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In re Nomination Petitions and Papers of Keller

April 16, 2010


The opinion of the court was delivered by: President Judge Leadbetter


AND NOW, this 6th day of May, 2010, IT IS HEREBY ORDERED that the above-captioned opinion filed April 16, 2010, shall be designated OPINION rather than MEMORANDUM OPINION and it shall be reported.



Before the Court is an appeal by Karen McCue (Objector) from an order of the Court of Common Pleas of Allegheny County dismissing Objector's Petition to Set Aside the Nomination Petitions of Daniel G. Keller as Candidate of the Democratic Party for the Office of Representative in the General Assembly for the 20th Legislative District.

Objector filed objections in the court of common pleas on March 15, 2010, alleging that Keller had failed to disclose a directorship in a business entity on the Statement of Financial Interest filed with his nomination petitions. Subsequently, counsel for Objector filed a motion to transfer the matter to the Commonwealth Court. The transfer motion was initially granted by the Honorable Judith Friedman on March 22, 2010. The transfer order, however, was entered "without prejudice to any respondent to ask this Court to reconsider." Keller did ask common pleas to reconsider the transfer, and the transfer order was vacated.*fn1 Ultimately, Judge Joseph James agreed that common pleas lacked jurisdiction but also concluded that it lacked authority to transfer the matter. Accordingly, the trial court dismissed the objections for lack of jurisdiction on March 26, 2010. McCue appealed to this court.

Pursuant to Section 977 of the Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2937, nomination petitions "shall be deemed valid" unless, "within seven days after the last day for filing said nomination petition . . . , a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition . . . be set aside." In 2010, the last day for filing nomination petitions was March 9. The last day for filing objections, therefore, was March 16. Objector filed her objections in common pleas on March 15, 2010.

Nomination petitions for all state offices, including senators and representatives in the General Assembly, are filed with the Secretary of the Commonwealth. Section 913 of the Election Code, 25 P.S. § 2873. Accordingly, this court has construed Section 764 of the Judicial Code, 42 Pa. C.S § 764,*fn2 as vesting exclusive original jurisdiction over challenges to nomination petitions for state officers, including members of the General Assembly, in the Commonwealth Court. In re Vidmer, 442 A.2d 1203 (Pa. Cmwlth.), aff'd., 497 Pa. 642, 444 A.2d 100 (1982).

It is clear, therefore, that objections to nomination petitions of a candidate for state representative must be filed in this court's original jurisdiction. However, because the Rules of Civil Procedure are generally not applicable to election matters, the trial court concluded that the Rules of Appellate Procedure also did not apply and, therefore, reasoned that Rule of Appellate Procedure 751,*fn3 governing transfers, was inapplicable. We disagree.

Former Chief Justice Nix in In re Johnson, 509 Pa. 347, 502 A.2d 142 (1985), noted the sole and exclusive remedy for challenging a person's right to run for political office in Pennsylvania is Section 977 of the Election Code, 24 P.S. § 2937. The Supreme Court also stated that "the overriding consideration embodied in Section 977 of the Election Code is the expeditious resolution of objections to a prospective candidate's filings." Id. at 351, 502 A.2d at 145. Given that overriding consideration, "[t]o encumber the election process with 'niceties in form' by incorporating the rules of civil procedure by judicial interpretation would frustrate the carefully designed time frame established under the [Election] Code for the expeditious disposition of these objections." Id. at 352, 502 A.2d at 145.

Although the Supreme Court in Johnson eschewed the incorporation of the Rules of Civil Procedure in election matters, it did not address the Rules of Appellate Procedure. To the contrary, footnote one of Johnson notes that the matters came to the Supreme Court as direct appeals pursuant to Pa. R.A.P. 1101(a)(1). Johnson, 509 Pa. at 349 n.1, 502 A.2d at 143 n.1. Indeed, while some Rules of Appellate Procedure relating to time deadlines may be inapplicable for the same reasons cited in Johnson, others specifically apply to election matters and have never been declared invalid by this Court or the Pennsylvania Supreme Court. As mentioned earlier, Appellate Rule 2543 prohibits reargument in an appellate court in matters under the Election Code. Appellate Rule 3102(c)(2) provides that a single judge of the Commonwealth Court constitutes a quorum for the purpose of hearing and determining "any election matter." Further, Appellate Rule 903 provides that an appeal from a matter arising under the Pennsylvania Election Code must be filed within ten days after entry of the order. Similarly, we believe that the transfer provision of Appellate Rule 751 is applicable to matters arising under the Election Code.

Because of the exceedingly short time frame within which objections must be prepared and filed, dismissal of a petition timely filed in the wrong court would inevitably leave the objector with inadequate time to re-file in the proper jurisdiction. Such a harsh consequence is inconsistent with the principle that our rules should be construed in a manner which promotes the just and efficient resolution of disputes, and we will not impose such a draconian sanction where it is not specifically mandated by statute or procedural rule.

Moreover, Appellate Rule 751 contains nearly identical language to 42 Pa. C.S. § 5103(a), which provides:

If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or magisterial district judge shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on ...

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