Brunwasser v. Fields

• Decision Date: 21 December 1979
• Citation: 409 A.2d 352,487 Pa. 283
• Parties: Allen N. BRUNWASSER, Appellant, v. Barton FIELDS, Secretary of the Commonwealth, Appellee.
• Court: Pennsylvania Supreme Court

Page 352

409 A.2d 352

487 Pa. 283

Allen N. BRUNWASSER, Appellant, v. Barton FIELDS, Secretary of the Commonwealth, Appellee.

Supreme Court of Pennsylvania.

Argued Sept. 17, 1979.

Decided Dec. 21, 1979.

[487 Pa. 284] Allen N. Brunwasser, Pittsburgh, pro se.

Elisabeth S. Shuster, Deputy Atty. Gen., Robert Kelley, Harrisburg, for appellee.

Before EAGEN, C. J., and ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.

OPINION

NIX, Justice.

Appellant, Allen Brunwasser, filed an original action in the Commonwealth Court to enjoin appellee, Secretary of the Commonwealth, from issuing a certificate of election to Allegheny County Common Pleas Judge I. Martin Wekselman. Alternatively, appellant seeks mandamus to force the Secretary to recall the certificate since it already has been issued and filed. The procedural facts underlying the instant action were succinctly set forth by President Judge Bowman in the opinion for the Commonwealth Court: ¹

Judge Wekselman was elected to begin service as an Allegheny County Judge by winning both the Republican and Democratic nominations in the primary election held in May of 1977, and by receiving the majority of votes in the November, 1977, general election. Upon certification by the local election board of these election returns it then became the duty of the Secretary to issue a certificate of election to the successful candidate. Section 201(f) of the Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, As amended, 25 P.S. § 2621(f).

The gravamina of petitioner's complaint are allegations of a host of Election Code violations regarding campaign contributions to Judge Wekselman's campaign, as reflected in the expense accounts filed by him with the Allegheny County Board of Elections. These violations are purported to include alleged contributions from certain law firms, corporations, and unincorporated associations; the failure to appoint a named election committee or to file a campaign collection and expense return; and distribution of literature on election day.

It is petitioner's contention that notwithstanding the duty imposed upon the Secretary by Section 201(f) of the Election Code, Section 1851, 25 P.S. § 3551, prohibits the Secretary from issuing a certificate to Judge Wekselman under the extant circumstances, and so provides a basis for his cause of action. This Section directs:

"Any person who shall, while a candidate for office, be guilty of bribery, fraud or willful violation of any provision of this act, shall be forever disqualified from holding said office or any other office of trust or profit in this Commonwealth."

Now before us for consideration are preliminary objections filed by the Secretary initially raising our jurisdiction to entertain an equitable action in mandamus in view of Election Code provisions for redress of campaign fund violations.

Brunwasser v. Fields, 40 Pa.Cmwlth. 381, 383-384, 397 A.2d 479, 480 (1979) (footnotes omitted).

The Commonwealth Court dismissed the action after finding that appellant's remedy was limited to the statutory audit procedure mandated by section 1611 of the Election Code, 25 P.S. § 3231, ² and that this procedure was fully adequate to provide a remedy for the complaint asserted. This section provides:

§ 3231. Audit of expense accounts

(a) Within twenty days after the last day for filing any expense account and affidavit required by this act any five electors of the State or of the political division may present a petition to the court of quarter sessions of the county in which is situated the office where such account has been filed, praying for an audit of such account. Thereupon the court shall direct the officer or board with whom such account has been filed to certify the same to the court for audit and may, in its discretion, require security to be entered for costs. The court may, in its discretion, appoint an auditor to audit such account; but the fees of such auditor shall not exceed the sum of $10.00 per day for each day actually engaged. The court or auditor shall fix a day as early as may be convenient for the audit, at which time the person by whom such account has been filed shall be required to be present in person to vouch his account and to answer on oath or affirmation all such relevant questions concerning the same, as may be put to him by the petitioners or their counsel. The auditor shall issue subpoenas to all parties whom the petitioners or the accountant may require, to give evidence concerning such account, and he shall determine, subject to exception, all questions as to the admissibility of evidence, and shall file a copy of the evidence with his report. If upon the audit, the court shall decide that the account was false in any substantial manner, or that any expenses have been incurred in contravention of this act, the costs of said audit shall be paid by the accountant, otherwise the court shall make such order as to payment of costs as shall be just in the circumstances.

(b) The decision of the court upon the audit shall be subject to appeal to the Superior Court.

(c) If the court shall decide upon the audit that any person, whether a candidate or not, has accepted contributions or incurred expense or has expended or disbursed money in contravention of this act, or has otherwise violated any of the provisions of this act, it shall certify its decision to the district attorney of the county in which such person may reside, and it shall thereupon be the duty of such district attorney to institute criminal proceedings against such person.

(d) No person shall be excused from answering any question in any proceeding under this section on the ground that such answer would tend to incriminate him; but no such answer shall be used as evidence against such person in any criminal action or prosecution whatever, except in an action for perjury in giving such testimony.

Appellant sought review in this Court pursuant to 42 Pa.C.S.A. § 723 (1979 Pamphlet), and we now affirm the decree of the Commonwealth Court. ³

Appellant Brunwasser contends that the audit procedure of § 1611 is inadequate to remedy his charges and that, therefore, it should not be the exclusive means of raising the instant objections. Appellant contends that the verified primary expense return filed by Judge Wekselman proves that Judge Wekselman has violated various provisions of the Election Code. From this contention, he argues that an audit of the Judge's campaign finances is unnecessary and that Judge Wekselman should, therefore, be immediately removed from his office pursuant to § 1851 of the Election Code. Brunwasser maintains that, unless he is allowed to pursue this independent action to enforce § 1851, that section "will still remain the law but be impossible to enforce. Candidates will then be advised that the Election Code is toothless and being human may be tempted to ignore it." Appellant's Brief at 22. Brunwasser acknowledges that, after the § 1611 audit, the Election Code devolves upon the various district attorneys the duty to enforce the Code through criminal prosecutions where the circumstances warrant such action, § 1611(c), 25 P.S. § 3231(c), and imposes upon the state attorney general the responsibility to institute in appropriate cases quo warranto proceedings against these candidates or elected officials, § 1612, 25 P.S. § 3232. Ignoring these provisions, Brunwasser insists that the entire enforcement mechanism created by the Election Code is ineffective unless he is allowed to pursue the instant mandamus action. We disagree.

Brunwasser has grossly misconceived the purpose and effect of the § 1611 audit procedures. These audits are not the mere accounting devices appellant claims they are. Instead, the audit is the instrument that triggers the enforcement mechanism of the Election Code. The scope of these audits is not limited to whether the candidate's return is arithmetically correct; but extends to a determination of whether "any person, whether a candidate or not, has accepted contributions or incurred expense or has expended or disbursed money in contravention of this act, or has otherwise violated Any of the provisions of this act." § 1611(c), 25 P.S. § 3231(c) (emphasis added).

Our past cases have adhered firmly to the principle that the proper remedies for violations of the Election Code are to be found within the comprehensive legislative framework of the Code itself. As we stated in Lurie v. Republican Alliance, 412 Pa. 61, 63, 64, 192 A.2d 367, 369 (1963):

The Act of 1937, supra, known as the (Pennsylvania) Election Code (Code) provides the detailed procedure to be followed in regard to the accounting of the financial receipts and disbursements of candidates for elective office, as well as political committees. It prescribes how such accounts may be challenged and audited. It specifically designates the Court of Quarter Sessions as the tribunal having jurisdiction of such proceedings. The present action is bottomed upon a violation of the Code, as the court below correctly recognized. The complainants were legally required to follow the Code's prescriptions in challenging the violation.

Where a remedy is provided by an act of assembly, the directions of the legislation must be strictly pursued and such remedy is exclusive, Act of March 21, 1806, P.L. 558, § 13, 46 P.S. § 156. See also, Thompson v. Morrison, Secretary of Comm., 352 Pa. 616, 44 A.2d 55 (1945); Oteri's Appeal, 372 Pa. 557, 94 A.2d 772 (1953).

The provisions of the Code must be liberally and intelligently construed. The Code gives the Court of Quarter Sessions broad powers of inquiry in the supervision of election accounts. Said court in such a proceeding can, undoubtedly, compel the production of all information necessary to a comprehensive and honest audit thereof. To conclude otherwise would completely defeat the basic purposes of the statute.

And in In re Shapp, 476 Pa. 480,...