasonable notice referred to in subsection (a) . . . shall be given in writing by registered mail . . . .

Thus, the Code contemplates three steps: 1) the preparation of an "advertisement"; 2) registered mail notice "to the opposing candidate"; and 3) delivery of the notice "in sufficient time for a reply advertisement to be published . . . at the same approximate time or in the same issue of the publication . . . as the original advertisement and prior to the election." It is only notice of the "advertisement" that is required.

The purpose of requiring notice of the advertisement is to enable an opposing candidate to prepare and have published a reply advertisement. To read "advertisement" and "reply advertisement" as meaning the same thing, as the lower court did, would create a procedure that a candidate might not be able to comply with, and that in any case would be contrary to the purpose of the statute.

Suppose A is running against B. On Saturday, four days before election, A sends B registered mail notice of an advertisement to run on Monday (i. e., "during the forty-eight hours immediately prior to (the) election"). B receives the notice on Monday, just in time to prepare his reply advertisement to run in later editions of the Monday paper (i. e., "at the same approximate time or in the same issue of the publication . . . as the original advertisement"). However, according to the lower court's reading of the statute, before B may run his reply he must send A notice of his intent to do so. B obeys subsection (b) ⁴ and sends this notice by registered mail; A will receive it on Tuesday at the earliest, which will be too late for A to run a reply to B's reply "at the same approximate time or in the same issue of the publication . . . as the original advertisement and prior to the election."

Thus, the difficulty with the lower court's reading of the statute is that it envisions an infinite series of notices and counter-notices, whereas the statute envisions a finite series, limited by the terminus of Election Day. The consequence of requiring a series of notices and counter-notices would be to present B with an unpleasant choice: either to run his reply on Monday and face criminal penalties, or to refrain from running it. Both alternatives would be contrary to the intent of the statute, which is to ensure that a candidate in B's position has an opportunity to reply to A's advertisement. In these circumstances, we are guided by § 1922 of the Statutory Construction Act, ⁵ which states, in pertinent part:

In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:

(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

The judgment of sentence is vacated, and appellant discharged.

WATKINS, former President Judge, did not participate in the consideration or decision of this case.

HOFFMAN, J., files a concurring opinion in which CERCONE, J., joins in Part I.

CERCONE, J., joins in the opinion as well as Part I of HOFFMAN, J.'s concurring opinion.

VAN der VOORT, J., concurs in the result.

HOFFMAN, Judge, concurring.

Appellant contends that the lower court erred in refusing to grant his motion in arrest of judgment for a violation of § 3234 of the Pennsylvania Election Code ¹ because the terms of the statute do not proscribe his conduct and because the statute unconstitutionally restricts his First Amendment rights. I agree and, therefore, concur.

The parties stipulated to the following facts. On November 4, 1975, Upper Providence Township, Delaware County, was to hold elections for Township Supervisor, James R. Hanlon was the Republican candidate for Supervisor and appellant was the Chairman of the Committee to Elect James R. Hanlon. Larry D'Antonio, the Democratic candidate for Supervisor, was Hanlon's opponent. On Wednesday, October 29, 1975, certain supporters of D'Antonio, under the name of Republicans for D'Antonio, placed a commercial advertisement in Towntalk newspaper, ² a weekly publication, without notifying Hanlon. The advertisement specifically referred to statements of candidate Hanlon and urged support for D'Antonio. In addition, the advertisement stated that "Republicans for D'Antonio Committee" had paid for it. On the same day that the above advertisement appeared, Hanlon authorized his Committee to print a reply advertisement which it placed with the Delaware County Daily Times on Friday, October 31, 1975, ³ and which appeared on Monday, November 3, 1975.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The reply advertisement, entitled "A Statement From Your Supervisor, James R. Hanlon," discussed the Democratic candidate's claims regarding fiscal affairs in the Township. Although the reply advertisement appeared within the 48 hour period before the election, Hanlon's Committee did not give prior notice of the reply to Hanlon's opponent.

One week after the election, one of D'Antonio's supporters filed a private criminal complaint alleging that Hanlon and appellant had violated § 3234 of the Election Code by failing to notify D'Antonio of the placement of the reply advertisement before the date of its publication. After a hearing in December, 1975, a District Magistrate found appellant guilty. Appellant filed an appeal with the Common Pleas Court of Delaware County; the parties submitted the case upon a stipulated set of facts. On April 9, 1976, the lower court found appellant guilty of violating the Election Code and following the denial of post-verdict motions, sentenced him to pay $1.00 and the costs of prosecution. This appeal followed.

I

Appellant's first contention is that § 3234 of the Election Code does not apply to reply advertisements. I agree. By its own terms, § 3234 is a penal statute. ⁴ Our courts have long recognized that we must construe penal statutes strictly to avoid the inclusion of otherwise lawful acts not within the statute's plain meaning. Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1960); Commonwealth v. Teada, 235 Pa.Super. 438, 344 A.2d 682 (1975); Pennsylvania Statutory Construction Act, Act of November 25, 1970, P.L. 707, No. 230, added December 6, 1972, No. 290, § 3; 1 Pa.C.S. § 1928(b). Moreover, our courts have held that while remedial portions of election laws require liberal interpretation in order to effectuate the legislature's intent, we must narrowly construe the penal provisions of such statutes. In re Petition of Wilhelm, 111 Pa.Super. 133, 169 A. 456 (1933); In re Bechtel's Election Expenses, 39 Pa.Super. 292 (1909). See also, Laub's Expense Account, 145 Pa.Super. 513, 21 A.2d 575 (1941) (Dissenting Opinion by BARTHOLD, J.). Finally, our courts are obliged to construe strictly statutes that regulate the First Amendment rights of expression and association. Buckley v. Valeo, 424 U.S. 1, 196 S.Ct. 612, 46 L.Ed.2d 659 (1976); ...