Opinion
280 C.D. 2023 281 C.D. 2023
04-07-2023
In re: Nomination Petition of Patrick Henigan as a Candidate The Republican Nomination for Office of Magisterial District Judge No. 32-1-28 Delaware County Pennsylvania Appeal of: Heidi Kecskemethy and Thomas Kecskemethy In re: Nomination Petition of Patrick Henigan as Candidate for the Democratic Nomination for Office of Magisterial District Judge, No. 32-1-28 Delaware County Pennsylvania Appeal of: Allison Karpyn
OPINION NOT REPORTED
Submitted: April 4, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge (P) HONORABLE ELLEN CEISLER, Judge.
MEMORANDUM OPINION
MICHAEL H. WOJCIK, Judge.
In these consolidated appeals, Heidi Kecskemethy, Thomas Kecskemethy, and Allison Karpyn (collectively, Objectors) appeal the orders of the Delaware County Court of Common Pleas (trial court) that denied their petitions to set aside the nomination petitions of Patrick Henigan (Candidate) to appear on the ballot in the Municipal Primary Election to be held on May 16, 2023, as a Republican and as a Democratic candidate for the office of Magisterial District Judge (MDJ)for Magisterial District 32-1-28. We reverse.
See, e.g., In re Substitute Nomination Certification of Moran, 739 A.2d 1168, 1169 (Pa. Cmwlth. 1999) ("As distinct from the election of most other public offices, candidates for the office of District [Judge] may file nominating petitions in both major political parties, which is known as cross filing, under Section 910 of the Pennsylvania Election Code ([Election] Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §2870.") (footnote omitted).
Magisterial District 32-1-28 is composed of Wards 2, 3, 4, 6, and 7 of Nether Providence Township and Media and Swarthmore Boroughs in Delaware County. See 125 The Pennsylvania Manual 5-75 (2021). We also note that Delaware County is a county of the Second Class A, and adopted a Home Rule Charter in May 1975. See id. at 6-18. See also Emert v. Larami Corporation, 200 A.2d 901, 902 n.1 (Pa. 1964) ("Courts will take judicial notice of geographical facts such as the county in which a town or city is located.") (citations omitted).
Objectors filed their petitions to set aside Candidate's nomination petitions alleging, inter alia, that Candidate violated Section 1104(b)(2) of the Public Official and Employee Ethics Act (Ethics Act) by not filing his Statements of Financial Interests (SOFIs) with the "governing authority" of Delaware County (County), which is a fatal defect requiring his removal from the ballot. Specifically, Objectors alleged that although Candidate timely filed a SOFI with the County's Board of Elections (Board) on March 7, 2023, as appended to his nomination petitions, he failed to timely file a second copy with the County Council, the County's "governing authority," by March 7, 2023, as required by Section 1104(b)(2) of the Ethics Act.
65 Pa. C.S. §1104(b)(2). Section 1104(b)(2) of the Ethics Act states:
(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.In turn, Section 1104(b)(3) of the Ethics Act states:
(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)(3).
As indicated, the County adopted a Home Rule Charter (Charter) in 1975. Section 408(1) of the Charter states:
The legislative power of the County, including residual powers and any powers now conferred or which may hereafter be conferred upon the County by the Constitution or laws of the Commonwealth, shall be exclusively vested in and exercised by Council, subject only to the provisions of this Charter. Council shall have, but not by way of limitation, the following powers:
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1. To appoint County officers, including the County Executive Director, heads of Administrative departments, and heads of departments falling under the direct supervision of the Council, and further to fill vacancies in elective offices as herein provided.In addition, Section 412 of the Charter provides: "Departments, offices, board, commission and authorities established under this Charter fall under the appointive authority of Council and include entities formerly supervised by the Board of Commissioners or formerly but no longer elected as independent offices." In turn, Section 431 of the Charter states:
The County Clerk is successor to the office of Chief Clerk. The County Clerk's duties include the recording, certification and implementation of Council's actions. In all other respects, the statutory duties of Chief Clerk are retained in the office of County Clerk. Council may assign to the County Clerk, from time to time, additional duties as required.See also Section 6-71(b) of the Charter ("[T]he statutory duties of Chief Clerk are retained in the Office of County Clerk."). Moreover, and quite importantly, Section 421 of the Charter provides:
Council shall establish a Board of Elections. The Board shall be responsible for the registration of electors and the conduct of elections as required by law. The Board shall consist of two appointees representing the party with the largest total vote cast for a seat on Council in the most recent municipal election and one appointee representing the party with the second ranking total vote cast in the most recent municipal election. The term of office for the Board of Elections shall be two years.In turn, Section 6-68 (A), (B), and (C)(10) and (39) of the Charter states:
A. Function of Board of Elections. The [Board] shall be responsible for managing voter registrations, conducting elections, and managing filings of campaign-finance records, as required or authorized by federal, state, and local laws.
B. Membership. The three members of the [Board] shall be selected by Council with representation as provided in Section 421 of the Charter. . . .
C. Powers and duties. The [Board] is responsible for all elections held in the [County]. The duties of the [Board] shall be to:
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(10) Receive and process political financial reports;
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(39) Appoint a Chief Clerk, who may also be the Director of Elections, with the power, among other things, to administer oaths. The Chief Clerk shall carry out the functions of the Chief Clerk at the direction of the [Board] (and the Director of Elections, if the Director of Elections is not also serving as the Chief Clerk)[.]
On March 17, 2023, the trial court conducted a hearing on the objections. At the hearing, Candidate credibly testified that he placed an original SOFI addressed to the County Clerk in the United States (U.S.) Mail on Friday, March 3, 2023. N.T. 3/17/23 at 14-15. He stated that although the correspondence accompanying the SOFI stated that it was to be hand delivered, he placed both the correspondence and the SOFI in one envelope and placed them in the U.S. Mail. Id. at 19. He also testified that he hand delivered a copy of the SOFI to the County Clerk on March 15, 2023, eight (8) days after the filing deadline of March 7, 2023. Id. at 17-18. Candidate stated that he also timely filed a SOFI with the Board on March 7, 2023, which was appended to his nomination petitions. Id. at 14-15.
"[T]he trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence." Commonwealth v. Harper, 403 A.2d 536, 539 (Pa. 1979).
"N.T. 3/17/23" refers to the transcript of the trial court's March 17, 2023 hearing.
The County Clerk, Ann Coogan, credibly testified that she did not receive the SOFI that Candidate mailed with his correspondence on March 3, 2023. N.T. 3/17/23 at 11. She also credibly stated that she received the untimely SOFI that was delivered to her on March 15, 2023. Id. at 10-11, 12. With respect to the required filing of the SOFIs, Coogan credibly testified that "their forms are attached to the [nomination] petitions, but I receive them also." Id. at 11.
On March 22, 2023, the trial court issued orders dismissing the objections to Candidate's nomination petitions, rejecting Objectors' claims that Candidate violated Section 1104(b)(2) of the Ethics Act by failing to timely file a SOFI with the "governing authority." Objectors then filed the instant appeals of the trial court orders.
We consolidated these appeals by March 28, 2023 Order.
Initially we note that in reviewing an order adjudicating challenges to a nomination petition, our standard of review permits reversal only where the findings of fact are unsupported by substantial evidence, where there was an abuse of discretion, or where an error of law was committed. In re Beyer, 115 A.3d 835, 838 (Pa. 2015). Moreover, in reviewing election issues, we must consider the longstanding and overriding policy in our Commonwealth to protect the elective franchise. Id.; In re Driscoll, 847 A.2d 44, 48 (Pa. 2004). In promoting that policy, this Court has made clear that the Election Code must "be liberally construed to protect a candidate's right to run for office and the voters' right to elect the candidate of their choice." In re Beyer, 115 A.3d at 838. Indeed, "the purpose of the Election Code is to protect, not defeat, a citizen's vote." Dayhoff v. Weaver, 808 A.2d 1002, 1006 (Pa. Cmwlth. 2002). Furthermore, "[a] party alleging defects in a nominating petition has the burden of proving such defects, as nomination petitions are presumed to be valid." In re Beyer, 115 A.3d at 838.
Objectors first claim that the trial court erred in determining that Candidate did not violate Section 1104(b)(2) of the Ethics Act by failing to file a SOFI with the relevant "governing authority of the political subdivision," thereby constituting a fatal defect requiring the striking of his nomination petitions pursuant to Section 1104(b)(3). We agree.
Although the Ethics Act does not define "governing authority," Section 11.1 of the State Ethics Commission's regulations defines "governing authority" as "[t]he body empowered to enact ordinances, appropriations and resolutions or to otherwise govern a subordinate body." 51 Pa. Code §11.1.
Article IX, Section 4 of the Pennsylvania Constitution provides: "County officers shall consist of commissioners . . .," and that "[t]hree county commissioners shall be elected in each county." Pa. Const. art. IX, §4. However, article IX, section 2 states, in relevant part: "Municipalities shall have the right and power to frame and adopt home rule charters . . . . A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time." Pa. Const. art. IX, §2. As a result, as noted above, Section 408(1) of the County's Charter states, in pertinent part: "The legislative power of the County, including residual powers and any powers now conferred or which may hereafter be conferred upon the County by the Constitution or laws of the Commonwealth, shall be exclusively vested in and exercised by Council, subject only to the provisions of this Charter."
See also Preamble to the Charter ("We the citizens of Delaware Country, . . . do hereby accept the grant of power of self-government offered under the [former] Home Rule Charter and Optional Plans Law of 1972[, Act of April 13, 1972, formerly, 53 P.S. §§1-101 - 1-1309, repealed by the Act of December 19, 1996, P.L. 1158,] and do ordain and establish thereunder this Home Rule Charter.").
Importantly, Section 301(a) of the Election Code provides: "There shall be a county board of elections in and for each county of this Commonwealth, which shall have jurisdiction over the conduct of primaries and elections in such county, in accordance with the provisions of this act." 25 P.S. §2641(a). Moreover, Section 301(b) states, in relevant part, that "in counties which have adopted home rule charters or optional plans the board of elections shall consist of the members of the county body which performs the legislative functions unless the county charter or optional plan provides for the appointment of the board of elections." 25 P.S. §2641(b) (emphasis added).
As the Pennsylvania Supreme Court has explained: "[T]he plain language of the Ethics Act and the Election Code can be read as one statute without creating contradiction, which affirms that the Legislature intended that these statutes be read in pari materia." In re Paulmier, 937 A.2d 364, 371 n.2 (Pa. 2007).
As outlined above, the County's Charter herein specifically provides for the appointment of an independent board that is separate and apart from the County's "governing authority," i.e., County Council. See Charter Sections 421, 6-68. As a result, in order to comply with the requirements of Section 1104(b)(2) of the Ethics Act, Candidate was required to timely file his SOFI both with the Board, as an attachment to his nomination petitions, and separately with County Council as the County's "governing authority."
Indeed, as this Court has explained:
Section 1104(b)(2) of the Ethics Act instructs that, as a local office candidate, [the c]andidate shall file [his] original [SOFI] with the governing authority of the political subdivision, and shall append a copy thereof to [his] Nomination Petition. Section 1104(b)(3) of the Ethics Act clearly states that [the c]andidate's failure to file [his] [SOFI] in accordance with Section 1104(b)(2) of the Ethics Act is a fatal defect. The statutory mandate and the General Assembly's intent is clear. Contrary to [the c]andidate's assertion, the language is not ambiguous. In fact, this Court has previously described that language as "absolute and unequivocal[.]" In re Ross, 109 A.3d 781, 786 (Pa. Cmwlth.), aff'd sub nom. In re Substitute Nomination Certificate of Ross, [101 A.3d 1150 (Pa. 2014)]; see also In re Nomination Petition of Prosperino, 972 A.2d 92 (Pa. Cmwlth. 2009).
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This Court has further ruled that Section 1104(b) of the Ethics Act requires two distinct [SOFI] filings:
The Ethics Act clearly requires a candidate for a county-level [or local] office to file a[n SOFI] 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. This is the first filing required by the statute. Attaching to a candidate's nomination petition is the second filing required by Section 1104(b)(2) [of the Ethics Act]. As such, this Court is constrained to follow the clear directive of the Ethics Act. If the General Assembly had wished to carve out an exception for certain or specific county[-]level offices, such as the Office of [City Council], it would have done so and this Court does not have the authority to insert such an exception.
Prosperino, 972 A.2d at 96 (bold and underline emphasis added).
Here, [the candidate's campaign manager (manager)] timely filed [the c]andidate's original [SOFI] and Nomination Petition with the Board of Elections (e.g., second [SOFI] filing requirement). However, neither [the c]andidate, [the manager], nor anyone else on [the c]andidate's behalf, timely filed [the c]andidate's [SOFI] with the "governing authority of the [City]" (e.g., first filing requirement). 65 Pa. C.S. § 1104(b)(2)[.] Rather, [the manager] belatedly filed [the c]andidate's [SOFI] with the Department . . . after being made aware of the error. Accordingly, [the c]andidate did not satisfy the clear requirements of Section 1104(b)(2) of the Ethics Act.In re Bah, 215 A.3d 1029, 1032-33 (Pa. Cmwlth. 2019) (emphasis in original and citation to record omitted). Likewise, in the case sub judice, although Candidate satisfied the second SOFI filing requirement by filing his SOFI with the Board as appended to his nomination petitions, he failed to satisfy the first SOFI filing requirement by failing to timely file his SOFI with County Council on or before March 7, 2023. Id.; see also In re Paulmier, 937 A.2d at 371 ("[W]e now hold that the fatality rule announced in Section 1104 of the Ethics Act was intended by the Legislature to bar only those candidates from the ballot who fail to file [SOFIs] or who file them in an untimely manner.").
Nevertheless, in the opinion in support of the orders rejecting Objectors' claims that Candidate violated Section 1104(b)(2) of the Ethics Act herein, the trial court explained:
[I]n In re Griffis, 259 A.3d 542 (Pa. Cmwlth. 2021), [the Commonwealth Court] held that a[n MDJ] candidate satisfied the filing requirement of Section 1104(b)(2) [of the] Ethics Act that the statements be filed with the relevant governing authority of the political subdivision by filing of her SOFI in the county election board's Office of Voter Services where she similarly filed her Nomination Petitions. Relying on the policy of protecting the elective franchise, the Commonwealth Court endorsed the permissive view of the Election Code that allowed the voters to choose their preferred candidates. Id. at 546.
In the instant matter, although the General Information Sheet in the 2023 Nomination Petition Packet provided by the Delaware County Bureau of Elections identifies the County Clerk's Office as a proper repository for the SOFI, the information provided by the State Ethics Commission "Where to File" checklist also provided in the Packet, simply states that the Original Copy of the SOFI shall be filed with the County in which the Magisterial District is located. (See Henigan, Ex[hibit] 2). It is clear, there is a facial discrepancy in the information packet. However, there is no dispute that
Candidate's SOFI was appended to the Nomination Petitions and timely filed with the County Bureau of Elections, a County Office and therefore, filed within the County.
Thus, despite Candidate's failure to personally hand deliver his SOFI with the County Clerk within the deadline, the Commonwealth Court's decision in Griffis permits the filing with the Board of Elections as the "governing body" therefore, this Court finds that the Candidate timely filed his SOFI and should remain on the ballot.In re Nomination Petition of Henigan (C.P. Delaware, Nos. 2023-002217, 2021-002215, filed March 28, 2023), slip op. at 6-7.
See Exhibit C, Delaware County Bureau of Elections 2023 Nomination Petition Packet at 3, No. 19 ("The [SOFI] and receipt of the proper filing fee, if applicable must accompany the nomination petition upon filing in the Bureau of Elections. A separate [SOFI] must be filed with the governing body for the office you are seeking.") (emphasis in original).
However, the trial court's reliance on Griffis is misplaced. As outlined above, in this case, the County Council is the County's "governing authority" under the Ethics Act, but the County's Board of Elections is a separate and distinct entity under the County's Charter and Section 301(b) of the Election Code. In contrast, in Griffis, the county involved had not adopted a home rule charter. Thus, different provisions of the Election Code, The County Code, and the Second Class County Code applied with respect to the filing of the candidate's SOFIs therein. As a result, our holding in Griffis is neither applicable nor controlling in this case, and the trial court erred in denying Objectors' petitions to set aside Candidate's nomination petitions. See In re Bah, 215 A.3d at 1036 ("Because Section 1104(b)(3) of the Ethics Act clearly states that [the c]andidate's failure to timely file her [SOFI] with the Board of Elections and the City's governing authority is fatal, the trial court property granted the [o]bjection [p]etition and removed [the c]andidate's name from the primary election ballot.") (emphasis in original).
Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §§101-3000.3903.
Act of July 28, 1953, P.L. 723, as amended, 16 P.S. §§3101-6302.
Finally, the trial court also erred in failing to strike Candidate's nomination petitions based on his mailing of the SOFI prior to the March 7, 2023 deadline. In this regard, the trial court explained:
Objectors assert that the failure of the "governing body" to receive the SOFI prior to the deadline is a fatal defect. That provision states that "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 [SOFI] as set forth in paragraphs (1) and (2). Failure to file the [SOFI] 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)(3).
However, the statute does not specifically state that the SOFI must be received by the last day for filing [a] petition, simply that it be filed. 65 Pa. C.S.[] §1104(b)(2). [C]andidate testified that he filed his SOFIs by mail before the deadline. Under the mailbox rule, proof of mailing "creates a rebuttable presumption that it was in fact received." Breeza v. Don Farr Moving and Storage Co., 828 A.2d 1131, 1135 (Pa. Super. 2003); see also Samaras v. Hartwick, 698 A.2d 71, 73-74 (Pa. Super. 1997). "Moreover, the presumption under the mailbox rule is not nullified solely by testimony denying receipt of the item mailed." Breeza, ; see also Samaras[, 698 A.2d at 73-74. This Court finds the testimony of Candidate credible that he mailed the SOFIs on March 3, 2023, to the County Clerk, placing them in the mailbox at the location of the east side of Orange Street and State Street at 4:15 p.m. The testimony of Coogan, that she did not receive the SOFI, while credible, is insufficient to rebut the presumption that it was not timely mailed, and thus filed before the deadline. Additionally, the Bureau of Elections accepted Candidate's Nomination Petition with the SOFI appended to each petition within the deadline for filing as indicated by the statute.In re Nomination Petition of Henigan, slip op. at 5-6.
However, as outlined above, Section 1104(b)(2) of the Ethics Act states:
(2) Any candidate for county-level or local office shall file a [SOFI] 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 [SOFI] shall also be appended to such petition.65 Pa. C.S. §1104(b)(2) (emphasis added). In turn, Section 1104(b)(3) states that the "[f]ailure to file the [SOFI] 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)(3) (emphasis added).
As the Pennsylvania Supreme Court has stated: "Filing requires more than proper mailing." Walsh v. Tucker, 312 A.2d 11, 12 (Pa. 1973). Indeed, as this Court has explained:
We do decide that a judge intending to seek retention election has the responsibility to file or cause to be filed the requisite declaration of intent in the office of the Secretary of the Commonwealth[, pursuant to article V, section 15(b) of the Pennsylvania Constitution, a
responsibility which is not met by depositing a letter in the mail directed to the Secretary whether or not properly addressed and regardless of any presumption of law otherwise relating to the mail. See Twibill v. Woods, [27 Pa. D. 542 (C.P. Dauph.] 1917). . . .
A substantial amount of federal case law has dealt with the issue of what constitutes a filing. In a variety of statutory contexts, it has been held that a document is filed when the proper official acquires custody. In United States v. Lombardo, 241 U.S. 73, 76-77 [(1916)], the Supreme Court said, "Filing . . . is not complete until the document is delivered and received. 'Shall file' means to deliver to the office, and not send through the [U.S.] mails. A paper is filed when it is delivered to the proper official and by him received and filed." (Citations omitted.) As was said in Twibill, [27 Pa. D. at 543-44], "Filing involves the presentation of the [document] to [the proper official] or to his representative and the receipt into his custody or the recognition that they are in his possession." Accord Kahler-Ellis Company v. Ohio Turnpike Commission, 225 F.2d 922 (6th Cir. 1955). Following the Lombardo rule, Phinney v. Bank of Southwest National Association, Houston, 335 F.2d 266 (5th Cir. 1964), focused on the problem at issue in the instant case: "The filing of a paper takes place upon the delivery of it to the officer at his office. Mailing is not filing. When the mails are utilized for the purpose of filing an instrument, the filing takes place upon delivery at the office of the official required to receive it." 335 F.2d at 268 (citations omitted; emphasis added). In Park Management v. Porter, 157 F.2d 688 (U.S. [Temp. Emer. App.] 1946), the issue was whether a landlord had properly filed a document pursuant to rent regulations of the Office of Price Administration. The court held, citing Lombardo, "If a landlord chooses to use the mails, the risk that papers required to be filed may not reach their destination lies with him. He takes the chance. The situation is distinguishable from the mailing of an
acceptance of an offer which has been made by mail, under the law of contracts." 157 F.2d at 689. There is apparently no question that dropping the paper in a mailbox will not constitute the filing of that paper. "The act of depositing the [document] in the mail is not a filing. A filing takes place only when the Clerk acquires custody. (Citation omitted.)" United States v. Easement and Right-of-Way, 386 F.2d 769, 771 (6th Cir. 1967), cert. denied, 390 U.S. 947 [(1968)].
The retention election process for judges prescribed by our Constitution cannot be isolated from the election process for all elected public officials-including judges not eligible for retention election-as prescribed in our Constitution and the [Election Code]. To assure the voters with maximum integrity in the election process and to afford to them the widest possible choice of candidates, the election machinery is complex and possibly cumbersome. To declare that any document which is an essential and integral element of the functioning of the process is 'filed' if merely placed in the mail would seriously damage the process through disputes, delay and uncertainty as to candidates for office.Walsh v. Tucker, 302 A.2d 522, 525-26 (Pa. Cmwlth.), aff'd, 312 A.2d 11 (Pa. 1973) (emphasis in original and footnote omitted).
Pa. Const. art. V, §15(b). Article V, section 15(b) states, in relevant part:
A justice or judge elected under section 13(a), appointed under section 13(d) or retained under this section 15(b) may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over elections on or before the first Monday of January of the year preceding the year in which his term of office expires. If no declaration is filed, a vacancy shall exist upon the expiration of the term of office of such justice or judge, to be filled by election under section 13(a) or by appointment under section 13(d) if applicable. If a justice or judge files a declaration, his name shall be submitted to the electors without party designation, on a separate judicial ballot or in a separate column on voting machines, at the municipal election immediately preceding the expiration of the term of office of the justice or judge, to determine only the question whether he shall be retained in office. [(Emphasis added.)]
See also Walsh, 312 A.2d at 12 ("This concept of 'filing' as delivery into the official's possession has also been adopted in the federal courts. As the Commonwealth Court adequately surveyed these cases in its opinion, there is no need for us to reiterate that discussion here.") (footnotes omitted).
Based on the foregoing, it is clear that the trial court erred in applying the "mailbox rule" to the filing requirements of Section 1104(b)(2) of the Ethics Act. Rather, that mandatory provision, relating to the election of a judicial officer herein, requires the direct submission of the SOFI to the designated county official within the prescribed time period. In this case, the trial court found credible Coogan's testimony that she did not receive the SOFI that Candidate mailed with his correspondence on March 3, 2023. Thus, Candidate failed to file his SOFI with the County's "governing authority" on or before March 7, 2023, as required by Section 1104(b)(2) of the Ethics Act. As a result, this constitutes a fatal defect under Section 1104(b)(3) of the Ethics Act, and precludes his appearance on the 2023 Municipal Primary Election ballot. In re Bah.
Accordingly, the trial court's orders are reversed, and Candidate's name is removed from the ballot in the Municipal Primary Election to be held on May 16, 2023, as a Republican and as a Democratic candidate for the office of Magisterial District Judge for Magisterial District 32-1-28.
ORDER
AND NOW, this 7th day of April, 2023, it is hereby ORDERED:
1. The orders of the Delaware County Court of Common Pleas dated March 22, 2023, are REVERSED.
2. The Delaware County Board of Elections is directed to REMOVE the name of Patrick Henigan from the ballot in the Municipal Primary Election to be held on May 16, 2023, as a Candidate for the Republican and Democratic Nomination for the office of Magisterial District Judge for Magisterial District 32-1-28.
If Candidate's name cannot be removed from the election day ballot, the County Board of Elections is directed to post notice within each voting station that Candidate's name has been stricken from the ballot and that casting a vote for Candidate, other than a write-in vote, will not be counted. The County Board of Elections shall also post such notice on its publicly accessible website.
3. The Prothonotary shall notify the parties hereto and their counsel of this Order and shall send a copy of this Order to the Delaware County Board of Elections.
4. Each party shall bear his or her own costs.