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In re Nomination Petitions of Prosperino

April 16, 2009

IN THE MATTER OF: THE NOMINATION PETITIONS OF DAVID J. PROSPERINO (DEMOCRATIC) CANDIDATE FOR MAGISTERIAL DISTRICT JUDGE FOR DISTRICT 05-03-09
APPEAL OF: DAVID J. PROSPERINO



The opinion of the court was delivered by: James R. Kelley, Senior Judge

ORDER

AND NOW, this 21st day of April, 2009, it is ordered that the Opinion filed on April 16, 2009, shall be designated OPINION rather than MEMORANDUM OPINION, and that it shall be reported.

Submitted: April 7, 2009

BEFORE: HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

SENIOR JUDGE KELLEY

David J. Prosperino (Candidate) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) which sustained the objections set forth in Armand A. Martin's (Objector) Petition to Set Aside the Nomination Petitions of David J. Prosperino (Democrat) (Petition to Set Aside) and ordered that Candidate be removed from the ballot for the May 19, 2009 Municipal Primary Election for the Office of Magisterial District Judge for District Number 05-03-09.

On March 9, 2009, Candidate, a registered Democrat, filed a Nomination Petition to have his name appear on the Democratic ballot for the May 19, 2009 Municipal Primary Election for the Office of Magisterial District Judge for District Number 05-03-09. On March 17, 2009, Objector filed the instant Petition to Set Aside asserting that: (1) Candidate failed to file his Statement of Financial Interests with the Allegheny County Manager's Office as required by the Public Official and Employee Ethics Act (Ethics Act);*fn1 (2) Candidate improperly completed his Statement of Financial Interests; (3) Candidate's Nomination Petition does not contain a sufficient number of valid signatures; and (4) Candidate has failed to use the name that is registered with the Allegheny County Elections Department in that Candidate is registered as "David Prosperino" but has used the name "David J. Prosperino" on his Statement of Financial Interests, Nomination Petition, Candidate's Affidavit and Circulator's Affidavit.

A hearing before the trial court was held on March 25, 2009. In support of the Petition to Set Aside, Objector presented the testimony of James Flynn, County Manager, David Voye, Manager of the Balloting and Return Section of the Elections Division, and Diane P. Boscia, Elections Division Registration Manager. Candidate testified in opposition to the Petition to Set Aside.

Mr. Flynn testified that there was no Statement of Financial Interests filed on behalf of Candidate by the deadline date of March 10, 2009.*fn2 Mr. Flynn testified further that, as of the hearing before the trial court on March 25, 2009, no Statement of Financial Interests had been filed on behalf of Candidate.

Candidate testified that he went to the Allegheny County Elections Division on March 9, 2008 to file his Nomination Petition and Statement of Financial Interests. Candidate testified further that a gentleman in the Elections Division pulled one sheet off of his Statement of Financial Interests and that the gentleman told him to drop the other copy in the mail. Candidate testified that he then dropped a copy in the mail the same day.

Mr. Voye testified that he is in charge of taking the nomination petitions of candidates for the Elections Division and of giving instructions to the candidates. Mr. Voye did not specifically recall Candidate filing his Nomination Petition with the Elections Division but that he does inform the candidates that there is an additional filing. Mr. Voye testified further that he did not believe that he would have told Candidate to mail the copy of his Statement of Financial Interests when he could have walked across the street.

Based on the evidence presented, the trial court found that it was undisputed that Candidate did not file his Statement of Financial Interests in a timely manner with the local governing authority (County Manager) as required by Section 1104(b)(2) of the Ethics Act, 65 Pa.C.S. ยง1104(b)(2). The trial court pointed out that the instructions for the Statement of Financial Interests directs a candidate to file the original Statement with the County Manager, James Flynn, at the Office of County Manager at 119 Courthouse, 436 Grant Street, Pittsburgh, Pennsylvania. The trial court determined that Candidate's failure to timely file his Statement of Financial Interests as directed with the County Manager was a fatal defect that cannot be cured ...


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