In re Objection to Nomination Paper of Schumacher

29 Pa. D. & C.5th 194
Pennsylvania Court of Common Pleas, Lackawanna County·Decided March 22, 2013·No. No. 13 CV 1294·Published

Opinion

NEALON, J.,

An elector has filed petitions seeking to set aside the nomination papers [196] that have been filed by thirty-eight of the thirty-nine candidates who are seeking election to the government study commission at the primary election to be held on May 21, 2013. Two of the three objections raised by the elector are without merit since the challenged portions of the nomination papers are valid under the applicable state law. Although the elector’s third challenge based upon the absence of an “acceptance by candidate” oath under 53 Pa.C.S. § 2913(c) is well-founded, that deficiency in the candidates’ nomination papers is attributable to their reasonable reliance upon the deficient forms and erroneous instructions that were provided to the candidates by the Lackawanna County Department of Elections. Therefore, the government study commission candidates will be granted leave of court to amend their nomination papers nunc pro tunc to include the “acceptance by candidate” oath required by 53 Pa.C.S. § 2913(c). Their failure to do so by April 11, 2013, will warrant their removal from the primary election ballot.

I. FACTUAL BACKGROUND

Proponents of a government study commission referendum question filed a petition containing 6,101 signatures in support of a referendum question appearing on the upcoming municipal primary ballot for the-election of a government study commission to investigate and recommend the possible adoption of an optional form of govemmenttoreplaceLackawannaCounty’sexistinghome rule charter form of government. Timely objections were filed to that ballot referendum question petition, but those objections were overruled. See In re Referendum Petition for Government Study Commission, 2013 WL 1103067, at * 30 (Lacka. Co. Mar. 15, 2013); In re Objection to [197] Ballot Referendum Petition Pursuant to 53 Pa.C.S.A. §§ 2901 et seq., 2013 WL 861610, at * 4 (Lacka. Co. Mar. 8, 2013). Additionally, the government study commission supporters’ petition seeking to confirm and validate their referendum question request pursuant to section 977 of the Election Code, 25 P.S. § 2937, was granted, and the Lackawanna County Bureau of Elections was directed to submit the following question to the electors at the next municipal primary election on May 21, 2013:

Shall a government study commission of seven members be elected to study the existing form of government of Lackawanna County, to consider the advisability of the adoption of an optional form of government, and to recommend whether or not an optional plan of government should be adopted?

In re Referendum Petition for Government Study Commission, at * 30.

If a timely and valid petition is filed for the submission of a question for the election of a government study commission, section 2912(a) of the Pennsylvania Home Rule Charter and Optional Plans Law (“HRC & OPL”) provides that “[a] governmental study commission of seven, nine or eleven members, as designated in the question, shall be elected by the qualified voters at the same election the question is submitted to the electors.” 53 Pa.C.S. § 2912(a). To that end, the Lackawanna County Department of Elections and its solicitor devised a nomination paper form to be used by candidates seeking election to the government study commission, which nomination paper was patterned after the form that had been utilized by Luzerne County for the election of its [198] government study commission in 2009. (Transcript of proceedings (“T.P.”) on 3/21/13 at pp. 16-17). On or before the candidate filing deadline of March 12, 2013, forty candidates filed nomination papers for election to the government study commission.

On March 18, 2013, Joseph Pilchesky (“Pilchesky”) filed timely objections seeking to strike the nomination papers submitted by thirty-nine candidates.1 In No. 13 CV 1280, No. 13 CV 1282, No. 13 CV 1284, No. 13 CV 1290, No. 13 CV 1293 and No. 13 CV 1294, Pilchesky has challenged the joint nomination papers filed by Sarah F. Walsh, Jason M. Miller, Mary L. Oleslci, Dorothy Macciocco, Joseph M. Walsh, Catherine C. Hosie, Diane Walsh, Mirhia Noldy, Harry Kelly, Gerrie Carey, Charles Spano, Mary Rose McAndrew Spano, Charles J. Volpe, Marilyn C. Ruane, Michael J. Gianetta, Mary Jo Sheridan, Frank A. Farina, Robert R. Weber, Paul J. Catalano, J. Gaynor Cawley, David Wenzel, Robert Calpin, Maximilian Peters, Alexander J. Chelik, Lorraine Stevens, William Shanley and Dominick Perini, and argues that those candidates’ nomination papers violate section 2913 of the HRC & QPL.2 Pilchesky also contests those nomination papers, as well as the single candidate nomination petitions filed by Marie Schumacher (No. 13 CV 1277), Michael A. Dempsey (No. 13 CV 1278), Laureen A. Cummings [199] (No. 13 CV 1279), Mamie O’Dea Palmer (No. 13 CV 1281), Frank J. Bolock, Jr. (No. 13 CV 1283), Michael Stuchlak, Jr. (No. 13 CV 1285), Joseph J. Brazil (No. 13 CV 1286), Gary Duncan (No. 13 CV 1287), Michael A. Catanzaro (No. 13 CV 1288), Jerry Notarianni (No. 13 CV 1289), Reginald H. Mariani (No. 13 CV 1291), and Sharon L. Gebert (No. 13 CV 1292), on the grounds that they designate a “Committee to Fill Vacancies” in Section C which is not comprised of the elected officers of the Lackawanna County Democratic or Republican political party. Last, Pilchesky seeks to set aside the nomination papers of each candidate since they do not contain the candidate’s acceptance oath required by section 2913(c) of the HRC & OPL, 53 Pa.C.S. § 2913(c). (T.P. 3/21/13 at pp. 19-42).

Once objections are filed to nomination papers, section 977 of the Election Code directs the court to “make an order fixing a time for hearing which shall not be later than ten days after the last day for filing said nomination, petition or paper....” 25 P.S. § 2937. Consequently, a hearing on Pilchesky’s objections was scheduled for and conducted on March 21, 2013, within ten days of the filing deadline of March 12, 2013. At that time, Pilchesky presented legal argument in support of his objections, and counsel representing nineteen (19) of the challenged candidates offered rebuttal arguments. In accordance with 25 P.S. § 2937, Pilchesky’s objections must be “finally determine[d]... not later than fifteen (15) days after the last day for filing said nomination petitions or papers” on March 12, 2013. See In re Nomination Petition of Rosenski, 2007 WL 2160454, at * 6 (Lacka. Co. 2007).

[200] II. DISCUSSION

(A) STANDARD OF REVIEW

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In re Objection to Nomination Paper of Schumacher, 29 Pa. D. & C.5th 194 (Pa. Super. Ct. 2013).

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