[J-48-2014] [MO: Saylor, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: NOMINATION PETITION OF : No. 29 MAP 2014
ROBERT GUZZARDI FOR THE :
REPUBLICAN NOMINATION FOR : Appeal from the order of the
GOVERNOR OF PENNSYLVANIA IN THE : Commonwealth Court at No. 158 MD 2014
REPUBLICAN PRIMARY OF MAY 20, : dated April 15, 2014.
2014 :
:
:
APPEAL OF: RICHARD W. STEWART, :
ROBERT K. ROBINSON, RICHARD :
TEMS AND DONNA M. COSMELLO : SUBMITTED: April 21, 2014
DISSENTING OPINION
MR. JUSTICE BAER DECIDED: May 1, 2014
OPINION FILED: August 18, 2014
I respectfully dissent. The majority holds that Pennsylvania courts may never,
under any circumstances, invoke equity, specifically nunc pro tunc principles, to excuse a
candidate’s untimely filing of a statement of financial interests with the Ethics Commission
because to do so would override the Legislative pronouncement in Section 1104(b)(3) of
the Ethics Act that such omission “shall . . . be a fatal defect to a petition to appear on the
ballot.” 65 Pa.C.S. § 1104(b)(3). Adoption of such a harsh and inflexible rule runs
counter to this Court’s pronouncement that the strict disclosure requirements of the Ethics
Act must be balanced with the liberal construction required under the Election Code in
favor of ballot access. In re Nomination of Paulmier, 937 A.2d 364, 370-71 (Pa. 2007).
Further, such ruling fails to appreciate that applying nunc pro tunc principles to the instant
case does not relax the stringent statutory requirement of filing a timely statement of
financial interests with the Ethics Commission, but rather recognizes that the candidate
did not satisfy the statutory requirement here because there was a breakdown in the
administrative process. Finally, because the cases relied upon by the majority to
preclude application of nunc pro tunc principles did not, in fact, involve requests for nunc
pro tunc relief, in my view, they cannot foreclose the grant of equitable remedies when
sought in the appropriate case.
Accordingly, I would adhere to the rule of law as set forth by the Commonwealth
Court in this case as well as in prior published decisions, holding that a candidate’s failure
to file a timely financial statement with the Ethics Commission can be cured nunc pro tunc
if the untimeliness is due to non-negligent circumstances, the filing is accomplished within
a very short duration after the party learns of and has an opportunity to address the
untimeliness, and the opposing party is not prejudiced by the delay in filing. See e.g., In
re Nomination Petition of Howells, 20 A.3d 617, 621-22 (Pa. Cmwlth.), aff’d per curiam, 28
A.3d 915 (Pa. 2011).
That standard is satisfied here because, following an evidentiary hearing and
credibility determinations, the Commonwealth Court determined as a matter of fact that
Robert Guzzardi (“Candidate”) was present in the Office of the Department of State,
Board of Commissions, Elections, and Legislation, to file his nomination petition for the
office of governor and his aide was prepared to file a timely statement of financial
interests with the Ethics Commission when a Department of State employee volunteered
misinformation that such filing was unnecessary because the Department of State could
accept the filing. The Commonwealth Court also concluded that no prejudice arose from
the late filing because Candidate’s financial statement became publically available when
it was filed timely with the Department of State, and Candidate corrected the omission
promptly by filing a financial statement the day after learning that the advice given to him
by Department of State employee was erroneous. Because these findings are
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supported by the record, I would affirm the order of the Commonwealth Court, which
denied Objectors’ petition to set aside Candidate’s nomination petition.1
As noted by the majority, this case involves the statutory interpretation of Section
1104(b) of the Ethics Act, which requires candidates for state-level pubic office to file a
timely statement of financial interests with the Ethics Commission, and append a copy of
the financial statement to the nomination petition filed with the Department of State.2
1 In entertaining the possibility of nunc pro tunc relief, the majority cites Candidate’s
testimony that he was not personally aware of the need to file his statement of financial
interests with the Ethics Commission for the proposition that Candidate should not,
therefore, be able to claim a non-negligent administrative breakdown leading to his failure
to file his statement with the Ethics Commission. While the evidence cited by the
majority would certainly support this outcome, which is argued by Objectors, there was
evidence to support either side’s version of events and circumstances on this record.
The Commonwealth Court, the ultimate arbiter of fact and credibility, concluded that
Candidate’s aide was aware of the need to file with the Ethics Commission and was ready
to do so but for his reliance upon an election official’s erroneous information that filing was
unnecessary. Given that the Commonwealth Court chose to believe Candidate’s aide’s
testimony to support its ultimate decision, this Court is not at liberty to re-examine the
record and cite conflicting evidence to support a contrary outcome.
2 The relevant provisions of Section 1104(b) provide as follows:
Any candidate for a State-level public office shall file a statement of financial
interests for the preceding calendar year with the [Ethics] commission 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.
* * *
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
appear on the ballot.
(continuedK)
[J-48-2014] [MO: Saylor, J.] - 3
Relevant here is Section 1104(b)(3), which declares that the “[f]ailure to file the statement
[of financial interests] in accordance with the provisions of this chapter shall . . . be a
fatal defect to a petition to appear on the ballot.” 65 Pa.C.S. § 1104(b)(3).
The majority’s interpretation of Section 1104(b) is straight-forward and has some
facial appeal. It reasons that because the Legislature deemed the failure to file a timely
financial statement with the Ethics Commission a “fatal defect” to the candidate’s
nomination petition, such omission can never be cured even, as here, through appeal to
equitable principles. The theory is that “fatal defect” means not subject to amendment or
cure, and that the case law of this Court confirms such interpretation. The majority posits
that it was this Court’s disapproval of a “fatal defect” approach when interpreting the
predecessor to Section 1104(b)(3) in State Ethics Commission v. Baldwin, 445 A.2d 1208
(Pa. 1982), superseded by statute as recognized in In re Petition of Cioppa, 626 A.2d
146, 148-149 (Pa. 1993) (plurality), which led the General Assembly to adopt the “fatal
defect” language at issue herein. 3 After an examination of the relevant case law,
however, I respectfully disagree.
While the General Assembly’s insertion of the “fatal defect” language in Section
1104(b)(3) may have been a legislative response to our opinion in Baldwin, the crux of my
dissension lies in what this Court held in Baldwin, and, thus, what the General Assembly
was “correcting” by employing the “fatal defect” language. In Baldwin, the State Ethics
(Kcontinued)
65 Pa.C.S. § 1104(b)(1), (3).
3 Objectors herein rely on expressions in the plurality decision in Cioppa as supporting
their position that the “fatal defect” language in Section 1104(b)(3) precludes the
application of nunc pro tunc principles to cure a candidate’s untimely filing of the
statement of financial interests. This contention need not be refuted, however, as
Cioppa was a plurality opinion, the reasoning of which garnered the joinder of only one
Justice besides the author, and, thus, has no precedential value.
[J-48-2014] [MO: Saylor, J.] - 4
Commission challenged the nomination petitions filed by three candidates for state-level
offices on the ground that the petitions violated then-Section 4(b) of the Ethics Act
because the affidavits submitted with those petitions were false in that they attested that
the candidates had filed financial interests statements with the Ethics Commission.4 The
evidence established that while all the candidates had filed their nomination petitions and
accompanying affidavits with the Bureau of Elections before the deadline, the Ethics
Commission had not received a timely statement of financial interests from any of the
candidates. The Commonwealth Court held that Section 4(b) of the Ethics Act required
the filing of a financial statement with the Ethics Commission prior to filing the nomination
petition, and that the candidates’ failure to do so invalidated their affidavits verifying that
they had filed such statements and, consequently, invalidated the nomination petitions
themselves, which required that the candidates’ names be stricken from the ballot.
This Court reversed, characterizing the Commonwealth Court’s holding as “stilted
and harsh.” Baldwin, 445 A.2d at 1210. Relying exclusively on the statutory language
of Section 4(b), we held that the failure to file the statements of financial interests with the
Ethics Commission did not operate to “fatally taint" the filing process so as to invalidate
the nomination petitions as long as the information required by the financial interests
4 Section 4(b) of the Ethics Act, the predecessor to Section 1104(b)(3), provided:
(b) Each candidate for public office shall file a statement of financial
interests for the preceding calendar year with the commission prior to filing
a petition to appear on the ballot for election as a public official. A petition
to appear on the ballot shall not be accepted by an election official unless
the petition includes an affidavit that the candidate has filed the required
statement of financial interests with the commission.
65 P.S. § 404(b), repealed by 1998, Oct. 15, P.L. 729, No. 93, § 6(a)(2).
[J-48-2014] [MO: Saylor, J.] - 5
statements was received subsequent to the time of filing and was otherwise available for
purposes envisioned by the Ethics Act. Id. This Court reasoned:
To treat the affidavit attesting to the financial disclosure as an appendage to
the qualifications for office set forth in the Election Code creates a fiction
that does a disservice to the legislative intention underlying the enactment
of Section 4(b). Section 4(b) was not designed as positing a barrier to
seeking public office, rather it was conceived as a way in which to obtain
further information which could be available during the selection process.
Id.
Accordingly, this Court in Baldwin relaxed the statutory requirement of filing a
timely statement of financial interests with the Ethics Commission. We held that where
there was no intent to deceive on the part of the candidate, the late filing of a financial
disclosure statement, due to the candidate’s carelessness or lack of due diligence, was of
no consequence if the filing was subsequently made and the candidate’s financial
information was ultimately disclosed. Significantly, we did not discuss principles of
equity or the grant of nunc pro tunc relief, as equitable relief was not sought, and the case
involved exclusively the interpretation of the statutory language. 5
Thus, in my opinion, the General Assembly’s adoption of the “fatal defect”
language in Section 1104(b)(3) was in response to this Court’s relaxation of the statutory
requirement of filing a timely statement of financial interests with the Ethics Commission.
The General Assembly categorized the failure to file a financial statement as a “fatal
defect” to clarify that, contrary to this Court’s holding in Baldwin, the filing of a timey
5 The Court in Baldwin recognized that some of the candidates did not receive the
proper form to file the financial statement, and there was some uncertainty regarding
compliance with the filing requirement. 445 A.2d at 1211-12. However, the Court
utilized these facts as a basis to interpret the statutory provision liberally in favor of
allowing an untimely filing, and did not invoke the equitable principles of nunc pro tunc, as
Candidate does in the instant case.
[J-48-2014] [MO: Saylor, J.] - 6
financial statement is, in fact, a prerequisite to seeking public office. It is unlikely that the
legislature’s action in this regard was done to preclude application of equitable principles
where the late filing was due to extraordinary circumstances such as a breakdown of the
administrative process, as is the case here, because no such request had been made in
Baldwin, and, simply put, the issue of granting equitable relief was not in the case. Thus,
unlike the majority, I am not persuaded that the foreclosure of nunc pro tunc relief was the
“mischief” that the General Assembly intended to remedy by adopting the “fatal defect”
language.6
Further, as noted, I do not view the general application of nunc pro tunc principles
as relaxing statutory prerequisites, but rather as an acknowledgement that the statutory
requirement exists, but was not satisfied in the particular case because of extraordinary
circumstances, such as a breakdown of the administrative process. My point is
illustrated by our decision in Cook v. Unemployment Compensation Board of Review, 671
A.2d 1130 (Pa. 1996), where the issue was whether an appellant could obtain nunc pro
tunc relief after he filed an appeal from the denial of unemployment compensation
benefits outside the time period established by the Unemployment Compensation Law.7
This Court rejected the unemployment compensation referee’s conclusion that the
existence of a mandatory, legislative appeal period foreclosed the grant of nunc pro tunc
6 For this same reason, our holding in Paulmier, i.e., that the fatal defect rule applies to
untimely filings, rather than defective ones, does not suggest that Section 1104(b)(3)
forecloses equitable relief. As set forth supra at 1, I believe Paulmier supports, rather
than refutes the application of equity under the facts presented because it recognizes that
the strict disclosure requirements of the Ethics Act must be balanced with the liberal
construction required under the Election Code in favor of ballot access. Id. at 370-71.
7 Of course, Cook did not involve the “fatal defect” language at issue herein, but is cited
to demonstrate that this Court has employed equity in the face of mandatory legislative
timeliness requirements when justice so requires.
[J-48-2014] [MO: Saylor, J.] - 7
relief. Based on our previous decision in Bass v. Commonwealth Bureau of Corrections,
et al., 401 A.2d 1133 (Pa. 1979),8 we concluded that nunc pro tunc relief was warranted
because the appellant took steps to appeal the determination; was unable to perfect his
appeal due to the sudden onset of a medical condition, which required his hospitalized
until after the statutory appeal period had expired; and that the appellant pursued his
appeal promptly upon his release from the hospital, resulting in no prejudice to appellee.
The Commonwealth Court adopted this same equitable approach in the context of
Section 1104(b)(3) of the Ethics Act in the case of In re Nomination Petition of Howells, 20
A.3d 617, 621-22 (Pa. Cmwlth.), aff’d per curiam, 28 A.3d 915 (Pa. 2011), which is on all
fours with the instant case. There, an official with the Election Commission informed a
judicial candidate that he need not file a statement of financial interests with the Ethics
Commission under Section 1104(b) of the Ethics Act. The candidate relied on this
erroneous advice and failed to file a timely financial statement. The day after the filing
deadline, the Election Commission realized its mistake and notified the candidate, who
filed the statement of financial interests the next day. Objectors subsequently filed a
petition challenging the candidate’s nomination petition based on the candidate’s failure
to comply with Section 1104(b). The trial court denied the objectors’ petition, and held
that the candidate was entitled to nunc pro tunc relief based on his reasonable reliance
upon erroneous information given to him by an election official.
The Commonwealth Court affirmed. It acknowledged that the failure to file a
financial statement constituted a fatal defect to the nomination petition under Section
1104(b), and that this Court interpreted Section 1104(b) in Paulmier, supra, as precluding
8 This Court held in Bass that a court may allow an appeal nunc pro tunc where the
appeal is untimely due to non-negligent circumstances, the appeal is filed within a short
time after the appellant learns of and has an opportunity to address the untimeliness, and
the appellee is not prejudiced by the delay.
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candidates from the ballot who failed to file timely statements of financial interests. It
clarified, however, that the question before it was “not whether the failure to timely file a
statement of financial interests is a fatal defect -- it is -- but whether, under certain
circumstances, such a defect may be cured nunc pro tunc.” Id. at 621.
The Commonwealth Court in Howells relied on its previous decision in Appeal of
Fairview Associates, Inc., 433 A.2d 929 (Pa. Cmwlth. 1981), which permitted amendment
of a nomination petition nunc pro tunc when a party’s defective petition resulted from its
reasonable reliance on incorrect information provided by the Board of Elections. The
Howells court explained that the “clear public policy favoring access to the voting
franchise militates in favor of a conclusion that the public should reasonably be expected
to rely on statements from the Election Commission employees acting in their official
capacities.” Howells, 20 A.3d at 623. The Howells court concluded that the legislative
intent recognized by this Court in Paulmier, to encourage both full financial disclosure and
protect voters’ choice, is fulfilled where the candidate files the statement of financial
interests shortly after learning of the Election Commission’s error and within three days of
the statutory deadline.9
The majority rejects this established and well-reasoned jurisprudence, upon which
the Commonwealth Court in the instant case justifiably relied given that the court was
obligated to follow its own binding precedent, in favor of a severe per se rule precluding
the application of equitable principles in any case involving the untimely filing of a
statement of financial interests under Section 1104(b)(3). I find this result to be
unnecessarily harsh and inequitable as demonstrated by the facts of this case where the
exclusive reason for the untimely filing was the erroneous advice offered by the
Department of State employee. I agree with the Commonwealth Court’s assessment
9 This author joined in the unanimous per curiam order of affirmance in Howells.
[J-48-2014] [MO: Saylor, J.] - 9
that what occurred here constitutes a breakdown in the administrative process, which is
clearly a non-negligent reason for the delay in filing. As espoused by the
Commonwealth Court in Howells, Candidates should be able to rely on information given
to them by Department of State employees acting in their official capacity at the filing
office.
It is not beyond the imagination to contemplate other non-negligent scenarios that
would prevent the timely filing of a financial statement with the Ethics Commission, such
as a natural disaster, fire, or bomb threat in the filing office, which would preclude
candidates from entering the building to file their statement of financial interests on the
statutory filing deadline. Surely, the legislature could not have intended to remove from
the ballot those prospective candidates who find themselves in such unfortunate
circumstances.
While I share the majority’s sentiment that legislative governance of elections
foster orderly, efficient, and fair proceedings, Slip Op. at 7, I cannot agree that such
governance eliminates the ability of this Court to apply traditional principles of equity to
grant nunc pro tunc relief in the appropriate case. I emphasize that the exception should
never be applied to swallow the rule, and that nunc pro tunc relief should only be granted
in the rare case where the Candidate has attempted to file the statement of financial
interests with the Ethics Commission and some unforeseen event has occurred that
prevented the filing. See Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001) (holding that
“[t]he exception for allowance of an appeal nunc pro tunc in non-negligent circumstances
is meant to apply only in unique and compelling cases in which the appellant has clearly
[J-48-2014] [MO: Saylor, J.] - 10
established that she attempted to file an appeal, but unforeseeable and unavoidable
events precluded her from actually doing so.”).10
In sum, rather than “refus[ing] to enforce the governing legislative directive,” Slip
Op. at 3, I believe the Commonwealth Court below ruled properly in accordance with that
court’s binding jurisprudence applying nunc pro tunc principles where a candidate, due to
non-negligent reasons, failed to file a timely statement of financial interests with the
Ethics Commission, and rectified that mistake promptly upon learning of the error, without
prejudicing any party.
Accordingly, I dissent.
Madame Justice Todd joins this dissenting opinion.
10 Additionally, as noted, the Candidate must also demonstrate that the filing is
accomplished within a very short time after the Candidate learns of and has an
opportunity to address the untimeliness, and the opposing party is not prejudiced by the
delay in filing.
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