IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: The Nomination of :

Theresa M. Wright as a Democratic :
Candidate for Congress in the 5th :
Congressional District :
:
Petition of: Angela Washington : No. 199 M.D. 2018
and Gina H. Curry :

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 11, 2018

Before the Court is the Petition to Set Aside Nominating Petitions

(Petition) of Angela Washington and Gina H. Curry (Objectors) seeking to set aside
the nominating petitions of Theresa M. Wright (Candidate) for the Democratic
nomination for United States Representative from Pennsylvania’s 5th Congressional
District. After a hearing held on April 5, 2018, and in consideration of the record
herein, we hereby dismiss the Petition for the reasons that follow.
At issue now is service of the Petition upon the Secretary of the
Commonwealth. Candidate argues that this Court should dismiss the Petition
because Objectors failed to properly serve the Petition on the Secretary of the
Commonwealth. We agree.
Objectors filed the Petition with this Court on March 26, 2018. On
March 28, 2018, this Court issued a Scheduling and Case Management Order
(Scheduling Order) that required, among other things, Objectors to offer proof at the
time of hearing of timely service of the Petition on the Secretary of the
Commonwealth. See Scheduling Order, p. 2, ¶ (1)(F). The Scheduling Order
scheduled a hearing on the Petition for April 5, 2018. Id. at 1, ¶ (1)(A).
In addition to the requirements set forth in the Scheduling Order,
Objectors have certain duties and obligations under Section 977 of the Pennsylvania
Election Code (Election Code),1 which provides, in pertinent part:

All nomination petitions and papers received and filed

within the periods limited by this act shall be deemed to
be valid, unless, within seven days after the last day for
filing said nomination petition or paper, a petition is
presented to the court specifically setting forth the
objections thereto, and praying that the said petition or
paper be set aside. A copy of said petition shall, within
said period, be served on the officer or board with whom
said nomination petition or paper was filed.

25 P.S. § 2937 (emphasis added).2 Thus, Objectors were required to serve the
Petition upon the Secretary of the Commonwealth within seven days of the last day
for filing nomination petitions, or March 27, 2018.3 See In re Nomination Petition
of Lee, 578 A.2d 1277, 1278 (Pa. 1990).

1
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2937.
2
Our Supreme Court has noted that “the overriding consideration embodied in section 977
of the Election Code [is] the expeditious consideration and resolution of challenges to nomination
petitions.” In re Petition of Acosta, 578 A.2d 407, 409 (Pa. 1990).
3
The Court takes judicial notice that March 20, 2018 was the final day for filing nominating
petitions. See League of Women Voters, et al. v. Commonwealth of Pennsylvania, et al., ___ A.3d
___ (Pa., No. 159 M.M. 2017, filed Feb. 19, 2018), Appendix C. Accordingly, Objectors had until
March 27, 2018, to timely serve the Secretary of the Commonwealth with the Petition. See 25 P.S.
§ 2937. No party disputes that March 27, 2018 was the proper deadline for service on the Secretary
of the Commonwealth.
2
 Our Supreme Court has held that failure to serve a copy of a petition to
set aside a nomination petition on the Secretary of the Commonwealth renders the
petition invalid. In re Lee; see also In re Nomination Petition of Acosta, 578 A.2d
407 (Pa. 1990); In re Nomination Petition of Delle Donne, 779 A.2d 1 (Pa. Cmwlth.
2001); In re Evans, 631 A.2d 797, 800 (Pa. Cmwlth. 1993) (noting that no mailing
exception exists and that, although mailing is permissible, the Secretary of the
Commonwealth must still receive a copy of the petition within the Section 977 time
period). The Supreme Court has defined “service” as:

the exhibition or delivery of a legal document to a person

who is thereby officially notified of some action or
proceeding in which he is concerned, and is thereby
advised or warned of some action or step which he is
commanded to take or to forbear. It is when the document
is delivered that it is said to have been served.

In re Acosta, 578 A.2d at 409 n.4 (internal citations and quotations omitted;
emphasis in original).
In In re Acosta, our Supreme Court examined a petition to set aside a
nominating petition that the objector served upon the Secretary of the
Commonwealth via first class mail and which the Secretary of the Commonwealth
did not receive within the time required by Section 977 of the Election Code. See In
re Acosta. After noting that, “[s]ervice of a petition to set aside a nomination petition
upon the officer or board with whom a nomination petition has been filed within the
time limit prescribed by section 977 of the Election Code is mandatory,” the
Supreme Court further stated that compliance with Section 977 of the Election Code
requires that the Secretary of the Commonwealth actually receive a copy of the
petition to set aside within the Section 977 time limit. In re Acosta, 578 A.2d at 409

3
(emphasis in original). Although the objectors mailed the petition to the Secretary
of the Commonwealth within the time limit required by Section 977, because the
Secretary of the Commonwealth did not receive the petition within such period, the
Supreme Court ultimately found that the Commonwealth Court could not grant the
relief requested in objector’s petition to set aside. Id.
Here, the Court conducted a hearing on the Petition on April 5, 2018,
at which Objectors bore the burden of proving timely service of the Petition upon
the Secretary of the Commonwealth. See Scheduling Order, p. 2, ¶ (1)(F). To
sustain this burden, Objectors’ counsel called no fact witnesses,4 but explained that
on Monday, March 26, 2018, with one day to spare before the expiration of Section
977’s time period for service of the Petition upon the Secretary of the
Commonwealth, counsel overnighted the Petition via UPS to the Secretary of the
Commonwealth. See Notes of Testimony (N.T.) 4/5/2018 at 30. Counsel further
explained that the Petition was received and signed for in the Capitol mailroom on
the morning of the following day, Tuesday, March 27, 2018, but, due to Capitol
security procedures, the Petition was not actually delivered to the Secretary’s office
by the close of business that day, but rather, was received in the Secretary’s office
on March 28, 2018. Id. at 30-31. Counsel proffered a proof of service that indicated
she sent the Petition “overnight to Secretary of State [sic] March 27, 2018[,]” which
was admitted into evidence without objection.5 Id. at 32-33.

4
Counsel for Objectors requested to present the testimony of an individual from the
Secretary of the Commonwealth’s Office telephonically. See Notes of Testimony (N.T.) 4/5/2018
at 23-27. The Court denied counsel’s request, but allowed counsel to testify as an officer of the
Court and accepted as true her testimony as to what transpired regarding her attempted service of
the Petition on the Secretary of the Commonwealth. Id. at 28-29. Counsel then offered such
testimony and supporting exhibits. Id. at 30-33.
5
The proof of service states, in handwritten script, that counsel sent the Petition “overnight
to Secretary of State March 27, 2018[.]” Objectors’ Proof of Service, Objectors’ Exhibit 1.
4
 The instant case presents a situation nearly identical to that considered
by the Supreme Court in In re Acosta. Here, Objectors’ counsel caused the Petition
to be delivered by overnight delivery service to an address counsel believed would
result in the Secretary of the Commonwealth receiving the Petition the following
day, the final day allowed by Election Code Section 977 for service of the Petition
upon the Secretary of the Commonwealth. Instead, the Petition arrived at a Capitol
mailroom and was not delivered to the Secretary of the Commonwealth until after
the Section 977 time period had expired. Service upon the Secretary of the
Commonwealth was not complete upon mailing of the Petition. See In re Evans. By
mailing the Petition the day before the service period expired, Objectors’ counsel
risked that the Secretary would not actually receive the Petition in the time allowed
by Section 977. Unfortunately for counsel and Objectors, Capitol security measures
resulted in the Petition being received after the deadline. Accordingly, Objectors
have not complied with the requirements of Section 977 of the Election Code. This
Court consequently lacks personal jurisdiction of the Secretary of the
Commonwealth and therefore lacks authority to grant the relief requested by
Objectors. See In re Acosta. Further, because timely service upon the Secretary of
the Commonwealth is now impossible, we must dismiss Objectors’ Petition.
An appropriate order follows.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

Counsel’s testimony, however, consistently explained that she overnighted the Petition on March
26, 2018, and that the Capitol mailroom accepted the Petition on March 27, 2018. See N.T.
4/5/2018 at 30-31, 46.

5
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: The Nomination of :

Theresa M. Wright as a Democratic :
Candidate for Congress in the 5th :
Congressional District :
:
Petition of: Angela Washington : No. 199 M.D. 2018
and Gina H. Curry :

ORDER

AND NOW, this 11th day of April, 2018, Objectors Angela

Washington’s and Gina H. Curry’s Objections to the Nominating Petition of Theresa
M. Wright as a Congressional Candidate for the 5th Congressional District of
Pennsylvania are hereby DISMISSED. The parties shall bear their own costs.

__________________________________
CHRISTINE FIZZANO CANNON, Judge