Opinion
No. 91 MAP 2022 No. 92 MAP 2022
09-22-2022
IN RE: Nomination Paper of Caroline AVERY for Representative in Congress from the 1st Congressional District Objection of: David R. Breidinger, Ellen Cox, and Diane Dowler Appeal of: Caroline Avery In re: Nomination Paper of Brittany Kosin for Representative in the General Assembly from the 178th Legislative District Objection of: Mary Roderick, John Coppens, and Andrew Gannon Appeal of: Brittany Kosin
Daniel Donovan Grieser, Esq., Bucks County, for Amicus Curiae County of Bucks. Kathleen Marie Kotula, Esq., Pennsylvania Department of State, for Participants Kotula, Kathleen. Samuel C. Stretton, Esq., Law Office of Samuel C. Stretton, for Appellants Avery, Caroline of Docket No. 91 MAP 2022. Timothy James Ford, Esq., Dilworth Paxson LLP, Claire Blewitt Ghormoz, Esq., Dilworth Paxson LLP, for Appellants Kosin, Brittany of Docket No. 92 MAP 2022. Miranda Lu Dang, Esq., Francis Gerard Notarianni, Esq., Shohin Hadizadeh Vance, Esq., Kleinbard, LLC, for Appellees.
Daniel Donovan Grieser, Esq., Bucks County, for Amicus Curiae County of Bucks.
Kathleen Marie Kotula, Esq., Pennsylvania Department of State, for Participants Kotula, Kathleen.
Samuel C. Stretton, Esq., Law Office of Samuel C. Stretton, for Appellants Avery, Caroline of Docket No. 91 MAP 2022.
Timothy James Ford, Esq., Dilworth Paxson LLP, Claire Blewitt Ghormoz, Esq., Dilworth Paxson LLP, for Appellants Kosin, Brittany of Docket No. 92 MAP 2022.
Miranda Lu Dang, Esq., Francis Gerard Notarianni, Esq., Shohin Hadizadeh Vance, Esq., Kleinbard, LLC, for Appellees.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE DONOHUE
I. Introduction
In these unconsolidated, direct appeals, Caroline Avery ("Avery") filed nomination petitions to run as a Republican candidate for Representative of the First Congressional District in the May 2022 primary election, and Brittany Kosin ("Kosin") filed nomination petitions to run as a candidate in the same primary election as a Republican for the Pennsylvania General Assembly seat representing the 178th District. However, both candidates withdrew their primary election nomination petitions by way of Commonwealth Court orders, as explained in more detail below. Avery and Kosin subsequently submitted nomination papers seeking to run as third-party candidates in the November 2022 general election for the same offices that they initially sought to fill as Republican candidates in the 2022 primary election.
Various citizens petitioned to set aside these nomination petitions, primarily on the grounds that the candidates were barred from appearing on the general election ballot by the Election Code, specifically Subsection 976(e) of the Code, 25 P.S. § 2936(e). In response, both potential candidates argued that they were entitled to participate in the 2022 general election based upon this Court's opinion in Packrall v. Quail , 411 Pa. 555, 192 A.2d 704 (1963), and our decision in In re Cohen for Office of Philadelphia City Council-at-Large , 657 Pa. 434, 225 A.3d 1083 (2020) (" Cohen ").
Act of 1937, June 3, P.L. 1333, as amended by 25 P.S. §§ 2601 -3391.
This statutory subsection is commonly referred to as a "sore loser provision." In re Cohen for Office of Philadelphia City Council-at-Large , 657 Pa. 434, 225 A.3d 1083 (2020). It provides as follows:
When any nomination petition, nomination certificate or nomination paper is presented in the office of the Secretary of the Commonwealth or of any county board of elections for filing within the period limited by this act, it shall be the duty of the said officer or board to examine the same. No nomination petition, nomination paper or nomination certificate shall be permitted to be filed[,] ... in the case of nomination papers, if the candidate named therein has filed a nomination petition for any public office for the ensuing primary, or has been nominated for any such office by nomination papers previously filed[.]
25 P.S. § 2936(e).
In Packrall , this Court held that candidates who voluntarily and timely withdraw their primary election nomination petitions pursuant to Section 914 of the Election Code, 25 P.S. § 2874, are permitted to file nomination papers in the corresponding general election. Although neither Avery nor Kosin withdrew their primary election nomination petitions pursuant to Section 914, they argued that, in Cohen , this Court extended Packrall to allow a candidate to run in a general election in the circumstances presented in their cases. The Commonwealth Court rejected this argument, concluding that, in Cohen , a majority of Justices held that this Court's decision in Packrall is limited to the particular circumstances of that case and does not apply to the present matters. In re Avery , 281 A.3d 1124 (Pa. Commw. 2022) ; In re Kosin , 281 A.3d 1118 (Pa. Commw. 2022).
This provision states as follows:
Any of the candidates for nomination or election at any primary may withdraw his name as a candidate by a request in writing, signed by him and acknowledged before an officer empowered to administer oaths, and filed in the office in which his nomination petition was filed. Such withdrawals, to be effective, must be received in the office of the Secretary of the Commonwealth not later than 5 o'clock P.M. on the fifteenth day next succeeding the last day for filing nomination petitions in said office, and in the office of any county board of elections, not later than the ordinary closing hour of said office on the fifteenth day next succeeding the last day for filing nomination petitions in said office. No name so withdrawn shall be printed on the ballot or ballot labels. No candidate may withdraw any withdrawal notice already received and filed, and thereby reinstate his nomination petition.
25 P.S. § 2874.
Avery and Kosin filed separate appeals in this Court, and the principal issue in both appeals is identical: What is the precedential impact of this Court's decision in Cohen ? On September 22, 2022, we issued orders affirming the Commonwealth Court's orders. In re Avery , 282 A.3d 1131 (Pa. 2022) ; In re: Kosin , 282 A.3d 1132 (Pa. 2022). This opinion explains our reasoning for issuing those orders.
II. In re Avery
A. Background
On March 15, 2022, Avery filed nomination petitions to run as a Republican candidate for Representative of the First Congressional District in the May 2022 primary election. Her petitions allegedly contained the signatures of 1300 registered Republicans from the district. On March 22, 2022, Michael Zolfo filed a petition to set aside Avery's nomination petitions on the grounds that 480 of the 1300 signatures were defective and, therefore, the nomination petitions contained fewer than the 1000 signatures that a potential candidate for the Office of Representative in Congress is required to obtain to participate in a primary election pursuant to Section 412.1 of the Election Code, 25 P.S. § 2872.1(12).
The Commonwealth Court held a hearing on March 29, 2022 to address Zolfo's petition to set aside. During that hearing, Avery decided to withdraw her nomination petitions and asked the court to issue an order removing her name from the ballot pursuant to Section 978.4 of the Election Code, 25 P.S. § 2938.4. The Commonwealth Court granted Avery's request. In Re: Nomination Petitions of Caroline Avery as Avery for Representative in Cong. for the First Cong. Dist , 114 M.D. 2022 (Pa. Commw. Mar. 29, 2022).
This statute states as follows:
Upon petition to the court of common pleas, or the Commonwealth Court, when a court of common pleas is without jurisdiction, by a candidate for nomination or election, or, in the case of the death of such candidate by the treasurer of his political committee, the court shall order the withdrawal of said candidate's name for nomination or election, except upon a showing of special circumstances.
25 P.S. § 2938.4.
On August 1, 2022, Avery submitted nomination papers seeking certification as the Libertarian Party candidate in the 2022 general election for Representative in Congress for the First District. On August 8, 2022, David R. Breidinger, Ellen Cox, and Diane Dowler ("Avery Objectors") filed in the Commonwealth Court a petition to set aside Avery's nomination papers on the basis that she is barred from appearing on the general election ballot by Subsection 976(e) of the Election Code, 25 P.S. § 2936(e), i.e., the "sore loser provision." This provision disallows a potential candidate from filing nomination papers for a general election if that person earlier filed nomination petitions in the related primary election.
On August 16, 2022, Judge Ceisler of the Commonwealth Court held a hearing to address Avery Objectors’ petition. According to Judge Ceisler, Avery testified at the hearing that, before the March 29th hearing on Zolfo's petition to set aside, she decided to voluntarily withdraw her nomination petitions for the Republican Party before Zolfo's petition to set aside was adjudicated fully. In arguing that her voluntary withdrawal of her initial nomination petitions allowed her to run in the general election as a Libertarian candidate, Avery relied upon Packrall . As noted above, the Packrall Court held that candidates who voluntarily and timely withdraw their primary election nomination petitions pursuant to Section 914 of the Election Code, 25 P.S. § 2874, are permitted to file nomination papers in the corresponding general election. Avery further contended that this Court's recent decision in Cohen essentially extended Packrall by allowing a candidate to run in a general election when a court previously issued an order withdrawing the candidate's primary election nomination petitions pursuant to Section 978.4 of the Election Code, 25 P.S. § 2938.4.
In response, Avery Objectors argued that Subsection 976(e) of the Election Code unambiguously prohibited Avery from filing her general election nomination papers. They took the position that Avery's reliance on Packrall was misguided because, unlike the candidate in Packrall , Avery did not voluntarily withdraw her original nomination petitions pursuant to Section 914 of the Election Code. Instead, the Commonwealth Court issued an order withdrawing her petitions pursuant to Section 978.4 of the Election Code. Consistent with this position, Avery Objectors contended that Avery misinterpreted Cohen , as a majority of the Justices in that appeal held that a potential candidate who withdrew from a primary election pursuant to Section 978.4 was barred by Subsection 976(e) from participating in the general election.
B. Commonwealth Court's opinion
In a single-judge, published opinion and order, Judge Ceisler granted Avery Objectors’ petition to set aside. In re Avery , 281 A.3d 1124 (Pa. Commw. 2022). Most relevant to the instant matters, Judge Ceisler agreed with Avery Objectors’ view of the precedential value of Cohen , which we will briefly summarize at this point.
In Cohen , Sherrie Cohen initially filed nomination petitions to appear on the May 21, 2019 Democratic primary election for an at-large seat on Philadelphia's City Council. However, she eventually obtained a court order withdrawing her petitions pursuant to Section 978.4 of the Election Code. Cohen subsequently presented nomination papers to appear on the November 5, 2019 general election ballot as a third-party candidate. Two qualified electors filed petitions to set aside Cohen's nomination papers on the grounds that she was barred from participating in the general election by Subsection 976(e) of the Election Code, the "sore loser provision." The trial court granted the petitions to set aside Cohen's nomination papers, and the Commonwealth Court affirmed. This Court granted Cohen's petition for allowance of appeal.
On October 3, 2019, in a per curiam order, this Court reversed the order of the Commonwealth Court and directed that Cohen's name be placed on the November 5, 2019 ballot as an independent candidate for Philadelphia City Council-at-Large. In re Cohen , 655 Pa. 412, 218 A.3d 387 (2019). "Because the Board of Elections only had until the close of business on October 4, 2019 to add Cohen's name to the ballot, we issued our order noting that an opinion would follow." Cohen , 225 A.3d at 1084. The decision that followed was fragmented.
Justices Dougherty and Wecht noted their dissents to the order.
Justice Mundy authored the Opinion Following the Judgment of the Court ("OFJC"). The OFJC concluded that the Packrall exception to Subsection 976(e)’s "sore loser provision" should extend to candidates that withdraw their nomination petitions by way of court orders pursuant to Section 978.4 of the Election Code. In so doing, the OFJC stated that there was "no principled reason to distinguish between the voluntariness of a withdrawal under Section 914 or Section 978.4[.]" Id. at 1090. Then-Justice Baer joined the OFJC.
Then-Chief Justice Saylor dissented. Although Chief Justice Saylor stated that he would not overrule Packrall , he observed that "its approach remains ‘arguably in tension with the plain language of the statute.’ " Id. at 1091 (Saylor, C.J., dissenting) (quoting In re Benkoski , 596 Pa. 267, 943 A.2d 212, 216 (2007) ). Thus, Chief Justice Saylor expressed "that Packrall ’s effect should be confined to the scenario in which it arose, i.e., a voluntary withdrawal of a nomination petition within the statutory grace period [outlined in Section 914 of the Election Code]." Id. Justice Dougherty joined Chief Justice Saylor's dissent.
In stating that he would not overrule Packrall , Chief Justice Saylor noted that this "Court has explained: ‘whenever our Court has interpreted the language of a statute, and the General Assembly subsequently amends or reenacts that statute without changing that language, it must be presumed that the General Assembly intends that our Court's interpretation become part of the subsequent legislative enactment.’ " Cohen , 225 A.3d at 1091 n.1 (Saylor, C.J., dissenting) (quoting Verizon Pa., Inc. v. Commonwealth , 633 Pa. 578, 127 A.3d 745, 757 (2015) ). The Chief Justice then observed that "Section 976 has been amended several times since Packrall ’s issuance more than 50 years ago, but the Legislature has not altered the material language of the statute." Id.
Justice Wecht offered a separate Dissenting Opinion. Therein, Justice Wecht not only disagreed with the OFJC that Packrall should be extended, but he also expressed his view that Packrall was wrongly decided and should be overruled. In support of this position, Justice Wecht, inter alia, quoted Subsection 976(e) of the Election Code and explained that the "Election Code clearly and unambiguously bars the Secretary of the Commonwealth and the county boards of elections from permitting nomination papers to be filed ‘if the candidate named therein has filed a nomination petition for any public office ’ in the same election cycle." Id. at 1092 (Wecht, J., dissenting) (emphasis in original).
The author of this Opinion penned a Concurring Opinion in Cohen , which then-Justice Todd joined, explaining that she joined the per curiam order placing Cohen on the ballot when the case was presented to the Court on an expedited basis. However, persuaded by the analysis of Justice Wecht's Dissenting Opinion, the Concurring Opinion expressed the view that it should be the prevailing interpretation of Section 976(e) of the Election Code, 25 P.S. § 2936(e), in future cases. Id. at 1090 (Donohue, J., concurring).
In discerning the precedential value of Cohen , Judge Ceisler highlighted the following passage from this Court's decision in Pap's A.M. v. City of Erie , 553 Pa. 348, 719 A.2d 273, 278 (1998), reversed on other grounds , 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) :
[I]t is possible to cobble together a holding out of a fragmented decision. Yet, in order to do so, a majority of the Court must be in agreement on the concept which is to be deemed the holding. It is certainly permissible to find that a Justice's opinion which stands for the "narrowest grounds" is precedential, but only where those "narrowest grounds" are a sub-set of ideas expressed by a majority of other members of the Court ."
In re Avery , 281 A.3d at 1128-29 (emphasis in original).
Judge Ceisler also found guidance from this Court's recent decisions in In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017), and In re T.S. , 648 Pa. 236, 192 A.3d 1080 (2018) explaining that:
In L.B.M. , the [Supreme] Court issued a decision which yielded a lead opinion, a concurring opinion, and two dissents. Not one of the four opinions was joined in full by more than two other justices. In T.S. , an appellant argued that the three-justice plurality opinion in L.B.M. was binding precedent, as though it were the Court's majority holding.
The Supreme Court in T.S. concluded that it was not bound by the L.B.M. lead opinion. It explained that an issue agreed upon by four justices in L.B.M. constituted the decision's majority holding, even though all four expressed their agreement in a concurring or dissenting [opinion].
In re Avery , 281 A.3d at 1129 (citations omitted).
Judge Ceisler concluded that, because "a five-Justice majority in In re Cohen opposed extending the Packrall exception to any future candidates who withdrew pursuant to Section 978.4, this [c]ourt disagrees that it is precedentially bound to grant Avery that relief." Id. Judge Ceisler, therefore, held that Subsection 976(e) of the Election Code barred Avery from filing nomination papers for the 2022 general election. Judge Ceisler entered an order granting Avery Objectors’ petition to set aside Avery's nomination papers and directing the Secretary of the Commonwealth to remove her name from the 2022 general election ballot. Avery appealed the Commonwealth Court's order to this Court, and as noted above, we affirmed the Commonwealth Court's order.
C. Parties’ arguments to this Court
In presenting the various parties’ arguments to this Court, we only will summarize the portions of their arguments that are relevant to the central issue in this case concerning the precedential value of Cohen .
1. Avery's argument
Avery presents the Court with one verbose issue that spans over three pages of her brief. Avery's Brief at 4-7. Addressing that issue, Avery suggests that her case "is almost on all fours" with this Court's decision in Cohen insomuch as both she and Cohen: (1) voluntarily withdrew their primary election nomination papers by way of a court order pursuant to Section 978.4 of the Election Code; (2) sought to participate in a general election; and (3) had their general election nomination papers challenged based upon the "sore loser provision." Id. at 32. Avery notes that this Court issued an order in Cohen that rejected the sore-loser challenge.
Focusing on the fragmented nature of the decision issued by this Court following that order, Avery posits that Cohen left unresolved whether the Packrall exception extends to a candidate's withdrawal of a nomination petition for a primary election by way of a court order. Id. at 35. Avery challenges Judge Ceisler's contrary conclusion.
In this regard, although insinuating that Cohen lacks precedential value, Avery criticizes Judge Ceisler for failing to recognize that our decision in Cohen allowed that candidate to remain on the general election ballot. Id. at 35-36. Despite the contrary positions articulated in the various Cohen opinions, Avery insists that she had the right to rely on Cohen for this proposition. See id. at 35 ("On the other hand, Judge Ceisler, in rejecting Ms. Avery's Nominating Papers, did not give Cohen any precedential value. The problem with that is that Cohen did reinstate Ms. Cohen's Nominating Papers, for doing the same thing that Ms. Avery did, i.e., withdraw with Court Order. Clearly, Ms. Avery and others had a right to rely on Cohen ."). In Avery's view, this result is consistent with the principle that courts are to interpret the Election Code liberally. Id. at 36-38.
Throughout her brief, Avery asserts that the concept of interpreting election laws liberally was borne out of the principles underlying the First Amendment of the United States Constitution.
After endorsing the logic of the two-Justice OFJC in Cohen , Avery takes aim at Justice Wecht's Dissenting Opinion. According to Avery, Packrall is a vital part of election law and, contrary to Justice Wecht's view, should remain good law. Avery submits that " Packrall recognized the reality of elections, i.e., candidates change their minds and need a procedure to withdraw so the candidate can run as an Independent." Id. at 44. Avery insists that the Packrall exception to the "sore loser provision" should be extended to include voluntary withdrawals via court orders, as her case illustrates that there is no good reason to differentiate the withdrawal processes of Sections 914 and 978.4 of the Election Code. Id. at 47-49.
Next, Avery purports to provide a history of the "sore loser provision." The history is a meandering discussion of various cases and legal concepts, the sum of which, Avery argues, support her belief that, so long as a candidate voluntarily withdraws from a primary election, she should be permitted to run as an independent candidate in the general election. Id. at 49-65. For these reasons, Avery asks the Court to reverse the Commonwealth Court's order and reinstate her nomination papers to allow her to run as a candidate for Congress in the 2022 general election.
2. Avery Objectors’ argument
Avery Objectors contend that Judge Ceisler properly interpreted and applied this Court's decision in Cohen . In support of this position, Avery Objectors reject the argument that this Court's per curiam order allowing Cohen to participate in the 2018 general election should control the outcome in this case. Rather, Avery Objectors submit that, Judge Ceisler correctly concluded that the result in this matter is controlled by the various opinions in support of that order, which collectively held that "a candidate who files a nomination petition—but then withdraws under Section 978.4—should be prohibited from submitting a nomination paper for the following general election." Avery Objectors’ Brief at 18.
After providing a summary of Cohen , Avery Objectors suggest that a close reading of the various opinions in Cohen makes the following points clear: (1) "only one [J]ustice joined the OFJC's decision to extend Packrall ’s exception beyond Section 914 withdrawals[;]" (2) "five Justices were in full accord that Packrall should be limited to the context in which it arose—that is, Section 914 withdrawals[;]" and (3) Justice Wecht's dissent, which was endorsed by Justice Todd and this author, "advocated for overruling Packrall , or at the very least, limiting its application to administrative withdrawals pursuant to Section 914 context." Id. at 24. "Accordingly," Avery Objectors argue, "precedent regarding the interpretation of plurality opinions instructs that this common area of agreement among these five justices in In re Cohen constitutes the holding of that case." Id. at 25 (citing, inter alia, In re T.S. , 192 A.3d at 1088 ).
Assuming arguendo that this Court refuses to glean a controlling legal principle from Cohen , Avery Objectors contend that we nevertheless should affirm the Commonwealth Court's order. They provide three arguments in support of this position: (1) "the overwhelming weight of authority, as well as the undergirding rationale of Section 976(e)’s proscription, militates in favor of setting aside Avery's nomination paper[;]" (2) "whatever grounds may exist for Packrall ’s exception, they do not apply here[,]" as this case does not involve the administrative withdrawal of nomination petitions under Section 914 of the Election Code; and (3) "reasons of judicial economy weigh against expanding Packrall " because "permitting candidates to avert the preclusive effect of Section 976(e) by obtaining a court-ordered withdrawal when they are on the precipice of having a challenge to their nomination petition sustained will result in unnecessary litigation and strain judicial resources." Id. at 29, 30-38.
Avery Objectors dedicate the remainder of their brief to their alternative argument that this Court should overrule Packrall . Id. at 38-57. They suggest that, "[t]o the extent this Court does not agree that [ Cohen ] is binding precedent, it should follow the blueprint of Justice Wecht's dissenting opinion [in Cohen ] and abandon [ ] Packrall's ill-conceived rule." Id. at 38-39.
III. In re Kosin
A. Background
On March 28, 2022, Kosin filed nomination petitions to run as a candidate in the 2022 Republican primary for the Pennsylvania General Assembly seat representing the 178th District. The nomination petitions purported to include 337 signatures of registered Republican voters in the district. On April 4, 2022, several persons filed in the Commonwealth Court a petition to set aside Kosin's nomination petitions, alleging that 98 of Kosin's 337 signatures were invalid.
Section 912.1(14) of the Election Code requires potential candidates for this office to present a minimum of 300 valid signatures of registered and enrolled electors of the political party of the candidate. 25 P.S. § 2872.1(14).
After meeting privately, the parties reached an agreement and stipulated that: (1) Kosin's nomination petitions did not contain the requisite number of signatures; and (2) Kosin would withdraw her nomination petitions. The parties submitted the stipulations to the Commonwealth Court. The court subsequently entered an order granting the petition to set aside Kosin's nomination petitions and removing her name from the primary ballot. In Re: Petition to Set Aside Nomination Petitions of Brittany Kosin as Republican Candidate for State Representative in the 178th Legis. Dist. , 178 M.D. 2022 (Pa. Commw. Apr. 6, 2022). Kosin never sought to withdraw her primary election nomination petitions pursuant to Section 914 of the Election Code.
On August 1, 2022, Kosin filed nomination papers to be certified as the Libertarian candidate in the 2022 general election for the same General Assembly seat. On August 8, 2022, Mary Roderick, John Coppens, and Andrew Gannon ("Kosin Objectors") filed a petition to set aside Kosin's nomination papers on the grounds that the "sore loser provision" barred Kosin from participating in the 2022 general election.
On August 16, 2022, Judge Ceisler held a hearing on Kosin Objectors’ petition. Kosin offered a substantially similar argument as Avery presented to Judge Ceisler: Her nomination petitions met the exception to Subsection 976(e)’s bar as allegedly outlined by the Cohen Court's extension of the Packrall exception because, although she did not withdraw her primary election nomination petitions pursuant to Section 914 of the Election Code, she nonetheless voluntarily withdrew from that election. Kosin Objectors countered that Kosin misinterpreted the precedential impact of Cohen .
B. Commonwealth Court's opinion
In a single-judge, published opinion and order, Judge Ceisler granted Kosin Objectors’ petition to set aside and directed the Secretary of the Commonwealth to remove Kosin's name from the 2022 general election ballot. In re Kosin , 281 A.3d 1118 (Pa. Commw. 2022). In granting this petition, Judge Ceisler employed substantially similar reasoning that she expressed in granting the petition to set aside Avery's nomination papers, i.e., she relied upon the narrowest point of agreement among a majority of Justices in Cohen to hold that Subsection 976(e) of the Election Code barred Kosin from filing nomination papers for the 2022 general election. Kosin appealed the Commonwealth Court's order to this Court, and we entered an order affirming the Commonwealth Court.
Although irrelevant to the current appeals, we observe that Judge Ceisler further found that even if she assumed arguendo that Kosin's interpretation of Cohen was correct, Kosin still was barred from running in the general election pursuant to this Court's decision in In re Benkoski , 596 Pa. 267, 943 A.2d 212 (2007) ("Benkoski "), wherein we held that the Packrall exception does not extend to candidates whose names are stricken from primary ballots due to defects in their primary election nomination petitions. In this regard, Judge Ceisler recognized that language in the parties’ stipulations concerning the challenge to Kosin's primary election nomination petitions implied that Kosin voluntarily withdrew those petitions, but the Judge stated, "[T]hat language does not change the fact that Kosin's primary candidacy ended when this Court granted the objectors’ petition to set aside" because the stipulation also acknowledged that her primary election nomination petitions were defective. Kosin , 281 A.3d at 1123-24.
C. Parties’ arguments to this Court
1. Kosin's argument
Kosin presents a multi-pronged challenge to the Commonwealth Court's opinion and order. First, she contends that, in Cohen , a majority of this Court concluded that candidates that voluntarily withdraw their primary election nomination petitions within the fifteen-day statutory period provided by Section 914 of the Election Code can file nomination papers for the subsequent general election without regard to the procedural mechanism for the withdrawal. According to Kosin, "in Cohen , a clear majority of the [J]ustices of this Court did not agree that whether a candidate who previously filed nomination petitions could later file nomination papers depends on Section 914 specifically." Kosin's Brief at 15.
Kosin avers that, when all the opinions in Cohen are closely examined, this Court's narrowest holding was not limited to permitting candidates who withdraw primary election nomination petitions to file general election nomination papers as long as they withdraw their nomination petitions pursuant to Section 914. Kosin explains her position as follows:
Better understood, in Cohen , at most—combining the views of four justices, Justice Mundy and now-Chief Justice Baer in the OFJC and Justice Saylor joined by Justice Dougherty in dissent—a majority of this Court concluded that candidates who voluntarily withdrew their nomination petitions within the fifteen-day statutory period provided in Section 914 may file nomination papers.
Kosin's Brief at 17.
In reaching this conclusion, Kosin concedes that, in Cohen , Chief Justice Saylor stated that Packrall should be limited to its facts. However, Kosin insists that "his opinion [did] not rest on a particular section of the Election Code. Instead, [Chief] Justice Saylor expressed concern with timing. For [Chief] Justice Saylor, ‘the concern about candidates being empowered—contrary to the plain language of Section 976(e)—to make strategic decisions to shift tracks after having proceeded deep into the primary process is particularly well founded.’ " Id. at 16 (quoting Cohen , 225 A.3d at 1091 (Saylor, C.J., dissenting)).
Building on this premise, Kosin argues that she timely withdrew her primary election nomination petitions such that she should be permitted to participate as a candidate in the general election. In this regard, Kosin highlights that, by way of a stipulation, she voluntarily withdrew her primary election nomination petitions on April 6, 2022, which allegedly was six days before the deadline to withdraw pursuant to Section 914. In Kosin's view, she should benefit from the Packrall exception to the "sore loser provision" because, while she did not withdraw her nomination petitions pursuant to Section 914, she nonetheless voluntarily withdrew her petitions within the Section 914 timeframe. She asserts that "the best understanding of this Court's opinions in Cohen is that a majority of the Court agreed that a candidate could file nomination papers as long as that candidate voluntarily agreed to withdraw her nomination petition within the deadline specified in Section 914, no matter the section under which they withdrew their nomination petitions." Id. at 20. Lastly, Kosin submits that any change in law that this Court might make in this case should be applied prospectively.
2. Kosin Objectors’ argument
Kosin Objectors present several arguments in support of their position that the Commonwealth Court properly decided this case. Relevant to this appeal, they contend that, even if Kosin's removal from the 2022 primary election ballot can be characterized as a voluntary withdrawal, her candidacy is nevertheless barred by this Court's decision in Cohen . In support of this position, Kosin Objectors submit that Judge Ceisler accurately expressed the precedential impact of Cohen . See Kosin Objectors’ Brief at 23 ("The Commonwealth Court correctly concluded that a five-justice majority of this Court in In re Cohen found that Section 976(e) prohibits a candidate who withdraws pursuant to court order from submitting a nomination paper and, [on] that basis, Kosin's nomination paper must be set aside.").
Kosin Objectors further aver that "Kosin's argument that her nomination paper should not have been set aside because she attempted to ‘withdraw’ within fifteen days of filing her nomination petition utterly misconstrues [ Cohen ]." Id. at 30. According to Kosin Objectors, contrary to Kosin's representations, she withdrew her primary nomination petitions six days after the Section 914 deadline. In addition, Kosin Objectors assert that Kosin fails to appreciate the differences between administrative and court-ordered withdrawals, as, inter alia, a court has no discretion to allow or disallow a candidate to remove herself from an election pursuant to Section 914, i.e., the administrative withdrawal statute, but does have such discretion if asked to otherwise remove a candidate from a ballot.
Under their penultimate argument, Kosin Objectors challenge Kosin's position that this Court must prospectively apply any legal conclusions it reaches in this case. In this regard, Kosin Objectors argue that: (1) "a conclusion that Section 978.4 withdrawals are not subject to Packrall ’s exception does not overrule existing law nor [ ] is it an issue of first impression not previously foreshadowed[,]" id. at 40; and (2) even if the Court overrules Packrall , prospective application of that ruling would be unwarranted because the validity of that decision has long been questioned. Lastly, like Avery Objectors, Kosin Objectors offer an alternative argument that this Court should overrule Packrall . Id. ("In the unlikely event that this Court finds [that Kosin] is able to overcome the preclusive effect of [ Cohen ], it should follow the blueprint of Justice Wecht's dissenting opinion in [ Cohen ] and abandon Packrall ’s ill-conceived rule.").
IV. Analysis and Conclusions
As noted above, the primary issue in this case is whether Judge Ceisler accurately assessed the precedential impact of this Court's decision in Cohen . This issue presents a question of law. Accordingly, our scope of review is plenary, and our standard of review is de novo. In re Grand Jury Investigation No. 18 , 657 Pa. 25, 224 A.3d 326, 332 (2020).
Our October 3, 2019 per curiam order allowed Cohen to appear on the November 2019 general election ballot and arguably signaled, at least to the parties, that the Court was poised to extend the Packrall exception to circumstances where a candidate of a major party withdraws her primary election nomination petitions pursuant to Section 978.4 of the Election Code and then seeks to participate in the related general election as a third-party candidate. Yet, an examination of the various opinions in Cohen establishes that, while a majority of the Court supported the result accomplished by our per curiam order, the application of Packrall to a Section 978.4 withdrawal was limited solely to Cohen's case.
As previously explained, Justice Mundy, joined by then-Justice Baer, authored the OFJC, which, consistent with the Court's per curiam order, permitted Cohen to participate in the 2019 general election by concluding that the Packrall exception to Subsection 976(e)’s "sore loser provision" should extend to candidates that withdraw their nomination petitions by way of court orders pursuant to Section 978.4 of the Election Code.
Then-Chief Justice Saylor, joined by Justice Dougherty, disagreed with the OFJC. These two Justices expressed that they would not overrule Packrall ; however, they explicitly stated that the Packrall exception should be cabined to the narrow circumstances within which it arose - the voluntary withdrawal of nomination petitions pursuant to Section 914 of the Election Code. Justice Wecht also disagreed with the OFJC that Packrall should be extended and further opined that Packrall should be overruled because its holding runs contrary to the clear and unambiguous language of the Election Code. This author and Justice Todd agreed with Justice Wecht's analysis but expressly stated that his analysis should apply only to future cases. Thus, four Justices (Justices Baer, Todd, Donohue, and Mundy) wrote to support the October 3, 2019 order.
The Commonwealth Court's opinion in this matter did not expressly acknowledge this aspect of the various opinions in Cohen .
Consequently, the Cohen litigation resulted in a per curiam order placing Cohen on the 2019 general election ballot and a fragmented decision supporting that result with the outcome limited to its facts. Interpreting the impact of Cohen , we begin by highlighting the well-settled, general principle that this Court's per curiam orders carry no precedential value. See , e.g. , Commonwealth v. Thompson , 604 Pa. 198, 985 A.2d 928, 937 (2009) ("This Court has made it clear that per curiam orders have no stare decisis effect.") (collecting cases). As we explained in Thompson , "[t]he rationale for declining to deem per curiam decisions precedential is both simple and compelling. Such orders do not set out the facts and procedure of the case nor do they afford the bench and bar the benefit of the Court's rationale." Id. at 937-38. Accordingly, the Court's order in Cohen offers no support to the position that the Commonwealth Court was required to allow Avery and Kosin to participate in the 2022 general election. However, for the following reasons, we conclude that a distinct legal precedent can be distilled from the various opinions in Cohen .
As Judge Ceisler accurately observed, this Court has expressed "that it is possible to cobble together a holding out of a fragmented decision." Pap's A.M. , 719 A.2d at 278. We have instructed that, for this to occur, "a majority of the Court must be in agreement on the concept which is to be deemed the holding." Id . Stated differently, "[w]hen a fragmented Court decides a case and no single legal rationale explaining the results garners a majority, then ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ " Commonwealth v. Yohe , 621 Pa. 527, 79 A.3d 520, 536 (2013) (quoting Marks v. United States , 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) ). This Court has employed this method in discerning binding holdings in decisions that facially may appear to be non-precedential. See , e.g. , In re T.S. , 648 Pa. 236, 192 A.3d 1080 (2018) (examining the various opinions in In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017), and concluding that a majority of the Court held, inter alia, that an attorney-GAL can represent both the legal and best interests of a child in termination proceedings as long as there is no conflict between those interests); Commonwealth v. McClelland , 660 Pa. 81, 233 A.3d 717, 733 (Pa. 2020) (concluding "that although [this Court's decision in Commonwealth ex rel. Buchanan v. Verbonitz , 525 Pa. 413, 581 A.2d 172 (1990) ] is nominally a plurality decision, it is clear that a five-member majority of the Court held hearsay alone is insufficient to establish a prima facie case at a preliminary hearing because to do so violates principles of fundamental due process").
Regarding the instant matter, Judge Ceisler correctly expressed the precedential impact of Cohen . As the Judge concluded, in Cohen , five of seven Justices (Chief Justice Saylor and Justices Todd, Donohue, Dougherty, and Wecht), albeit in three separate responsive opinions, at the very least agreed that the Packrall exception to the "sore loser provision" should not be extended to circumstances past those outlined in Packrall , i.e., cases where potential candidates withdraw their primary election nomination petitions pursuant to Section 914 of the Election Code. Thus, this position of a majority of the Cohen Court constitutes the narrowest grounds of their agreement and, therefore, enjoys precedential value, regardless of whether our non-precedential per curiam order in Cohen allowed Cohen to appear on the 2019 general election ballot, as that order merely set the law of the case in that appeal and had no stare decisis effect. See Thompson , 985 A.2d at 937 (explaining that per curiam decisions are "limited to setting out the law of the case" and that "per curiam orders have no stare decisis effect").
We acknowledge Justice Mundy's concern that the proposition of law announced in Marks is not on all fours with the circumstances presented in this case, as we glean a holding in Cohen from, inter alia, dissenting opinions, i.e., not solely from Justices’ opinions that concurred in the ultimate judgment of the Court. To be clear, we are not attempting to expand Marks in any fashion. The circumstances of the Cohen judgment and opinions are sui generis. Adopting, in part, language from Justice Mundy's Concurring Opinion: "[B]ecause of the unusual circumstances in Cohen ," we are applying the principles underlying Marks to discern a holding from the Cohen opinions, where "the narrowest grounds to sustain a majority position and the judgment were opposite to each other." Concurring Opinion at 1232. By doing so, we duly recognize the expressed view of a majority of the Court and apply it in this instance.
Accordingly, per Cohen , Packrall is limited to its circumstances and thus, the Packrall exception does not apply in circumstances where a candidate obtains a court order withdrawing her primary election nomination petitions pursuant to Section 978.4 of the Election Code, as in Avery's case, or where a court enters an order granting a petition to set aside primary election nomination petitions due to stipulated defects, as in Kosin's case. For these reasons, we affirmed the orders of the Commonwealth Court in our orders dated September 22, 2022.
Given these conclusions, we need not reach the Avery and Kosin Objectors’ alternative argument that this Court should overrule Packrall . We, however, note that, because we now reaffirm the Cohen Majority's conclusion that the Packrall exception is limited to circumstances where potential candidates withdraw their primary election nomination petitions pursuant to Section 914 of the Election Code, any future consideration of Packrall ’s vitality will occur within the confines of an appeal concerning such a withdrawal. Even though the validity of Packrall has been questioned, the continued application of its longstanding exception to the sore loser rule is best addressed by this Court based on developed arguments from all parties and opinions from the lower courts.
Chief Justice Todd and Justices Dougherty, Wecht and Brobson join the opinion.
Justice Wecht files a concurring opinion.
Justice Mundy files a concurring opinion.
JUSTICE WECHT, concurring
I join the Majority Opinion. I agree with the Majority's assessment of this Court's decision in In re Cohen for Office of Philadelphia City Council-at-Large . Specifically, the narrowest rationale shared by a majority of this Court in Cohen would countenance no extension of Packrall v. Quail beyond its facts, which involved the voluntary withdrawal of a primary election nomination petition pursuant to Section 914 of the Election Code. But for the reasons discussed in my dissenting opinion in Cohen , I continue to believe that Packrall departed from the text of the Election Code's "sore loser" provision. The so-called " Packrall exception" is merely a judicial refusal to apply plain statutory language, in service of an ostensibly equitable goal or preferred outcome.
657 Pa. 434, 225 A.3d 1083 (2020).
This Court has applied Marks in the ordinary way for purposes of vertical stare decisis , that is, to discern United States Supreme Court holdings binding upon this Court, see, e.g. , Haller v. Dep't of Revenue , 556 Pa. 289, 728 A.2d 351, 354 (1999) (acknowledging a majority holding derived from a United States Supreme Court plurality opinion combined with a concurring opinion), as well as horizontal stare decisis , i.e. , to ascertain this Court's own expressions which are binding as a matter of stare decisis , see, e.g. , Commonwealth v. McClelland , 660 Pa. 81, 233 A.3d 717, 732-33 (2020) (recognizing a holding from a Pennsylvania Supreme Court plurality opinion combined with a concurring opinion). In cases of horizontal stare decisis , moreover, this Court remains free to refine its own precedents as new fact patterns reveal complexities the earlier decision did not anticipate when it formulated the holding in question. See, e.g. , McMahon v. Shea , 547 Pa. 124, 688 A.2d 1179 (1997) (limiting the holding of Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick , 526 Pa. 541, 587 A.2d 1346 (1991) ).
411 Pa. 555, 192 A.2d 704 (1963).
25 P.S. § 2874.
Cohen , 225 A.3d at 1092-96 (Wecht, J., dissenting).
See Section 976(e) of the Election Code, 25 P.S. § 2936(e) ; Maj. Op. at 2 n.2.
The governing statute is clear. No nomination papers "shall be permitted to be filed" if "the candidate named therein has filed a nomination petition for any public office for the ensuing primary." No exceptions appear in the statutory language. It is not this Court's place to invent ad hoc carve-outs from the legislature's unambiguous commands. This was true when Packrall was decided. It is true now.
See Sivick v. State Ethics Comm'n , 662 Pa. 283, 238 A.3d 1250, 1264 (2020) ("It is axiomatic that we may not add statutory language where we find the extant language somehow lacking.").
Although Packrall predates the adoption of the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501 -1991, within which our modern articulations of this principle are generally grounded, the maxim that courts must faithfully apply the language of statutes without judicial addition or subtraction is one that has existed since time immemorial. See, e.g. , Sch. Dist. of Borough of Olyphant v. Am. Sur. Co. of New York , 322 Pa. 22, 184 A. 758 (1936) ("It is not for us, by interpretation, to add to the statute a requirement which the Legislature did not see fit to include.").
I recognize that a majority of this Court in Cohen opted to follow a narrower path, packing Packrall into a little box with its specific factual predicates. Today's case shows once again that this is not the most proper analytical approach. Further review of this issue has only reinforced the view that I expressed in Cohen : " Packrall was wrongly decided, and it should be overruled."
Cohen , 225 A.3d at 1093 (Wecht, J., dissenting).
JUSTICE MUNDY, concurring
Based on the judicial expressions in In re Cohen for Office of Council-at-Large , 657 Pa. 434, 225 A.3d 1083 (2020), I support the present Majority Opinion to the extent it determines that a majority of this Court understands the Election Code's sore-loser provision, see 25 P.S. § 2936(e), as being applicable to candidates whose primary-election nomination petitions were withdrawn by court order upon petition, see 25 P.S. § 2938.4, rather than through the voluntary administrative process for self-withdrawal. See 25 P.S. § 2874. Where I differ with the majority is in its description that such alignment in Cohen had a "precedential impact." Majority Op. at 1228-29. The majority reaches this conclusion by reference to the rule of Marks v. United States , 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), which states that when a fragmented court decides a case and no single legal rationale explaining the results garners a majority, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment[ ] on the narrowest grounds." Id. at 193, 97 S.Ct. 990 (emphasis added); see Commonwealth v. Yohe , 621 Pa. 527, 79 A.3d 520, 536 (2013). The majority indicates this Court has applied Marks in discerning "binding holdings" in cases such as In re T.S. , 648 Pa. 236, 192 A.3d 1080 (2018), where this Court extracted a four-Justice point of law from a concurrence and a dissent in In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017). See Majority Op. at 1228-29.
I would note, though, that the Marks rule by its terms only applies to opinions which supported the judgment, and not to dissenting opinions. This seems appropriate because, by straightforward logic, only opinions which support the judgment can contribute to a holding which is binding in future cases.1 And indeed this is borne out, not only in the way Marks is worded (as indicated by the emphasized language above) but in the specific description used in T.S. , which did not suggest the L.B.M . concurring and dissenting opinions established a rule which then affirmatively bound the Court. Rather, T.S. was careful merely to "reaffirm certain principles agreed upon by a majority of Justices in L.B.M. ," T.S. , 192 A.3d at 1092, and those reaffirmed principles became holdings of the Court for the first time in T.S . Notably, L.B.M. did not "hold" that an attorney-guardian-ad-litem can simultaneously represent the non-conflicting legal and best interests of a child in a contested termination-of-parental-rights hearing, but T.S. did so hold because four Justices in L.B.M. expressed that opinion.
Returning to the case sub judice , the "narrowest grounds" in Cohen , the position taken by Chief Justice Saylor, joined by Justice Dougherty, did not support "the judgment" in that case, i.e. , leaving Cohen on the ballot. Rather, because of the unusual circumstances in Cohen , the narrowest grounds to sustain a majority position supported the opposite of the judgment because the majority position and the judgment were opposite to each other. As such, the present majority finds "precedential impact" by looking exclusively to dissenting opinions in Cohen . Majority Op. at 1228-29. While I have no issue with establishing a holding in the present dispute based on a determination that a particular viewpoint endorsed by at least four Justices in Cohen was correct, I do not favor extending Marks in the sense of thereby discerning a holding that affirmatively binds this Court in the present matter. See id. (referring to the present rule as a "binding holding" of Cohen ). When four Justices in a responsive posture in a prior case agree on a particular legal principle, a Court majority in the present matter should remain free to reject that proposition without having to justify such rejection by reference to an exception to the rule of stare decisis .
To my mind this is more than merely a technical distinction because I do not believe it wise from a jurisprudential standpoint to leave open the possibility the present decision will be seen as having created a new extension of the Marks rule whereby any principle endorsed by four Justices in responsive opinions in a prior matter constitutes a binding holding of that case relative to the present and future litigation. Justices writing from a responsive posture have a certain freedom in their expressiveness that eludes lead-opinion authors who often tend to write more narrowly so as to retain majority or plurality support. When a fractured decision results in a holding based on the expressions of Justices who support the judgment, a narrowing process is naturally put into effect, thereby cabining the holding to some extent. See generally United States v. Duvall , 740 F.3d 604, 605 (D.C. Cir. 2013) (Rogers, J., concurring) (recognizing " Marks applies when the concurrence posits a narrow test to which the plurality must necessarily agree as a logical consequence of its own, broader position") (emphasis, internal quotation marks, and citation omitted). This type of restraint in turn tends toward a more methodical and orderly development of the decisional law. It is not clear to me that the same can be said of majority positions derived exclusively from responsive opinions.
In all events, I believe the decision favored by the majority in the present case can be reached by following the example of T.S. and without extending the Marks rule into new territory. Accordingly, I respectfully concur in the result.