IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA In Re: Nomination Petition of : Patrick Parkinson As Democratic : Candidate for Office of : Committee Person : No. 488 C.D : Submitted: April 4, 2014 Appeal of: Patricia T. Quinn : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: April 11, 2014 Patricia T. Quinn (Objector) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), 1 which denied her petition to set aside the nomination petition of Patrick Parkinson (Candidate) as a Democratic Candidate for Office of Executive Committee for the 57th Ward, 16th Division of Philadelphia in the Pennsylvania General Primary Election to be held on May 20, 2014 (Objection Petition). Objector contends the trial court improperly denied her signature challenges. Upon review, we affirm. Pursuant to Section 912.1(35) of the Pennsylvania Election Code 2 (Election Code), a candidate for nomination to a party office, such as committee 1 The Honorable Albert J. Snite presided. 2 Act of June 3, 1937, P.L. 1333, as amended, added by the Act of December 12, 1984, P.L. 968, as amended, 25 P.S (14).

2 person, must present at least 10 valid signatures of registered and enrolled members of the candidate s political party who are qualified electors of the political district within which the nomination is to be made. See Section 907 of the Election Code, 25 P.S Candidate timely filed a nomination petition, comprised of one page containing, 10 signatures (Nomination Petition). Candidate circulated his Nomination Petition. Objector filed the Objection Petition, challenging six signature lines. Specifically, Objector challenged two signatures on the grounds the elector did not sign by using his or her complete name, but rather signed using the first letter of his or her first name and entire last name. In addition, Objector objected to four signatures on the basis the information was written in the hand of another. Thus, Objector argued Candidate s Nomination Petition contains insufficient valid signatures to remain on the ballot and should be set aside. The trial court held a consolidated hearing on the Objection Petition as well as Objector s petition to set aside the nomination petition of Anna M. Parkinson, Candidate s wife, as both cases involved the same signatures, issues, evidence, and attorneys. 3 Tr. Ct., Slip Op., 4/1/14, at 1 n.2; see In re Nomination Petition of Anna M. Parkinson (C.P. Phila., No , filed April 1, 2014); Tr. Ct. Hr g, Notes of Testimony (N.T.), 3/21/14, at As the trial court explained, Objector attached the wrong nomination petition to her Objection Petition. Tr. Ct., Slip Op., 4/1/14, at 1 n.2. Specifically, Objector attached Anna M. Parkinson s nomination petition as an exhibit to the Objection Petition challenging Candidate s Nomination Petition and vice versa, which caused the trial court to hear the objections as if made to both petitions. Id. Objector subsequently filed a praecipe to the correct the error. See Id. 2

3 At the hearing, Objector presented the testimony of William J. Ries, a handwriting expert (Expert). Candidate and his wife testified. In addition, Candidate offered sworn affidavits of the electors, to which Objector objected on hearsay grounds. However, the trial court did not rule on Objector s hearsay objection, and it did not mark or enter the affidavits into evidence. Nevertheless, the affidavits were mentioned, examined, and retained by the trial court. Tr. Ct., Slip Op., at 2 n.5. The trial court considered them as evidence. Id. Based on the testimony and evidence presented, the trial court found the electors on lines three and four of the Nomination Petition signed their names using the first letter of the first name, along with their entire last name. The trial court recognized that the first initial of the first name is generally not an acceptable signature if it differs from the signature on record. In re Nomination Petition of Brown, 846 A.2d 783 (Pa. Cmwlth. 2004) (single judge op., Friedman, J.). However, this defect can be cured by direct evidence that the signor intended the first initial of the first name to be a substitute for the first name in the signature. Id. at 789. The trial court determined the signatures were an acceptable substitute for the signatures on the voter registration card, in which the first names are spelled out. The trial court reasoned Candidate circulated his Nomination Petition and the electors in question live two doors from Candidate. The trial court observed the affidavits provide the electors full names typed out and the electors attestation that they signed the Nomination Petition using only an initial for their first names. The trial court explained, [w]hile affidavits are not favored and may very well be 3

4 insufficient and/or inadmissible depending upon the precise issue in question, it is the combination of live testimony from the Candidate/circulator, along with the affidavit s averments and the affidavits showing a first initial in their signatures, which persuaded the Court to accept the signatures. Tr. Ct., Slip Op., at 2. With regard to the in the hand of another challenge, Expert testified the same person completed lines five and six. 4 However, the trial court did not find Expert s testimony persuasive and rejected his opinion as to these two signatures. The trial court credited the testimony offered by Candidate and his wife that they witnessed the signors enter all the information themselves. Thus, the trial court did not find they were entered by the same person or written in the hand of another, and it denied the challenge. Ultimately, the trial court concluded that Objector failed to meet her burden of proving Candidate s Nomination Petition contained insufficient signatures. Thus, the trial court denied Objector s Objection Petition. This appeal now follows. On appeal, Objector first argues the trial court erred by allowing the use of the first letter of the electors first names to suffice as an acceptable deviation from the full first name signature used on the elector s voter registration card. Objector maintains there is no competent evidence on which to conclude the 4 Objector also challenged lines one and two, which Candidate and his wife signed, on the same basis. However, Expert testified the lines were not signed by the same person. Objector withdrew the objection. N.T. at 8. 4

5 signors intended the first initial of their first names to be a substitute for the first names in the signature. Objector asserts the trial court erred by considering the affidavits of the signors as they constitute inadmissible hearsay and do not state the electors intended the initials to serve as their signatures. Preliminarily, we note, this Court may only reverse a trial court s order concerning the validity of challenges to a nomination petition if the trial court s findings of fact are not supported by substantial evidence in the record, there was an abuse of discretion, or there was an error of law. See In re Nomination Petition of Driscoll, 577 Pa. 501, 847 A.2d 44 (2004). Moreover, in reviewing election issues, the reviewing court must consider the longstanding and overriding policy in our Commonwealth to protect the elective franchise. Id. In furtherance of this policy, 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. In re Nomination Petition of Flaherty, 564 Pa. 671, 679, 770 A.2d 327, 331 (2001). The purpose of the Election Code is to protect, not defeat, a citizen s vote. Dayhoff v. Weaver, 808 A.2d 1002 (Pa. Cmwlth. 2002). Furthermore, nomination petitions are presumed to be valid, and an objector bears the burden of overcoming that presumption. See Section 977 of the Election Code, 25 P.S. 2937; Driscoll; Flaherty. In In re Nomination Petition of Gales, 618 Pa. 93,, 54 A.3d 855, 859 (2012), the Supreme Court held the Election Code does not prohibit an elector from signing a nomination petition using an obvious diminutive form of his or her first name that does not call into question the identity of the signatory or 5

6 compromise the integrity of the election process, rather than the formal first name that appears on the elector s voter registration card. However, the Court noted, where the elector signs only the first letter of his or her first name, a nickname, or any other name that, absent other evidence, is not readily identifiable as being the same name that appears on the voter registration card, those signatures are not valid. Id. at, 54 A.3d at 859 n.5. The Supreme Court emphasized signatures should be upheld where [a]ny individual examining the face of the nomination petition and comparing the challenged signatures to the voter registration cards of the electors would have no difficulty determining the identity of the signatory. Id. at, 54 A.3d at 859 (emphasis added). The Court continued, in all challenges to nomination petitions, each signature will have to be examined independently to determine whether, in fact, the diminutive form of the name appearing on the nomination petition is an obvious substitute for the formal name. Id. at, 54 A.3d at 861. Here, the trial court compared the names appearing on the Candidate s Nomination Petition to the names on the voter registration. On line three, the elector signed her name C. Bryant on the Nomination Petition, but signed as Cory Bryant on the registration card. On line four, the elector signed her name K. Bryant on the Nomination Petition, but signed as Katherine Bryant on the registration card. Although the electors signed their names with an initial, both electors printed their full names on the Nomination Petition. 6

7 The trial court determined the signors intended to sign their names using initials. See N.T. at 34. The trial court compared the signatures on the Nomination Petition to the signatures on the voter registrations. Significantly, the trial court observed that the cursive signature of the last name on the Nomination Petition matched the signature of the last name on the voter registration for both electors. N.T. at 10. Even Expert testified the signatures on the Nomination Petition and voter registration were written by the same person. Id. Additionally, Candidate s wife testified she witnessed electors Cory Bryant and Katherine Bryant sign their names and enter the line information. N.T. at Although the trial court also considered the affidavits, over Objector s hearsay objections, the trial court did not base its decision solely on the affidavits. Rather, the trial court relied on the combination of live testimony and signature comparison in determining the signatures validity. Based on our review, the trial court did not err or abuse its discretion in determining the signatures were genuine. See In re Nader, 580 Pa. 22, 858 A.2d 1167 (2004) (providing where the Court is not convinced the challenged signatures are other than genuine, the challenge is to be resolved in favor of the candidate). Notwithstanding the use of an initial in the signature of the first name, upon comparing the challenged signatures on the Nomination Petition to the signatures on the voter registrations, the trial court had no difficulty determining the identity of the signatories. See Gales. Moreover, there is no allegation of fraud or other basis to cast serious doubt as to the genuineness of the signatures. Indeed, Objector s own expert testified the same persons that signed the Nomination 7

8 Petition signed the voter registration. N.T. at 10. We, therefore, conclude the trial court properly declined to strike these signatures. Next, Objector argues the trial court erred by allowing signatures lines where the printed information was clearly entered by the hand of another. Section 908 of the Election Code, 25 P.S. 2868, provides that each signer of a nomination petition shall add his residence, giving city, borough or township, with street and number, if any, and shall legibly print his name and add the date of signing, expressed in words or numbers. Each item required of an elector signing a nomination petition must be personally written by the elector. In re Morrison-Wesley, 946 A.2d 789 (Pa. Cmwlth.), aff d, 596 Pa. 457, 944 A.2d 78 (2008). Where a court finds a signature is not genuine because it is in the handwriting of another, the signatures will be stricken. Morrison-Wesley (upon finding a single person signed for two electors, either by signing the name of the second elector or by filling in the second elector s required information, such as address and date of signing, the court struck the second elector s signature). Generally, expert testimony is required to prove the signature line information was added by the hand of another. See id; In re Freeman, 540 A.2d 606 (Pa. Cmwlth. 1988). Here, Objector s Expert testified that similarities exist between lines five and six. N.T. at He opined that, although the cursive signatures appear 8

9 to be written by two different people, the informational entries, i.e., the printed name and address, were written by the same person. Id. However, Candidate and his wife both testified they personally witnessed each elector sign his or her name and complete the printed name and address information in his or her own hand. Id. at 17, 32. The trial court weighed the conflicting testimony and ultimately credited the testimony of Candidate and his wife over Expert s testimony to the contrary. Questions of credibility and conflicts in the evidence are for the trial court to resolve. McKenna v. Dep t of Transp., Bureau of Driver Licensing, 72 A.3d 294 (Pa. Cmwlth. 2013). Such credibility determinations are beyond the scope of our review. Id. We, therefore, conclude the trial court did not err in determining Objector did not overcome the presumption of validity for the signatures on lines five and six of the Nomination Petition. Accordingly, the order of the trial court is affirmed. ROBERT SIMPSON, Judge 9

10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA In Re: Nomination Petition of : Patrick Parkinson As Democratic : Candidate for Office of : Committee Person : No. 488 C.D : Appeal of: Patricia T. Quinn O R D E R AND NOW, this 11th day of April 2014, the order of the Court of Common Pleas of Philadelphia County is AFFIRMED. ROBERT SIMPSON, Judge