Petition of Pippy

• Decision Date: 01 April 1998
• Citation: 711 A.2d 1048
• Parties: In re Nomination Petition of John R. PIPPY, Candidate for Representative in the General Assembly from the 44th Legislative District. John J. Hiles, Randy W. Schott, and John E. Tuite, Objectors. . Heard
• Court: Pennsylvania Commonwealth Court

Page 1048

711 A.2d 1048

In re Nomination Petition of John R. PIPPY, Candidate for Representative in the General Assembly from the 44th Legislative District John J. Hiles, Randy W. Schott, and John E. Tuite, Objectors.

Commonwealth Court of Pennsylvania.

Heard April 1, 1998.

Decided April 7, 1998.

Publication Ordered May 5, 1998.

William M. Sloan, Carlisle, and Reizdan B. Moore, Harrisburg, for objectors.

James T. Tallman and H. Woodruff Turner, Pittsburgh, for John Pippy.

KELLEY, Judge.

Presently before the court is the petition to set aside the nomination petition of John R. Pippy (Candidate) as a candidate for the Republican nomination to the office of State Representative in the Pennsylvania General Assembly for the 44th Legislative District. The two-count petition was filed in this court on March 17, 1998, by John J. Hiles, Randy W. Schott and John E. Tuite (collectively, Objectors). ¹

In Count I of the petition, the Objectors claim that the candidate's affidavit accompanying the nomination petition, as required by section 910 of the Pennsylvania Election Code, ² contains a material defect in that it contains a false statement. The Objectors contend that the candidate's affidavit contains a false statement in that the Candidate swore that he is eligible for the office of State Representative when, in fact, he is not eligible for that office under Article 2, Section 5 of the Pennsylvania Constitution. ³ As a result, the Objectors ask this court to enter an order: setting aside the Candidate's nomination petition; directing the Secretary of the Commonwealth to not certify the Candidate as a candidate for the office of Representative of the 44th Legislative District; declaring the Candidate to be disqualified from holding this office or any other office of trust or profit in the Commonwealth pursuant to section 1851 of the Election Code, ⁴ and, pursuant to section 1802.1 of the Election Code, ⁵ to award court costs, attorney fees, investigation costs and similar costs. ⁶

As a preliminary matter, we note that on March 27, 1998, the Candidate filed preliminary objections to the Objectors' petition. In the preliminary objections, the Candidate alleges that: (1) this court lacks subject matter jurisdiction under the Election Code to entertain the Objectors' petition; and (2) Count I of the Objectors' petition fails to state an objection for which relief can be granted in that it presents a nonjusticiable claim for which this court cannot grant relief. ⁷

In ruling on these preliminary objections, this court must accept as true all well pleaded material allegations in the petition as well as all inferences reasonably deduced therefrom. Envirotest Partners v. Department of Transportation, 664 A.2d 208 (Pa.Cmwlth.1995). This court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Id. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them. Id. With these standards in mind, we consider the Candidate's preliminary objections.

In his preliminary objections, the Candidate initially claims that this court is without jurisdiction under the Election Code to entertain the instant petition. We do not agree.

We initially note that in ascertaining the intention of the General Assembly in the enactment of a statute, this court must presume that the General Assembly intended the entire statute to be effective and certain. 1 Pa.C.S. § 1922; Black v. Billy Penn Corp., 72 Pa.Cmwlth. 628, 457 A.2d 192 (1983). Thus, this court must determine the legislative intent from the totality of a statute, and render an interpretation which gives effect to all of its provisions. Wolfe v. Department of Transportation, Bureau of Traffic Safety, 24 Pa.Cmwlth. 261, 355 A.2d 600 (1976).

In addition, the provisions of the Election Code must be liberally construed so as not to deprive an individual of his right to run for office or the voters of their right to elect the candidate of their choice. In re Silcox, 543 Pa. 647, 674 A.2d 224 (1996); In re Williams, 155 Pa.Cmwlth. 494, 625 A.2d 1279 (1993). However, the provisions of the Election Code relating to the form of nominating petitions and the accompanying affidavits are not mere technicalities, but are necessary measures to prevent fraud and to preserve the integrity of the election process. In re Cianfrani, 467 Pa. 491, 359 A.2d 383 (1976); In re Carlson, 60 Pa.Cmwlth. 170, 430 A.2d 1210 (1981), aff'd, 494 Pa. 139, 430 A.2d 1155 (1981). The requirements of sworn affidavits in the Election Code are to insure the legitimacy of information crucial to this process. Cianfrani. Thus, the policy of liberal reading of this statute cannot be distorted to emasculate those requirements necessary to assure the probity of the election process. Id.

We shall now consider the relevant provisions of the Election Code which apply to our review of the instant matter. In its present form, section 910 requires a candidate for state office to file with his nomination petition an affidavit stating, inter alia, "that he is eligible for such office". 25 P.S. § 2870. In addition, as presently enacted, section 977 states, in pertinent part:

All nomination petitions and papers received and filed ... shall be deemed to be valid, unless ... a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition or paper be set aside.... If the court shall find that said nomination petition or paper is defective under the provisions of section 976 [ ⁸] ... it shall be set aside. If the objections relate to material errors or defects apparent on the face of the nomination petition or paper, the court, after hearing, may, in its discretion, permit amendments within such time and upon such terms as to payment of costs, as the said court may specify.

25 P.S. § 2937. Finally, section 1802.1 provides, in pertinent part, that any candidate for state office "who knowingly makes a false statement regarding his eligibility or qualifications for such office in his candidate's affidavit shall, in litigation which results in the removal of the candidate from the ballot, be liable for court costs, including filing fees, attorney fees, investigation fees and similar costs". 25 P.S. § 3502.1.

Reading all of the foregoing sections of the Election Code, and giving effect to all of these provisions, it is apparent that this court has jurisdiction to consider the Objectors' petition. Under section 910, the Candidate was required to execute the candidate's affidavit and swear or affirm, inter alia, that he was eligible for the office of State Representative. As the Pennsylvania Supreme Court has previously determined, an affidavit executed pursuant to section 910 that contains a false statement "must be at least equated with the failure to execute the affidavit", and renders the candidate's nomination petition "void and invalid". Cianfrani, 467 Pa. at 494, 359 A.2d at 384 (emphasis in original).

Under section 977, the Candidate's nomination petition would be presumed to be valid unless the Objectors presented the instant petition to this court specifically setting forth this alleged patent defect. In addition, based on the incorporation of section 976, section 977 requires this court to set aside the Candidate's nomination petition if we find any material errors or defects on the face of the nomination petition or the appended or accompanying affidavits. Clearly, such a patent material error or defect, if proven, could compel this court to set aside the Candidate's nomination petition.

Moreover, section 1802.1 specifically empowers this court to impose costs and fees upon the Candidate that flow from a court action challenging his nomination petition. Under that section, the Candidate is liable for court costs, attorney fees and other fees flowing from this "litigation which result[ed] in the removal of the candidate from the ballot" if this court determines that he "knowingly [made] a false statement regarding his eligibility or qualifications for such office in his candidate's affidavit". 25 P.S. § 3502.1.

In support of his claim that this court is without jurisdiction to entertain the instant petition, the Candidate directs our attention to In re Jones, 505 Pa. 50, 476 A.2d 1287 (1984) and Balmer v. Pippy, 702 A.2d 587 (Pa.Cmwlth.1997). However, neither of these decisions supports this conclusion.

From the outset, it is important to acknowledge that in Jones, it was stated by former Chief Justice Nix that:

The argument presented [in this case] relies upon the unstated premise that Article 2, section 5 [of the Pennsylvania Constitution] is self-executing and authorizes court involvement. An analysis forces the conclusion that neither Article 2 in its entirety, nor section 5 specifically, confers authority in the court to act in this area.

Article 2 is concerned with the composition, powers and duties of the legislature. Nothing in this article even remotely suggests the conference of jurisdiction upon the courts to test the qualifications of the members of the General Assembly. Indeed, section 9 of Article 2 [ ⁹] expressly states that each body of the General Assembly shall be the judge of the qualifications of its members. Moreover, Article 2, section 5 by its express terms refers only to the qualifications of the members of the body. There is no reference to persons who file to run for the office.

Jones, 505 Pa. at 57-58, 476 A.2d at 1290-91 (emphasis in original). Thus, he concluded "Article 2, section 5 [of the Pennsylvania Constitution] does not by its terms grant jurisdiction to the courts to inquire into the qualifications of one seeking to run for ... office. Moreover, the legislature has not expressly attempted to confer such power." Id. at 62, 476 A.2d at...