In Re: The Nomination Papers of David Amato as Candidate for Member of Council Borough of West Reading ~ Appeal of: Oswald Herbert and Suzanne Thompson ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: The Nomination Papers of :
David Amato as Candidate for :
Member of Council Borough of :
West Reading :
:
Appeal of: Oswald Herbert and : No. 1138 C.D. 2017
Suzanne Thompson : Submitted: August 31, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: September 14, 2017
Oswald Herbert and Suzanne Thompson (together, Objectors) appeal, pro se,
from the August 3, 2017 Order of the Court of Common Pleas of Berks County
(trial court) that dismissed Objectors’ Petition to Set Aside the Nomination Papers
of David Amato as Candidate for Member of Council Borough of West Reading
(Petition to Set Aside). The trial court dismissed the Petition to Set Aside as
untimely because it was filed more than seven days after the last day David Amato
(Candidate) could accept the nomination, which he won by write-in vote, as the
Republican and Democratic candidate for Member of Council of the Borough of
West Reading (Borough), and determined that the alleged deficiencies in the
challenged Statements of Financial Interest (SOFI) were amendable.
On appeal, Objectors argue, among other things, that they were deprived of
due process when they were denied the opportunity to present evidence to address
the merits of the Petition to Set Aside. In addition, Objectors argue (1) that they
were prevented from timely filing the Petition to Set Aside, and (2) that they were
prepared to request nunc pro tunc relief at the proceeding before the trial court, but
that they were unable to do so because of the manner in which the proceeding was
conducted. Objector Thompson also filed with this Court a “Notice of Objection
to Notes of Testimony” (Notice of Objection), asserting that certain statements
made by the trial court at the proceeding on the Petition to Set Aside were not
included in the Notes of Testimony. Both Candidate and the Berks County Board
of Elections (Board) filed briefs in response to Objectors’ arguments on appeal and
answers to the Notice of Objection. Because Objectors did not receive a
meaningful opportunity to present either their request for nunc pro tunc relief or
their case on the merits of the Petition to Set Aside, we vacate the trial court’s
Order and remand to the trial court for a new hearing and a determination on these
issues. Additionally, because we are remanding this matter for a new hearing, we
dismiss the Notice of Objection as moot.
Candidate won the 2017 Municipal Primary, via write-in vote, to appear as
the Republican and Democratic candidate for a four-year position as a member of
the Borough Council. The Board certified the Municipal Primary results, and
Candidate as the winner, on June 8, 2017. Pursuant to the regulation at 51 Pa.
Code § 15.3(e)(1)-(2),1 Candidate was to file his SOFI with the “governing
1
This regulation states that:
(Footnote continued on next page…)
2
authority of the political subdivision wherein the person has been . . . nominated
for . . . local level office” within 30 days of being certified the winner, here by
July 10, 2017. Candidate filed his “Acceptance of Write-In Win/Nomination” for
the Republican and Democratic nominations, Candidate’s Affidavits in accordance
with Section 910 of the Election Code, 25 P.S. § 2870,2 and Waiver of Expense
Account Reporting Affidavits pursuant to Section 1626 of the Election Code, 25
P.S. § 3246,3 with the Board on July 3, 2017. Candidate signed these documents
and they were notarized on that same date. He also filed a copy of his SOFI, also
signed on July 3, 2017, with the Board. Each of these documents were stamped
received by the Board on July 3, 2017. Candidate also filed, at some point, the
required documents, including his SOFIs with the Borough. The copies of the
SOFIs filed with the Borough that are attached to Objectors’ Petition to Set Aside
were certified by the Borough’s Secretary on July 12, 2017, but there is no date
_____________________________
(continued…)
(e) A write-in candidate shall file a Statement of Financial Interests within 30
days of having been nominated or elected unless the person declines the
nomination . . . within that period of time.
(1) The Statement shall be filed with . . . the governing authority of the political
subdivision wherein the person has been . . . nominated for . . . local level
office.
(2) For the purposes of calculating the 30-day period during which the Statement
of Financial Interests shall be filed, the time shall commence on the date that
the appropriate board of elections certifies the individual as the winner of a
nomination or election.
51 Pa. Code § 15.3(e)(1)-(2).
2
Act of June 3, 1937, P.L. 1333, as amended.
3
Added by Section 2 of the Act of October 4, 1978, P.L. 893, as amended.
3
stamp on the SOFIs indicating when they were received by the Borough.4 With
regard to the content of the SOFIs, Candidate identified his occupation or
profession as a “P.C. Technician level 2” in Block 6, but checked the box for
“none” in Block 10, which is where a candidate is required to list “Direct or
Indirect Sources of Income including (but not limited to) all employment.”
(SOFIs, Exs. A and B to Petition to Set Aside.)
Objectors filed the Petition to Set Aside on July 19, 2017, pursuant to
Section 977 of the Election Code, 25 P.S. § 2937.5 In the Petition to Set Aside,
Objectors asserted that Candidate’s SOFIs were not timely filed with the West
Reading Borough Administrative Office as required by Section 1104(b) of the
Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. § 1104(b).
(Petition to Set Aside ¶¶ 6-7.) Objectors averred that, because there was no date
stamp on the SOFIs indicating when they were filed with the Borough, Candidate
could not demonstrate that it was timely filed. Objectors also challenged the
SOFIs on the ground that Candidate did not include the source of either his or his
spouse’s direct or indirect income in Block 10 of the SOFIs. (Id. ¶ 6.) Based on
these defects, Objectors requested the trial court to set aside Candidate’s
Nomination Papers and order that he not appear on the ballot. (Id. ¶ 11, Wherefore
Clause.)
The matter was heard by the trial court on August 3, 2017, at which
Objectors appeared pro se, Candidate was represented by counsel, and the Board’s
4
Because Candidate was the candidate for both the Republican and Democratic party, he
filed two SOFIs with the Borough, which are practically identical with the exception that
Candidate used an abbreviation for the name of one of his creditors in one SOFI and the full
name in the other SOFI. (SOFI, Ex. B to the Petition to Set Aside.)
5
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2937.
4
Director, Deborah Olivieri, who was listed as a respondent, was represented by
counsel. The following brief proceeding occurred before the trial court.
The Court: Mr. Cammarano [(Candidate’s Counsel)], I will do these
election issues first.
[Candidate’s Counsel]: I am here for the election. I represent Mr.
Wert and Mr. Amato.
The Court: Okay. So you are here for Mr. Amato. And you are here
for Ms. Thompson?
Mr. Boland: I am here for Ms. Rodriguez on the Thompson and
Rodriguez petition regarding the mayor’s office only, not the borough
counsel.
[Candidate’s Counsel]: Your Honor, I don’t know if anybody is here
on behalf of the objectors.
The Court: Which one are you here on?
[Candidate’s Counsel]: I am here on Amato and Philip Wert.
The Court: You are here for both of them? I heard you say Amato. I
did not hear you say Wert. Okay.
[Candidate’s Counsel]: I am here for both of them. They are similar
situations, but I don’t think that anyone here is on behalf of the
objectors. I think preliminarily -- I don’t think that their petition is
even timely. It had to be filed on or before the 7th of July, and they
weren’t filed until -- the 17th of July. They weren’t filed until the
19th.
The Court: Okay. In regard to Mr. Amato, the objection is in regard
to the statement of financial interest. And the primary objection, I
believe, is the indirect income from the spouse’s employment. Is Mr.
Amato here?
[Candidate’s Counsel]: Yes, Your Honor.
5
The Court: Come forward. And Mr. Herbert and Ms. Thompson? I
am not going to sustain your petitions. I am telling you that right
now, either one of them. Mr. Amato, is your wife employed?
[Candidate]: Yes.
The Court: You can amend your statement of financial interest. That
is a very confusing section that -- what is income, what is direct, what
is indirect.
[Candidate]: My understanding of why I didn’t put it in is because
my name doesn’t appear on her paycheck so it does not affect me.
[Candidate’s Counsel]: That is the confusion that the Judge is
referring to actually.
The Court: Right. That is.
[Candidate]: I amended the statement to include my employer, but I
did not include hers.
The Court: And, you know, that is a very gray area to me because I
have had to fill out these forms as a school board member, and I don’t
think that I have ever put my husband’s retirement income on it.
Because that is not my income, and I don’t have any entitlement to it.
[Candidate]: That is my exact thinking.
The Court: So I am dismissing their petition.
[Objector Herbert]: The issues that you just mentioned are
amendable, but the fatal issue here is that there is no documentation as
to timely filing.
The Court: Forget it. That is on West Reading. That is not on him.
[Objector Herbert]: The candidate - - -
The Court: I am dismissing your petition.
[Objector Herbert]: Okay.
The Court: Do you understand me?
6
[Objector Herbert]: I understand.
The Court: Okay. You want to appeal me, be my guest. But I am
dismissing your petition. I am crossing this out in regard to Mr.
Amato. Mr. Amato, I would talk to your attorney. I would see
whether -- and perhaps ask Ms. Olivieri [the Board’s Director], who
runs these elections very, very well, and is very knowledgeable,
whether you need to include your spouse’s income on that form. And
if you do, simply go to West Reading and amend it. And -- into their
office and amend it.
[Candidate]: Yes.
The Court: Is that okay with you, Ms. Olivieri?
[Board’s Director]: I received two additional ones earlier.
[Candidate]: I amended my initial one with my employer?
[Board’s Director]: Yes.
[Candidate]: Also the statement from the Borough of West Reading?
[Board’s Director]: Yeah. I did receive an amended one so I wasn’t
sure if that would pertain. We can talk.
The Court: That is an amendable document, and it is so unclear as to
what those things are that I am not going to -- if you hadn’t filed it at
all, we would be in a different position. You filed it, it is amendable,
and it needs to be amended within ten days and you are on the
ball[o]t.
[Candidate]: Thank you, Your Honor.
(Hr’g Tr. at 2-5.) Consistent with its statements during the proceeding, the trial
court dismissed the Petition to Set Aside by Order dated August 3, 2017.
Objectors appealed to this Court.
7
At the direction of this Court,6 the trial court issued an opinion, and
Objectors filed a Statement of Issues to be Presented on Appeal (Statement of
Issues) directly with this Court.7 In its opinion, the trial court explained that,
pursuant to Section 977 of the Election Code and In re Bryant, 852 A.2d 1193 (Pa.
2004), Objector’s Petition to Set Aside challenging Candidate’s SOFIs had to be
filed “‘within seven days after the last day for filing said nomination petition or
paper[ . . .]’” and the Petition to Set Aside, filed on July 19, 2017, did not meet this
deadline. (Trial Ct. Op. at 2.) It further held that Objectors did not meet their
burden of proving that the SOFI was not timely filed with the Borough and that
any defect in the SOFIs’ content was amendable per In re Paulmier, 937 A.2d 364,
445 (Pa. 2007). Thus, the trial court contended that it properly dismissed the
Petition to Set Aside and directed Candidate to file amended SOFIs with the Board
and the Borough to correct the defects that appeared on the face of the SOFIs.
In their Statement of Issues, Objectors raise several challenges to how the
proceeding was conducted by the trial court, including claims that they were
deprived of due process because an ex parte conference occurred between the trial
court and opposing counsel, no witnesses were sworn in, and they were not
allowed to present evidence to support their argument that the SOFIs were
untimely filed with the Borough. (Statement of Issues ¶¶ 1, 3-4.) Objectors further
6
We issued an Order on August 18, 2017, directing the trial court to certify the record,
including an opinion and transcript, to this Court not later than August 23, 2017. We also
directed Objectors to file a Statement of Issues to be Presented on Appeal by August 24, 2017.
The parties were ordered to file and serve their briefs on or before August 28, 2017 at 4:00 p.m.
7
Objectors filed an amendment to their Statement of Issues in which they amended issue
5 by completing an incomplete sentence that appeared in the original Statement of Issues. They
also purported to amend issue 6, but there does not appear to be any change between the original
Statement of Issues and the amended version.
8
contend that the trial court interpreted Section 977 of the Election Code too
narrowly and did not consider or rule on their arguments that the SOFIs had to be
timely filed with both the Board and Borough, i.e., the “two-filings requirement,”
was not met by Candidate. (Statement of Issues ¶¶ 2, 5-6.)
The trial court issued an amended opinion, addressing Objectors’ issues.
The trial court first noted that Objectors did not address the timeliness of their
Petition to Set Aside. According to the trial court, Objectors did not present any
authority to support that the Petition to Set Aside was timely filed, and, therefore,
they have waived the issue thereby making all the issues set forth in the Petition to
Set Aside moot. (Trial Ct. Am. Op. at 2.) The trial court denied having any ex
parte communication with counsel, noting that it called three election cases and
that “[d]iscussions were held in open court, on the record” and Objectors “were
present.” (Id. (emphasis in original).) The trial court observed that, despite the
Petition to Set Aside being untimely filed, a hearing was held on the objections,
and it did consider the precedent cited by Objectors, as evident from its original
opinion. It held that “the only disposition a Court could make on an untimely
objection in an Election Code matter” was the dismissal of the Petition to Set
Aside. (Id. at 3.) This matter is now before us for disposition.8
In their brief, Objectors reiterate the issues set forth in the Statement of
Issues and argue that the trial court’s Order must be reversed because Candidate’s
SOFIs were not timely filed with the Borough. Objectors contend that they were
deprived of due process at the proceeding before the trial court because, inter alia,
8
“The Court’s review of a trial court’s order as to the validity of a nomination petition is
limited to determining whether the findings of fact are supported by substantial evidence in the
record and whether there was an error of law or an abuse of discretion.” In Re Nominating
Petition of Williams, 972 A.2d 32, 33 n.1 (Pa. Cmwlth. 2009).
9
they were never permitted to present evidence or argument on the merits of their
contention that Candidate’s SOFIs were not timely filed. Citing to the transcript,
Objectors assert it is clear that the trial court had decided the issue prior to the
proceeding. Further, Objectors acknowledge that the Petition to Set Aside was not
timely filed but assert that they were precluded from filing it on July 17, 2017, and,
therefore, the Petition to Set Aside should be accepted nunc pro tunc. (Objectors’
Br. at 7.) Objectors contend that they had “prepared a Motion to present to
proceed Nunc Pro Tunc in the lower court in the event of respondent’s objection to
[the] filing of [the] Petition to Set Aside . . . filed on July 19, 2017 (SEE attached
MOTION FOR EXTENSION NUNC PRO TUNC) [(Motion)].” (Id. (emphasis
in original).) Objectors argue that, due to the manner in which the proceeding was
conducted, they were effectively precluded from presenting their Motion or
otherwise explaining why the Petition to Set Aside should be treated as timely
filed. (Objectors’ Counter Response to Br. of Candidate at 4-5.) Objectors further
attach several exhibits to their initial brief that they assert support their arguments
on appeal.
Candidate and the Board have filed briefs in response to Objectors’
arguments. Both maintain that the trial court properly dismissed the Petition to Set
Aside because it was not timely filed under Section 977 of the Election Code,
having been filed more than seven days after the last day for Candidate to have
filed his acceptance of the write-in nominations. They both also argue that, under
the precedent, Candidate could amend his timely-filed SOFIs to correct the defects
apparent on their face. Alternatively, the Board argues that Section 977, which
refers only to nomination petitions and nomination papers, is inapplicable here
because Candidate was a successful write-in candidate and did not file a
10
nomination petition or nomination paper. The Board asserts that because Section
977 does not apply and Objectors have provided no other legal basis for
challenging Candidate’s SOFIs, the Petition to Set Aside was properly dismissed
as being legally insufficient. Additionally, Candidate asserts that Objectors’
appeal is frivolous and requests attorney’s fees and costs.
We first address the timeliness of the Petition to Set Aside. Section
1104(b)(2) and (3) of the Ethics Act requires that a SOFI be filed and sets forth the
consequences if a SOFI is not filed. Specifically, this Section provides:
(2) Any candidate for county-level or local office shall file a statement
of financial interests for the preceding calendar year with the
governing authority of the political subdivision in which he is a
candidate on or before the last day for filing a petition to appear
on the ballot for election. A copy of the statement of financial
interests shall also be appended to such petition.
(3) No petition to appear on the ballot for election shall be accepted
by the respective State or local election officials unless the petition
has appended thereto a statement of financial interests as set forth in
paragraphs (1) and (2). Failure to file the statement in accordance
with the provisions of this chapter 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)(2)-(3) (emphasis added). This provision is applied to write-
in candidates through the regulation at 51 Pa. Code § 15.3(e)(1)-(2), (f), which
requires that write-in candidates file their SOFI with “the governing authority of
the political subdivision wherein the person has been . . . nominated for . . . local
level office” within 30 days of having been nominated and prevents the acceptance
of any petition to appear on the ballot if the SOFI is not attached. Objections to
nomination petitions or papers must be filed “within seven days after the last day
for filing said nomination petition or paper,” pursuant to Section 977 of the
11
Election Code. 25 P.S. § 2937. This seven-day time limit in Section 977 of the
Election Code also applies to any challenge to a candidate’s SOFI. Bryant, 852
A.2d at 1195-96 (holding that a challenge to a SOFI that had been filed with a
nomination petition was untimely when the challenge was raised after the
expiration of the seven-day period provided in Section 977 of the Election Code,
even where the objector had previously filed a timely challenge to the nomination
petition itself) (citing State Ethics Comm’n v. Cresson, 597 A.2d 1146, 1148-49
(Pa. 1991)). Because the short time frames imposed by the legislature for
challenging nominations are meant “as a means of fostering orderliness, certainty,
and stability in the election process,” a challenge to a SOFI that is filed after the
seven-day time limit is untimely and cannot be considered. Id. While the time
limits set forth in Section 977 of the Election Code “are mandatory, and a court has
no authority to waive them,” In re James, 944 A.2d 69, 73 (Pa. 2008) (citing In re
Nomination Papers of American Labor Party, 44 A.2d 48, 50 (Pa. 1945)), they
may be extended where it is shown that “some extraordinary circumstance, such as
fraud, or [a] breakdown of the judicial process,” caused the delay in filing, Petition
of Torres, 512 A.2d 732, 733 (Pa. Cmwlth. 1986).
As discussed above, the Board certified the winners of the 2017 Municipal
Primary on June 8, 2017; therefore, the last day for Candidate to submit the
required forms and SOFIs was Monday, July 10, 2017. Objections to these forms
filed under Section 977 of the Election Code had to be filed within seven days,
which would be July 17, 2017. Objectors acknowledge that their Petition to Set
Aside was filed on July 19, 2017, and, therefore, was not timely under Section 977.
(Objectors’ Br. at 7.) Objectors allege that they were prevented from timely filing
their challenge on July 17, 2017, because the Prothonotary refused to accept it and
12
closed the office at 4:00 p.m. while they were inside. They maintain that they were
prepared to request nunc pro tunc relief with the Motion if the timeliness of the
Petition to Set Aside was challenged at the proceeding but were prevented from
doing so. (Id.; Motion.)
Procedural due process requires notice and the meaningful opportunity to
be heard. Dep’t of Transp., Bureau of Driver Licensing v. Clayton, 684 A.2d
1060, 1064 (Pa. 1996). “The hearing required by . . . [d]ue [p]rocess . . . must be
meaningful and appropriate to the nature of the case.” Id. at 1065 (citation
omitted). We are cognizant that, given the time restraints associated with
elections, hearings on those matters may be less formal, but they still must comport
with due process.
While it is true that Objectors did not argue that their Petition to Set Aside
should be accepted nunc pro tunc at the proceeding, the transcript reveals that
Objectors were not given an opportunity to respond or to present the Motion for
the trial court’s consideration. After Candidate questioned the timeliness of the
Petition to Set Aside, the trial court simply stated “Okay,” then began to discuss
with Candidate what it perceived to be the primary challenge to the SOFIs. After
briefly discussing the merits of the challenge, it then addressed Objectors, told
them that it was not going to sustain their petitions, and continued discussing
amendment of the defects in the SOFIs. (Hr’g Tr. at 3.) The timeliness of the
Petition to Set Aside was never again mentioned at the proceeding, and it was not
until the trial court issued its memorandum opinion, after this appeal was filed,
that the trial court stated that the Petition to Set Aside was dismissed because it
was not timely filed. Further, during the proceeding, the trial court barely gave
Objectors an opportunity to speak and told them multiple times that the Petition to
13
Set Aside was going to be denied. Under these circumstances, Objectors did not
have a meaningful opportunity to assert their request for nunc pro tunc relief at the
proceeding before the trial court.
Although Objectors have attached documents to their brief to this Court in
support of both their nunc pro tunc claim and their claims on the merits, this Court
can only consider the facts that have been certified in the record on appeal and may
not consider documents attached to a brief that are not a part of the certified record.
B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012). It is the trial
court that is the fact finder, and it “has exclusive authority to weigh the evidence,
make credibility determinations[,] and draw reasonable inferences from the
evidence presented.” In re Sale of Real Estate by Lackawanna Cnty. Tax Claim
Bureau, 22 A.3d 308, 312 n.3 (Pa. Cmwlth. 2011); see also In re Petition to Set
Aside Nomination Petition (Pa. Cmwlth., No. 367 C.D. 2015, filed April 17, 2015),
slip op. at 19 (applying this standard to an election matter).9 “The trial court is free
to believe all, part or none of the evidence.” In re Petition to Set Aside Nomination
Petition, slip op. at 19 (citing Commonwealth v. Begley, 780 A.2d 605, 619 (Pa.
2001)). Accordingly, we vacate the trial court’s Order dismissing the Petition to
Set Aside and remand the matter for Objectors to present their Motion, and any
evidence in support thereof, to the trial court for a determination as to whether the
Petition to Set Aside should be accepted nunc pro tunc.
We now turn to Objectors’ claims that they were deprived of due process
when they did not have any opportunity to present evidence and argument in
support of the Petition to Set Aside. As Objectors acknowledge, they have the
9
This case is cited for its persuasive value pursuant to Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code § 69.414(a).
14
burden of proving that the SOFIs are defective. 25 P.S. § 2937; In re Beyer, 115
A.3d 835, 836, 838 (Pa. 2015) (holding objectors have the burden of proving
defects in election cases). However, our review of the transcript reveals that
Objectors were not provided a meaningful opportunity to present evidence or
argument in order to attempt satisfy their burden of proof.
At the outset, it does not appear in the record that anyone was sworn in, even
though Candidate did answer the trial court’s questions. Moreover, after
explaining what it thought the primary objection was, the lack of information in
Block 10, the trial court called Objectors forward and told them that it was “not
going to sustain [their] petitions. I am telling you that right now, either one of
them.” (Hr’g Tr. at 3.) The trial court then briefly discussed with Candidate the
defect in Block 10 of the SOFI, which it determined was amendable.10 Only after
this discussion did Objector Herbert have the opportunity to address the Court,
arguing that there was a fatal defect in the SOFI due to there being no
documentation that it had been timely filed with the Borough. (Id. at 4.) The trial
court rebuffed Objector Herbert, telling him to “Forget it,” that the lack of
documentation was “on West Reading” not Candidate, and that it was dismissing
the Petition to Set Aside. (Id.) These statements by Objector Herbert were the
only time either he or Objector Thompson spoke at the proceeding, and this
occurred after the trial court had twice told them that it was dismissing their
Petition to Set Aside. This cannot be said to have been a meaningful opportunity
to be heard as required by procedural due process. Because Objectors were not
given a meaningful opportunity to be heard and present evidence in order for them
10
The trial court is correct that, if Candidate’s SOFIs were timely-filed with the Borough,
the defects contained within that document are amendable. Paulmier, 937 A.2d at 445.
15
to attempt to satisfy their burden of proof on the Petition to Set Aside, on remand,
the trial court shall provide Objectors an opportunity to present their evidence as to
the untimeliness of the SOFIs and for Candidate to present evidence in response, if
necessary.11,12
For these reasons, the trial court’s Order is vacated, and the matter is
remanded for the trial court to hold a new hearing at which evidence will be taken
on Objectors’ claims regarding their entitlement to nunc pro tunc relief and the
merits of the Petition to Set Aside. The trial court shall then issue a new
determination regarding Objectors’ claim that the Petition to Set Aside be accepted
nunc pro tunc and the date Candidate filed his SOFIs with the Borough.13
Additionally, because we are remanding the matter for further proceedings and the
creation of a new record, Objector Thompson’s Notice of Objection is dismissed as
moot.
11
The Board questions whether a petition to set aside can be filed pursuant to Section 977
of the Election Code where, as here, the candidate has not filed a nomination petition or
nomination paper. However, given our disposition, we will not address this issue.
12
Because we vacate and remand this matter for further proceedings, we will not address
Objectors’ remaining arguments relating to the alleged ex parte communication between the trial
court and opposing counsel, to the trial court’s alleged too narrow interpretation of Section 977
of the Code, or its alleged disregard of the two-filings requirement of Section 1104(b) of the
Ethics Act. Additionally, having concluded that the trial court’s Order must be vacated and the
matter remanded, we deny Candidate’s request for attorney’s fees based on the allegation that
Objectors’ appeal was frivolous.
13
Because of the short time frames associated with election matters, even if the trial court
determines that nunc pro tunc relief is not warranted, it should still address the merits of the
Petition to Set Aside for the purposes of judicial economy and to ensure that this matter can be
resolved in its entirety as expeditiously as possible.
16
_____________________________________
RENÉE COHN JUBELIRER, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: The Nomination Papers of :
David Amato as Candidate for :
Member of Council Borough of :
West Reading :
:
Appeal of: Oswald Herbert and : No. 1138 C.D. 2017
Suzanne Thompson :
ORDER
NOW, September 14, 2017, the Order of the Court of Common Pleas of
Berks County (trial court), is VACATED. The matter is REMANDED for
proceedings consistent with this opinion. The trial court is directed to hold the new
hearing and issue a final order and an opinion that includes findings of fact and
conclusions of law within 10 days of the date of this Order. Any aggrieved party
may file an appeal within 10 days of entry of the trial court’s order. Suzanne
Thompson’s “Notice of Objection to Notes of Testimony” is DISMISSED AS
MOOT. David Amato’s request for attorney’s fees and costs is DENIED.
Jurisdiction is relinquished.
_____________________________________
RENÉE COHN JUBELIRER, Judge