In the Matter of the NOMINATION PETITION OF Kerry BENNINGHOFF, (Republican) Candidate for Representative in the General Assembly from the 171st Legislative District.
Commonwealth Court of Pennsylvania.
Heard March 17, 2004. Decided March 23, 2004. As Amended May 10, 2004.
BEFORE: PELLEGRINI, Judge, and LEAVITT, Judge, and SIMPSON, Judge.
Paula F. Smith, Petitioner. John J. Connelly, Jr., Hershey, for petitioner. Lawrence J. Tabas and Dorothy M. Claeys, Philadelphia, for respondents.
Because the imposition of penalties is discretionary, we will not overturn a penalty on appeal absent an abuse of discretion. Hoover. An abuse of discretion is demonstrated when the penalties are manifestly unreasonable or show partiality, prejudice, bias or ill will toward a litigant. Jetson Direct Mail Services, Inc. v. Department of Labor and Industry, 782 A.2d 631 (Pa. Cmwlth. 2001), appeal denied, 568 Pa. 727, 797 A.2d 917 (2002).
The majority does not suggest that the record contains evidence that the WCJ showed partiality, prejudice, bias or ill will toward Employer in imposing the penalties. Evidently, the majority believes that it was manifestly unreasonable to impose penalties in this case because Employer‘s failure to make timely payment was a result of Employer‘s reliance on the WCAB‘s supersedeas regulations. I do not agree that Employer‘s reliance on those regulations renders the penalties manifestly unreasonable.
At the time relevant to these proceedings, the WCAB‘s regulations essentially provided that: (1) a request for supersedeas must be filed within twenty days of the WCAB‘s order; (2) the opposing party may file a response within ten days of service of the request; and (3) the WCAB will rule on the request within twenty days thereafter.
Accordingly, I would reverse.
Before this Court is a petition to set aside the nomination petition of Kerry Benninghoff (Benninghoff), the Republican Candidate for the Office of Representative in the General Assembly from the 171st Legislative District filed by Paula F. Smith (Smith). Smith is a registered Republican and a qualified elector of the 171st Legislative District, Centre County, Pennsylvania.
Benninghoff filed a nomination petition with the Office of the Secretary of the Commonwealth on February 17, 2004, for the Office of Representative in the General Assembly from the 171st Legislative District as a candidate for the nomination of the Republican Party in the General Primary scheduled for Tuesday, April 27, 2004. Along with the nomination petition, Benninghoff also filed a Statement of Financial Interests (Financial Statement) as required under Section 1104 of the Public Official and Employee Ethics Act (Ethics Act),
Smith contends that Benninghoff failed to properly execute that Financial Statement because in Block 10, he did not list a direct source of income from his current employment as a State Representative from the 171st Legislative District as mandated by
The sole issue before this Court is whether Benninghoff‘s name must be stricken from the ballot because the Financial Statement he filed with the Secretary of the Commonwealth was incomplete or inaccurate as he failed to list any income from his position as State Representative.1
(b) Required information. The statement shall include the following information for the prior calendar year with regard to the person required to file the statement:
(5) The name and address of any direct or indirect source of income totaling in the aggregate of $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. (Emphasis added.)
Additionally, on the back of the Financial Statement, the following instructions are provided for Block 10:
DIRECT OR INDIRECT SOURCES OF INCOME: This block contains the name and address of each source of income of $1,300.00 or more of gross income. List the name and address of all employers (including governmental bodies). Also, include the source and address, not the dollar amount, of any payment, fee, salary, expense, allowance, forbearance, forgiveness, interest income, dividend, royalty, rental income, capital gain, reward, severance payment, prize winning, and tax exempt income. DO NOT INCLUDE: gifts, governmentally mandated payments; or retirement, pension or annuity payments funded totally by contributions of the person filing this form. If you did not receive any reportable income then check “NONE.” (Emphasis in bold added.)
Benninghoff alleges that even though he did list his source of income, he did not have to provide the required information because the information requested was of public record. While that may be true, no such exception has been carved out by the General Assembly. In In re Nomination Petition of Anastasio, 820 A.2d 880 (Pa.Cmwlth.), affirmed per curiam, 573 Pa. 512, 827 A.2d 373 (2003), we set aside the nomination petition of a candidate for Philadelphia City Council who improperly filled out the Financial Statement in accordance with the provisions of the Ethics Act. We stated:
[T]he Act pertains to ethics and is to be liberally construed to promote complete financial disclosure.
65 Pa.C.S. § 1101.1 . Anastasio relies on the liberal construction of the Election Code to protect a candidate‘s right to run for office and the voters’ right to elect the candidate of their choice. However, it is the Ethics Act in Title 65 that is dispositive here. Thus, we decline to interpret the Act to allow errors of omission.
Id. at 881. In Anastasio, we went on to note that
Moreover, if we were to adopt Benninghoff‘s reasoning, that would open up the Act to far more exceptions to reporting of income on the Financial Statement. For example, if a mayor of a city running for the General Assembly denominates his/her status in Blocks 4 and 5, but fails to list his/her income in Block 10 of the Financial Statement, or if a well-known private individual, such as a news anchor, similarly lists his/her occupation and fails to list that television station as a source of income, each could make a similar argument under the Act that it makes no sense to remove him/her from the ballot.3
While we agree with Benninghoff that we can infer that he, and under our example, the mayor and the news anchor, by listing their titles and for whom they work, receive income from those sources, the technical requirement of the Ethics Act does not relieve them of listing their sources of income. Recently, in In re Canvass of Absentee Ballots of November 4, 2003 General Election, 577 Pa. 519, 843 A.2d 1223 (2004), what was at issue was the delivery of absentee ballots by third parties. In that case, the Allegheny County Board of Elections, by formal action, authorized the delivery of absentee ballots by third parties to the Election Department, even though the only methods authorized under the Election Code were delivery by the voter or by mail. Even though it was conceded that there was no fraud and that application of the technical requirements
Our precedent is clear: we cannot simply ignore substantive provisions of the Election Code. See In re Nomination of Gallagher, supra. [468 Pa. 19, 359 A.2d 791] We recognize that the Board of Elections’ instructions may have misled some absentee voters. But so-called technicalities of the Election Code are necessary for the preservation of secrecy and the sanctity of the ballot and must therefore be observed—particularly where, as here, they are designed to reduce fraud. See Appeal of James, 377 Pa. 405, 105 A.2d [64] at 65 (election law will be strictly enforced to prevent fraud). (Footnote omitted.)
See also In re Nomination of Flaherty, 564 Pa. 671, 770 A.2d 327 (2002).
While, in this case, secrecy of the ballot and the right of voters to vote for candidates are not at issue, just the opposite the right of a person to stand for election and the right of the public to know about the sources of his income nonetheless, In re Canvass of Absentee Ballots, is instructive. Like In re Canvass of Absentee Ballots, (where no harm would be done to the purpose behind the provision of the Election Code by counting the challenged votes), there would be no harm to the public to place Benninghoff‘s name on the ballot because his income as a State Representative could be surmised; yet, our Supreme Court has instructed us that we must strictly apply the requirements even where there would be no harm because behind those “technicalities” are important policy considerations. The General Assembly also emphasized those policy considerations by providing that those requirements must be strictly complied with when it amended the Ethics Act to respond to courts not striking candidates who failed to comply with this provision by providing that “failure to file the [financial interests] statement in accordance with the provisions of this act shall ... be a fatal defect to a petition to appear on the ballot.”
Even if his Financial Statement is deficient, Benninghoff then contends that he should be allowed to amend it to correct any omission or errors. He argues that the Ethics Act does not preempt the Election Code, Commonwealth v. Cresson, 528 Pa. 339, 597 A.2d 1146 (1991), because aspects of both relate to the filing of the Financial Statement, and therefore, they must be read in pari materia and construed together. Cresson;
In State Ethics Commission v. Baldwin, 498 Pa. 255, 445 A.2d 1208 (1982), our Supreme Court concluded that the requirement that candidates for elective office timely file required financial statements was not a fatal defect to nomination petitions and could be cured by amend-
Accordingly, because Benninghoff failed to list the source of his income as a State Representative and we are compelled to follow the law as it is presently written, we regrettably must set aside his nomination petition and grant the petition filed by Smith.
ORDER
AND NOW, this 23rd day of March, 2004, the Petition to Set Aside the Nomination Petition filed by Paula A. Smith is GRANTED and the Secretary of the Commonwealth is DIRECTED to remove the name of Kerry Benninghoff for the Office of Representative in the General Assembly from the 171st Legislative District in the 2004 Primary Election.
LEAVITT, J., dissents and files opinion.
DISSENTING OPINION BY Judge LEAVITT.
Respectfully, I dissent. Petitioner Paula Smith seeks relief under three specific provisions of the Pennsylvania Election Code (Election Code):1
Candidates are, of course, required to attach a copy of their financial statement to their nomination petition. The Public Official and Employee Ethics Act (Ethics Act),
Specifically,
In addition to other powers and duties prescribed by law, the commission shall:
* * *
(5) Inspect statements of financial interests which have been filed in order to ascertain whether any reporting person has failed to file such a statement or has filed a deficient statement. If, upon inspection, it is determined that a reporting person has failed to file a statement of financial interests or that any
statement which has been filed fails to conform with the requirements of section 1105 (relating to statement of financial interests), then the commission shall in writing notify the person. Such notice shall state in detail the deficiency and the penalties for failure to file or for filing a deficient statement of financial interests.
The regulation at
The Ethics Commission, not the court, has been charged with the initial responsibility to determine whether a financial statement is deficient and, if so, the appropriate response. By addressing the claim in Smith‘s petition that Representative Benninghoff‘s financial statement is deficient, we run the risk of interfering with a duty conferred on the Ethics Commission
Under the doctrine of primary jurisdiction, the agency lays the foundation for determining crucial questions. It does not oust the court‘s jurisdiction but, rather, postpones its exercise in order to ensure coordination between the work of the court and that of the agency. United States v. Philadelphia National Bank, 374 U.S. 321, 353, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) (“the doctrine requires judicial abstention in a case where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.“). See also Elkin v. Bell Telephone Company of Pennsylvania, 491 Pa. 123, 135-136, 420 A.2d 371, 378 (1980) (Eagen, C.J., concurring) (noting that referral to an agency is appropriate to protect the integrity of a statutory scheme and is not limited to cases raising “complex” issues). In this case, application of the doctrine of primary jurisdiction requires that the Ethics Commission determine whether the candidate filed a deficient statement, and, if so, whether the deficiency can be cured5 by an administrative order entered either by consent or by adjudication after a hearing. Only then can it be known whether the candidate must be removed from the ballot for failing to file a financial statement in accordance with the Ethics Act.
The majority rejects the application of the doctrine of primary jurisdiction contending that under the Judicial Code6 our jurisdiction is exclusive. This Court has removed candidates from a ballot for failing to file any timely financial statement with the Ethics Commission. See, e.g., State Ethics Commission v. Baldwin, 498 Pa. 255, 445 A.2d 1208 (1982); Petition of Cioppa, 533 Pa. 564, 626 A.2d 146 (1993). By contrast, this case concerns whether the financial statement filed with the Ethics Commission is deficient. More importantly, Baldwin and Cioppa did not consider the issue of primary jurisdiction.
The majority states that there is “no dispute” that this case concerns “the propriety of the nomination petition.” In fact, Smith has challenged the propriety of a financial statement, not a nomination petition. The majority further notes, in bold type, that “we cannot ignore the clear mandates of the Election Code.” Opinion, n. 2. However, the majority fails to show where in the Election Code the “clear mandates” exist that require the result reached and the ability to reach it in the absence of a determination by the Ethics Commission.
For these reasons, I believe this Court lacks jurisdiction to consider Smith‘s petition and to remove Representative Benninghoff from the ballot at this time.
MARY HANNAH LEAVITT
Judge
Notes
•
• Under the dissent‘s scheme, the Ethics Commission would have to review the petition, give a full blown hearing to the candidate, render a decision and file a complaint in this court to remove the candidate within seven days. Besides the impracticability of such a scheme given the time constraints, nothing in
• The doctrine of primary jurisdiction does not mean that the courts do not have jurisdiction, only that they will defer to the agency. “Primary jurisdiction” arises in situations where the original jurisdiction of the court is being invoked to decide the merits of the controversy: the facts, the law and the relief. Rather than exercising its own jurisdiction to entertain the action to decide one of the relevant issues or to entertain the action at all, the court declines jurisdiction because it is proper to defer to administrative agency jurisdiction. Once the court properly refers a matter to an agency, that agency‘s determination is binding upon the court and the parties (subject, of course, to appellate review through normal channels), and is not subject to collateral attack in the pending court proceeding. Elkin v. Bell Telephone Company of Pennsylvania, 491 Pa. 123, 420 A.2d 371 (1980). Even if we wanted to, we could not defer to the agency because, as stated, with challenges to nomination petitions for members of the General Assembly, we have sole jurisdiction under
•
• Not one line in any brief contends that we do not have jurisdiction, that the courts have consistently exercised jurisdiction over challenging nomination petitions, and that the General Assembly was aware of that when it amended
It provides:[T]he polestar of statutory construction is to determine the intent of the General Assembly.
1 Pa.C.S. § 1921(a) (court‘s sole objective in construing or interpreting a statute remains to “ascertain and effectuate the intention of the General Assembly“); Hannaberry HVAC v. Workers’ Compensation Appeal Bd. (Snyder, Jr.), 575 Pa. 66, 834 A.2d 524, 531 (2003). “Generally speaking, the best indication of legislative intent is the plain language of a statute.” [Com. v.] Gilmour Manufacturing, 573 Pa. 143, 822 A.2d 676 at 679.... The Act further provides that, “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”1 Pa.C.S. § 1921(b) ;.... UnderSection 1921(c) , it is only when the words of a statute “are not explicit” that a court may resort to other considerations, such as the statute‘s perceived “purpose,” in order to ascertain legislative intent. Id. Consistently with the Act, this Court has repeatedly recognized that rules of construction, such as consideration of a statute‘s perceived “object” or “purpose,” are to be resorted to only when there is an ambiguity. [Citations omitted]. Finally, all things being equal, the law will be construed liberally in favor of the right to vote but, at the same time, we cannot ignore the clear mandates of the Election Code. See In re Nomination Petition of Gallagher, 468 Pa. 19, 359 A.2d 791, 792 (1976) (“we cannot permit a resort to sophistry in an effort to avoid the clear mandates of the Election Code.” (Emphasis added)).
19.3. Late or deficient filings.
(a) If an audit or inspection determines that a required filing is deficient or that a required filing has not been made, the Commission will provide written notice to the individual required to file, detailing the deficiency and the penalties for deficient filing or failure to file.
(b) If a complaint is received alleging that a required filing is deficient or has not been made, the Commission may elect to proceed in the matter under this section rather than through the investigative procedures of Chapter 21 (relating to investigations).
(1) Upon election, the complainant will be notified of the decision as well as the final resolution of the matter.
(2) In determining whether to proceed under this section, the Commission may consider whether:
(i) The deficient filing or failure to file was intentional.
(ii)The filer had prior notice of the requirements of the act.
(iii)The filer has in the past complied with the act.
(c) The individual notified in accordance with subsection (a) has 20 days from the mailing date of the notice to correct deficiencies or to file a Statement of Financial Interests. If an individual fails to file or to correct his statement within that time, the Commission will review the matter to determine whether a civil penalty is appropriate under the act.
(d) If the Commission determines that a penalty is appropriate, it will issue a rule to show cause, notifying the individual of his deficiency under the act and of the grounds for the rule and of his opportunity to respond in writing to the rule. If cause is not shown, the rule and penalty therein become absolute.
(e) The Commission may assess a penalty of not more than $25 per day for the time a Statement of Financial Interests remains delinquent up to a maximum of $250 total.
(f) The penalty in subsection (d) is in addition to other penalties provided by law and the filing of a Statement of Financial Interests in accordance with subsection (a) does not otherwise vitiate the failure to comply with the act.
The majority also notes that the respondent did not argue jurisdiction in his brief. However, the respondent did raise jurisdiction in his answer to the petition. See supra n. 4. In any case, jurisdiction is never waived.