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Judge denies Dowling’s election request

November 6, 2018 GMT

A Fayette County judge refused to stand between warring politicians on the eve of the election.

Judge Gerald Solomon denied state Rep. Matthew Dowling’s petition to prevent former Rep. Tim Mahoney’s campaign from publishing “false and misleading” material about him. Dowling sued Mahoney last week, claiming his actions violated the Pennsylvania Election Code.

“By reason of the filing of this Petition on the eve of the election, we are denied the benefit of scheduling a hearing, there is no sworn testimony, and there is no opportunity to judge the credibility of those offering testimony,” Solomon wrote in his opinion, which was issued Monday.

The opinion adds that since Dowling is a public figure, he bears a heavier burden in pursuing his claims than a nonpublic figure.

In documents filed with the Fayette County Court of Common Pleas Oct. 29, Dowling said Mahoney was trying to discredit him in an attempt to return to office. Mahoney, a Democrat, served five terms in office in the 51st Legislative District before losing to Dowling, a Republican, in 2016.

The district includes parts of Fayette and Somerset counties.

Lane Turturice, Dowling’s lawyer, said his client sought an injunction to prevent further violations of the election code, so Mahoney would not distort Dowling’s record or mislead voters “about the facts.”

“My client is no different than any other citizen and, as such is entitled to the same protections that any other citizen is entitled to under the Election Code,” he wrote in a prepared statement. “We disagree with the Court, that a public figure has a higher burden of proof when proving violations of the election code, and I would note for the record that the Court cited no legal authority to support that portion of it(s) Opinion.

“This is not a defamation case — this is a case of a violation of the Election Code and my client sought court intervention to stop further violations.”

Turturice added that the petition was filed Oct. 29, nine days before the election. The candidates and their attorneys met Thursday with Judge Steve Leskinen, who told them to submit written arguments to Judge Solomon for a ruling.

In the same statement, Dowling said it was disappointing that the judge chose to decline the petition.

“I have knocked on thousands of doors across the district and I am confident that voters know the truth and will make the right decisions tomorrow when they vote,” he said.

One of Mahoney’s claims involved Dowling’s connections with the Kezmarsky Funeral Home, in Uniontown, which closed after filing for bankruptcy. The funeral home’s director was charged earlier this year with stealing from clients who paid in advance for their funerals.

In the opinion, Solomon said Mahoney’s lawyer provided the court with the funeral home’s 2017 business plan, which lists Dowling as the chief operating officer. Dowling’s listed duties included overseeing payroll, accounts payable, accounts receivable and vendor relations. He was also responsible for all day-to-day operations and employees of the enterprise, according to the document.

Dowling’s attorney claims he never had any operational business or fiduciary responsibilities with the business.

The lawsuit also cites a post on Mahoney’s Facebook page that states, “Matt Dowling’s compensation includes a ‘per diem’ of $179 a day — on top of a salary that exceeds $86,000! . . . He’s costing you big for small performance.” Although state representatives are offered a per diem, or daily allowance, Dowling said he has refused to accept it since taking office.

“A plain reading of the Facebook post which Plaintiff seeks to suppress makes no claim that Plaintiff accepts the per diem, only that the compensation includes a per diem of $179.00 per day, a claim that Plaintiff cannot refute,” the judge wrote. “Thus, Plaintiff cannot prevail on this claim.”

In a phone call with the Daily American, Mahoney said he’s happy the “truth is out in the air.”

“I’ve been telling the truth all the way through this campaign, and all he’s been doing is lying on the issues about me,” he said.

Mahoney said it has been a mean-spirited campaign on both sides during this election season. He said the candidates should be talking about the issues and what they can do for the people of the district.

“I don’t like running campaigns like this, but I’m not going to run away and not defend myself,” he said.

The general election is Tuesday. The court order and decision can be read online at www.dailyamerican.com.