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: Rebecca Bernard : No. 191 M.D. 2018
and Curtis Gittleman :

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 Rebecca Bernard and Curtis Gittleman (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 lack of jurisdiction.
At issue is service of the Petition upon Candidate. Candidate argued
that this Court should dismiss the Petition because Objectors failed to properly serve
the Petition on Candidate pursuant to the terms of this Court’s Scheduling and Case
Management Order, filed March 28, 2018 (Scheduling Order),1 which provides as
follows:

1
Section 977 of the Pennsylvania Election Code provides “the court shall make an order
fixing the time for hearing . . . and specifying the time and manner of notice that shall be given to
the candidate or candidates named in the nomination petitions or paper sought to be set aside.”
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2937. Thus, under Section 977, the court,
“‘ha(s) complete control to regulate the time and manner of giving notice and the fixing of
 No later than 5:00 p.m., Monday, April 2, 2018, Objectors
shall personally serve a copy of this amending order, a
copy of the petition to set aside nomination petitions (or
papers) if the petition to set aside has not previously been
served and, if signature line challenges are at issue, one
digital media device (CD or USB Flash Drive) containing
the objections in spreadsheet format and a key to the
abbreviations used in the spreadsheet, on Theresa M.
Wright, Candidate, or at Candidate’s residence on an adult
member of Candidate’s household, but if no adult member
of Candidate’s household is present, then on an adult
person in charge of the residence, or at Candidate’s
campaign office on a person in charge thereof. Objectors
shall file a proof of service with the Chief Clerk promptly
thereafter.
Scheduling Order, p. 2, ¶ D.
Counsel for Objectors stated at the hearing that Candidate had been
personally served pursuant to the requirements of the Scheduling Order. Notes of
Testimony (N.T.) 4/5/2018 at 15-16. Counsel drew the Court’s attention, without
objection, to the averments contained in Objectors’ Proof of Service, filed with this
Court on April 1, 2018. Id. The Proof of Service indicates that, on March 26, 2018,
Objectors’ process server handed the Petition to an adult at Candidate’s residence. 2

hearings.’” In re Nomination Petition of Morgan, 428 A.2d 1055, 1058 (Pa. Cmwlth. 1981)
(quoting In re Nomination Petition of Moore, 291 A.2d 531, 535 (Pa. 1972)).
2
The filed Proof of Service states the following regarding service of the Petition on
Candidate:

Theresa Wright was personally served with the Petition to

Set Aside Nomination Petition [o]n March 26, 2018[,] at
approximately 3:45 PM. An adult answered the door at her listed
residence at 1200 Powell [S]treet, Norristown, PA[,] and was
handed the petition with exhibits in an envelope and promptly threw
it back at the process server. Thereafter it was taped to the storm
door of the residence.

2
See Proof of Service. The individual promptly threw the Petition back at the process
server.3 Id. After the individual refused to accept service, the process server taped
the Petition to Candidate’s door. Id.
Candidate testified on her own behalf at the hearing regarding the
service issue. N.T. 4/5/2018 at 16-18. Candidate testified that she was not at home
when the purported service was attempted, nor was any adult. Id. Instead, Candidate
explained that her 14 year-old daughter4 answered the door and refused service. Id.
at 17-18. Candidate further explained that her daughter informed Candidate of the
Petition taped to the storm door, and that Candidate retrieved the Petition the
following day, March 27, 2018. Id. at 18. Candidate does not deny receiving the
Petition, only that it was served on her 14 year-old daughter, rather than an adult as
required by this Court’s Scheduling Order.
Nothing in Objectors’ Proof of Service indicates, and no additional
evidence was provided as to, the identity of the process server or the identity or age
of the individual served. There is also no indication of the role the alleged adult
individual held in Candidate’s household, if any. Objectors did not provide an

*****

Counsel for Objectors personally called Wright and left a

voice mail regarding the petition and Scheduling Order. She has yet
to respond.

Objectors’ Proof of Service. Candidate verified during the hearing that 1200 Powell Street in
Norristown is her correct home address. See N.T. 4/5/2018 at 6.
3
We note that avoidance of service does not invalidate effective service of process.
Commonwealth ex rel. McKinney v. McKinney, 381 A.2d 453, 455 (Pa. 1977).
4
Candidate stated that the only other individuals at Candidate’s residence at the time were
Candidate’s two other children, ages 10 and 9. N.T. 4/5/2018 at 17-18.

3
affidavit from the process server regarding the particulars of service in this matter or
the identity of the individual served. No one other than the attorney for Objectors
appeared to testify as to the service of the Petition, and he asserts only the conclusion
found within the Proof of Service. This Court does not find the assertions contained
within the Proof of Service credible and accepts the testimony of Candidate that
service was attempted upon her minor child who answered the door of her
residence.5 As such, this Court finds that Objectors have failed to establish that
proper service of process was made upon Candidate by serving Candidate, an adult
member of Candidate’s household at Candidate’s residence, or an adult person in
charge of Candidate’s residence.6 Thus, the manner of service in this case did not
constitute proper personal service upon Candidate as required by this Court’s
Scheduling Order.
Objectors, nevertheless, argue that actual notice is sufficient and was
accomplished, as the Petition was taped to Candidate’s door after service was
rejected, and Candidate, herself, actually retrieved the Petition the following day.
This Court disagrees. “Improper service . . . is not merely a procedural defect which
can be ignored when a defendant, by whatever means, becomes aware that an action
has been commenced against him or her.” Frycklund v. Way, 599 A.2d 1332, 1334
(Pa. Super. 1991). Further, contrary to Objectors’ suggestion at the hearing,

5
This Court acts as the trial court in this matter. “[D]etermining the credibility of the
witnesses and the weight of their testimony is always for the fact finder.” Russo v. Philadelphia
City Board of Elections, 540 A.2d 332, 333 (Pa. Cmwlth. 1988). As the finder of fact, the Court
was free to believe all, part, or none of the evidence. Commonwealth v. Begley, 780 A.2d 605 (Pa.
2001); Commonwealth v. Holtzapfel, 895 A.2d 1284 (Pa. Cmwlth. 2006).
6
Additionally, this Court notes that the Proof of Service does not indicate that service was
accomplished at the Candidate’s office, in accordance with the Scheduling Order. Objectors’
Proof of Service states that only the Scheduling Order, and not also the Petition, was served at
Candidate’s office, as required by the Scheduling Order.
4
appearance by a candidate at a hearing neither waives nor cures defective service of
process. In re Nominating Petition of Gerena, 972 A.2d 86, 90 (Pa. Cmwlth. 2009).
If personal service could not be achieved in accordance with the
Scheduling Order, Objectors could have asked this Court to authorize other forms of
notice. See In re Nomination Petition of Morgan, 428 A.2d 1055, 1058 (Pa. Cmwlth.
1981) (stating that where personal service had been ordered, “if personal service
cannot be made, because it is avoided, or for any reason, the court can be asked to
authorize other forms of notice.”). “The failure to comply with a . . . court’s order
directing the manner of service may be a fatal defect that would require the denial
of a petition to set aside [a nominating petition].” In re Bringhurst (Pa. Cmwlth.,
No 511 C.D. 2014, filed April 15, 2014),7 slip op. at 6 (citing Morgan, 428 A.2d at
1058 (dismissing petition to set aside nomination petition for failing to personally
serve candidate as required by court order)).
“Without valid service, a court lacks personal jurisdiction . . . and is
powerless to enter judgment.” Cintas Corp. v. Lee’s Cleaning Services, Inc., 700
A.2d 915, 917-18 (Pa. 1997). Because this Court lacks jurisdiction over Candidate
due to Objectors’ failure to properly serve the Petition upon Candidate as ordered,
this Court does not address any of the objections made.
Accordingly, Objectors’ Petition is dismissed.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

7
This Court’s unreported memorandum opinions may be cited for persuasive value. 210
Pa. Code § 69.414.
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: Rebecca Bernard : No. 191 M.D. 2018
and Curtis Gittleman :

ORDER

AND NOW, this 11th day of April, 2018, Objectors’ Petition to Set
Aside Nominating Petitions is hereby DISMISSED. The parties shall bear their
own costs.

__________________________________
CHRISTINE FIZZANO CANNON, Judge