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In Re: Nomination Petition of Frank

April 8, 2011

IN RE: NOMINATION PETITION OF FRANK RIZZO FOR CITY COUNCIL AT LARGE FOR THE REPUBLICAN PARTY APPEAL OF: ROSS M. WOLFE AND DENISE M. FUREY


Per curiam.

ORDER AND NOW, this 11th day of April, 2011, it is hereby Ordered that the opinion filed April 8, 2011, in the above-captioned matter shall be designated

Opinion rather than Memorandum Opinion, and it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Nomination Petition of Frank Rizzo for City Council at Large for the Republican Party Appeal Of: Ross M. Wolfe and Denise M. Furey

No. 515 C.D. 2011

Submitted: April 1, 2011

BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Ross M. Wolfe and Denise M. Furey (Appellants) appeal from the March 23, 2011, order of the Court of Common Pleas of Philadelphia County (trial court), which denied Appellants' petition to set aside the nomination petition of Frank Rizzo (Candidate) for City Council.

Candidate participates in the City of Philadelphia's Deferred Retirement Option Plan (DROP). Under section 22-310(2) of the Philadelphia Code, "employees who elect to participate in the DROP make an irrevocable commitment to separate from City service and retire upon ceasing participating in the DROP, which they must do no later than four years after entering the DROP." Under section 22-310(5)(g) of the Philadelphia Code, the City may re-hire a DROP retiree. (Trial Ct. Op. at 4.)

Appellants filed a petition to set aside Candidate's nomination petition, arguing that because Candidate made an irrevocable commitment to retire from City service by entering the DROP, Candidate may not seek to serve the City again by running for an elected office. Appellants asserted that, although the City may re-hire a DROP retiree, the City may not re-elect a DROP retiree.

The trial court denied Appellants' petition, stating that Candidate did not deliberately file a false affidavit regarding his eligibility for office because Candidate relied upon the advice of the City Solicitor.*fn1 The City Solicitor advised Candidate that the DROP only required that Candidate retire for one full day before coming out of retirement at the start of the next term.

The trial court also concluded that Candidate only made an "irrevocable" commitment under section 22-310(2) to remain in the DROP until his retirement from City service. The trial court based its conclusion, in part, on the fact that the City could re-hire DROP retirees, which means that the "irrevocable" commitment was not to retire permanently. Appellants now appeal to this court.

As a preliminary matter, Candidate argues that this court lacks subject matter jurisdiction over ...


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