In Re: Nomination Petition of Michael J. Stack, Candidate for Lt. Governor Petition of: T.L. Gordon, I.H. Chowdhury, and M.K. Bojar , 184 A.3d 591 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Nomination Petition of :
Michael J. Stack, Candidate for :
Lieutenant Governor : No. 162 M.D. 2018
: Heard: March 20, 2018
Petition of: Tracey L. Gordon, Ibrul :
H. Chowdhury, and M. Karen Bojar :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: March 28, 2018
Tracy L. Gordon, Ibrul H. Chowdhury, and M. Karen Bojar
(Objectors)1 have petitioned to set aside the nomination petition of Michael J. Stack
(Candidate), who seeks the Democratic Party nomination for Lieutenant Governor
of Pennsylvania in the primary election scheduled for May 15, 2018. Objectors
contend that the affidavit filed with Candidate’s nomination petition contains a
materially false statement because it names his mother’s home in Philadelphia
County as his residence. Objectors contend that Candidate, who currently serves as
Pennsylvania’s Lieutenant Governor, actually resides in Lebanon County, where the
Lieutenant Governor’s official residence is located.
Background
On March 20, 2018, the Court conducted an evidentiary hearing on the
factual question raised by Objectors’ petition, which is the location of Candidate’s
residence in Pennsylvania. Candidate and his chief of staff, Matthew Franchak, were
1
Objectors are registered to vote in Pennsylvania as members of the Democratic Party.
the sole witnesses. The remaining evidence consisted of a factual stipulation and a
series of exhibits that were admitted without objection. The largely undisputed facts
are summarized as follows.
Following his inauguration as Lieutenant Governor on January 20,
2015, Candidate and his wife moved from their residence at 15132 Wayside Avenue
in Philadelphia to the Commonwealth-owned official residence for the Lieutenant
Governor located at Fort Indiantown Gap in Lebanon County. Shortly thereafter,
Candidate’s unoccupied Wayside Avenue home developed problems. The furnace
failed, as did the hot water heater, which led to flooding. As a consequence,
Candidate decided to sell his Wayside Avenue home, which he did on February 29,
2016. At that point, Candidate’s chief of staff, Franchak, spoke to a Deputy
Secretary at the Department of State about how long Candidate could maintain his
voter registration at Wayside Avenue. Franchak told Candidate that the Deputy
Secretary advised that he could continue to vote from the Wayside Avenue address
for one year. Franchak also advised that “[a]fter the primary, they recommend that
you register to vote at your mother’s house. They supplied state statutes and court
cases to back up these recommendations.” Respondent Exhibit No. 9; Notes of
Testimony, 3/20/18, at 73 (N.T. ___). Candidate’s mother’s home at 1247
Southampton Road is located in the same ward and division in Philadelphia as the
Wayside Avenue property.
Since 2016, Candidate has identified 1247 Southampton Road as his
residence for many purposes. These include Candidate’s city, state and federal
income tax filings; his voter registration; and his mailing address for personal
financial matters, such as health insurance and his Senate pension. 1247
2
Southampton Road is the address identified on Candidate’s driver’s license. Since
his inauguration in 2015, Candidate has paid wage taxes to the City of Philadelphia.
Candidate testified that most of his personal belongings, including his
personal furniture, are at the official residence. Candidate has other furniture stored
in a garage at 1247 Southampton Road. He keeps clothing both at the Southampton
Road house and “down at the shore.” N.T. 69. He spends some nights at 1247
Southampton Road, but not many. He testified that his position as Lieutenant
Governor requires significant travel around the state, and during these trips he
usually stays in a hotel. Most of Candidate’s work is done in Harrisburg. He chairs
sessions of the Pennsylvania Senate and chairs the Board of Pardons; his official
office is in the State Capitol. Accordingly, he sleeps most nights in the official
residence in Lebanon County.
Candidate testified that he intends to return to 1247 Southampton Road
in Northeast Philadelphia when his term expires, either at the end of this year or in
four years. He explained that he lived in the family house for decades, beginning at
age 14. After he married, he bought a house on Wayside Avenue very close to 1247
Southampton Road. Candidate considers his occupancy of the Lieutenant
Governor’s official residence to be temporary and part of his service in that office.
At no point has he considered or taken steps to make the official residence in
Lebanon County his domicile.
Objectors contend that Candidate has listed his mother’s address on his
nomination petition and affidavit so that he will be identified on the primary election
ballot as a resident of Philadelphia. This designation served him well in the 2014
Democratic primary, when he was the only Philadelphian on the ballot for
Lieutenant Governor. In support, Objectors produced an exhibit showing the
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primary election results from 2014 by county. As the sole candidate from
Philadelphia, Candidate received 83.21% of the Philadelphia vote.
Election Code
Section 910 of the Pennsylvania Election Code (Election Code)2
requires each candidate for any State office to file “with his nomination petition his
affidavit” that identifies, inter alia, “his residence with street and number….” 25
P.S. §2870.3 Although the Election Code does not have specific standards for
determining the “residence” of a candidate, it does provide this guidance for “a
person desiring to register or vote” in Pennsylvania. Section 704 of the Election
Code states that for voting purposes, a person’s “residence” is determined as follows:
(a) That place shall be considered the residence of a person in
which his habitation is fixed, and to which, whenever he is
absent, he has the intention of returning.
(b) A person shall not be considered to have lost his residence
who leaves his home and goes into another state or another
election district of this State for temporary purposes only, with
the intention of returning.
2
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.
3
It provides, in relevant part:
Each candidate for any State, county, city, borough, incorporated town, township,
ward, school district, poor district, election district, party office, party delegate or
alternate, or for the office of United States Senator or Representative in Congress,
shall file with his nomination petition his affidavit stating--(a) his residence, with
street and number, if any, and his post-office address; (b) his election district,
giving city, borough, town or township; (c) the name of the office for which he
consents to be a candidate; (d) that he is eligible for such office; (e) that he will not
knowingly violate any provision of this act, or of any law regulating and limiting
nomination and election expenses and prohibiting corrupt practices in connection
therewith[.]
25 P.S. §2870 (emphasis added). The Department of State, Bureau of Elections has promulgated
a “Candidate’s Affidavit” form for use by candidates.
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(c) A person shall not be considered to have gained a residence
in any election district of this State into which he comes for
temporary purposes only, without the intention of making such
election district his permanent place of abode.
(d) The place where the family of a married man or woman
resides shall be considered and held to be his or her place of
residence, except where the husband and wife have actually
separated and live apart, in which case the place where he or she
has resided for two months or more shall be considered and held
to be his or her place of residence.
(e) If a person removes to another state with the intention of
making such state his permanent residence, he shall be
considered to have lost his residence in this State.
(f) If a person removes to another state with the intention of
remaining there an indefinite time and making such state his
place of residence, he shall be considered to have lost his
residence in this State, notwithstanding he may entertain an
intention to return at some indefinite future period.
(g) If a person removes to the District of Columbia or other
Federal territory or foreign country to engage in the government
service, he shall not be considered to have lost his residence in
this State during the period of such service, and the place where
the person resided at the time of his removal shall be considered
and held to be his place of residence.
(h) If a person goes into another state and while there exercises
the right of a citizen by voting, he shall be considered to have
lost his residence in this State.
25 P.S. §2814. In In re Nomination Petition of Driscoll, 847 A.2d 44 (Pa. 2004),
our Supreme Court used the multi-part test in Section 704 to determine whether a
candidate had correctly identified his residence on his nomination petition and
affidavit.
Section 703 of the Election Code addresses how a registered voter may
acquire, or lose, his residence in Pennsylvania. It states:
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For the purpose of registration and voting, no person shall be
deemed to have gained a residence by reason of his presence, or
lost it by reason of his absence, while employed in the service,
either civil or military, of this State or of the United States, nor
while engaged in the navigation of the waters of the State or of
the United States, or on the high seas, nor while a student of any
institution of learning, nor while kept in any poorhouse or other
asylum at public expense, nor while confined in public prison,
except that any veteran who resides in a home for disabled and
indigent soldiers and sailors, operated and maintained by the
Commonwealth of Pennsylvania, and who possesses all the
qualifications for voting, may gain a residence for registration
and voting at the home for disabled and indigent soldiers and
sailors. The provisions of this amendment shall not be construed
to affect the voting rights of bedridden or hospitalized veterans
who choose to vote as absentee electors by the use of veteran’s
official ballots.
25 P.S. §2813 (emphasis added). Candidate asserts that he is in “the service … of
this State” and has not “gained a residence” in Lebanon County by virtue of his
occupancy of the Lieutenant Governor’s official residence. Id.
In reviewing objections to a nomination petition, the Court liberally
construes the above-listed provisions of the Election Code “so as not to deprive an
individual of the right to run for office or the voters of their right to elect a candidate
of their choice.” In re Creighton, 899 A.2d 1166, 1168 (Pa. Cmwlth. 2006). Further,
“nomination petitions are presumed to be valid and an objector has the burden of
proving that a nomination petition is invalid.” In re Driscoll, 847 A.2d at 49. On
the other hand, inaccuracies in a candidate’s affidavit may not be dismissed as mere
technical formalities. Id. at 50 (sworn affidavits “insure the legitimacy of
information crucial to the election process[.]”). In In re Nomination Petitions of
McIntyre, 778 A.2d 746, 754 (Pa. Cmwlth. 2001), this Court held that
filing an affidavit, with the intent to deceive, that lists an address,
which is not the candidate’s residence, is more than a technical
6
violation of the Pennsylvania Election Code. It is a material
defect because when the affidavit was taken the facts sworn to
were not true.
Thus, the Court held that the candidate’s affidavit could not be amended and set
aside the candidate’s nomination petition. Id.Pennsylvania Constitution
A residency controversy generally arises in the context of a candidate’s
eligibility to serve under the Pennsylvania Constitution. For example, In re Lesker,
105 A.2d 376 (Pa. 1954), concerned whether the candidate, who sought to serve as
a representative in the General Assembly, resided in the legislative district that he
sought to represent. Likewise, in In re Makhija, 136 A.3d 539 (Pa. Cmwlth. 2016),
the objector challenged the candidate’s eligibility on the theory that he had lost his
Pennsylvania residency when he moved to Massachusetts to attend law school.
Here, there is no challenge to Candidate’s eligibility under the Pennsylvania
Constitution because he is, without question, a citizen of Pennsylvania.4 The only
question is where in Pennsylvania Candidate resides.
The definitive case on the residency requirement for a public office is
In re Lesker, 105 A.2d 376. The Supreme Court explained as follows:
It seems impossible to restrict the terms habitation, residence and
domicile to airtight, waterproof compartments. Their meanings
seem bound to escape their lexicographical boundaries and
mingle with the others since a person’s place of residence may
be identical with his domicile, and habitation is always a
4
To be eligible for the Office of Lieutenant Governor, a person must be
[a] citizen of the United States, who shall have attained the age of 30 years, and
have been seven years next preceding his election an inhabitant of this
Commonwealth, unless he shall have been absent on the public business of the
United States or of this Commonwealth.
PA. CONST. art. IV, §5.
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component part of residence and domicile. However, in strict
technical terminology a habitation may be defined as an abode
for the moment, residence a tarrying place for some specific
purpose of business or pleasure, and domicile the fixed,
permanent, final home to which one always intends to return. A
person’s civil status is determined by his domicile. Thus, a
business man may have his family home in the suburbs of a city
where he lives with his wife and children. No matter where he
travels nor how long he remains away, he always returns to this
abode. This is his domicile. For business reasons he may have
a residence in the city, even living there for many months of the
year. This residence can never become the basis for voting or for
candidacy for office. If traveling, he may stay at a hotel,
boarding or rooming house. This would be his habitation and,
regardless of expression of intention, could never become his
legal domicile.
Id. at 380 (emphasis in original). The Supreme Court further explained:
To accomplish a change of domicile there must be not only the
animus to change but the factum as well. There must be an actual
transfer of bodily presence from one place to the other. The
animus and the factum do not need to be simultaneous, but until
they coincide the change of domicile is not effected. In the law
a domicile is as deep rooted as a tree and to transfer it from one
location to another requires an operation as intensive as the
digging up, loading, transportation, and replanting of an elm or
maple.
One almost conclusive criterion of domicile is the animus
manendi. There must be the intention to remain.
Id. (emphasis in original). The Supreme Court concluded that the candidate, who
kept furniture and personal belongings at the residence listed on his petition and
voted from there, remained domiciled at the named residence, notwithstanding the
fact that he spent considerable time at another residence nearby.
In In re Makhija, 136 A.3d 539, the objectors claimed the candidate
changed his domicile to Massachusetts while attending Harvard Law School. While
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there, the candidate registered his automobile in Massachusetts and filed a tax return
in Massachusetts, as required by Massachusetts law. He also registered to vote in
Massachusetts. However, the candidate referred to Pennsylvania as “home;” used
his parents’ Pennsylvania address on medical and insurance policies; maintained a
Pennsylvania bank account; and held a scholarship available only to residents of
Carbon County. The Court concluded that on these facts the candidate had not
“gained a residence” in Massachusetts while a “student at any institution of
learning.” Section 703 of the Election Code, 25 P.S. §2813.
In re Nomination Petition of Pippy, 711 A.2d 1048 (Pa. Cmwlth. 1998),
is also pertinent. The relevant facts were that the candidate and his wife moved into
her parents’ Pennsylvania home in Moon Township, Allegheny County, upon their
marriage in 1992. Later that year, they signed a six-month lease on an apartment in
Coraopolis, Pennsylvania. Before the lease expired, the candidate was called to
active military duty in Texas, where he and his wife lived for several years. There
his wife attended college, listing her parents’ Pennsylvania residence as her
permanent address; she did not pay the tuition of an in-state Texas resident. In 1995,
the candidate was released from active duty and returned to Pennsylvania. This
Court concluded the candidate’s Pennsylvania domicile was established in 1992 and
continued throughout his military service, notwithstanding the fact that he voted in
Texas while stationed there.
Positions of Parties
Acknowledging that “residence” is coterminous with “domicile,” In re
Lesker, 105 A.2d at 380, Objectors note that a domicile “is the place at which an
individual has fixed his family home and principal establishment for an indefinite
period of time.” In re Prendergast, 673 A.2d 324, 327 (Pa. 1996). Objectors
9
contend that Candidate has fixed “his family home and principal establishment” at
the official residence in Lebanon County. They further argue that this domicile “is
presumed to continue until it is shown to have been changed[.]” Id. Objectors
contend that Candidate abandoned his domicile in Philadelphia when he sold his
house on Wayside Avenue and did not establish a domicile at 1247 Southampton
Road, where he is a mere family visitor. Objectors contend that Candidate’s self-
serving declaration of intent to make 1247 Southampton Road his domicile did not
suffice because the establishment of a domicile requires “the actual state of facts,
not what one declares them to be.” In re Lesker, 105 A.2d at 379 (emphasis in
original).5 Because a candidate can have only one domicile, see In re Driscoll, 847
A.2d at 49-50, Objectors assert that the only possible place that Candidate can be
domiciled is at the official residence in Lebanon County.
Candidate responds that by taking up temporary occupancy of the
Lieutenant Governor’s official residence, he did not abandon his domicile in
Philadelphia and transfer it to Lebanon County. He notes that a change in domicile
is not done lightly; it is as difficult an operation as the “replanting of an elm or
maple.” In re Lesker, 105 A.2d at 380. Further, Candidate observes that the
“replanting” of Candidate’s domicile requires a finding that he has the “intention to
remain” in Lebanon County. Id. Candidate argues that it is impossible for Candidate
5
Objectors also note that Candidate was not precluded from establishing his domicile at the official
residence of the Lieutenant Governor. In support, they direct the Court to In re Contest of Election
for Office of Tax Collector in Township of Newport, Luzerne County, 121 A.2d 141 (Pa. 1956),
where the Supreme Court construed Section 703 of the Election Code to mean only that a residence
cannot be changed merely by reason of employment. The Court explained:
The fact, however, that a person does not gain or lose residence merely by reason
of his presence or absence while in the service of the government does not preclude
him from otherwise gaining a residence at the place so employed.
Id. at 143 (emphasis in original).
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to remain at the official residence indefinitely because by law he must leave when
his term ends. When his term ends, Candidate will return to 1247 Southampton
Road, where he presently votes, collects mail, sleeps (from time to time) and pays
taxes. By these acts, Candidate established his domicile there. Candidate may spend
more time at the official residence than elsewhere, but Section 703 of the Election
Code, 25 P.S. §2813, provides a safe harbor for those whose State service or study
requires a presence in a new location, even one outside Pennsylvania.
Objectors argue that Candidate’s reliance on Section 703 of the
Election Code is misplaced. Candidate did not lose his residence in Philadelphia by
occupying the Lieutenant Governor’s official residence. Rather, he lost it when he
made the conscious decision to sell and vacate his Wayside Avenue home and not
buy another home in Philadelphia. Because Candidate’s affidavit has falsely
identified 1247 Southampton Road as his residence, his nomination petition must be
set aside under In re McIntyre, 778 A.2d 746. Candidate responds that Objectors’
evidence does not show an intention to deceive the electorate; at worst the “defect”
is an amendable one.
Analysis
At the outset, we reject Objectors’ contention that Candidate had an
intention to deceive the electorate. In this argument, Objectors contend that the 2014
primary election results explain Candidate’s motive for this deception. However,
those election results are ambiguous. It is equally plausible that Candidate did
exceptionally well in Philadelphia because of his name; he was a State Senator
representing Philadelphia at the time of the primary. A cursory examination of the
2014 primary election results also shows that being from Philadelphia was not very
helpful to him in other counties. It may have had the opposite effect. Objectors did
11
not present an expert to resolve the ambiguous inferences that can be drawn from
their election return exhibit. Nor did they present any other evidence of deception.
In In re McIntyre, 778 A.2d 746, this Court found that the candidate
tried to make the electorate believe he lived in the City of Pittsburgh with his mother-
in-law and not in Upper St. Clair, where he owned a home in which his wife still
lived. His testimony was unavailing because he took no steps whatsoever to make
Pittsburgh his residence, such as changing his voter registration, until after he
became a candidate. By contrast, here, Candidate claimed his mother’s home at
1247 Southampton Road as his residence when he sold his home on Wayside
Avenue, and he continues to use his mother’s address for all legal purposes. Further,
Candidate began this arrangement years before he became a candidate in 2018 for
the office of Lieutenant Governor.
Candidate lived at 1247 Southampton Road for several decades before
he bought his home on Wayside Avenue. When he became technically homeless, it
was reasonable, and he was so advised by his chief of staff, to designate the family
home at 1247 Southampton Road as his domicile. This is no different than the
situation in In re Pippy, 711 A.2d 1048, where the candidate designated his mother-
in-law’s home as his residence during the time he lived, worked and voted in Texas
while in active military service. Simply, there is no evidence, direct or
circumstantial, that would allow the Court to find, as fact, that Candidate intended
to deceive the electorate.
This leaves the question of whether Candidate has correctly identified
his residence on his nomination petition and in his affidavit. When determining a
candidate’s residence, this Court considers the following factors:
(1) the candidate’s presence or absence at the address, In re
Nomination Petition of Hacker, 728 A.2d 1033, 1033 (Pa.
12
Cmwlth. 1999); (2) where members of the candidate’s household
reside, In re Nomination Petitions of McIntyre, 778 A.2d 746,
753 (Pa. Cmwlth. 2001) (Kelley, J. single judge opinion);
Hacker, 728 A.2d at 1033; (3) whether the candidate pays rent
on or has a lease for the property he claims as his residence,
McIntyre, 778 A.2d at 752; (4) where the candidate sleeps, id.;
(5) what belongings and personal effects the candidate keeps at
the address, id.; and (6) whether the candidate owns another
home to which he appears more permanently attached, id.;
Hacker, 728 A.2d at 1033.
In re Shimkus, 946 A.2d 139, 149 (Pa. Cmwlth. 2008). In sum, a candidate’s
residence, reduced to its essence, is the “habitation where one has put down roots,
not a place where one has hoisted a flag of convenience.” Id. at 148.
The multi-part Shimkus test was derived from precedent and is a useful
test in most circumstances. However, it has limited utility here.
First, the Shimkus test does not yield a definitive outcome on this
record. Candidate sleeps most nights at the official residence, and many of his
personal effects are located there. However, he also stores furniture and clothing at
1247 Southampton Road and at other places. His wife has not slept at the 1247
Southampton Road address since his inauguration, and Candidate acknowledges that
he does not often sleep there. Candidate does not pay rent to his mother. There is
no home, other than his mother’s home, to which Candidate “appears more
permanently attached.” Shimkus, 946 A.2d at 149. Indeed, Candidate’s credible
testimony established an attachment to the family home at 1247 Southampton Road
that is longstanding and genuine.
Second, the Shimkus test does not address the situation in this case,
where the candidate is in State service and has been assigned an official residence
owned by the State. See Section 703 of the Election Code, 25 P.S. §2813. Nor does
the Shimkus test address the key facts here, namely that Candidate assigned 1247
13
Southampton Road as his legal residence for purposes of his voter registration, his
driver’s license and his personal financial dealings, such as health insurance and
pension. The principles of In re Lesker, 105 A.2d 376, and Section 703 of the
Election Code provide the more appropriate guide to determining Candidate’s
residency.
Section 703 provides that a person does not “gain[ ] a residence …
while employed in the service, either civil or military, of this State….” 25 P.S.
§2813. To gain a residence requires more. Further, where one plans to “remain” is
critical in the acquisition of a new domicile. In re Lesker, 105 A.2d at 380. No
Lieutenant Governor may stay in the Lieutenant Governor’s official residence after
his civil service to the State is completed.
Under the principles established in In re Lesker, Candidate did not
establish a domicile in Lebanon County simply by occupying the official residence
of the Lieutenant Governor. More is required in the “replanting of an elm.” Id. at
380. Candidate never expressed the intention nor acted to establish a domicile in the
official residence, where he cannot “remain” permanently.
Under Objectors’ logic, a person must rent or buy another home in order
to avoid a transfer of domicile when he occupies an official residence owned by the
Commonwealth. Candidate dismisses this logic as no more than a “rich man’s
interpretation.” N.T. 103. Even a rich, and thrifty, lieutenant governor might make
the choice to rent or sell his personal home and put all of his belongings in storage
during his occupancy of the official residence. The safe harbor of Section 703 of the
Election Code protects these choices from having the unintended consequence of
changing one’s domicile.
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In sum, Candidate did more than state an intention to make 1247
Southampton Road his domicile. He took steps consistent with that intention. It is
the place where he votes, collects mail, pays taxes, stores personal effects and spends
occasional nights. His occupancy of the official residence of the Lieutenant
Governor is irrelevant to the determination of Candidate’s residency by reason of
the safe harbor provision in Section 703 of the Election Code.
Conclusion
The Court concludes that Objectors have not met their burden of
proving that Candidate incorrectly identified his residence on his nomination petition
or in his affidavit. Accordingly, Objectors’ petition to set aside the nomination
petition of Michael J. Stack is denied.
______________________________________
MARY HANNAH LEAVITT, President Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Nomination Petition of :
Michael J. Stack, Candidate for :
Lieutenant Governor : No. 162 M.D. 2018
:
Petition of: Tracey L. Gordon, Ibrul :
H. Chowdhury, and M. Karen Bojar :
ORDER
AND NOW, this 28th day of March, 2018, following hearing on the
petition to set aside the nomination petition of Michael J. Stack for the Democratic
Nomination for Lieutenant Governor of Pennsylvania in the Democratic Primary of
May 15, 2018, the petition is DENIED.
The Secretary of the Commonwealth is directed to certify the name of
Michael J. Stack for inclusion on the ballot for the office of Lieutenant Governor of
Pennsylvania in the Democratic Primary of May 15, 2018.
The Chief Clerk is directed to send a copy of this order to the Secretary
of the Commonwealth.
Each party will bear his own costs.
_____________________________________
MARY HANNAH LEAVITT, President Judge