Opinion
No. 499 C.D. 2014
04-07-2014
In Re: Nomination Petition of Anthony Tappe 36 1 Appeal of: Julia Bringhurst
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Julia Bringhurst (Objector) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) dismissing her petition to set aside the nomination petition of Anthony Tappe (Candidate) for the position of Democratic Committeeperson. The trial court held that Objector failed to effect proper service of her petition on Candidate. The Court reverses and remands for a hearing on the merits of Objector's petition.
On March 11, 2014, Candidate filed a nomination petition for the office of Democratic Committeeperson in Philadelphia's 36th Ward, Division 1. Objector, a registered Democratic elector, filed a petition to set aside Candidate's nomination petition. The trial court issued an order to show cause why the nomination petition should not be set aside. The order stated, in pertinent part, that
a copy of this Order and a copy of the Petition [to set aside the nomination petition] (if it has not already been served) shall be served upon [Candidate] personally or upon an adult at his/her residence, or upon the person in charge of his/her place of
business, on or before the 20th day of March, 2014, at 4:00 PM. An Affidavit of Service shall be filed on or before the hearing date.Order to Show Cause, March 16, 2014 (emphasis added). The trial court held a hearing on March 21, 2014, at which Objector and Candidate both appeared with counsel.
At the hearing, Objector provided an affidavit of service of the petition to set aside Candidate's nomination petition and the trial court's order to show cause. The following exchange occurred:
The Court: ... Are you challenging service?Notes of Testimony, March 21, 2014, at 4-5. The trial court dismissed Objector's petition for lack of service, noting in its opinion that "[t]he Court held [Objector] to a higher standard, as required by the Rules of Civil Procedure, Rule 402." Trial Court Opinion, April 2, 2014. Objector now appeals.
[Candidate's Attorney]: All it says is it was served on an adult. It doesn't say it was served on [Candidate], Your Honor.
The Court: It just says on an adult.
[Objector's Attorney]: It doesn't have to be served on [Candidate], Your Honor. It has to be served on an adult at the residence or the person in charge of the place of business.
The Court: What the rule actually says is on the defendant, to an adult member of the family with whom he resides or if there's no adult member of the family found, then to an adult person in charge of such residence. That affidavit doesn't provide any of those additional indicia. It simply says on an adult.
[Objector's Attorney]: At the residence, Your Honor.
The Court: No. It must be served at the residence of the defendant to an adult member of the family. That doesn't tell me that it's an adult member of the family. It's just an adult.
A copy of the completed and signed affidavit of service is not in the record, nor is one appended to Objector's brief. The Court must therefore rely upon the representations of the contents of the affidavit made at the hearing by the trial court and counsel.
Pennsylvania Rule of Civil Procedure 402 provides, in relevant part:
(a) Original process may be served
(1) by handing a copy to the defendant; or
(2) by handing a copy
Pa. R.C.P. No. 402.(i) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence [.]
On appeal, Objector argues that the trial court erred in dismissing her petition for lack of service. Objector asserts that she served the petition on an adult at Candidate's residence, as directed in the trial court's order to show cause. Objector also contends that Candidate had actual notice of the petition because he was present in court for the hearing and was represented by counsel.
Our scope of review is limited to determining whether the trial court abused its discretion or committed an error of law. In re Wilson, 728 A.2d 1025, 1027 n.9 (Pa. Cmwlth. 1999).
Section 977 of the Pennsylvania Election Code states that "the court shall make an order . . . specifying the time and manner of notice that shall be given to the candidate or candidates named in the nomination petition or paper sought to be set aside." 25 P.S. §2937. Under Section 977, the trial court "has complete control to regulate the time and manner of giving notice and the fixing of hearings." In re Morgan, 428 A.2d 1055, 1058 (Pa. Cmwlth. 1981) (quoting In re Moore, 447 Pa. 526, 533, 291 A.2d 531, 535 (1972)). This Court has recognized that "the Rules of Civil Procedure regarding service are not applicable to challenges to nomination petitions brought pursuant to section 977 of the Election Code." In re Wilson, 728 A.2d 1025, 1028 n.11 (Pa. Cmwlth. 1999). Because of the short time allotted for hearing challenges to nomination petitions, the primary concern when issuing notices is to ensure that candidates are "quickly and surely notified" of a challenge. In re Wilson, 728 A.2d at 1029.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §2937. --------
Here, the discussion between the trial court and counsel at the hearing reveals that Objector served her petition to set aside Candidate's nomination petition and the trial court's order to show cause on an adult at Candidate's residence. By doing so, Objector complied with the order to show cause, which permitted service "upon [Candidate] personally or upon an adult at his/her residence." The trial court erred by holding Objector "to a higher standard" under Pa. R.C.P. No. 402 because the Rules of Civil Procedure regarding service are not applicable to challenges to nomination petitions under Section 977 of the Election Code. Furthermore, Candidate was "quickly and surely notified" of Objector's challenge because he appeared at the hearing with counsel.
For all of the above reasons, the order of the trial court is reversed and this matter is remanded for a hearing on the merits of Objector's petition to set aside Candidate's nomination petition.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 7th day of April, 2014, the order of the Court of Common Pleas of Philadelphia County in the above captioned matter dated March 21, 2014, is REVERSED and the matter is REMANDED for a hearing on the merits of Julia Bringhurst's Petition to Set Aside Nominating Petition of Anthony Tappe as a candidate for Philadelphia's Democratic City Committee, Ward 36, Division 1.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge