In re Contest of 2003 General Election for the Office of Prothonotary of Washington County
In re Contest of 2003 General Election for the Office of Prothonotary of Washington County
Opinion of the Court
OPINION OF THE COURT
Appellant Phyllis Ranko Matheny appeals from the order of the Commonwealth Court which reversed the December 22, 2003 order of the Court of Common'Pleas of Washington County dismissing Appellee Judith Fisher’s petitions to open the ballot boxes in nine election districts in Washington County. For the reasons that follow, we reverse the Commonwealth Court’s order.
Matheny and Fisher were candidates in the November 4, 2003 election for the Office of Prothonotary of Washington County.
On November 24, 2003, Fisher filed a petition contesting the election, arguing that certain absentee ballots had not been properly delivered to the Washington County Voter’s Registration Office. In response; Matheny filed preliminary objections, asserting, among other things, that Fisher’s petition must be dismissed because it was not signed by twenty registered electors as required by section 1751 of the Election Code.
On December 1, 2003, the Board officially certified Matheny as the winner of the election for the Office of Prothonotary. That same day, Fisher filed nine petitions pursuant to section 1701 of the Election Code,
On December 4, 2003, Fisher filed a motion with the trial court requesting that the court: (1) reconsider its December 3, 2003 order; (2) grant her allowance to amend her nine petitions; and (3) stay its December 3rd order. On December 10, 2003, the trial court entered an order denying Fisher’s request that it reconsider its December 3rd order, but granting Fisher three days to cure the errors in her nine petitions by filing nine amended petitions. Accordingly, on December 12, 2003, Fisher filed nine amended petitions that contained averments by the electors who verified each petition that they were qualified electors in the election district at issue and that they were joining Fisher in filing the petition they had signed.
As she had with respect to Fisher’s original petitions, Matheny filed preliminary objections to Fisher’s amended petitions. Matheny argued that Fisher’s amended petitions were defective because the three electors who signed the verifications attached to the petitions had failed to sign the petitions themselves. Matheny also contended, as she had before, that the petitions were defective because the electors had not signed their verifications before a notary. On December 22, 2003, the trial court entered an order granting Matheny’s preliminary objections and thereby dismissing Fisher’s petitions.
Fisher appealed from the trial court’s order to the Commonwealth Court.
On December 31, 2003, the Commonwealth Court entered an order scheduling argument in the matter for January 8, 2004.
Whether proceedings should be allowed to continue on the petitions to open the ballot boxes and recount votes, where the election results have already been certified, the declared winner has been sworn in, and there is no underlying election contest?14
Whether the Commonwealth Court erred when it concluded that the amended petitions were properly verified without notarization as required by the Election Code because they were verified by the statement referring to unsworn falsification to authorities?
See In re Contest of 2003 General Election for Office of Prothonotary of Washington County, 845 A.2d 757, 2004 WL 298702 (Pa. February 17, 2004).
In the first of her two claims, Matheny argues that we should not consider Fisher’s nine petitions to open the ballot boxes because the results of an election cannot be changed after they have been certified except by means of an election contest petition.
Section 1701 of the Election Code grants electors the right to file petitions to open the ballot boxes (“Petitions to Open”) so long as they are filed “no later than five (5) days after the completion of the computational canvassing of all returns of the county by the county board.” • 25 P.S. § 3268. Moreover, to complement this right, section 1404 of the Election Code states that the county board may only certify the results of an election “[a]t the expiration of five days after the completion of the computation of votes” and even then, only if no Petition to Open has been filed. Id. § 3154(f) (emphasis added); see also Appeal of Chase, 389 Pa. 538, 133 A.2d 824, 827 (1957) (noting that “certification cannot be made until five days after the computation is completed ”) (italics in original) (underscore added); Appeal of Cole, 152 Pa.Cmwlth. 590, 620 A.2d 565, 568-69 (1993) (“Board may not make the final certification until after the court has ruled on the petition.”).
Unfortunately, the record in the instant case does not indicate when the Board concluded its official count. Fisher alleges that the Board concluded its count on November 26, 2003, exactly five days before she filed her nine Petitions to Open on December 1, 2003. Notably, Matheny neither disputes the November 26th date, nor contends that Fisher’s Petitions to Open were untimely.
Our goal in interpreting statutes is to ascertain and give effect to the General Assembly’s intent. See 1 Pa.C.S. § 1921; LTV Steel Co., Inc. v. Workers’ Compensation Appeal Bd. (Mozena), 562 Pa. 205,
Moreover, in considering statutory provisions of the Election Code, we must remember “the longstanding and overriding policy in our Commonwealth to protect the elective franchise.” In re Nomination Petition of Driscoll, 847 A.2d 44, 49, 2004 WL 729192, *3 (Pa. April 6, 2004). To promote this policy, this Court has consistently held that the provisions of the Election Code must “be liberally construed to protect a candidate’s right to run for office and the voters’ right to elect the candidate of their choice.” Id. see also In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327, 331 (2001); Weiskerger Appeal, 447 Pa. 418, 290 A.2d 108, 109 (1972). At the same time, however, we have said that “the policy of the liberal reading of the Election Code cannot be distorted to emasculate those requirements necessary to assure the probity of the process.” Petition of Cianfrani, 467 Pa. 491, 359 A.2d 383, 384 (1976).
As already made clear, this case concerns section 1701 of the Election Code, which grants electors the right to petition the trial court to order that the ballot boxes be opened following an election. According to section 1701, the trial court must open the ballot box in an election district and direct that the ballots in that box be counted where three qualified electors from the district file “a petition duly verified by them,” alleging that they have reasonable information to believe that fraud or error occurred in the computation of the votes. 25 P.S. § 3261(a) (emphasis added). Significantly, however, as both the trial court and Commonwealth Court pointed out below, the Election Code does not define the term “verified.”
In determining the meaning of the term “verified” for purposes of section 1701, the lower courts looked solely to the definitions for “verified” provided in the Judicial Code and the Rules of Civil Procedure. However, the Judicial Code and the Rules of Civil Procedure are only meant to apply to those statutory provisions or rules promulgated, respectively, as part of the Judicial Code or Rules of Civil Procedure. See 42 Pa.C.S. § 102 (“the following words and phrases when used in this title shall have ... the meanings given to them in this section”) (emphasis added); Pa. R.C.P. 76 (“[t]he following words and phrases when used in any rule promulgated by the Supreme Court ... shall have the following meanings”). In contrast, the Statutory Construction Act is meant to apply to “any statute finally enacted on or after September 1, 1937,” such as the Election Code, unless the context of the statutory provisions at issue “clearly indicates otherwise.”
Significantly, previous decisions from this Court and the Commonwealth Court also support our conclusion that the term verified in section 1701 means that a Peti
The Commonwealth Court similarly addressed the section 1701 verification requirement in Giacobello v. Bd. of Elections of Borough of Mount Union, County of Huntingdon, 14 Pa.Cmwlth. 376, 322 A.2d 429 (1974). In that case, the Commonwealth Court concluded that the trial court had properly dismissed a Petition to Open because the three electors who signed the Petition “did not appear personally before the Justice of the Peace to take the affidavit, nor was any oath administered to them by the said Justice.” Id. at 430. The Commonwealth Court acknowledged that the General Assembly had made the procedure to open ballot boxes relatively easy, but noted that it had also included the verification requirement, no doubt because it “felt it necessary to require some basis for the opening of boxes to prevent the filing of Petitions for the sole purpose of indulging in a ‘fishing expedition’ ”. Id. at 431 (citing to Giacobello Trial Ct. Op.).
Our decision in Henry and the Commonwealth Court’s decision in Giacobello therefore provide further support for the conclusion that electors must verify a petition to recanvass or a Petition to Open by
Based on this case law as well as the definition for verification in the Statutory Construction Act, we hold that the electors who signed Fisher’s nine Petitions to Open were required to verify them by means of an oath or affirmation before a notary or other public official. Furthermore, as this Court has made clear that an improper verification is “a jurisdictional defect that [cannot] be cured,” we hold that Fisher’s nine Petitions to Open must be dismissed. In re Opening of Ballot Boxes, Montour County, 718 A.2d at 775 (“it has been consistently held for more than eighty years that a recount petition not verified in accordance with the statutory requirements does not properly invoke the jurisdiction of the common pleas court and should be dismissed”).
Accordingly, although we find that the Board improperly certified the election results before the expiration of the fifth day after it completed its official count, we nevertheless hold that the results of that certification may stand because Fisher’s nine Petitions to Open are invalid and there are no other outstanding Petitions to Open that would require that the Board’s certification of Matheny as the winner of the election be changed.
. Matheny was the incumbent Prothonotary and initially ran against Fisher in the primary election for the Democratic Party nomination for the Office of Prothonotary. Although Fisher won the primary election and Democratic Party nomination, Matheny obtained sufficient votes to win the Republican Party nomination and therefore the two faced each other again in the November election.
. Act of June 3, 1937, P.L. 1333 (as amended 25 P.S. §§ 2600-3591).
.Section 1404 of the Election Code provides as follows:
The county board shall, at nine o’clock A.M. on the third day following the primary or election, at its office or at some other convenient public place at the county seat, of which due notice shall have been given as provided by section 1403, publicly commence the computation and canvassing of the returns, and continue the same from day to day until completed, in the manner*232 hereinafter provided. For this purpose any county board may organize itself into sections, each of which may simultaneously proceed with the computation and canvassing of the returns from various districts of the county in the manner provided by this section. Upon the completion of such computation and canvassing, the board shall tabulate the figures for the entire county and sign, announce and attest the same, as required by this section.
25 P.S. § 3154(a).
. Section 1751 of the Election Code provides that fifth class election contests "shall be tried and determined upon petition of twenty registered electors.” 25 P.S. § 3431; see also id. § 3291 (designating election for office of pro-thonotary as fifth class election).
. Section 1701 of the Election Code provides: The court of common pleas, or a judge thereof, of the county in which any election district is located in which ballots were used, shall open the ballot box of such election district used at any general, municipal, special or primary election held therein, and cause the entire vote thereof to be correctly counted by persons designated by such court or judge, if three qualified electors of the election district shall file, as hereinafter provided, a petition duly verified by them, alleging that upon information which they consider reliable they believe that fraud or error, although not manifest on the general return of votes made therefrom, was committed in the computation of the votes cast for all offices or for any particular office or offices in such election district, or in the marking of the ballots, or otherwise in connection with such ballots. It shall not be necessary for the petitioners to specify in their petition the particular act of fraud or error which they believe to have been committed, nor to offer evidence to substantiate the allegations of their petition.
25 P.S. § 3261(a).
.On December 1, 2003, Matheny also filed three petitions requesting the trial court to open the ballot boxes in three different election districts. Three days later, however, Matheny filed a motion to stay her petition, stating as follows:
In view of the fact that Matheny is presently ahead in the election count and the recount was necessary only if Fisher's petitions were granted, it is requested that the court stay any action on the instant petitions until any appeal or reconsideration is decided. In the event that no appeal is taken or such appeal results in an affirmance of Judge Emory’s decision, the instant petition will be withdrawn. In the event that any appeal or reconsideration results in the nine petitions being granted, the instant .petitions should be considered.
R.R. 136a. On December 30, 2004, the trial court' granted Matheny’s motion to stay her petitions "until any appeals or reconsidera-tions are completed concerning the nine petitions filed on behalf of Candidate Fisher.” R.R. 275a.
. In its order, the court merely stated that Matheny’s preliminary objections were granted as "the Amended Petitions fail to adhere to the format and requirements of the Election Code.” R.R. 251a.
. Fisher also appealed to this Court requesting that we exercise extraordinary jurisdiction over the matter pursuant to 42 Pa.C.S. § 726. This Court, however, subsequently entered an order transferring the matter to the Commonwealth Court, stating that extraordinary jurisdiction was improper and the Commonwealth Court appeared to have jurisdiction over the case pursuant to 42 Pa.C.S. § 762(a)(4)(i)(C).
. The trial court also agreed to impound the election returns in the three election districts that were the subject of Matheny's recount petitions. See supra n. 6; R.R. 271a.
. Notably, on January 5, 2004, Matheny was sworn in as the Prothonotary of Washington County based on the Board’s act of certifying her as the winner of the election.
. Pursuant to Rule 3102(c)(2) of the Rules of Appellate Procedure, this case was heard and decided by Senior Judge Flaherty of the Commonwealth Court. See Pa. R.A.P. 3102(c)(2) ("A single judge of the Commonwealth Court shall be a quorum of the Court for the purposes of hearing and determining ... [a]ny election matter.”).
. Following the Commonwealth Court's decision, the trial court issued a 1925(a) opinion explaining the reasoning for its December 22nd order. In the opinion, the trial court states that it dismissed Fisher’s amended petitions because the three electors who verified the petitions did not also sign the actual petitions. See R.R. 315a-16a.
. In its opinion, the Commonwealth Court also addressed a motion to quash that had been filed by Matheny before the case was argued. In that motion, Matheny argued that
. While Matheny did not raise this issue before the lower courts, it is not waivable as it implicates whether this Court has jurisdiction to even consider Fisher’s nine petitions to open the ballot boxes. See In re Adoption of N.M.B., 564 Pa. 117, 764 A.2d 1042, 1045 (2000).
. Based on the Commonwealth Court’s December 31st order, the case was remanded to the trial court, which entered an order appointing a board to recount the votes in the nine election districts at issue in Fisher’s petitions and directing the board to start recounting the votes as soon as possible. On January 23, 2004, however, the Commonwealth Court stayed the trial court’s order pending this Court’s disposition of Matheny’s petition for allowance of appeal.
. While Fisher filed an election contest petition with the trial court, the trial court denied that petition and Fisher did not appeal from the trial court’s order. See supra 232.
. While Matheny does not argue that Fisher’s Petitions to Open were untimely, she nevertheless asserts that the Petitions may not be considered because they were presented to the trial court on December 2, 2003, after the election results were certified. According to Matheny, section 1703(b) of the Election Code requires that Petitions to Open be presented to the trial court before the election results have been certified. See 25 P.S. § 3263(b). However, although section 1703(b) states that a trial court’s order concerning a Petition to Open shall not have any effect unless the Petition to Open was presented before the election re-suits were certified, we interpret "presented” here to mean that the Petition must have been filed with the Prothonotary. Such a reading is consistent with section 1703(a), which states that an elector must “file ” a Petition to Open no later than five days after the completion of the computation of the votes, and section 1404(f), which states that the Board may certify the votes on the expiration of the fifth day following the computation unless a Petition to Open has been “filed.’’ Id. §§ 3263(b) (emphasis added), 3154 (emphasis added).
. While the Election Code was initially enacted in June 1937, it has since been amended and thus, the definitions section of the Statutory Construction Act applies to it.
. Notably, the Statutory Construction Act does not also provide that the term ‘Verified” may include an unsworn document made subject to the penalties of 18 Pa.C.S. § 4904. In 1976, when the General Assembly adopted the Judicial Code, it introduced the concept that a verified document and an affidavit could include an unsworn document subject to the penalties of 18 Pa.C.S. § 4904. See Pa. R.C.P. 76 cmt. (1981). The Rules Committee of this Court subsequently incorporated this concept into the Rules of Appellate Procedure and the Rules of Civil Procedure. See id. (explaining that in 1981 the definitions of verified and affidavit in the Rules of Civil Procedure were “enlarged to include two alternatives: ... (1) the usual oath or affirmation before a notary or other person authorized to administer oaths or (2) a statement by the signer that it is made subject to the penalties of 18 Pa.C.S. § 4904_”). In contrast, the General Assembly did not incorporate this concept into the Statutory Construction Act, which continues to define "verified” as a writing supported by an oath or affirmation and an "affidavit” as a written statement sworn to or affirmed before an officer authorized to administer oaths or accept affirmations. See 1 Pa.C.S. § 1991.
. Such a reading is also consistent with other provisions of the Election Code concerning election challenges which indicate a petition challenging an election needs to be verified by means of an affidavit. See 25 P.S. § 3154 ("Whenever it shall appear that there is a discrepancy in the returns of any election district, or, upon petition of three voters of any district, verified by affidavit, that an error ... has been committed therein” the county election board shall recanvass the votes cast during the election.) (emphasis added); id. § 3457 (stating that where electors wish to contest an election, they must do so by means of a petition verified by their affidavits).
. While section 1702 concerns petitions for a recanvass voting machines, it states, like section 1701, that a petition for a recanvass must be "duly verified” by three electors. 25 P.S. § 3262.
. The Statutory Construction Act, which as noted above applies to the provisions of the Election Code, defines an affidavit as “[a] statement in writing of a fact or facts signed by the party making it, sworn to or affirmed before an officer ... authorized to administer oaths, or before the particular officer or individual designated by law as the one before whom it is to or may be taken, and officially certified to in the case of an officer under his seal of office.” 1 Pa.C.S. § 1991. Thus, an affidavit confirms the fact that an elector has verified a petition by means of an oath or affirmation.
. While Matheny filed three Petitions to Open on December 1st, she has indicated that she will withdraw these Petitions if Fisher’s nine Petitions to Open are dismissed, see supra n. 6.
Reference
- Full Case Name
- In re Contest of 2003 GENERAL ELECTION FOR THE OFFICE OF PROTHONOTARY of Washington County, Pennsylvania Appeal of Phyllis Ranko Matheny
- Cited By
- 22 cases
- Status
- Published