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

B efore this Court are Pedro A. Cortes ’

, Commonwealth of Pennsylvania

(Commonwealth) State Department Secretary (Secretary )

, preliminary objections and

the C ommonwealth 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 fo r 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 ) . The2

Supreme Court, by December 19, 2016 per curiam order, denied Bergdoll’s

Application. On January 6, 2017, Bergdoll filed the Action request ing this Court to :

(a) Preliminarily and permanently enjoin and declare void ab initio t he 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 Ameri ca.

(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 Commo nwealth 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 uncon stitutional 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 o f 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 i n the premises.

Bergdo ll 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 ac tions 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).3

Bergdo ll 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 preclud es [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 M arch 8, 2017,

Bergdo ll 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 limite d 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 . . . c omplaint, 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 preliminar y 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. a t 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

averm ents in his M otion.4 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 ar ise 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 th e applicable law.

In re Cain,

. . . 590 A.2d 291, 292 ( [Pa.] 1991)

.

Dep ’ t of Envtl

. Prot

. v. Cromwell T w p., 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 a sking this Court to preliminarily and

permanently enjoin event s 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 Elector al 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 Elector s from meeting and electing the President and5 Vice President which occurred weeks before the filing of his Action ] , and because, since the filing of this [Action 3 ]

, the [ United States Congress ha s 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 ‘ decl aring the [election of the Electors] to be void and of no force or effect, ’ an y 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 rep etition 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 Assem bly] 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 cau sed 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 ; th us , it was filed before the Electors’ meeting and election. This Court is empowered to decide only th os e matter s pro perly before it which in this case are Bergdoll’s January 6, 2017 Action and March 8, 2017 Motion.6 Id.

. . . at 857, [(] quoting, Bandini Pet roleum Co. v. Superior Ct ., 284 U.S. 8, 22

. . . (1931) [)]. The United States Supreme Court has describ ed such judicial reluctance as ‘ the exercise of judicial restraint from unnecessary decision of constitutional issues. ’ Kremens v. Bartley , 431 U.S. 11 9, 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 address ed in the quo warranto context in Bergdoll

. Rather, “ t he Secretary [of

State] challenged the standing of the individual petitioners on the [] ground . . . that

they did not have a ‘substant ial, 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 off

ice, 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 will7 have stan ding 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, 6 83 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

ple a d 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 th e A ction

, we need not address the Secretary ’ s or the General Assembly’s rem aining 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

,8 For all of the above reasons, the Secretary ’ s first and third preliminary

objec tions 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 viol ate [] the Constitution[,]” because he has failed to aver any facts or provide any legal support to overcome the “ strong presumption that legislative enactments

. . . d o not violate

the Constitution .” Ass’n of Settlement Cos. v. Dep’t of Banking , 977 A.2d 1257, 1261 (Pa. Cmwlth. 2009) ; s ee also Pennsylvanians Against Gambling Expansion Fund v. Commonwealth

, 877 A.2d 383, 393 (Pa. 2005 ).IN THE COMMONWEALTH COURT O F 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 Gen eral Assembly of the : Commonwealth of Pennsylvania, : No. 6 M.D. 2017 Respondents :

O R D E R

AND NOW, this 12 th day of July , 201 7

, Pedro A. Cortes ’

,
Commonwealth of Pennsylvania (Commonwealth) State Department Secretary

, first

and third pr eliminary 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