In Re Nomination Petitions McElhatton

729 A.2d 163, 1999 Pa. Commw. LEXIS 348, 1999 WL 242699
CourtCommonwealth Court of Pennsylvania
DecidedApril 26, 1999
Docket916 C.D. 1999
StatusPublished
Cited by13 cases

This text of 729 A.2d 163 (In Re Nomination Petitions McElhatton) 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 Petitions McElhatton, 729 A.2d 163, 1999 Pa. Commw. LEXIS 348, 1999 WL 242699 (Pa. Ct. App. 1999).

Opinions

COLINS, President Judge.

This opinion is in support of the order filed April 21, 1999. Eric Blumenfeld and William Curry, Jr., (collectively Objectors) appeal a final order of the Court of Common Pleas of Philadelphia County (common pleas court) granting Daniel P. McEl-hatton’s (Candidate) motion to dismiss the petition to set aside Candidate’s nomination petition (petition). In the motion to dismiss, Candidate contended that process had not been served in conformity with a March 17, 1999 Rule Returnable1 of the [165]*165common pleas court; and that therefore, the common pleas court lacked jurisdiction to hear the petition. Service of the petition was made upon the Candidate by leaving the papers with a receptionist at his law office who was an employee of Candidate’s landlord. The common pleas court dismissed the petitions on the ground that personal service upon the Candidate, as required by the Rule Returnable of March 17, 1999, had not been effected. This appeal followed. We hold that Objectors’ service of process was sufficient to satisfy the requirements of the March 17 Rule, and the requirements of Section 977 of the Pennsylvania Election Code, Act of June 8, 1987, P.L. 1333, as amended, 25 P.S. § 2937.

We must first dispose of the Candidate’s motion to dismiss the appeal on the basis that this Court erred in granting the Objectors’ motion to amend the caption. Briefly, what occurred is that the Objectors’ appeal to this Court incorrectly named the Candidate as the appellant. The Candidate learned of this error and sought to withdraw the appeal, knowing the appeal was incorrectly captioned. The Candidate’s request to withdraw the appeal was denied. Subsequently, beyond the time for amendment as of right, the Objectors sought to correct their mistake. By order of this Court, the Objectors were permitted to amend the caption. Candidate now appeals our order granting amendment, however, the procedural mechanism utilized by the Candidate is incorrect. We shall address the issue nonetheless, since this is an election proceeding and time is of the essence.

A failure to comply with Pa. R.AP. 904 will not result in a dismissal of the notice of appeal as long as the notice of appeal is timely filed. Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986). Here, the candidate incorrectly named the “appellant” and the “appellee.” That typographical error alone will not be treated as a fatal defect in this election proceeding because the parties to the proceeding were named, although incorrectly titled. See generally Pa. R.A.P. 904; Darlington, G. Ronald, et al, 1 Pennsylvania Appellate Practice, § 904:3 (2d ed.1997).

We have appellate jurisdiction over the final order of common pleas court pursuant to 42 Pa.C.S. § 762(a)(4)(i)(C); 25 P.S. § 2937. Our scope of review is limited to examination of the record to determine whether the trial court committed errors of law and whether the court’s findings were supported by adequate evidence. In re Petition to Contest General Election for District Justice in Judicial District 36-3-01, 695 A.2d 476 (Pa.Cmwlth.1997), petition for allowance of appeal denied, - Pa. -, 729 A.2d 1132 (1998)).

Objectors sought to remove Candidate’s name from the primary election ballot for the Democratic Nomination for Councilman at Large in the City of Philadelphia by challenging his nomination petition based on signatures. On March 17, 1999, pursuant to Section 977 of the Election Code, 25 P.S. § 2937, the court of common pleas2 entered a rule returnable on Objectors scheduling a hearing on the petition and directing the time and manner of service of the petition. The Rule provided that:

Service upon the City Commissioners/County Board of Elections to be made upon City Commissioners, or person in charge of the City Commissioners’ Office, Room 142 City Hall, Philadelphia, Pennsylvania, on or before the 19 th day of March, 1999 at 4:00 p.m.
Service to be made upon the nominee, Daniel P. McElhatton, personally or upon an adult at his/her residence, or upon the person in charge of his/her [166]*166place of business, on or before the 19th day of March, 1999 at 4:00 p.m.

The matter went before the Honorable Alan L. Tereshko for hearing on March 22, 1999. The sole issue addressed was in response to an oral motion by the Candidate seeking dismissal of Objectors’ petition to set aside the nomination papers on the basis of failure to comply with the service requirements set forth in the March 17,1999 Rule.

Candidate’s contention was that regardless of the fact that he received notice of the hearing, service was not in conformity with the common pleas court March 17 Rule rendering service ineffective, and the challenge to his nomination petition untimely, thereby depriving common pleas court of jurisdiction to hear the matter.3 The factual findings reflect that the Candidate is a lawyer with his principal place of business located at Suite 725, 2 Penn Center Plaza, 1500 John F. Kennedy Boulevard, Philadelphia, Pennsylvania. Candidate has an office-sharing arrangement with another office whereby Candidate rents space from the other office and shares certain common areas. The reception area is a common area, not surprisingly, staffed with a receptionist who is not in the Candidate’s employ.

Part of the office-sharing arrangement allows Candidate to utilize the services of the receptionist at Candidate’s discretion. As related to the offices of the Candidate, the receptionist is authorized to answer the telephones, to receive clients, and to receive mail and packages. (Notes of Testimony, pp. 4, 8-12.)

It is undisputed that a process server went to the Candidate’s place of business during regular business hours and served the papers upon the receptionist at approximately 12:30 p.m. At the direction of the receptionist, the process server left the papers on the floor in front of the Candidate’s office door. It is undisputed that all of this occurred before 4:00 p.m. on March 19, 1999. Further, it is undisputed that on that very same date the candidate was in his office from 2:30 p.m. until 7:00 p.m. What is in dispute is whether the process server served the papers upon a “person in charge of [the candidate’s] business” as mandated by the March 17 Rule. Judge Tereshko found that the receptionist was “not in charge” of the candidate’s office; therefore, service was not proper.

The common pleas court cited no case law or statutory authority to support that conclusion. Furthermore, there is no evidence of record evidencing the March 17 Rule entered by common pleas court. Since the Candidate based his motion to dismiss the petition on the March 17 Rule, it was critical to the success of his motion that the Rule be of record. We have checked the common pleas court docket and the original record certified to this Court, and we find that the March 17 Rule is absent from both. There being no March 17 Rule of record herein, we conclude Candidate cannot assert his challenge to the service of the petition based upon the March 17 Rule. Thus, we conclude common pleas court was without authority to dismiss the petition, and we would reverse on that ground alone.

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In Re Nomination Petitions McElhatton
729 A.2d 163 (Commonwealth Court of Pennsylvania, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
729 A.2d 163, 1999 Pa. Commw. LEXIS 348, 1999 WL 242699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nomination-petitions-mcelhatton-pacommwct-1999.