In re Substitute Nomination Certificate of Ross
In re Substitute Nomination Certificate of Ross
Opinion of the Court
OPINION BY
This matter is a Petition to Set Aside Substitute Nomination Certificate filed by six qualified electors in the 158th Legislative District, Susan Rzucidlo, Richard Hicks, Diane Clayton, Mary Lynne Massi, Judy Porta and David Unger (Objectors). The Petition to Set Aside seeks to bar the substitution of Chris Ross (Ross) as the Republican candidate for the position of Representative in the Pennsylvania General Assembly, 158th Legislative District, in the November 4, 2014 General Election to fill the vacancy on the Republican ticket
On September 22, 2014, Walker filed a petition for leave to withdraw his candidacy, which was captioned and docketed in this Court as In Re: Election for Representative in the General Assembly from the 158th District in the General Election of November 4, 2014; Appeal of: Cuyler Walker, 108 A.3d 129 (Pa.Cmwlth. 2014) (the Walker Withdrawal Petition). On September 26, 2014, following an eviden-tiary hearing in that case at which Objectors, as intervenors, opposed the petition to withdraw and introduced evidence, this Court entered an Order granting Walker’s petition to withdraw. On September 29, 2014, the Republican Committee of Chester County filed with the Department of State (the Department) a Substitute Nomination Certificate nominating Ross as the Republican candidate for the position of Representative in the Pennsylvania General Assembly, 158th Legislative District, in the November 4, 2014 General Election.
Objectors filed the instant Petition to Set Aside Substitute Nomination Certificate the following day, September 30, 2014.
Mr. Forsythe testified at the October 3, 2014 hearing that the ballots for the voting machines had not yet been printed, that after the filing of the substitute nomination certificate, his office had completed coding the ballot with Ross’s name added, and that the ballot with Ross’s name on it would be ready to send to the printer that afternoon or the next day. Mr. Forsythe further testified that the substitution of Ross as a candidate would not interfere with having the voting machines ready for the November 4, 2014 election. Mr. For-sythe testified that his office had finished preparing supplemental absentee ballots limited to the 158th Legislative District race for the small number of voters (approximately 121 out of a total registration of approximately 60,000 in the district) who had already received absentee ballots before the withdrawal and substitution. The Court finds Mr. Forsythe’s testimony credible.
In addition, Mr. Forsythe explained at the September 26, 2014 Walker Withdrawal Petition hearing how the initial absentee ballots and supplemental absentee ballots would be counted for those voters who had already been sent absentee ballots, in or
Based on the evidence from the two hearings, the Court issued an Order dismissing Objectors’ Petition to Set Aside. This Opinion sets forth the reasons for the Court’s Order.
Sections 981 and 1006 of the Pennsylvania Election Code (Election Code)
Substituted nomination certificates to fill vacancies caused by the withdrawal of candidates nominated at' primaries or by nomination papers shall be filed with the Secretary of the Commonwealth or proper county board of elections, as the case may be, at least seventy-five (75) days before the day of the general or municipal election: Provided, however, That no substituted nomination certificate by a political body may be filed until after the primary election.
25 P.S. § 2941(a). Section 1006 provides:
As soon as any substituted candidate shall have been duly nominated, at any time prior to the day on which the printing of ballots is started, his name shall be substituted in place of that of the candidate who has died or withdrawn.
25 P.S. § 2966.
Objectors argue that the substitution of Ross as a candidate is barred by Section 981(a) because it was sought later than 75 days before the November 4, 2014 election. Our Supreme Court, however, has rejected this argument and held that the Election Code’s deadlines for candidate withdrawal and substitution are directory and not mandatory. Perles v. Hoffman, 419 Pa. 400, 213 A.2d 781, 783-84 (1965); In re Mayor of the City of Altoona, Blair County, 413 Pa. 305, 196 A.2d 371, 372-75 (1964); In re Substitute Nomination for Vacancy in the Democratic Nomination for Office of County Commissioner of Allegheny County, 383 Pa. 372, 118 A.2d 750, 753 (1955).
In Mayor of the City of Altoona, the Supreme Court upheld the substitution of a candidate for a November 5 general election, despite the fact that it was filed on September 18, too late to comply with the deadline for substitution set by Section 981(a). The Court held' that the deadline in Section 981(a) did not bar substitution where the printing of the ballot had not started and the election would not be disrupted by the late filing, holding that the Election Code must be construed to secure
[i]t imposes neither hardship nor disadvantage upon nor gives preference or advantage to either party or candidate and and [sic] does maintain a fair and equal balance in the election procedures and machinery, thereby affording the electorate the opportunity for choice, an opportunity basic to a democratic and fair election. To have denied the substitution, in reality, would have resolved the election in advance of November 5 and not at the polls. The selection of elected public officials is historically and legally a function exclusively reserved for eligible voters. No tradition of American life is more cherished than the right of the voter, at all levels of government to express his choice between candidates at the polls.
Id. at 375 (emphasis in original).
In County Commissioner of Allegheny County, the Supreme Court held that the time limit set in Section 981(b) for substitutions in the event of death of a candidate, which provided that the substitute nomination certificate “shall be filed ... prior to the day on which the printing of ballots is started,” 25 P.S. § 2941(b), was directory and not mandatory. 118 A.2d at 752-53. The Court upheld the substitution of a candidate due to the death of the nominated candidate only 11 days before the election, after all ballots had been printed, concluding that notwithstanding the deadline in Section 981, such a substitution for death of a candidate “may be made so long as time permits for the correction of the ballots accordingly.” Id. at 753.
In Perles, the Supreme Court reaffirmed its rulings in Mayor of the City of Altoona and County Commissioner of Allegheny County, and held that the deadline Section 978, 25 P.S. § 2938, the provision of the Election Code governing withdrawals, was not mandatory. 213 A.2d at 783-84. The Court held that Sections 981(a) and 978 do not bar all withdrawals and substitutions after the deadlines they provide, concluding that “the practical result of a mandatory and literal construction of the provision would be to deprive the voters of a real choice between candidates.” Id. at 783.
Objectors argue that this Court should disregard these precedents as wrongly decided because they are allegedly inconsistent with the language of Section 981(a) that substituted nomination certificates to fill vacancies caused by withdrawal “shall be filed ... at least seventy-five (75) days before the day of the general or municipal election.” This argument fails for several reasons.
First, even if this Court agreed with Objectors that Mayor of the City of Altoona and Perles were wrongly decided and that the dissenting opinions in those cases are the better reasoned opinions, this Court, as an intermediate appellate court is bound to follow the majority opinions of our Supreme Court, not the dissents, unless and until the Supreme Court overrules those majority opinions or it is clear that they are no longer good law. Griffin v. Southeastern Pennsylvania Transportation Authority, 757 A.2d 448, 451 (Pa.Cmwlth. 2000) (en banc); Steglik v. Workers’ Compensation Appeal Board (Delta Gulf Corp.), 755 A.2d 69, 76 (Pa.Cmwlth. 2000) (en banc); Nunez v. Redevelopment Authority of City of Philadelphia, 147 Pa.Cmwlth. 577, 609 A.2d 207, 209 (1992). No subsequent decision of our Supreme Court has overruled or ques
Objectors contend that the Supreme Court’s recent opinion in In re Nomination Petition of Guzzardi, — Pa. -, 99 A.3d 381 (2014), sub silentio overruled Mayor of the City of Altoona and Perles and requires that the 75-day deadline for candidate substitutions be strictly enforced. This Court does not agree. In Guzzardi, the Court interpreted a different statute, Section 1104(b) of the Public Official and Employee Ethics Act (the Ethics Act), which provides that a candidate’s failure to file the required statement of financial interests with the State Ethics Commission by the deadline for filing nomination petitions “shall, in addition to any other penalties provided, be a fatal defect to a petition to appear on the ballot.” 65 Pa.C.S. § 1104(b)(3) (emphasis added). That absolute and unequivocal prohibitory language is different from the language in Sections 981 and 978 of the Election Code, which state only that the substitution or withdrawal “shall be filed” by the deadline, not that placement of a substituted candidate on the ballot or removal from the ballot after the deadline is prohibited. See Mayor of the City of Altoona, 196 A.2d at 374.
Moreover, the “fatal defect” language at issue in Guzzardi was enacted by the General Assembly to override the Supreme Court’s prior, more flexible construction of the Ethics Act. Guzzardi, 99 A.3d at 383-85. Here, in contrast, the actions of the General Assembly show no disagreement with the Supreme Court’s interpretation of Sections 981 and 978 of the Election Code. In the decades since the Court issued its opinions in Mayor of the City of Altoona and Perles, the General Assembly has not made any changes to the language of Section 981; the last amendment of that statute was enacted in August 1963, prior to the Supreme Court’s order or opinion in Mayor of the City of Altoona.
Furthermore, the Court does not agree with Objectors that Perles, Mayor of the City of Altoona and County Commissioner of Allegheny County were wrongly
Objectors also contend that substitution beyond the 75-day time limit must be barred in order to protect against gamesmanship and placeholder or dummy candidates. This argument is unsupported by the record before this Court. No abusive practices have been shown here. There is no evidence in this case suggesting that Ross is not a genuine candidate who will serve if elected or that Walker was not genuinely seeking the office of state representative for the 158th Legislative District when he was nominated in the Republican primary in May 2014.
For the foregoing reasons, the Court concluded that Objectors have not shown any valid ground to bar the substitution of Ross as the Republican candidate for Representative in the Pennsylvania General Assembly, 158th Legislative District. Accordingly, the Court dismissed the Petition to Set Aside Substitute Nomination Certificate.
. Objectors also moved for a preliminary injunction to bar the Department from certifying Ross as the Republican nominee and to bar Chester County Voter Services from placing Ross’s name on the ballot until resolution of this Petition to Set Aside Substitute Nomination Certificate. This Court denied Objectors’ application for a preliminary injunction, and that order was appealed by Objectors to our Supreme Court. Following this Court’s final order in this case, Objectors on October 3, 2014 discontinued their appeal from the denial of the preliminary injunction.
. Act of June 3, 1937, P.L. 1333, §§ 981, 1006, as amended, 25 P.S. §§ 2941, 2966.
. This last amendment, effective January 1, 1964, after the election in Mayor of the City of Altoona and before the election in Perles, changed the deadline for substitution due to withdrawal in Section 981(a) from 55 days before the election to 75 days before the election, but made no change to the language interpreted in Mayor of the City of Altoona providing that "[s]ubstituted nomination certificates to fill vacancies caused by the withdrawal of candidates nominated at primaries ... shall be filed ... at least” a certain number of days before the election. Compare Mayor of the City of Altoona, 196 A.2d at 372 with 25 P.S. § 2941.
. Added by the Act of July 11, 1980, P.L. 591.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.