In Re Benninghoff

Justice CASTILLE,

concurring.

I joined in this Court’s unanimous April 7, 2004 per curiam order, which reversed the decision of the Commonwealth Court and ordered that appellant Benninghoffs name be printed on the primary ballot. That mandate was consistent with the position I had taken when I dissented from this Court’s earlier order of April 1, 2004, which transferred the matter to the State Ethics Commission and ordered it to file an advisory “disposition” by April 5, 2004. In a Dissenting Statement which was joined by Mr. Justice Nigro and Mr. Justice Saylor, I stated:

I would hold that the omission here is an amendable defect since the Statement of Financial Interest Form clearly identifies Benninghoff as an incumbent State Representative. As such, Benninghoff is salaried and that salary is of public record. Therefore, I would hold that the omission of the salary information is harmless, and therefore, an amendable defect, and I would reverse the Commonwealth Court and allow petitioner’s name to stay on the primary ballot.

Nomination Petition of Benninghoff, 847 A.2d 144 (Pa.2004) (Castille, J., dissenting), slip op. at 1.

In support of this Court’s subsequent April 7, 2004 order, the Majority now holds that appellant “substantially complied” with the requirements of the Ethics Act even though he failed to list his legislative salary as “income” in Block 10 of the Statement of Financial Interest form; that the “technical defect” in appellant’s failing to list the legislative salary is amendable, rejecting the State Ethics Commission’s determination that this omission was not a defect at all; and that the Commonwealth Court erred in striking appellant’s name from the ballot without permitting him an opportunity to amend. I write separately because I do not entirely agree with the Court’s analysis and my own views on the question before us have evolved since my April 1, 2004 dissent.

*416 I join the Majority Opinion to the extent that it reasons that the Ethics Act’s definition of income encompasses governmental salaries. As the Majority notes, the official filing form and instructions prepared by the Commission itself recognize a distinction between “governmentally mandated payments” and “income” such as salaries; moreover, the instructions pertaining to Block 10 specifically direct candidates to list “all employers (including governmental bodies)” (emphasis supplied). There can be no question that appellant’s Financial Statement, as filed, was defective on its face since he did not list the Commonwealth as a source of income in Block 10.

In striking appellant’s name from the ballot, the Commonwealth Court panel below did not apply a “substantial compliance” rule. Instead, it relied upon the inflexible, per se approach to defects in financial statements adopted by the Commonwealth Court in In re Nomination Petition of Anastasio, 820 A.2d 880 (Pa.Cmwlth.2003), aff'd per curiam without opinion, 573 Pa. 512 , 827 A.2d 373 (2003). If the draconian rule in Anastasio were deemed to have vitality and to be the controlling rule here, this Court would be constrained to affirm. In reaching the opposite conclusion, the Majority employs an analysis which is fundamentally different from the Anastasio approach. Notwithstanding that fact, the Majority goes to great lengths in an attempt to harmonize its new rule with Anastasio, thereby suggesting that Anastasio remains good law. I respectfully disagree with the new rule the Majority announces. Moreover, even if I were to agree with the new rule, I would candidly recognize that it is not consonant with the draconian rule set forth in Anastasio and, therefore, I would specifically disapprove of Anastasio.

Addressing the Anastasio question first, it must be emphasized that Anastasio lacks any precedential value in this Court. Our per curiam affirmance in Anastasio, by a vote of 4-3, was confined to the Commonwealth Court’s order; we did not affirm the opinion below or the rationale it expressed. Mr. Justice (now Chief Justice) Cappy explained the extremely limited effect of such an order in Commonwealth v. Tilghman, 543 Pa. 578 , 673 A.2d 898 (1996):

*417 In any appeal before us, this Court’s entry of a per curiam order affirming or reversing the final order of a lower tribunal, after review and consideration of the issues on appeal to this Court, signifies this Court’s agreement or disagreement with the lower tribunal’s final disposition of the matter on appeal to us. An order of per curiam affirmance or reversal becomes the law of the case.

In the instance where this Court intends to not only affirm the result of the lower court decision but also the rationale used by the lower court in reaching that decision, we would enter the appropriate order affirming on the basis of the opinion of the lower court, elucidating the lower court’s rationale where necessary or desirable. Our entry of an order of per curiam affirmance on the basis of the lower court’s opinion, thus, means that we agree with the lower court’s rationale employed in reaching its final disposition.

Unless we indicate that the opinion of the lower tribunal is affirmed per curiam, our order is not to be interpreted as adopting the rationale employed by the lower tribunal in reaching its final disposition.

Id. at 904 (emphases original). In addition, our per curiam affirmance in Anastasio was unaccompanied by a citation to any authority. It is settled that, “[w]hile an unexplained per curiam decision is certainly binding as the law of that case, by definition it establishes no precedent beyond the authority cited in the order.” Commonwealth v. Smith, 575 Pa. 203 , 836 A.2d 5, 17 (2003). Accordingly, Anastasio does not constrain this Court in any manner; it is relevant only to the extent that we may deem the Commonwealth Court’s unaffirmed rationale to be persuasive as a jurisprudential matter in that case.

The Majority avoids directly commenting on the persuasiveness of the analysis in the Anastasio opinion; instead, it attempts to distinguish the non-binding decision. The Majority thereby creates the mistaken impression that Anastasio was decided under today’s new “substantial compliance” rule and may be harmonized because the factual distinctions warrant the differing outcomes. But, the Anastasio panel did not *418 anticipate today’s decision. The panel did not analyze whether Anastasio’s failure to list his “regular governmental income” in Block 10 was otherwise accounted for in other parts of the statement. Nor did the panel inquire into whether Anastasio’s Financial Statement, as filed, might mislead persons who reviewed it as to his sources of income.

These sorts of factual niceties were irrelevant in Anastasio because the panel adopted a per se approach to defects in Financial Statements. This is so patently the case that a full quotation of the inflexible approach in Anastasio is warranted:

65 Pa.C.S. § 1105(b)(5), relating to Block 10, indicates that the statement shall contain any direct or indirect source of income of $1,800 or more. Anastasio admits that he knew he had such income, but he did not report it on the form. Thus, Anastasio did not file his financial statement in accordance with the provisions of the chapter. As the trial court stated, section 1104(b)(3) has real teeth and is quite harsh in its scheme.

Moreover, in making his argument, Anastasio ignores the fact that the Act pertains to ethics and is to be liberally construed to promote complete financial disclosure. 65 Pa. C.S. § 1101.1. Anastasio relies on the liberal construction of the Election Code to protect a candidate’s right to run for office and the voters’ right to elect the candidate of their choice. However, it is the Ethics Act in Title 65 that is dispositive here. Thus, we decline to interpret the Act to allow errors of omission.

820 A.2d at 881 (emphases original) (footnote omitted).

Given that the draconian approach in Anastasio is totally at odds with the more amorphous “substantial compliance” rule the Majority announces today, I do not agree with the Majority’s effort to try to save the Commonwealth Court’s Anastasio decision. Perhaps the Majority feels that Anastasio would have been decided the same way if it had been decided under today’s new rule. But, that academic question is not before us: the Anastasio panel was not applying the Benninghoff rule. The Court should recognize that the new approach *419 today displaces Anastasio entirely and, at a minimum, we should specifically disapprove the contrary Anastasio rule.

Turning to the merits of the new rule adopted by the Majority, the dispositive question of statutory interpretation before the Court is whether the facial, patent defect in this nomination petition should be deemed “amendable” or “fatal.” In answering this question, the Majority does not engage in an analysis of what the Ethics Act intends when it speaks of a “fatal defect”—a term which is not defined in the statute. Thus, for example, the Majority does not look to the occasion for this relatively recent amendment to the Ethics Act. Instead, the Majority formulates and applies an ad hoc standard to govern defects in financial statements. Under the Majority’s formulation, patent defects will not be deemed fatal if a court later determines that the defective Statement otherwise was in “substantial compliance” with the provisions of the Ethics Act. Nothing in the plain language of the Act suggests that “fatal defect” can be defined to mean “non-substantial compliance,” or that the General Assembly intended all disputes such as these to lead to lawsuits where courts will have to apply such an amorphous standard. Since there is no statutory basis for the new standard, and since the standard will involve the courts in unnecessary, fact-intensive determinations in the truncated time periods available to resolve election matters, I cannot accept the formulation.

The “fatal defect” language in the Ethics Act was added by amendment in 1989. I agree with former Chief Justice Nix’s interpretation of the limited purpose and effect of that amendment:

In Commonwealth, State Ethics Commission v. Baldwin, 498 Pa. 255 , 445 A.2d 1208 (1982), ... a unanimous Court concluded that failure to timely file the required financial interests statements, in that case with the State Ethics Commission, was not a fatal defect to the nomination petition and could be cured by amendment. Our General Assembly, however, in apparent response to our Baldwin decision, amended and reenacted the Ethics Act in 1989 to include the following language: “Failure to file the [financial *420 interests] statement in accordance with the provisions of this act shall .... be a fatal defect to a petition to appear on the ballot.” 65 P.S. § 404(b)(3). This language is clear and unambiguous. Our Statutory Construction Act of 1972 explicitly provides that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Hence, the General Assembly foreclosed the possibility for curing by amendment the untimely filing of a financial interests statement with the local governing authorities, and by the same token foreclosed our inquiry into the individual circumstances which may have contributed to the untimely filings.

Petition of Cioppa, 533 Pa. 564 , 626 A.2d 146, 148-49 (1993) (Opinion Announcing Judgment of Court by Nix, C.J.) (footnote omitted). Given the occasion for the amendment, I would conclude that fatal defects are limited to untimely filings. Mere defects or omissions in timely filings, such as the ones at issue here, should be subject to amendment. Notably, the regulations promulgated by the Commission, which the Majority details, see Majority slip op. at 8-9 & n. 6., afford time for amendment, without drawing a distinction between substantially compliant defects and non-substantially compliant ones. I would not read the Majority’s distinction into the statute. Since appellant’s Statement was timely filed, the omission in Block 10 was not a fatal defect, but was one which is subject to amendment. Accordingly, the Commonwealth Court erred in denying appellant an opportunity to amend.

Justice EAKIN joins this concurring opinion.