The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John G. Bergdoll :
Registered Voter of the Commonwealth :
of Pennsylvania, :
Petitioner :
:
v. :
:
Pedro A. Cortes, Secretary of the :
Department of State and for the :
Commonwealth of Pennsylvania and :
The General Assembly of the :
Commonwealth of Pennsylvania, : No. 6 M.D. 2017
Respondents : Submitted: May 26, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 12, 2017
Before this Court are Pedro A. Cortes’, Commonwealth of Pennsylvania
(Commonwealth) State Department Secretary (Secretary), preliminary objections and
the Commonwealth General Assembly’s (General Assembly) preliminary objections
to John G. Bergdoll’s (Bergdoll) pro se Action in Mandamus, Quo Warranto and for
Emergency Preliminary and Permanent Injunctive Relief (Action), as well as
Bergdoll’s pro se Motion for Judgment on the Pleadings or Summary Judgment
(Motion).
On December 9, 2016, Bergdoll filed with the Pennsylvania Supreme
Court an Application to File an Original Action in Mandamus and Quo Warranto and
for Emergency Preliminary and Permanent Injunctive Relief (Application). The
Supreme Court, by December 19, 2016 per curiam order, denied Bergdoll’s
Application. On January 6, 2017, Bergdoll filed the Action requesting this Court to:
(a) Preliminarily and permanently enjoin and declare void
ab initio the certification of the Electors purportedly
selected and appointed as a result of the ‘Presidential’
election held on November 8, 2016 and the meeting and
election by the purported Electors of the President and Vice
President of the United States of America.
(b) Declare unconstitutional the application of the United
States Constitution Article II and its Amendments as to the
Election of the President and Vice President of the United
States by the Defendants and declare the laws and
regulations of the Commonwealth of Pennsylvania and any
similar laws of other states of the United States as violative
of the Constitution of the United States Article II and
applicable Amendments thereof.
(c) Permanently enjoin Electors appointed, selected or
elected in an unconstitutional manner from meeting and
electing the President and Vice President of the United
States.
(d) Require the appointment selection or election of
Electors that does not violate the United States and
Pennsylvania Constitutions nor violate the right of the
people of the Commonwealth of Pennsylvania or United
States of America the right to change and alter their
government as they deem necessary and proper and chose
their President and Vice President.
(e) Any such other relief as is necessary and just in the
premises.
Bergdoll Action at 10-11.
On February 2, 2017, the Secretary filed his preliminary objections,
asserting therein: (1) the Action is moot; (2) the Action is barred by laches;1 (3)
1
“Equity has established the doctrine of laches to preclude actions that are brought without
due diligence and which result in prejudice to the non-moving party.” Koter v. Cosgrove, 844 A.2d
29, 34 (Pa. Cmwlth. 2004).
2
Bergdoll does not have standing; and (4) the Action is legally insufficient. On
February 6, 2017, the General Assembly filed its preliminary objections, averring as
follows: “(i) [the A]ction is moot; (ii) [Bergdoll] lacks standing; (iii) [Bergdoll’s]
claims fail on the merits; (iv) sovereign immunity precludes [Bergdoll’s] demands for
affirmative relief against [the Secretary and the General Assembly]; and (v)
constitutional Speech or Debate immunity protects the General Assembly from this
suit.” General Assembly Preliminary Objections (POs) at 2. On March 8, 2017,
Bergdoll filed his Motion, wherein he “submit[ted] there is no genuine issue of fact
that would prevent this Honorable Court from granting the relief requested by
[Bergdoll].”2 Motion at 1.
This Court’s review of preliminary objections is limited to the pleadings.
Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Natural Res.,
909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).
[This Court is] required to accept as true the well-pled
averments set forth in the . . . complaint, and all inferences
reasonably deducible therefrom. Moreover, the [C]ourt
need not accept as true conclusions of law, unwarranted
inferences from facts, argumentative allegations, or
expressions of opinion. In order to sustain preliminary
objections, it must appear with certainty that the law will
not permit recovery, and, where any doubt exists as to
whether the preliminary objections should be sustained, the
doubt must be resolved in favor of overruling the
preliminary objections.
Id. at 415-16 (citations omitted).
In their preliminary objections, both the Secretary and the General
Assembly argue that Bergdoll’s Action is moot. Our Supreme Court has declared:
The mootness doctrine requires an actual case or
controversy to exist at all stages.
2
Bergdoll incorporated all pleadings and filings in the matter in lieu of setting forth any
averments in his Motion.
3
It is a well-established principle of law that this Court
will not decide moot questions. The articulation of the
mootness doctrine . . . was acknowledged in our
decision in In re Gross, . . . 382 A.2d 116 ([Pa.] 1978)
as follows:
The problems arise from events occurring after
the lawsuit has gotten under way—changes in the
facts or in the law—which allegedly deprive the
litigant of the necessary stake in the outcome.
The mootness doctrine requires that ‘an actual
controversy must be extant at all stages of review.
. . .’ G. Gunther, Constitutional Law 1578 (9th
ed.[]1975).
[Gross,] 382 A.2d at 119. An issue can become moot
during the pendency of an appeal due to an intervening
change in the facts of the case or due to an intervening
change in the applicable law.
In re Cain, . . . 590 A.2d 291, 292 ([Pa.] 1991).
Dep’t of Envtl. Prot. v. Cromwell Twp., Huntingdon Cnty., 32 A.3d 639, 651 (Pa.
2011).
The Secretary and the General Assembly maintain that Bergdoll’s
Action is moot because Bergdoll is asking this Court to preliminarily and
permanently enjoin events which have already taken place. Specifically, “the
meeting and election by the purported Electors of the President and Vice President of
the United States of America[,]” Bergdoll Action at 10, which Electors’ meeting and
election “took place on December 19, 2016[,]” General Assembly POs at 3 ¶10, and
“electing the President and Vice President of the United States[,]” Bergdoll Action at
10, when “the United States Congress certified the Electoral College Vote on January
6, 2017, and the new President and Vice President took their oaths of office on
January 20, 2017.” General Assembly POs at 4 ¶11.
We agree that these [] factors render the [Bergdoll Action]
moot. Because [Bergdoll] s[eeks] an injunction to prevent
[the Electors from meeting and electing the President and
4
Vice President which occurred weeks before the filing of
his Action], and because, since the filing of this [Action3],
the [United States Congress has certified the Electoral
College and the new United States President and Vice
President have taken their oaths of office], there is currently
‘nothing for [this C]ourt to enjoin . . . .’ Gross, . . . 382
A.2d at 121. Moreover, though [Bergdoll’s Action seeks]
an injunction ‘declaring the [election of the Electors] to be
void and of no force or effect,’ any such relief provided by
this [C]ourt would be superfluous in light of the [fact that
the election has now past]. Accordingly, we hold that the
instant [Action] has become moot.
Phila. Lodge No. 5, Fraternal Order of Police v. Phila. Bd. of Pensions &
Retirement, 606 A.2d 603, 605 (Pa. Cmwlth. 1992) (citation omitted).
Bergdoll contends that the Action is not moot because a presidential
election is a live controversy, and the question presented is capable of repetition yet
escaping judicial review. He asserts that he is “not ask[ing] that the President or Vice
President be unseated[,] but merely questions on constitution[al] grounds whether
[the Secretary and the General Assembly] have acted and will act in the future within
their constitutional authority.” Bergdoll Br. in Response to POs at 6. However, our
Supreme Court has held:
Th[e Supreme] Court is even more reluctant to decide moot
questions which raise constitutional issues. Wortex Mills v.
Textile Workers, [85 A.2d 851 (Pa. 1952)]. In Wortex Mills
th[e Supreme] Court was asked to decide, as a constitutional
matter, whether peaceful, organizational labor union
picketing was legal; in Wortex Mills the strike which caused
the picketing had ended by the time the appeal reached th[e
Supreme] Court. In declining to reach the constitutional
question, this Court observed:
Constitutional questions are not to be dealt with
abstractly.
3
Bergdoll contends this Action is a continuation of his Application filed in the Supreme
Court on December 9, 2016; thus, it was filed before the Electors’ meeting and election. This Court
is empowered to decide only those matters properly before it which in this case are Bergdoll’s
January 6, 2017 Action and March 8, 2017 Motion.
5
Id. . . . at 857, [(]quoting, Bandini Petroleum Co. v.
Superior Ct., 284 U.S. 8, 22 . . . (1931)[)]. The United
States Supreme Court has described such judicial reluctance
as ‘the exercise of judicial restraint from unnecessary
decision of constitutional issues.’ Kremens v. Bartley, 431
U.S. 119, 136 . . . (1977) [(]quoting, Regional Rail
Reorganization Act Cases, 419 U.S. 102, 138 . . . (1974)[)].
Gross, 382 A.2d at 120. Based on the well-established mootness doctrine, as well as
the Gross Court’s reasoning, we sustain the Secretary’s and the General Assembly’s
first preliminary objection to Bergdoll’s Action.
The Secretary and the General Assembly further assert that Bergdoll
lacks standing to seek quo warranto relief. Bergdoll cites Bergdoll v. Kane, 731 A.2d
1261 (Pa. 1999), to support his position that he has standing. However, standing was
not addressed in the quo warranto context in Bergdoll. Rather, “the Secretary [of
State] challenged the standing of the individual petitioners on the [] ground . . . that
they did not have a ‘substantial, direct and immediate interest in the outcome of the
litigation . . . .’” Mixon v. Commonwealth, 759 A.2d 442, 452 (Pa. Cmwlth. 2000),
aff’d, 783 A.2d 763 (Pa. 2001) (quoting Bergdoll, 731 A.2d at 1268). Further, the
Court held that the Secretary of State had waived the standing issue. See Mixon.
Accordingly, Bergdoll is inapposite.
Generally, a quo warranto action is the exclusive means of
challenging the title or right to public office, and only the
Attorney General or local district attorney may institute
a quo warranto action. In re One Hundred or More
Qualified Electors of the Municipality of Clairton, . . . 683
A.2d 283, 286 ([Pa.] 1996) [(Qualified Electors of
Clairton)].
[A] private person, with no special right or interest
in the public office, must first seek to have either the
Attorney General or local district attorney file a quo
warranto action. It is only after both the Attorney
General and the local district attorney decline to
bring such an action that a private person will
6
have standing to seek the removal of the holder of
a public office. . . .
Id.[] at 287 n.10 ([italics] emphasis in original). ‘A party
will be permitted to bring an alternative action to the
remedy of quo warranto where the Attorney General and
the local district attorney refuse to bring such an action or if
it would be a futile exercise to seek the approval of these
officials.’ Id.[] at 286-87.
Reed v. Harrisburg City Council, 995 A.2d 1137, 1139 (Pa. 2010) (emphasis added).
“A private person will have standing to bring a quo warranto action only if that
person has a special right or interest in the matter, as distinguished from the
right or interest of the public generally, or if the private person has been
specially damaged.” Qualified Electors of Clairton, 683 A.2d at 286 (emphasis
added).
Bergdoll maintains that he has standing to bring the Action because
“[h]e is a lifelong citizen of the Commonwealth and an independent voter who is
largely excluded from the current Presidential election process. He is a taxpayer and
an attorney for 47 years in the Commonwealth of Pennsylvania who is sworn to
defend the constitution and has. [sic]” Bergdoll Br. in Response to POs at 4.
Because Bergdoll does not allege that he requested the Attorney General or the local
district attorney to bring a quo warranto action and they so declined, and he did not
plead any “special right or interest in the matter,” or that he has been “specially
damaged[,]” he lacks standing to bring a quo warranto action. Qualified Electors of
Clairton, 683 A.2d at 286. Consequently, we sustain the Secretary’s third
preliminary objection for lack of standing and the General Assembly’s second
preliminary objection.4
4
Because we hold that Bergdoll’s Action is moot and he lacks standing to bring the Action,
we need not address the Secretary’s or the General Assembly’s remaining preliminary objections.
Nevertheless, even if Bergdoll’s Action was not moot and he had standing, he cannot meet his very
heavy burden of proving that the General Assembly’s statutes relating to Elector selection “clearly,
7
For all of the above reasons, the Secretary’s first and third preliminary
objections and the General Assembly’s first and second preliminary objections are
sustained. Consequently, Bergdoll’s Action is dismissed and the Motion is denied as
moot.
___________________________
ANNE E. COVEY, Judge
palpably and plainly violate[] the Constitution[,]” because he has failed to aver any facts or provide
any legal support to overcome the “strong presumption that legislative enactments . . . do not violate
the Constitution.” Ass’n of Settlement Cos. v. Dep’t of Banking, 977 A.2d 1257, 1261 (Pa. Cmwlth.
2009); see also Pennsylvanians Against Gambling Expansion Fund v. Commonwealth, 877 A.2d
383, 393 (Pa. 2005).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John G. Bergdoll :
Registered Voter of the Commonwealth :
of Pennsylvania, :
Petitioner :
:
v. :
:
Pedro A. Cortes, Secretary of the :
Department of State and for the :
Commonwealth of Pennsylvania and :
The General Assembly of the :
Commonwealth of Pennsylvania, : No. 6 M.D. 2017
Respondents :
ORDER
AND NOW, this 12th day of July, 2017, Pedro A. Cortes’,
Commonwealth of Pennsylvania (Commonwealth) State Department Secretary, first
and third preliminary objections and the Commonwealth General Assembly’s first
and second preliminary objections to John G. Bergdoll’s (Bergdoll) Action in
Mandamus and Quo Warranto and for Emergency Preliminary and Permanent
Injunctive Relief (Action) are SUSTAINED. Accordingly, Bergdoll’s Action is
DISMISSED.
Bergdoll’s Motion for Judgment on the Pleadings or Summary Judgment
is DENIED as MOOT.
___________________________
ANNE E. COVEY, Judge