McMenamin v. Tartaglione

• Decision Date: 23 April 1991
• Docket Number: No. 693,693
• Citation: 139 Pa.Cmwlth. 269,590 A.2d 802
• Court: Pennsylvania Commonwealth Court
• Parties: John J. McMENAMIN, Appellant, v. Margaret M. TARTAGLIONE, John F. Kane and Maurice Floyd in their individual capacities as Philadelphia City & County Commissioners and Norman A. Jenkins, Anthony J. Defino, James J. Fitzgerald, III, Judges of the Court of Common Pleas Acting collectively as the Board of Elections in the stead of the City Commissioners, Appellees. C.D. 1990

Page 802

590 A.2d 802

139 Pa.Cmwlth. 269

John J. McMENAMIN, Appellant, v. Margaret M. TARTAGLIONE, John F. Kane and Maurice Floyd in their individual capacities as Philadelphia City & County Commissioners and Norman A. Jenkins, Anthony J. Defino James J. Fitzgerald, III, Judges of the Court of Common Pleas Acting collectively as the Board of Elections in the stead of the City Commissioners, Appellees.

No. 693 C.D. 1990

Commonwealth Court of Pennsylvania.

Argued April 4, 1991.

Decided April 23, 1991.

Louis W. Fryman, with him, David B. Snyder, Fox, Rothschild, O'Brien & Frankel, Philadelphia, for appellees.

Arthur R. Shuman, Wyndmoor, for appellant.

Before CRAIG, President Judge, DOYLE, J., and BARRY, Senior Judge.

DOYLE, Judge.

This is an appeal by John J. McMenamin, a Republican elector, from an order of the Court of Common Pleas of Philadelphia County which, after a hearing, dismissed McMenamin's complaint in equity. McMenamin, who resides in the City of Philadelphia (City), had sought a declaration that Ronald D. Castille, former District Attorney of the City and the intervenor, be declared ineligible to seek the office of Mayor of the City in the 1991 municipal election. In addition to the trial court's order, we also have before us a motion to quash filed by Castille. The basis of the motion to quash is that the Pennsylvania Supreme Court has exclusive appellate jurisdiction over the instant appeal pursuant to Section 722(2) of the Judicial Code, 42 Pa.C.S. § 722(2).

We first consider the motion to quash. Section 722 pertinently states:

The Supreme Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following classes of cases:

....

(2) The right to public office.

The Supreme Court has discussed this language in Smethport Area School District v. Bowers, 440 Pa. 310, 317, 269 A.2d 712, 716 (1970), where it explained:

The question is thus presented whether a district superintendent of a school district, such as appellant, is the holder of a 'public office', and whether his present complaint involves his 'right' to such office.

... While the point is not free of difficulty, we are satisfied that the present case does not come within the ambit of 'right to public office'. It is unnecessary and would be unwise to try to indicate in this opinion the complete content of the clause [right to public office]. The 'right' to office undoubtedly includes questions of qualification, eligibility, regularity of the electoral or appointive process and other preconditions to the holding of a particular public office. We think 'right' should not normally include an appraisal of the sufficiency of or ruling upon evidence or other allegedly irregular aspects of the proceedings before a hearing tribunal resulting in an officeholder's discharge from his position. The appeal from the Board's action in this case alleged these kinds of errors, together with other charges of denial of procedural due process.

In Bowers, an incumbent school district superintendent had been dismissed by the Board of School Directors of the Smethport (McKean County) Area School District. He appealed his dismissal to the Court of Common Pleas of McKean County under the Local Agency Law. ¹ That court dismissed the appeal concluding that it lacked jurisdiction because the Smethport Area School District was not a local agency. The Court indicated its view that the appeal should have been filed in the Court of Common Pleas of Dauphin County, the predecessor to this Court, under the Administrative Agency Law. ² The superintendent then filed a timely appeal in the Dauphin County Common Pleas Court. That, too, was dismissed for lack of jurisdiction, the Dauphin County Common Pleas Court being of the opinion that the school board was neither an "agency of the Commonwealth" under the Administrative Agency Law, nor a "local agency" under the Local Agency Law. Appeal from both common pleas court decisions to the Supreme Court followed. There the Supreme Court first had to determine which appellate court had to decide the issue of which court of common pleas had jurisdiction, and this threshold issue entailed a discussion of whether the Superior Court was the proper appellate court (at that time the Superior Court had jurisdiction over appeals under both the Administrative Agency Law and the Local Agency Law) or whether the Supreme Court itself had appellate jurisdiction under Section 2 of the Act of August 14, 1963, P.L. 819, ³ which provided that the Supreme Court had exclusive jurisdiction over appeals concerning "the right to public office." That same provision now appears in Section 722(2) of the Judicial Code and the identical phrase, "the right to public office," is employed.

The Supreme Court in Bowers held that it did not have jurisdiction and stated that while "public education is an important function of government, and that a district superintendency is an important office within the educational structure ... that in the context of the jurisdictional statute the emphasis should be on the governmental aspect of public office in the popular sense of the term governmental ... [and] this, in our opinion, does not include education" (footnotes deleted). Id. at 318, 269 A.2d at 717. The Supreme Court therefore remanded the appeal to the Superior Court to determine which court of common pleas had jurisdiction to determine the superintendent's appeal.

The issue not decided in Bowers, nor in any other case so far as our research has disclosed, is whether the phrase "right to public office" means the right to seek public office or the right to hold public office. In Bowers the facts clearly demonstrate that the challenge pertained to the right to hold the office but Bowers, we think, must be read in light of the unusual procedural posture of that case and the dismissal action of the appointing authority under the Public School Code of 1949. ⁴ In City Council of the City of Bethlehem v. Marcincin, 512 Pa. 1, 515 A.2d 1320 (1986) and Commonwealth ex rel. Waltman v. Graczyk, 501 Pa. 244, 460 A.2d 1098 (1983), it was the right to hold public office that was at issue and in each case the challenge arose in the nature of a quo warranto action. Jurisdiction in both cases rested in the Supreme Court. Likewise, in League of Women Voters of Lower Merion and Narberth v. Lower Merion Township Board of Commissioners, 451 Pa. 26, 301 A.2d 797 (1973), where the proper parties refused to bring a quo warranto action, an equity challenge to a township commissioner's right to sit was held to be within the Supreme Court's exclusive jurisdiction under the right to public office language. Accord Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975) (losing candidate challenged failure to count write-in votes because if such votes were counted he would be entitled to office). But see Curry v Parkhouse, 468 Pa. 542, 544 n. 1, 364 A.2d 326, 327 n. 1 (1976) (winning candidate brought suit before outcome of election challenging certain balloting provisions as unconstitutional and Supreme Court, while dismissing case as moot, noted that there had been no challenge to its jurisdiction and that case was "arguably" within its exclusive appellate jurisdiction).

We believe an important factor in determining whether an appeal quashing the right to seek public office is within the exclusive jurisdiction of the Supreme Court, under the phrase "right to public office," is this Court's exclusive appellate jurisdiction under Section 762(a)(3) of the Judicial Code, 42 Pa.C.S. § 762(a)(3), over appeals initially taken to the common pleas court under Section 933 of the Judicial Code, 42 Pa.C.S. § 933. Included in Section 933 is the right to appeal a determination of the Secretary of the Commonwealth under the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2601-3591. If the Commonwealth Court has appellate jurisdiction over election matters, then election cases where someone's right to seek an office is at issue must not fall within the ambit of the Supreme Court's exclusive appellate jurisdiction under the "right to public office" language or the Commonwealth Court's Election Code jurisdiction would be virtually nonexistent as a practical matter.

The Commonwealth Court also has appellate jurisdiction over cases where the application, interpretation or enforcement of a home rule charter is drawn into question. Section 762(a)(4)(i)(B) of the Judicial Code, 42 Pa.C.S. § 762(a)(4)(i)(B). In the instant case McMenamin alleges violations of both the Pennsylvania Election Code and the Philadelphia Home Rule Charter on the part of Castille and his challenges directly pertain to Castille's right to seek, not hold, the public office of Mayor. Accordingly, we conclude that this appeal falls within our own appellate jurisdiction and we shall, therefore, deny the motion to quash.

Turning now to the merits, we begin by setting forth the relevant findings the trial court made:

1. From January, 1986 to March 12, 1991, Ronald D. Castille was the duly elected District Attorney of Philadelphia.

2. On March 12, 1991, Mr. Castille resigned from the Office of District Attorney and filed his nominating petitions for the Office of Mayor with the Philadelphia City Commissioners.

3. Prior to March 12, 1991, Mr. Castille and/or individuals acting on his behalf, engaged in discussions with individuals regarding their possible involvement in Mr. Castille's mayoral campaign.

4. Prior to March 12, 1991, Mr. Castille and/or individuals acting on his behalf planned and extended invitations to a cocktail party which took place on March 12, 1991, the purpose of which was to raise [funds] for Mr. Castille's mayoral campaign.

5. Mr. Castille and/or individuals acting on his behalf met with individuals over the past year to assess the availability of funds for Mr. Castille's mayoral campaign.

6. Mr. Castille met with William...