J-E01003-19

                                 2019 PA Super 270

 DANIEL MOHN, CHAD WALLACE AND              :   IN THE SUPERIOR COURT OF
 IRENE SILVEUS                              :        PENNSYLVANIA
                                            :
                                            :
               v.                           :
                                            :
                                            :
 BUCKS COUNTY REPUBLICAN                    :
 COMMITTEE                                  :   No. 2694 EDA 2018
                                            :
                                            :
 APPEAL OF: DANIEL MOHN                     :

             Appeal from the Order Dated December 14, 2017
   In the Court of Common Pleas of Bucks County Civil Division at No(s):
                              2016-03560


BEFORE: PANELLA, P.J., BENDER, P.J.E., GANTMAN, P.J.E., LAZARUS, J.,
        DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., and
        McLAUGHLIN, J.

OPINION BY KUNSELMAN, J.:                            FILED SEPTEMBER 03, 2019

      Daniel Mohn appeals from the order granting summary judgment in

favor of the Bucks County Republican Committee (“the BCRC”), and denying

his cross-motion for summary judgment on his claims for declaratory and

injunctive relief based on alleged violations of the Pennsylvania Election Code.

Mr. Mohn directed his appeal to the Commonwealth Court, which has

jurisdiction   over   Election   Code   violations    pursuant   to   42   Pa.C.S.A.

§ 762(a)(4)(i)(c). However, the Commonwealth Court sua sponte transferred

the appeal to this Court based on Gordon v. Philadelphia County

Democratic Exec. Committee, 80 A.3d 464 (Pa. Super. 2013), wherein a

three-Judge panel of this Court determined that it had jurisdiction over an
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appeal involving an alleged Election Code violation.      We granted en banc

review to determine whether the Commonwealth Court has exclusive

jurisdiction over appeals involving alleged Election Code violations such that

Gordon should be overruled. After careful consideration, we conclude that

Gordon was incorrectly decided, and should be overruled. We additionally

conclude that the issues raised by Mr. Mohn’s appeal fall within the exclusive

jurisdiction of the Commonwealth Court. Accordingly, we transfer the instant

appeal back to the Commonwealth Court to decide its merits.

      We briefly summarize the relevant factual and procedural history

underlying the appeal as follows.     Mr. Mohn was elected as a Republican

committeeperson in Yardley Borough, Bucks County, in 2014 and again in

2016. After the 2016 election, the Bucks County Republican Party filed ethics

complaints with the BCRC regarding Mr. Mohn’s actions during the election,

including campaigning against Republican-endorsed candidates and failing to

fulfill his responsibility to cover the polls on the day of the primary election.

Following a hearing, the BCRC Executive Committee disqualified Mr. Mohn

from his position based on his violations of the Rules of the Republican Party

of Bucks County (“the Local Party Rules”).

      Thereafter, Mr. Mohn, along with two co-plaintiffs who have since

discontinued their claims, filed a complaint against the BCRC in the Court of

Common Pleas of Bucks County, seeking declaratory and injunctive relief. Mr.

Mohn alleged that the BCRC improperly removed him from his position as


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elected committeeperson for his voting precinct. Specifically, he claimed that

the actions of the BCRC violated the Pennsylvania Election Code, namely 25

P.S. § 2837,1 by disqualifying him as a committeeperson for reasons that did

not constitute grounds for disqualification under the Local Party Rules. The

parties filed cross-motions for summary judgment.

       On December 18, 2017,2 the trial court denied Mr. Mohn’s motion for

summary judgment, and granted the BCRC’s motion for summary judgment

on the basis that the court lacked subject matter jurisdiction over the internal

operations of a political party pursuant to section 2842 of the Election Code.3

See Trial Court Opinion, 3/13/18, at 5 (“This is a purely intra-party disciplinary

matter that the [United States] Constitution has reserved to the [BCRC] to

address free from government intervention.”).



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1 Section 2837 provides, in relevant part, “There may be in each county a
county committee for each political party within such county, the members of
which shall be elected at the spring primary, or appointed, as the rules of the
respective parties within the county may provide. The county committee of
each party may make such rules for the government of the party in the county,
not inconsistent with law or with the State rules of the party, as it may deem
expedient, and may also revoke, alter or renew in any manner not inconsistent
with law or with such State rules, any present or future county rules of such
party.” 25 P.S. § 2837.

2The trial court signed its order on December 14, 2017; however, the order
was not entered on the docket until December 18, 2017.

3 Section 2842 provides, in relevant part, that “[w]hen acting in the capacity
of a political committee, such duly elected or appointed members shall be
subject to the control, direction and supervision of the political committee of
which they are members.” 25 P.S. § 2842.

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      As indicated above, Mr. Mohn appealed the trial court’s rulings to the

Commonwealth Court.        However, the Commonwealth Court, relying on

Gordon, supra, sua sponte transferred the appeal to this Court. Mr. Mohn

now seeks appellate review to determine (1) whether the trial court had

jurisdiction to determine if the BCRC violated the Election Code by

disqualifying him as a committeeperson under the Local Party Rules; and (2)

whether the BCRC was authorized by the Election Code to disqualify him for

alleged violations of the Ethics Code of the Local Party Rules, and misconduct

on the day of the primary election.

      We certified this appeal for en banc consideration to decide the following

two questions:

         1. Whether exclusive jurisdiction over this appeal lies in the
            Commonwealth Court of Pennsylvania pursuant to 42
            Pa.C.S.A. § 762?

         2. Whether this Court’s prior, three–Judge Panel decision on
            the issue in Gordon . . . should be overruled?

See En Banc Certification Order, 2/5/19. As we explain below, the answer to

both questions is yes.

      The issues for our review concern the scope of this Court’s appellate

jurisdiction. Chapter Seven of the Judicial Code sets forth the “legislatively

ordained division of labor” between appellate courts in Pennsylvania. Valley

Forge Indus., Inc. v. Armand Constr., Inc., 374 A.2d 1312, 1316 (Pa.

Super. 1977); see also 42 Pa.C.S.A. § 701 et seq. Pursuant to section 742

of the Judicial Code, this Court’s jurisdiction is limited, and does not extend to


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appeals which fall within the exclusive jurisdiction of our Supreme Court or

the Commonwealth Court:

      The Superior Court shall have exclusive appellate jurisdiction of
      all appeals from final orders of the courts of common pleas,
      regardless of the nature of the controversy or the amount
      involved, except such classes of appeals as are by any
      provision of this chapter within the exclusive jurisdiction of
      the Supreme Court or the Commonwealth Court.

Id. (emphasis added).

      Notably, the General Assembly consciously removed a group of cases

from this Court’s appellate jurisdiction and committed them to a court of

specialized appellate jurisdiction. See Newman v. Thorn, 518 A.2d 1231,

1235 (Pa. Super. 1986). In this regard, section 762(a) of the Judicial Code

enumerates seven specific categories of appeal from the courts of common

pleas over which the Commonwealth Court has exclusive jurisdiction. In this

case, we are concerned with only one of those categories. Pursuant to section

762(a) of the Judicial Code,

      (a)   General rule.—Except as provided in subsection (b),
            [which is inapplicable herein] the Commonwealth Court
            shall have exclusive jurisdiction of appeals from final
            orders of the courts of common pleas in the following
            cases:

            ....

            (4) Local government civil and criminal matters.

                   (i) All actions or proceedings arising under any
                   municipality, institution district, public school, planning
                   or zoning code or under which a municipality or other
                   political subdivision or municipality authority may be
                   formed or incorporated or where is drawn in


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                 question the application,           interpretation     or
                 enforcement of any:

                 ....

                  (C) statute relating to elections, campaign
                  financing or other election procedures.

42 Pa.C.S.A § 762(a)(4)(i)(C) (emphasis added).         Thus, pursuant to our

statutory scheme, appeals from final orders of the courts of common pleas

involving the application, interpretation or enforcement of any statute relating

to elections or election procedures fall within the exclusive jurisdiction of the

Commonwealth Court. See In re Gen. Election for Dist. Justice, 670 A.2d

629, 631 n.1 (Pa. 1996) (“Although [the Pennsylvania Supreme] Court had

previously entertained appeals from the courts of common pleas in election

matters . . . jurisdiction over such appeals was given to the Commonwealth

Court when that court was created in 1970.”); see also Dayhoff v. Weaver,

808 A.2d 1002, 1006 (Pa. Cmwlth. 2002) (“Section 762(a)(4)(i)(C) of the

Judicial Code provides expressly that the Commonwealth Court shall have

exclusive jurisdiction over appeals from the trial courts in cases involving

elections or election procedures.” (emphasis in original)); In re Nomination

in re Warren, 692 A.2d 1178, 1181 (Pa. Cmwlth. 1997) (“[P]ursuant to 42

Pa.C.S.[A.] § 762(a)(4)(i)(C), this Court has exclusive jurisdiction of election

procedures.”).

      Given that the Commonwealth Court transferred Mr. Mohn’s appeal,

which involves election matters, to this Court pursuant to Gordon, an

understanding of that case is essential to our analysis. In Gordon, a 2-1

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Panel Majority of this Court asserted jurisdiction over an appeal factually

similar to the one at bar.4          There, the Fortieth Ward (40B) Democratic

Executive Committee removed Gordon from her elected position as a member

of the Ward Committee using Rule VIII,5 as promulgated by the Democratic

Party of the City and County of Philadelphia.          Gordon and co-plaintiff,

Johnson,6 filed a lawsuit against the Philadelphia County Democratic Executive

Committee, the Ward Committee, and related parties.          They claimed that

defendants violated section 2842 of the Election Code by using Rule VIII to

remove Gordon from her elected position.         The complaint sought Gordon’s

reinstatement to her elected office (Count I), and declaratory and injunctive

relief to prevent future similar actions by defendants (Count II).

       While the lawsuit was pending, the Ward Committee reinstated Gordon

to her position.         Thereafter, counsel for co-plaintiffs filed a partial



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4Judge Bowes dissented and, as we explain in detail below, concluded in her
Dissenting Opinion that the Superior Court should have transferred the
Gordon case to the Commonwealth Court. See Gordon, 80 A.3d at 475-76
(Bowes, J., dissenting).

5 Rule VIII, Article 1, Section E (empowering the Ward Committee to remove
a member and declare a vacancy in the membership “if, in the opinion of the
entire Ward Committee, a member is unfaithful to the Democratic party and
the best interested [sic] of the party.”).

6 The complaint was initially filed as a class action, with Johnson, who voted
for Gordon, acting as the purported class representative of the majority of
voters who had elected Gordon as a committeeperson. However, Johnson
later moved to withdraw the petition for class certification.


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discontinuance as to Gordon, and a motion to intervene on behalf of the

Philadelphia Democratic Progressive Caucus (“the PDCP”). While the motion

to intervene was pending, defendants filed a motion for summary judgment.

The trial court granted summary judgment for defendants on the basis that

Johnson lacked standing to litigate the action. The trial court subsequently

dismissed the PDPC’s motion to intervene as moot. Johnson and the PDCP

appealed those orders to this Court.

       On appeal, the Gordon Majority first addressed the question of

Johnson’s standing. It ruled that her claim at Count I as to Gordon’s removal

was moot. 80 A.3d at 473. The Majority additionally ruled that Johnson’s

claim at Count II as to prospective use of the Rule was not ripe. Id. As such,

the Gordon Majority affirmed the trial court’s entry of summary judgment for

defendants.     Applying the same rationale, the Majority affirmed the trial

court’s order denying the PDPC’s motion to intervene. Id. (concluding the

issues were moot and unripe).7

       After affirming the trial court’s rulings, the Gordon Majority addressed

“[a]s a final matter” the question of whether the Superior Court had

jurisdiction to consider the appeal.           Id.   The Majority acknowledged that,


____________________________________________


7 The Gordon Majority also addressed the appellants’ argument that, “even if
the claims as to Gordon’s removal are moot, this Court should nonetheless
consider its merits because it is capable of repetition, yet evading review.” 80
A.3d at 473. The Majority agreed that the issues raised by appellants were of
public importance, but was unpersuaded that the issues were likely to avoid
review if repeated. Id.

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pursuant to section 742 of the Judicial Code, this Court’s appellate jurisdiction

does not extend to “such classes of appeals as are . . . within the exclusive

jurisdiction of . . . the Commonwealth Court.” Id. at 474. The Majority further

acknowledged that pursuant to section 762(a)(4)(i)(C) of the Judicial Code,

“the Commonwealth Court ‘has jurisdiction to hear appeals involving issues

arising from the election process.’” Gordon, 80 A.3d at 474.

       Nevertheless, the Gordon Majority concluded that it had jurisdiction

over the appeal because “we were not required to apply, interpret, or enforce

the Election Code in reaching our holding.” Id. at 474.8 The Majority further

concluded that, even if it was “incorrect[,] and [the] interpretation of the

Election Code was sufficiently at issue to invoke the Commonwealth Court’s

jurisdiction,” it acted within its discretion under [Pa.R.A.P. 7419] in choosing,

in the interests of judicial economy, to consider the appeal.” Id.; see also



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8 The Gordon Majority acknowledged that, pursuant to section 722(2) of the
Judicial Code, our Supreme Court has jurisdiction to hear appeals in matters
challenging a candidate’s right to hold public office. Gordon, 80 A.3d at 474.
However, the Majority correctly reasoned that such jurisdiction was not
implicated because “the issues involved did not involve the right to hold public
office within the meaning of [section] 722(2), as the challenge was to a
discharge from office rather than preconditions to the holding of office.” Id.;
see also 42 Pa.C.S. § 722(2).

9 Rule 741 provides, in relevant part, as follows: “The failure of an appellee to
file an objection to the jurisdiction of an appellate court on or prior to the last
day under these rules for the filing of the record shall, unless the appellate
court shall otherwise order, operate to perfect the appellate jurisdiction of
such appellate court, notwithstanding any provision of law vesting jurisdiction
of such appeal in another appellate court.” Pa.R.A.P. 741(a).

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id. at 474-75 (“Appellees did not object to this Court’s jurisdiction, and judicial

economy was served by our deciding the case after it was filed, briefed, and

argued before us.”).

      Judge Bowes dissented on the basis that section 762(a)(4)(i)(C) of the

Judicial Code confers exclusive jurisdiction upon the Commonwealth Court to

hear appeals involving elections matters and the Election Code.               She

explained:

            [A]ll cases, since the Commonwealth Court was created,
      that involve elections[,] emanate from the Commonwealth Court
      or our Supreme Court on appeal from the Commonwealth Court.
      The present matter involves an election and election procedures[,]
      and should be decided by the Commonwealth Court.

      ....

             When we decide whether to retain an appeal:

             we must balance the interests of the parties and
             matters of judicial economy against other factors such
             as:     (1) whether the case has already been
             transferred; (2) whether our retention will disrupt the
             legislatively ordained division of labor between the
             intermediate appellate courts; and (3) whether there
             is a possibility of establishing two conflicting lines of
             authority on a particular subject. Moreover, each
             transfer should be decided on a case-by-case basis.

      [Trumbull Corp. v. Boss Construction Inc., 747 A.2d 395, 399
      (Pa. Super. 2000).]

              In my opinion, consideration of these factors compels that
      we transfer this case to the Commonwealth Court. . . . [O]ur
      retention of it would upset the [L]egislature’s decision to vest
      exclusive appellate jurisdiction in the Commonwealth Court over
      litigation involving elections. Further, this Court has no body of
      case law concerning election cases and the questions of either
      standing or mootness in that context. This Court simply has no


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      experience with election contests and the majority has risked
      rendering a decision that may conflict with the body of law existing
      in the Commonwealth Court as to the issues it addresses. I
      consider it inappropriate for this Court to decide a case involving
      an internal rule of the Party and whether it conflicts with the
      Election Code. I would transfer this appeal to the Court with the
      experience and skill-set to handle the matter expertly.

Id. at 475-76 (Bowes, J. dissenting) (some citations omitted).

      Reconsidering Gordon, this Court, en banc, now concludes that the

Majority Opinion in Gordon was incorrectly decided. First, the panel should

have determined, at the outset, whether the appeal fell within the jurisdiction

of the Superior Court.     See e.g., Pennsylvanians Against Gambling

Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 392 (Pa. 2005)

(“Prior to considering the merits of the legal issues before us, we must address

. . . threshold matters. First, we will determine our jurisdiction to entertain

this challenge . . ..”).    The Gordon Majority improperly deferred its

jurisdictional determination until after it had affirmed the trial court’s entry

of summary judgment and denial of intervention. This was error. The Majority

should have determined its jurisdiction over the appeal as a threshold matter.

See id.

      Moreover, the Majority compounded that error by using its substantive

rulings to justify its acceptance of jurisdiction over the appeal. Importantly,

Johnson claimed that the local Democratic party Rule violated section 2842 of

the Election Code. Rather than considering, initially, whether the election-

related claims brought the appeal within the jurisdiction of the Commonwealth


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Court, the Gordon Majority eliminated the basis for that jurisdiction by

deciding the merits on procedural grounds. 80 A.3d at 474 (reasoning that it

could accept appellate jurisdiction because “we were not required to apply,

interpret, or enforce the Election Code in reaching our holding”). In doing so,

the Gordon Majority usurped the General Assembly’s prerogative not to vest

appellate jurisdiction over election matters in the Superior Court by

sidestepping the express provisions of section 762(a)(4)(i)(C) of the Judicial

Code.     Because the Legislature vested the Commonwealth Court with

exclusive appellate jurisdiction over election matters, it was that Court’s

prerogative and duty to decide the substantive questions of standing,

mootness and ripeness presented in Gordon – not ours.

        Finally, the Gordon Majority should not have invoked Rule 741 to assert

jurisdiction over the appeal on the basis that “[a]ppellees did not object to

this Court’s jurisdiction, and judicial economy was served by our deciding the

case after it was filed, briefed, and argued before us.” 80 A.3d at 474-75.

Ordinarily, Rule 741 allows this Court to accept jurisdiction of an appeal that

belongs in another appellate court when the parties do not object.        See

Commonwealth v. Smith, 722 A.2d 167, 169 (Pa. Super. 1998). However,

even where no party objects to this Court’s exercise of appellate jurisdiction,

as was the case in Gordon, we still have discretion under rule 741 to transfer

the matter to the Commonwealth Court. See e.g. Fengfish v. Dallmyer,

642 A.2d 1117, 1120 n.2 (Pa. Super. 1994); Pa.R.A.P.741(a) (providing that


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jurisdiction is not perfected if “the appellate court shall otherwise order.”).

Indeed, we should transfer the appeal where the interests of the parties and

matters of judicial economy are outweighed by other factors, such as whether

our retention will disrupt the legislatively ordained division of labor between

the intermediate appellate courts; or whether there is a possibility of

establishing two conflicting lines of authority on a particular subject.   See

Trumbull Corp., 474 A.2d at 399.

      Given the Commonwealth Court’s exclusive appellate jurisdiction over

claims involving election matters, we conclude that “judicial economy” was an

insufficient basis for the Gordon Majority to accept jurisdiction over the

election-related appeal. See Commonwealth v. Jackson, 858 A.2d 627,

630-31 (Pa. Super. 2004) (“the concepts of ‘institutional comity’ and ‘system-

wide efficiency’ should not be relied upon as reasons for this Court’s exercise

of appellate jurisdiction.”). As Judge Bowes warned, “[t]his Court simply has

no experience with election contests and the majority has risked rendering a

decision that may conflict with the body of law existing in the Commonwealth

Court as to the issues it addresses.” Gordon, 80 A.3d at 476 (Bowes, J.,

dissenting). Moreover, by asserting jurisdiction over the appeal, the Gordon

Majority risked establishing two conflicting lines of authority on the Election

Code, which is within the purview and expertise of the Commonwealth Court.

Thus, to the extent that Gordon stands for the proposition that this Court can




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entertain appeals involving matters within the exclusive jurisdiction of the

Commonwealth Court, it is specifically overruled.

      We now hold that, in deciding whether this Court has appellate

jurisdiction, we must consider all of the potential issues underlying the parties’

theories of the case. If any potential substantive issue (or participation of a

particular party) invokes the Commonwealth Court’s jurisdiction, transfer is

appropriate, and we must transfer prior to reaching the merits of the appeal.

Otherwise, we invade the Commonwealth Court’s exclusive jurisdiction to

decide those substantive issues and to develop its own, consistent line of

precedents.

      Turning to the case before us, Mr. Mohn seeks appellate review to

address the following two issues:

      1. Did the trial court have jurisdiction to address Mohn’s request
         for a declaration that the [BCRC] violated the Pennsylvania
         Election Code by disqualifying Mohn from his duly elected
         position as a Republican Committeeperson for alleged
         misconduct that did not constitute a basis for disqualification
         under the [L]ocal [P]arty [R]ules?

      2. Is Mohn entitled to summary judgment where: (i) the [BCRC]
         did not have authority to disqualify Mohn as a publically elected
         committeeman serving his Republican constituents, for alleged
         violations of [L]ocal [P]arty Ethics Rules, and (ii) allegations of
         misconduct on the day of the primary election immediately
         preceding the term from which he was disqualified cannot
         constitute a basis for disqualification.

Appellant’s Brief at 5.

      Mr. Mohn’s issues on appeal require a determination of the scope of the

trial court’s jurisdiction under the Election Code to address the application,

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interpretation, and enforcement of the Local Party Rules, and whether such

jurisdiction is affected by our Supreme Court’s holding in Bentman v.

Seventh Ward Democratic Executive Committee, 218 A.2d 261 (Pa.

1966), a case involving election matters that was decided before the

Commonwealth Court was created and vested with exclusive jurisdiction over

appeals involving election matters.

      Mr. Mohn’s issues on appeal also require a determination of whether, in

disqualifying Mr. Mohn from his position, the BCRC violated the Local Party

Rules, which the BCRC is required to follow under section 2837 of the Election

Code, and whether those Rules are inconsistent with the by-laws of the

Republican Party of Pennsylvania, in violation of section 2837. Additionally,

the appeal requires a determination as to whether the BCRC had the right to

direct and discipline Mr. Mohn pursuant to section 2842 of the Election Code.

These issues involve election matters that “draw[] in question the application,

interpretation or enforcement of . . . statute[s] relating to elections, . . . or

other election procedures.” 42 Pa.C.S.A § 762(a)(4)(i)(C). Consequently, the

subject matter of this appeal directly implicates the Election Code and the

Commonwealth Court’s precedents applying the Code’s provisions.

      As the Legislature has designated the Commonwealth Court as the

exclusive forum for election-related appeals, we must defer the instant matter

to its expertise.




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      Appeal    transferred   to   the     Commonwealth   Court.   Jurisdiction

relinquished.

      President Judge Panella, President Judge Emeritus Bender, President

Judge Emeritus Gantman, and Judges Lazarus, Dubow, Murray and

McLaughlin join this Opinion.

      Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/3/19




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