A Commonwealth Court of Pennsylvania judge has affirmed the decision of a Carbon County judge in denying petitions seeking to have four candidates removed from the May primary ballot for the position of supervisor in East Penn Township.

Judge Mary Hannah Leavitt has ruled that the decision of Judge Joseph J. Matika in denying the petitions of Kimberly and Jacob Nothstein to remove the four candidates was the proper one.The Nothsteins filed petitions in March to have five candidates seeking the nominations of their respective parties in the May 19 primary stricken from the ballot because they failed to file their statement of financial interests by the March 10 deadline.The Nothsteins sought to have the nominating petitions of Alice Berger, Randy Pfeiffer, Guy Barry, William G. Schwab and David Bryfogle stricken.One removedFollowing a hearing on March 20, Matika denied the petitions concerning Berger, Pfeiffer, Barry and Schwab but granted the one pertaining to Bryfogle.He ruled Bryfogle did not file his statement of financial interests on time.Schwab and Berger are seeking the Republican nomination and Barry and Pfeiffer are seeking the Democrat nomination.There are two seats on the board of supervisors to be elected in November, both six-year terms. One of those seats is currently held by Jacob Nothstein, who is seeking re-election.In her 12-page opinion Leavitt agreed with the conclusion of Matika in using a prior court decision, in "Nomination Petition of McMonagle," as being "on point" in the local matter.At the March 20 hearing Amanda Kincaid, paralegal in the office of Schwab, a local attorney, testified she took the two financial statements of Schwab and Berger, placed each in a separate envelope and then placed those in a larger envelope and personally mailed them at the local post office on March 10.Barry testified he personally took his and Pfeiffer's statements to the county election bureau in Jim Thorpe and filed them.He then returned home, made copies of the reports, and mailed them. That was done on March 9.However, township secretary Deanna L. Cunfer testified that she never received Barry's and Pfeiffer's statements in the mail but rather they were hand-delivered by Barry past the March 10 deadline.She said she did receive in the mail Berger and Schwab's statements, but the envelope was postmarked March 11.After Matika's ruling the Nothsteins filed an appeal with the Commonwealth Court alleging that Matika erred in his denial of their positions.In the mailIn her opinion Leavitt wrote, "Once an envelope is given to the postal authorities, what happens with it, including postmarking and actual delivery, is beyond the control of the candidate. Accordingly, mailing a statement of financial interests to local governing authority on or before the deadline establishes compliance" with the Employee Ethics Act.The Nothsteins referred to the Ethics Act in their appeal of Matika's decision.Leavitt also wrote that in the McMonagle case, mailing is an appropriate method of filing a statement of financial interests with a local governing authority.She added, "Further, it was within the trial court's authority as fact-finder to credit candidates' sworn testimony that they placed their statements of financial interests into the mail by March 10, 2015, the deadline for filing. Neither the Ethics Act nor a regulation requires that a statement of financial interests must be received by the local governing authority on or before the filing deadline."The Nothsteins also contended that the Ethics Act requires actual receipt by the deadline. Leavitt dismissed that argument by stating, "However, there is no binding regulation or statutory provision mandating that the local governing authority physically receive the statement of financial interests on the filing deadline. There is no regulation that defines 'filing' to mean 'receiving.'"Leavitt also refers to the McMonagle case and adds, "McMonagle established, however, that placing a statement of financial interests into the mail on the deadline constitutes a timely filing."She further notes neither the Ethics Act or any other authority mandates a certain method of filing.Leavitt also mentionsthe testimony of Cunfer that the township's mail is placed in a mailbox at the end of a driveway at the township building.Cunfer testified that any township official can get the mail from the mailbox and place it on her desk for distribution. She also said any township official has access to her desk.In conclusion, Leavitt wrote, "The trial court credited the testimony of Candidates that they placed their statements of financial interests into the mail by the deadline of March 10, 2015. That the Township stamped two statements as having been received on March 13, 2015, did not mean they were not timely mailed, or filed. Likewise, that two were not received, even by March 10, 2015, had no consequence under the mailbox rule. The evidence accepted by the trial court established that all four were mailed and, thus, filed on March 10, 2015."