In Re Nomination of Flaherty
In Re Nomination of Flaherty
Concurring Opinion
Concurring.
Although I join the majority’s disposition, I would not presently overrule existing Commonwealth Court jurispru
Thus, with regard to signatures obtained in Erie County appearing on pages 28, lines 11 through 29, and 43, lines 13 through 20, of the nominating petition, I would merely hold that the record fails to establish that the circulator (in this instance the candidate) possessed the requisite degree of personal knowledge to support her affidavit.
Opinion of the Court
OPINION OF THE COURT
Appellant, John A. Hanna, appeals from an order of the Commonwealth Court which dismissed his petition to set aside the nomination petition of Mary Flaherty (“Candidate”), a candidate for the primary election for the Democratic nomination for Judge of the Commonwealth Court.
On March 6, 2001, Candidate filed a nomination petition with the Secretary of the Commonwealth which allegedly contained 1,912 valid signatures of registered and enrolled electors of the Democratic Party residing in the Commonwealth, including over one hundred signatures from electors
The Commonwealth Court conducted a full hearing over the course of several days, and on March 30, 2001, the court issued a memorandum opinion and order directing the Secretary of the Commonwealth to certify that Candidate’s name be placed on the ballot for the May 15, 2001 primary election for the Democratic nomination for Judge of the Commonwealth Court. In concluding that certification was proper, the Commonwealth Court first found that Candidate’s nomination petition met the quota of one thousand valid signatures because Appellant had not pursued sufficient challenges to the 1,910 signatures on Candidate’s petition to bring the total number of signatures below the 1,000 minimum requirement.
As for Appellant’s challenge involving the five county requirement, the court noted that Candidate’s nomination peti
Candidate stipulated that several of the signatures from electors in Montour County were invalid and as a result, the court found that her nomination petition contained less than one hundred valid signatures by electors in Montour County. Candidate further conceded that a significant number of signatures by electors in Erie and Philadelphia counties should be removed. After factoring in the signatures conceded by Candidate to be invalid, the Commonwealth Court then reviewed the contested signatures by electors residing in Erie and Philadelphia counties. The court agreed with Appellant that many of the signatures had to be struck from Candidate’s nomination petition for various reasons.
On appeal to this Court, Appellant argues that the Commonwealth Court erred in overruling objections to a total of twenty signatures by electors in Erie County and a total of sixteen signatures by electors in Philadelphia county.
In reviewing the order of the trial court concerning the validity of challenges to a nomination petition, our standard of review is whether the findings of fact are supported by substantial evidence, whether there was an abuse of discretion, or whether errors of law were committed. In re Certificate of Nomination of 143rd Legislative District, 585 Pa. 2,
Appellant initially claims that the Commonwealth Court failed to strike the names of two electors from Erie County, Lawrence Droney (p. 43, line 2) and Kathleen Sharpies (p. 50, line 7), and one name of an elector in Philadelphia County, Stacey Powell (p. 8, line 7), on account of the fact that these three electors printed their names on Candidate’s nomination petition, rather than writing their names in cursive. We agree with Appellant that these three names must be removed.
Section 908 of the Election Code directs that all electors shall sign their name to a candidate’s nomination petition. 25 P.S. § 2868; In re Nomination Petition of Silcox, 543 Pa. 647, 647, 674 A.2d 224, 225 (1996).
Here, in overruling Appellant’s objection to Lawrence Droney’s printed signature, the Commonwealth Court noted that although Mr. Droney had signed his name in cursive on his original registration card in 1947, Mr. Droney was eighty-one years old at the time he printed his name on the petition and his printed signature was consistent with that of an elderly person. While this may be the case, the fact remains that Mr. Droney’s printed signature on Candidate’s nomination petition did not match his name as signed on his voter registration card and therefore, his name must be removed from the petition. See In re Cooper, 163 Pa.Commw. at 447, 643 A.2d at 725.
The Commonwealth Court also refused to strike Kathleen Sharpies’ printed signature. In Kathleen Sharpies’ case, the court found that although Ms. Sharpies’ signature had at one time been affixed by adhesive tape to her voter registration card, it had since become unattached from her registration card, thereby making it impossible for the court to compare her printed signature to her registered signature. Given the possibility that Ms. Sharpies’ printed signature may have matched her signature on her voter registration card, the court declined to remove her printed name from the petition. We disagree, and instead find that the Commonwealth Court erred in failing to strike Kathleen Sharpies’ printed signature.
Initially, we note that electors have a responsibility, as where an elector moves to a new address, to contact the registration commission and obtain a new registration card when their card is damaged or destroyed. In any event, we
Appellant also challenges Stacey Powell’s signature on the basis that it was printed. The Commonwealth Court accepted Ms. Powell’s printed signature on the petition because Ms. Powell had both printed her name and signed her name in cursive on her registration card and Candidate’s handwriting expert testified that Ms. Powell’s printed signature on the petition was similar to her printed signature on her registration card. However, in light of our finding that an elector may not print her name on a nomination petition, Stacey Powell’s signature must be stricken.
A person is required to indicate, under penalty of perjury, his or her place of residence in order to register as an elector. 25 P.S. § 961.501. Furthermore, when electors move either within the same county or to another county within the Commonwealth, they must notify the registration commission of their new address by filing a removal notice generally no later than 30 days preceding an election. 25 P.S. §§ 961.901-961.902. Indeed, the registration commission must verify the residences of registered electors to insure that the qualified elector actually resides at the address listed on his voter registration card. 25 P.S. §§ 961.906-961.907; In re Nomination Petition of Wesley, 536 Pa. at 615, 640 A.2d at 1249; In re Pittsburgh Home Rule Charter, 694 A.2d 1128, 1131-32 (Pa. Commw. 1997). Thus, absent extraordinary circumstances, electors who declare a residence at an address different than the address listed on their voter registration card are not qualified electors at the túne they sign a nomination petition unless they have completed the removal notice required by the Voter Registration Act. Id., 536 Pa. at 612-14, 640 A.2d at 1249; In re Pittsburgh Home Rule Charter, 694 A.2d at 1131— 32.
In upholding the signatures at issue in the instant case, the Commonwealth Court relied upon In re Nomination Petition of Cooper, 163 Pa.Commw. at 449, 643 A.2d at 726, where the court found that even if an elector’s address is not identical to that found on the elector’s registration card, the elector’s signature should not be struck without an allegation that the elector does not actually live at the address on the petition. Based on In re Cooper, the court below refused to strike the signatures of electors whose addresses on the petition did not match their registered addresses because
Appellant further challenges the Commonwealth Court’s findings that Candidate presented sufficient evidence to prove that the signatures of two electors from Erie County and nine signatures by electors in Philadelphia County were genuine. Upon reviewing the evidence regarding the signatures that Appellant challenges, we find that there was substantial evidence provided by Candidate to substantiate the Commonwealth Court’s acceptance of the signatures by all seven electors from Erie County and by eight of the electors from Philadelphia County. However, we agree with Appellant that Candidate failed to offer sufficient evidence to rebut that evidence presented by Appellant that the signature of one elector from Philadelphia County, that of Lawrence McNish (p. 8, line 15), was not genuine.
Here, both Candidate’s handwriting expert, John S. Gencavage, and Appellant’s handwriting expert, Michelle Dresbold, testified concerning the authenticity of Lawrence McNish’s signature. The Commonwealth Court found that Mr. Genca
Q: Do you have an opinion regarding the authenticity or genuineness of the signature on the nomination petition after making a comparison with the voter registration card?
A: My opinion is that the — Line 15, Lawrence McNish, on Page 8 does not match the voter registration card of Lawrence McNish. The reasons for that are on page — on Line 15, it’s a slow, drawn handwriting. On the voter registration card, it’s a fast handwriting and a stylized handwriting. Q: What does that mean, fast and slow?
A: When you write your natural handwriting, since you’re very used to writing your own signature you write quickly. When you’re writing it on-Q: How is that reflected in style, though?
A: When you’re writing — okay. When you’re writing a name that you’re not as familiar with, you will go slower because it’s not as natural. When you look at a handwriting that’s natural, it has a free flow to it. When you look at a handwriting that is less — that is not natural it will have a tighter, more drawn appearance about it.
So on Lawrence McNish on the voter registration you have a very fast, free handwriting. You have an S that’s made almost like an 8 S that’s stylized into his H which has a nice loop about it. There’s a completely different S on the petition and a completely different H. You have a C in McNish on the voter registration card that is high and up in the air. You have a C on the petition that is low and touches the line. You also have at the end of Lawrence an E on the petition that stops abruptly. You have an E on the voter registration card that is long and drawn out to a point.
You also have a break, meaning there is skips in handwriting, on the petition in the name Lawrence. You have an AW. Then you have a break where the person starts the REN. Then you have a break. Then you have a CE. On the
*685 voter registration card the name — the AWRCE is all continuous with absolutely no breaks.- Let’s see.
The M, on the voter registration card starts with a fine, thin point. And you have an M on the petition that starts abruptly with a heavier point.
N.T., 3/27/01, at 81-83. In defense, John S. Gencavage testified accordingly:
Q: Mr. Gencavage, we’re on Page 8, Line 15, the signature of Lawrence McNish. There has been testimony by the petitioner’s expert that this is not a genuine signature. Do you have any opinion on that?
A: Well, I really couldn’t — can’t reach a conclusion on it. I’m looking at the line quality. I’m looking at some erratic movements and so forth in the signature card, and I’m looking at a much neater signature on the petition. I would need additional standards before I could make a statement concerning that signature.
Q: So do you believe that it is not the elector or you just can’t tell?
A: I can’t tell.
N.T., 3/27/01, at 130.
Comparing the testimony elicited by these two experts, we believe that Ms. Dresbold presented substantial evidence to support Appellant’s claim that the signature of Mr. McNish was improper. On the other hand, we find that Mr. Gencavage’s opinion as to whether Mr. McNish’s signature was genuine was completely equivocal. Such equivocal testimony is simply inadequate to support the Commonwealth Court’s determination that Candidate sufficiently proved that Lawrence McNish’s signature was genuine, and therefore, we strike Lawrence McNish’s signature from the petition. See In re Nomination of 143rd Legislative District, 535 Pa. at 8, 634 A.2d at 158; Feinberg, D.D.S. v. Unemployment Compensation Board of Review, 160 Pa.Commw. 524, 529, 635 A.2d 682, 684 (1993) (testimony which is so uncertain, equivocal, or
Finally, Appellant claims that the Commonwealth Court erroneously failed to strike nine signatures of electors from Erie County, which were listed on two pages of Candidate’s nomination petition, because Candidate signed the circulator affidavit on the back of these pages and she did not have the requisite personal knowledge, as prescribed by the Election Code, to affirm those signatures. We agree with Appellant that the nine signatures from Erie County challenged by Appellant should be struck.
Section 909 of the Election Code provides in relevant part:
Each sheet shall have appended thereto the affidavit of the circulator of each sheet, setting forth-(a) that he or she is a qualified elector duly registered and enrolled as a member of the designated party of the State ... (b) his residence ... (c) that the signers thereto signed with the full knowledge of the contents of the petition; (d) that their respective residences are correctly stated therein; (e) that they all reside in the county named in the affidavit; (f) that each signed on the date set opposite his name; and (g) that, to the best of the affiant’s knowledge and belief, the signers are qualified electors and duly registered and enrolled members of the designated party of the State.
25 P.S. § 2869. The language in Section 909, therefore, unambiguously requires that the circulator affirming the petition be aware of five criteria about each individual signer: (1) the signer signed the petition with full knowledge of its contents; (2) the signer’s address is correct; (3) the signer resides in the county in the affidavit; (4) the signer signed the petition on the date set forth; and (5) to the best of the circulator’s knowledge and belief, the signer was a qualified elector and a member of the party claimed on the petition. In order to know this information, it seems clear that the circulator needs to be present when each signer agrees to sign the petition.
We disagree with this relaxed standard. Although Section 909 does not explicitly state that the circulator must be present at the time signatures are obtained, the circulator clearly must be present when an elector signs the petition in order to truly be aware of the criteria listed in Section 909. Accordingly, based on the criteria listed in Section 909, which a circulator must know in order to affirm the petition, we believe that the General Assembly intended that the circulator affirming the petition be present when each elector signs his name to that petition. From this point hence, therefore, signatures shall be removed from a petition if the circulator who has affirmed the petition was not in the presence of an elector as the elector signed the petition.
Here, Appellant claims that Candidate did not have sufficient knowledge pursuant to Section 909 to affirm page 28, lines 11 through 29, and page 43, lines 13 through 20. Candi
Q: Page 28. There are 29 lines completed on that page? A: Yes.
Q: Did you circulate and personally obtain each and every signature on that page?
A: I have a recollection of obtaining some names but not all the names.
Q: Can you tell me which ones you did obtain?
A: 1 through 10 I obtained. I have a recollection of being on Pin Oak Road____I looked for the notes on this, I can’t find it, so I can only tell you what my recollection is, and I don’t have a recollection of actually collecting any names there....
Q: I’m trying to understand. Do you have any personal knowledge regarding lines 11 through 29 of page 28?
A: I have some knowledge. I just don’t have — my recollection for that day is not clear, and so I’m not sure how to answer the question.
Q: What personal knowledge do you have for lines 11 through 29?
A: I was in the neighborhood, I went door to door, and I remember collecting a couple of signatures, but I don’t remember collecting this many signatures. That’s my personal knowledge.
Q: Page 43, my notes show there are 20 lines of signatures____ Did you personally circulate that petition and obtain each and every signature on that page?
A: I definitely circulated — I obtained all the signatures in green, and then the signatures in blue. I was there. The reason I’m hesitating is that this was a Friday, and if you will notice there’s blue writing and I had someone with me circulating petitions.
Q: Who was that?
*689 A: Andy McGraw, and he signed the circulator to petitions, and he had a blue pen and I had a green pen, and I do remember at some point in time of us both having the same colored pens, and I said this is going to be a problem if we have to figure this out later.
I can tell you that on that day when he and I went together circulating petitions, we went side by side or across the street and we never left each other’s sight. And the most that could have happened is that he could have had this clipboard, our clipboards could have gotten mixed up or pens could have gotten mixed up. But I physically went door to door, and the most I could have been was across the street or next door to this person signing this.
Q: ... Were you in the presence of the signer and person-
ally observe them signing your nomination petition?
A: As to the green I was, and as to the blue, I could have been.
Q: I’m looking at lines 13 through 20, and it’s still not clear to me. You haven’t stated one way or another whether you physically observed them signing their name, if you remember?
A: My memory isn’t clear to any of those particular people for that particular question.
N.T., 3/28/01, at 91-97 (emphasis added). Upon reviewing this testimony, we agree with Appellant that Candidate lacked the requisite knowledge prescribed by Section 909 to affirm the signatures on lines 11 through 29 on page 28 and on lines 13 through 20 on page 43. As Candidate could not recall whether she collected the signatures on lines 11 through 29 on page 28, Candidate did not have sufficient knowledge of the criteria in Section 909 to affirm those electors’ signatures. Therefore, the seven signatures on lines 11 through 29 listed on page 28 challenged by Appellant are struck.
Furthermore, Candidate testified that she could not remember any of the electors who signed on lines 13 through 20 on
As a result of our finding that eighteen signatures by electors from Erie County must be stricken and eleven signatures by electors from Philadelphia County must be stricken, Candidate’s nomination petition contains less than one hundred valid signatures from both of these counties.
. This Court has exclusive jurisdiction over this matter pursuant to 42 Pa.C.S. § 723(a), which provides for a direct appeal from a final order of the Commonwealth Court concerning any matter commenced in that court.
. Under Section 977 of the Election Code, all nomination petitions filed by prospective candidates within the appropriate time before an election shall be deemed valid, unless, within seven days after the last day for filing, a petition is presented to the court specifically setting forth objections and praying that the candidate’s nomination petition be set aside. 25 P.S. § 2937.
. Section 912.1(10) of the Election Code, 25 P.S. § 2872.1, states that a candidate for nomination of the office of Judge of the Commonwealth Court must present a nomination petition with at least one thousand valid signatures of registered and enrolled members of the proper party, including one hundred valid signatures from each of at least five counties in the Commonwealth. 25 P.S. § 2872.1.
. The signatures were stricken by the court based on the following reasons: the signatures were illegible, the signature on the petition did not match the signature on the electors’ registration card, the signatures were printed and Candidate did not offer any rehabilitating testimony, or the electors were not registered and Candidate failed to present rehabilitating testimony.
. As a threshold matter, Candidate claims that Appellant lacks standing to object to her nomination petition. In support of her claim, Candidate points to the fact that while the Commonwealth Court did not reach the issue of whether Appellant had standing based on the fact that it had reviewed the merits and found in favor of Candidate, the Commonwealth Court nonetheless noted that Appellant did not present the court with sufficient proof that he was a registered elector at his claimed address. See In re Nomination Petition of Samms, 543 Pa. 681, 674 A.2d 240 (1996) (to challenge a nomination petition, one must be registered to vote in the district holding the primary election and be a member of the political party to which the nomination pertains). Upon review, however, we find that the Commonwealth Court made this statement in response to the fact that Appellant provided the court with a poor copy of his registration record from the office of the Chief Registrar of Indiana County, which did not clearly discern his address. Although we agree that Appellant should have provided the court with a clearer copy, the copy offered by Appellant did indicate that he is a registered voter and a member of the Democratic Party. Given these circumstances, we find that Appellant has standing to challenge Candidate’s petition.
. When interpreting statutes, we note that if “the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).
. The Voter Registration Act provides that in the case of filing a notification of removal, an elector who is unable to sign the notification document may affix a mark to the document in the presence of a witness who must also sign the document and acknowledge the mark made by the elector. 25 P.S. § 961.902. We believe that this procedure should also apply to a situation where an elector is unable, because of his age or any other reason, to sign a nomination petition.
. Section 908 specifically provides that “[e]ach signer of a nomination petition shall sign but one such petition ... and shall declare therein that he is a registered and enrolled member of the party designated in such petition." 25 P.S. § 2868.
. As explained earlier in this opinion, the Commonwealth Court concluded that Candidate’s nomination petition listed 115 valid signatures by electors in Erie County and 110 valid signatures by electors in Philadelphia County. We have determined that an additional eighteen signatures by electors in Erie County and eleven signatures by electors in Philadelphia County must be removed. Consequently, Candidate's petition contains 97 valid signatures by electors in Erie County and 99 valid signatures by electors in Philadelphia County.
Reference
- Full Case Name
- In Re NOMINATION Petition OF Mary FLAHERTY for Office of Judge of the Commonwealth Court. Appeal of John A. Hanna
- Cited By
- 79 cases
- Status
- Published