                            [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                  :   Commonwealth Court dated April 15, 2014
THE REPUBLICAN PRIMARY OF MAY                :   at No. 158 MD 2014
20, 2014                                     :
                                             :   SUBMITTED: April 21, 2014
                                             :
APPEAL OF: RICHARD W. STEWART,               :
ROBERT K. ROBINSON, RICHARD                  :
TEMS AND DONNA M. COSMELLO                   :


                                 DISSENTING OPINION

MADAME JUSTICE TODD                                     DECIDED: May 1, 2014
                                                   OPINION FILED: August 18, 2014
       I join Justice Baer’s Dissenting Opinion. I write separately to address two points

raised by the majority.

       First, the majority notes that “[s]ince the present situation is vastly different from

the ‘natural disaster, fire, or bomb threat’ scenarios envisioned by the dissent, we do not

address those here.” Majority Opinion at 9 n.5 (citation omitted). Admittedly, an appeal

for nunc pro tunc relief because “I was misinformed” (as herein) is “different” from an

appeal for nunc pro tunc relief because, for example, a fire prevented access to the

filing office, as the latter claim appears to present a much stronger case for granting

nunc pro tunc relief than the former. But, significantly, from the standpoint of whether

equity is available to provide the requested relief, the claims are the same. If, as the

majority holds, equity is not available under its construction of the election statute, the

particular details underlying the claim — be it official misinformation, or disaster — are

irrelevant. Cf. Majority Opinion at 10 (conceding that “our enforcement of the governing
statutory fatal-defect rule was dispositive of this appeal”). Thus, an appeal to equity

such as made in this case and an appeal to equity because of a fire at the filing office

are emphatically not “vastly different” — they are, in point of fact, identical legal claims.

As a result, the majority’s contention that “we do not address those [claims] here” rings

hollow, as I perceive no principled basis — and the majority offers none — for

categorically distinguishing between the instant claim for nunc pro tunc relief and one

based on the “natural disaster, fire, or bomb threat” scenarios proffered by Justice

Baer.1 Under the majority’s analysis, all are barred.

        Relatedly, the majority goes on to state: “We reiterate, however, that judicial

enforcement of the fatal-defect rule extends only to the limits of the federal and state

Constitutions and recognize that such enforcement in impossibility scenarios may test

such boundaries.” Id. at 9 n.5. I take this to mean that the majority recognizes that its

interpretation of the statute may be so unfair in its application in certain scenarios that it

could be unconstitutional.     On the majority’s terms, I would agree.        However, this

constitutional-safety-value tack reveals another problem with the majority’s approach, in

addition to those identified by Justice Baer.

       A cardinal presumption of statutory interpretation is that the legislature does not

intend to violate the Constitution. 1 Pa.C.S.A. § 1922(3) (“[T]he General Assembly does

not intend to violate the Constitution of the United States or of this Commonwealth.”);

Bricklayers of W. Pennsylvania Combined Funds, Inc. v. Scott's Dev. Co., 90 A.3d 682,

692 (Pa. 2014) (“The Legislature is presumed not to intentionally pass unconstitutional

laws, and courts give statutes a constitutional interpretation if that is reasonably

possible.”). In my view, the majority’s interpretation of the fatal defect language violates

1
  If the majority’s distinction is meant to signal that its fatal defect interpretation
somehow may not be as absolute as it appears to be — i.e., that it contemplates that
some equity claims may be more worthy than others — it should say so explicitly.



                              [J-48-2014] [MO: Saylor, J.] - 2
this precept. In addition to the natural disaster, fire, or bomb threat scenarios suggested

by Justice Baer, I would add the much more prosaic power outage, snow storm (filings

are due in late winter), or water line break. In brief, short of negligence, there are any

number of highly foreseeable events that could hamper or prevent the timely filing of a

statement of financial interests. Surely, the legislature must have been aware of such

possibilities in crafting the fatal defect language. However, by concluding the legislature

intended to preclude equitable relief in toto, the majority nearly guarantees a

constitutional contravention, flouting the above precept of statutory construction.

       In this regard, I do not mean to suggest the majority’s interpretation of the fatal

defect language is unfounded: such language can reasonably be viewed as disallowing

equitable relief. At the same time, I regard Justice Baer’s alternative interpretation —

that the fatal defect language was added to reverse this Court’s dilution of the filing

requirement in State Ethics Comm’n v. Baldwin, 445 A.2d 1208 (Pa. 1982), and thus is

unrelated to restricting a court’s ability to grant equitable relief — also to be eminently

reasonable. Yet, critically, Justice Baer’s interpretation has the advantage of avoiding

the constitutional infirmity to which the majority alludes, and so comports with the

presumption against unconstitutional interpretations.      Given the panoply of highly

foreseeable scenarios which may result in a non-negligent failure to timely file a

statement of financial interests, I would interpret the fatal defect language in a manner

which avoids, not presumes, constitutional impediments.




                             [J-48-2014] [MO: Saylor, J.] - 3
