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TOM FLAHERTY v. RICK BURKE (09/24/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 24, 1986.

TOM FLAHERTY, CONTROLLER OF THE CITY OF PITTSBURGH, APPELLANT
v.
RICK BURKE, GEORGE HESLET, GARY P. FORREST AND RICHARD S. CALIGUIRI, INDIVIDUALS, APPELLEES

Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Thomas Flaherty, Controller of the City of Pittsburgh, v. Rick Burke, George Heslet, Gary P. Forrest and Richard S. Caliguiri, Individuals, No. GD 85-8933.

COUNSEL

Kevin C. Forsythe, for appellant.

Robert M. Brown, with him, Mark J. Murphy, Eckert, Seamans, Cherin & Mellott, for appellee, Richard S. Caliguiri.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 101 Pa. Commw. Page 20]

Thomas Flaherty appeals that portion of an Allegheny County Common Pleas Court order denying his petition for a rule to show cause why Richard S. Caliguiri should not forfeit the office of Mayor of the City of Pittsburgh.*fn1 We affirm.

Section 802 of the Pittsburgh Home Rule Charter (Charter) requires that (1) each candidate for nomination or election to city office file a preliminary account of receipts and expenses five days prior to the election

[ 101 Pa. Commw. Page 21]

    and (2) the preliminary account provide information as of a time seven days prior to election. Flaherty, Controller of the City of Pittsburgh, alleges that Mayor Caliguiri's preliminary account for the May 21, 1985 primary election did not include any receipts after April 23, 1985. Mayor Caliguiri allegedly received over $60,000 in contributions from a May 2, 1985 fundraiser. Section 804 of the Charter provides that elected officials shall forfeit their office if they falsify or fail to make a preliminary account of campaign contributions as required by Section 802 of the Charter.

Mayor Caliguiri contends that the common pleas court correctly held that it had no jurisdiction to hear this case. We agree.

Flaherty has not filed a praecipe for a writ of summons, complaint, or agreement for an amicable action, as required by Pa. R.C.P. No. 1007 to commence an "action." However, proceedings by rule may be had where authorized by statute, as auxiliary for the facilitation of jurisdiction already had or as a means of correcting a court's own records. Butler Area Sewer Authority v. Northwest Sanitary Sewer System Authority, 3 Pa. Commonwealth Ct. 76, 281 A.2d 87 (1971).

Here, the petition clearly functioned as original process because there existed no pending action to which it could be considered auxiliary. See Energy Explorations Appeal, 44 Pa. Commonwealth Ct. 511, 404 A.2d 741 (1979).*fn2 Likewise, Flaherty did not petition to

[ 101 Pa. Commw. Page 22]

    correct the common pleas court's records. And finally, there is no statutory authorization to proceed by petition for a rule in this case. In Pennsylvania Crime Commission Petitions, 446 Pa. 152, 160, 285 Pa. 494, 498 (1971), our Supreme Court allowed a petition for a rule to commence proceedings because "[t]he Crimes Commission Act, ยง 3 . . . provides that the Commission may 'seek the aid of' the court to enforce compliance with its subpoenas." No such statute exists in this case. Even assuming that the common pleas court correctly concluded that Section 1636 of the Pennsylvania Election Code (Code)*fn3 applies to reports required by the Charter, as well as reports mandated by the Code,*fn4 this section

[ 101 Pa. Commw. Page 23]

    requires five electors to petition the appropriate court for a report audit. Moreover, not even Section 404(j) of the Charter authorizes commencement of proceedings by petition for a rule. It merely empowers the Controller to " audit. . . preliminary accounts . . . , . . . publish the results of these audits and inform the proper authorities of any violation of law revealed by the audit." (Emphasis added.)

Because the proceeding below was improperly commenced, the common pleas court had no power to act and no jurisdiction over Mayor Caliguiri.

The common pleas court's decision is affirmed.

Order

The Allegheny County Common Pleas Court order, No. GD 85-8933 dated August 6, 1985, is affirmed.

Disposition

Affirmed.


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