In re Nomination of Blount

898 A.2d 1181, 2006 WL 1275126
CourtCommonwealth Court of Pennsylvania
DecidedApril 3, 2006
DocketNo. 172 M.D. 2006
StatusPublished
Cited by5 cases

This text of 898 A.2d 1181 (In re Nomination of Blount) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Nomination of Blount, 898 A.2d 1181, 2006 WL 1275126 (Pa. Ct. App. 2006).

Opinion

OPINION BY

Judge COHN JUBELIRER.

Before this Court is Petitioner’s, Shaun E. O’Toole,1 Petition to Set Aside Nomination Petition (Petition to Set Aside) of Dowayne Blount, a/k/a Dee Blount (Candidate), a candidate for the Democratic nomination at the May 2006 primary for the House of Representatives in the General Assembly from the 103rd Legislative District. Also before the Court is Candidate’s Motion to Dismiss Petition to Set Aside Nomination Petition (Motion to Dismiss). Candidate contends that the Petition to Set Aside should be dismissed because service of the Petition was made 2)£ hours after the time set forth in this Court’s order.

On or about March 7, 2006, Candidate filed her nomination petition, consisting of 32 pages, containing 650 signatures. On March 14, 2006, Petitioner filed his Petition to Set Aside, raising several objections to Candidate’s nomination petition. By order dated March 15, 2006, this Court scheduled a hearing for March 30, 2006 on the Petition to Set Aside. This Court also ordered that written notice of the time and place of said hearing, together with a copy of said Petition, be personally served on Candidate, or an adult member of her family, on or before 5:00 p.m., on the 21st [1183]*1183day of March, 2006. However, the Petition to Set Aside and notice of hearing were not served on Candidate until 7:38 p.m. that evening.2 On March 22, 2006, Petitioner filed a Motion to Extend Time for Personal Service, from 5:00 p.m. on the 21st of March, to 7:38 p.m. on the same day. By order dated March 22, 2006, this Court granted Petitioner’s Motion to Extend Time For Personal Service until on or before 8:00 p.m., on the 21st day of March, 2006.

On March 24, 2006, Candidate filed a Motion to Dismiss, alleging that Petitioner failed to comply with this Court’s March 15, 2006 order, requiring personal service to be made on her, or an adult member of her family, on or before 5:00 p.m. on March 21, 2006. Candidate averred that Petitioner did not personally serve her or an adult family member until 7:38 p.m. at her residence.3 This Court entered an order on March 27, 2006, scheduling a hearing on Candidate’s Motion to Dismiss for March 30, 2006, at 1:30 p.m., to immediately precede the scheduled hearing on the Petition to Set Aside.

At the hearing on March 30, 2006, four witnesses testified, and this Court found all witnesses credible. Candidate testified that she is currently employed with the Harrisburg School District as a Project Coordinator. She testified that on the morning of March 21, 2006, she became aware that she was to be served with the Petition to Set Aside and a notice of hearing by 5:00 p.m. that day. She also testified that she worked on March 21st, from 8:00 a.m. until 4:30 p.m. at her employer’s administrative building. She testified that she was not served until 7:38 p.m., when a Constable appeared at her residence, and served her with the Petition and notice.

The next witness to testify was the Constable, John Levenda. He credibly testified that he received the documents to be served on Candidate “late” Friday, March 17, 2006. His first unsuccessful attempt to serve Candidate was on Monday, March 20, 2006 at 7:00 p.m., at her residence. He made four additional attempts to serve Candidate on Tuesday, March 21, 2006. He attempted to serve Candidate at her residence at 3:30 p.m. and 4:00 p.m., however, he was unsuccessful. He testified that he received a call informing him that Candidate could be found at either Camp Curtin Elementary School or Foose Elementary School. Because it was late in the day, he decided to go to the latter location, and wait for Candidate there. However, Candidate never appeared. Le-venda then returned to Candidate’s residence, and unsuccessfully attempted service at 4:55 p.m. He waited until 5:30 p.m., and then called counsel for Petitioner, who instructed him to continue his attempts at service. At 7:38 p.m., Candidate answered her door at the residence, and Levenda presented her with the documents. Candidate inquired whether those were the papers that had to be served on her by 5:00 p.m. Levenda indicated that they were, and because he had been unable to serve her by 5:00 p.m., he was instructed to continue his attempts at service. Candidate did not take the papers, so Levenda placed them on the floor at Candidate’s feet. Thus, he testified that he successfully served Candidate at 7:38 p.m. at her residence.

[1184]*1184Next to testify was Lesa Nornhold, who works in the office of the Superintendent of the Harrisburg School District. She testified that she was asked, by the Superintendent, to check Candidate’s office from 3:30 p.m. to 4:30 p.m., on Tuesday, March 21, 2006, in an attempt to locate her. Nornhold testified that she checked Candidate’s office every fifteen minutes and Candidate was out of the office during the hour; so, she called Donna Cheatham, Academic Program Coordinator and Candidate’s supervisor, to find out where Candidate was. Cheatham testified that she received a call from Nornhold inquiring as to Candidate’s whereabouts. Cheatham told Nornhold that Candidate was, most likely, visiting either Camp Curtin Elementary School or Foose Elementary School. She also testified that she tried to call Candidate on her cell phone, but there was no answer.4

At the close of the hearing, the Court denied Candidate’s Motion to Dismiss. The Court found that all witnesses were credible, Candidate was not trying to evade service, and Levenda’s attempts to serve Candidate were reasonable.

The primary purpose of service is to give adequate notice of the pendency of an action. Continental Bank v. Rapp, 336 Pa.Super. 160, 485 A.2d 480 (1984). The service of the Petition to Set Aside is not addressed by the procedures in Section 977 of the Pennsylvania Election Code,5 which provides the sole and exclusive remedy for challenging a person’s right to run for political office.6 See In re Lee, 133 Pa.Cmwlth. 1, 574 A.2d 1168 (1990), rev’d on other grounds, 525 Pa. 155, 578 A.2d 1277 (1990). Candidate does not deny receiving service, but asserts only that it was 2% hours late.

Under Section 977 of the Pennsylvania Election Code, the lower court “has complete control to regulate the time and manner of giving notice and the fixing of hearings.” In re Morgan, 59 Pa.Cmwlth. 161, 428 A.2d 1055, 1058 (1981) (quoting In re Moore, 447 Pa. 526, 533, 291 A.2d 531, 535 (1972)). This is because selection of the time and manner of giving notice and fixing hearings is clearly an exercise of the judicial function and, therefore, purely directory. See In re Nomination Papers of American Labor Party, 352 Pa. 576, 44 A.2d 48 (1945) (reasoning that “legislature ... could not ... constitutionally impose upon the courts mandatory duties pertaining to the exercise of judicial function”); [1185]*1185In re Moore

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