In re Petition to Set Aside Certain Nominating Petitions for Office of Lower Moreland Township School Director

OPINION

LORD, Senior Judge.

Marla Friedenberg appeals a Montgomery County Common Pleas Court order granting a demurrer and dismissing her petition to set aside certain nominating petitions of candidates for school director of the Lower More-land School District.

Friedenberg, a registered Democrat and candidate for school director on both the Republican and Democratic ballots, filed a petition to set aside the nominating petitions of, inter alia, Susan Yogeler Heerin, Glenn Lampert, Joan Goldman, Thomas Smith, Pamela Levy and Marilyn Gilpin (respondents) as candidates for that office on both party ballots. The petition averred that those candidates failed to file timely statements of financial interest as required by Section 404 of the Public Official and Employee Ethics Act¹ (Ethics Act), 65 P.S. § 404.

The respondents, registered Republicans who are also cross-filed, filed an answer and new matter, averring that Friedenberg failed to identify herself as a member of any political party, and is a registered Democrat. The respondents therefore contended that Fried-enberg lacked standing to challenge their nomination petitions because she is not a registered member of their party, the Republican Party.

The common pleas court held a hearing, wherein it was stipulated that Friedenberg is a registered Democrat and that the respondents failed to file timely financial interest statements. The court granted the alternative relief the respondents sought and dismissed Friedenberg’s petition to set aside the respondents’ nomination petitions as Republican candidates but barred the respondents’ names from appearing on the Democratic ballot. Friedenberg appeals that decision.

The question presented on appeal is whether a candidate for the office of school director, who is a registered member of one political party, and who, by statute may cross-file in the other party’s primary election, has the requisite standing to challenge the candidacy of individuals registered with that other party and seeking the same office. The question appears to be one of first impression.

This Court clearly has held that a registered member of a certain party has no standing to challenge a candidate in the opposing party’s primary.

That holding is thus summarized.

The election at issue in this case is a Republican primary. Therefore, Appellant, being a registered Democrat, is ineligible to participate in the election. As such, she maintains no greater interest in the Republican primary than any of the general citizenry and therefore does not have standing to challenge the Republican candidate’s nomination petitions.

In re: Nominating Petition of Pasquay, 105 Pa.Commonwealth Ct. 532, 525 A.2d 13 (1987) aff'd, 515 Pa. 453, 529 A.2d 1076 (1987).

However, no court in this Commonwealth has yet decided the question presented in this case. Where a candidate is permitted to cross-file, does that status give him such an interest that he can challenge a candidate or candidates in the primary where he has no rights as a registered voter? We think it does.

Pasquay makes it clear that its decision is not based upon any specific statute, but on lack of standing, since a member of an opposing party has no more than “the abstract interest of all citizens in having others comply with the law.” Id. at 534, 525 A.2d at 13 (quoting William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975)). Here, however, the challenger, by virtue of the law permitting cross filing, has the tangible and obvious interest in having her opponents comply with the law. Thus, she has as much, if not more, of an interest than a person who is registered to vote in the particular primary.

In Pasquay, the Court recognized our system of strictly partisan elections and noted no cross-over voting is permitted. Here, cross -filing by candidates for school director is permitted by statute. As in the case of judicial candidates, who are also permitted to cross-file, this statutory provision necessarily recognizes a differentiation between these and other elective offices. See In re the Substitute Nomination Certificate of Evans, 158 Pa.Commonwealth Ct. 297, 631 A.2d 797 (1993) aff'd, 534 Pa. 279, 632 A.2d 862 (1993).

We stated in Pasquay that “[t]he factor that elevates the general interest of each registered voter to challenge a candidate’s nomination petition is that voter’s eligibility to participate in the election.” Id. at 536, 525 A.2d at 14. As a duly filed Republican candidate, Friedenberg is eligible to participate (and, as, we have said, has an interest at least as great as that of an elector) in the Republican primary election for school director candidate.

Any decision that would preclude a challenge would have to be based on the conclusion that a candidate could file in another party’s primary election, but must rely on the whims of others to ascertain that his opponents comply with the law. In this ease, compliance with the law is particularly important, for the legislature has made the failure to file a financial statement timely an unwaivable requirement which warrants automatic disqualification as a candidate, Petition of Chioppa, 533 Pa. 564, 626 A.2d 146 (1993). We also note that the the failure to file such statement can be a grounds for precluding the taking of office or receiving compensation. 65 P.S. § 404(d).

In view of the fact that the parties have stipulated that the appellees filed the financial statements late, we will reverse and order that the appellees’ names do not appear on the Republican ballot.

ORDER

AND NOW, this 21st day of April 1994, it is hereby Ordered that the order of the Montgomery County Common Pleas Court at No. 95-05023, dated March 22, 1995, is reversed and the names of the appellees in the above-captioned matter shall be stricken from the Republican party ballot for the primary election for the office of Lower Moreland Township School Director.

PELLEGRINI, J., filed dissenting opinion.

1 . Act of October 4, 1978, P.S. 883, No. 170, § 1, as reenacted and amended, June 26, 1989, P.L. 26, No. 9, § 1, 65 P.S. §§ 401-413.