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 
2

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).
3

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.
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 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 
5

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.
6

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 
7

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, 
8

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).
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 :

O R D E R

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