Opinion
No. 413 C.D. 2015
04-17-2015
In Re: Nomination Petition of Dennis Lee As Democratic Candidate for Office of City Commissioner Appeal of: Dennis Lee
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Pursuant to Internal Operating Procedure §258, this decision was reached without circulation to, or participation by, judges not sitting on the panel.
Dennis Lee (Candidate) appeals from the March 25, 2015 order of the Court of Common Pleas of Philadelphia County (trial court) concluding that Candidate's nomination petitions were defective and directing that Candidate's name be removed from the Democratic primary ballot for the Office of City Commissioner.
On or about February 24, 2015, Candidate timely filed 56 petition pages containing 2,058 signatures in support of his candidacy for the Office of City Commissioner in Philadelphia, together with a City Candidate's Affidavit (Affidavit) and a Statement of Financial Interests (SFI), with the Philadelphia City Commissioners' County Board of Elections. While the Affidavit included the notary stamp of Pamela T. Evans, it did not include her signature. In addition, Candidate's SFI identified the calendar year as 2015 and identified his occupation as a consultant for the Consulting Group, LLC.
Candidate later timely filed supplemental petition pages bringing his signature total to 4,497.
On March 17, 2015, Michael Cogbill (Objector) timely filed a petition to set aside Candidate's nomination petition with the trial court alleging that Candidate failed to file a SFI for 2014, which Objector described as a fatal defect. While Objector acknowledged that Candidate filed a 2015 SFI, Objector alleged that said form was incomplete and did not contain relevant information, including, but not limited to, Candidate's prior government employment. Objector also noted that the 2015 SFI did not include the interest rate for Candidate's identified creditor, Ford Credit, or identify positions which he holds or has held. Objector further alleged that the Affidavit failed to include the notary's signature as required by law.
The record reveals that that Candidate had been employed as a Chief Deputy City Commissioner for the City of Philadelphia from January 2012 until November 2014.
On March 19, 2015, Candidate filed a new Affidavit including the notary's signature. On March 20, 2015, Candidate filed a new SFI which identified the calendar year as 2014. The parties appeared before the trial court on March 20 and 23, 2015. Candidate testified that he and his campaign staff were "excited" and "in a rush" when he filled out his original SFI, that he had been working as a consultant since leaving his position as Chief Deputy City Commissioner on November 7, 2014, and that he only listed the Consulting Group, LLC, as a source of income. (Notes of Transcript (N.T.), March 23, 2015, p. 12.) Candidate further explained that:
I missed checking the box for former employer. So I went up and I looked where it said candidate because in my head I was a candidate in 2014. I had to list 2014 income. So I looked up there and I put down Consulting Group. So I wasn't trying to hide it. I put it down because I received income in 2014.Id. at 13. When asked why he omitted his prior public employment, Candidate responded that he "totally forgot" and that his omission was not intentional. Id. Candidate reiterated that he was "rushing" to fill out the form. Id. at 14. Candidate also testified that he did not realize that he identified the year as 2015 until he received Objector's set aside petition. Id. at 15.
On cross-examination, Candidate described his duties as Chief Deputy City Commissioner as "to oversee the office, assist in the operations of the city commissioner's office." Id. at 19. He acknowledged that the office was responsible for "a major voter education process," but stated that he focused more on getting people to register to vote and explaining the system. Id. While the office also addressed candidate education/training, Candidate noted that was not his responsibility and that those duties were supervised by another person, Tim Dowling. Id. at 19-20.
Regarding the evening that he filled out his statement of financial interest, i.e., February 23, 2015, Candidate again stated that his team was excited that they had collected more than enough signatures to qualify him for the ballot, that it was "late" and he was "tired," and that they rushed early the next morning to file his petitions and the other required documents. Id. at 22-23. However, Candidate acknowledged that he had until March 10, 2015, to file the same. Id. at 23. When asked what time he filled out the documents on February 23, Candidate responded:
It was late at night maybe around 8:00, 8:30. It might have been 9:30. I worked a full day. Because again I'm not working at the city so I still have to work my contract. So I had worked all day. I had worked from 6:00 in the morning up until then. So I was tired. I was tired.Id. at 23-24. Candidate testified that his campaign manager, circulators, and the notary were in the room with him at the time. Id. at 24. Candidate also acknowledged that he was required to fill out SFIs in 2012 and 2013, and that he listed his employment with the City on those forms. Id. at 25-26.
While Candidate admitted that he was the sole owner of the Consulting Group, LLC, he could not explain why, on his corrected SFI filed on March 20, 2015, he checked "NONE" in boxes 13 (office, directorship, or employment in any business) and 14 (financial interest in any legal entity in business for profit). Id. Candidate stated that he "totally did not understand what that box meant. I thought if it's the LLC I wasn't a director, that's why I checked it." Id. at 27. Upon direct questioning from the trial court, Candidate once more stated that he "forgot to write the [City] income down" on his original SFI. Candidate also stated that he does consult on election matters in his new business, but "not on the forms." Id. at 35. Candidate denied that he was deceiving the voters, explaining that he was "not an expert on every form." Id.
In his original statement of financial interests filed on February 24, 2015, Candidate did identify the Consulting Group, LLC, in box 14.
Evans, the notary, testified that she had been a notary for about a year, she became a notary because of where she worked, she generally notarized permits to travel for students, and she never dealt with nominating petitions before. Id. at 39. She acknowledged that her job as a notary requires her to affix her stamp and signature in order to authenticate a document. Id. Evans identified her notary stamp on the nomination petitions and documents, as well as her handwriting, but acknowledged that her signature was missing. Id. at 40-41. Evans denied that anyone was using her notary stamp outside her presence on February 23, 2015. Id. at 42. Regarding her missing signature, Evans explained that "[i]t was late. It was a long date [sic]. I came [and] all of the circulators were there. It was kind of overwhelming. And I stamped and just forgot to sign it." Id.
On cross-examination, Evans testified that she had notarized about 70 student travel permits, all of which included her stamp and signature. Id. at 43. Evans acknowledged that she maintains a notary ledger and routinely checks IDs. Id. Evans admitted that she failed to affix her signature to Candidate's 56 petition pages, stating that she stamped each page and intended to go back and sign them but she did not because she "was so busy checking to make sure they signed the ledger. . . ." Id. at 44. Upon further questioning, Evans stated that she stamped each petition page, wrote out her address and the date but did not promptly sign each page and "just forgot . . . to go back" and sign them. Id. at 46.
At the conclusion of the hearing, the trial court announced its findings that the Affidavit was defective and not notarized, and that the SFI was inaccurate because it failed to disclose Candidate's 2014 income from the City. The trial court specifically found the testimony of Candidate and Evans to be "without credibility." Id. at 69. Additionally, the trial court found "intentional deceit on the part of the candidate." Id. By final order date March 25, 2015, the trial court concluded that Candidate's nomination petitions were defective and directed that Candidate's name be removed from the ballot. Candidate immediately filed a notice of appeal with the trial court.
By amended order dated March 27, 2015, we directed Candidate to file a statement of issues to be presented on appeal on or before March 30, 2015, and to serve a copy on all parties and the trial court judge. Candidate complied with this order and filed a statement of issues on March 29, 2015. Candidate raised a total of eleven issues. Candidate raised these same eleven issues in the statement of questions involved section of his brief. However, in the argument section of the same brief, Candidate only addressed the issues relating to jurisdiction of the trial court and amendment of his SFI and Affidavit, which will be addressed below, abandoning any remaining issues. Hence, these remaining issues are now waived. See Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998) (arguments not properly developed in a brief will be deemed waived by this Court).
In a subsequent opinion in support of its order, the trial court first rejected an argument by Candidate that it lacked jurisdiction to hear Objector's set aside petition under section 977 of the Pennsylvania Election Code (Election Code). The trial court noted that section 977 does not address whether the common pleas court has subject matter jurisdiction over county election challenges. The trial court reasoned that if the nomination petition were filed with the local county board of elections, then any petition to set aside must be filed in the common pleas court having proper venue under section 931(a) of the Judicial Code, 42 Pa.C.S. §931(a).
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §2937. Section 977 addresses objections to a candidate's nomination petitions and directs the court in which the objections are filed to immediately set a hearing, with such matters to take precedence over other court business. This section also provides that any nomination petition found to be defective shall be set aside. However, this section further provides that the court may, in its discretion, permit amendments if the objections relate to material errors or defects apparent on the face of the nomination petition.
Section 931(a) of the Judicial Code provides that "[e]xcept where exclusive original jurisdiction of an action or proceeding is by statute or by general rule adopted pursuant to section 503 (relating to reassignment of matters) vested in another court of this Commonwealth, the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas."
The trial court also rejected Candidate's arguments that the trial court erred by not allowing him to amend his timely filed SFI and Affidavit. Regarding the SFI, the trial court first noted that section 1104 of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. §1104, requires a candidate to file a SFI for the preceding calendar year and provides that failure to file is a fatal defect to a petition to appear on the ballot. Citing In re Nomination Petition of Paulmier, 937 A.2d 364 (Pa. 2007), the trial court also noted that a candidate must file his SFI in good faith and the good faith requirement must be met in order for a court to allow a candidate to amend the same. In this case, the trial court stated that Candidate's actions were not taken in good faith; rather, he "intentionally attempted to deceive the electorate." (Trial court op. at 4.) The trial court stated that Candidate deliberately omitted information concerning his prior employment with the City Commissioners Office from his original SFI. The trial court rejected Candidate's explanation that he was rushed when filling out the SFI, noting that he filed the SFI two weeks before the March 10, 2015 deadline and reiterating that it found his testimony as lacking credibility.
Regarding the Affidavit, the trial court noted that a candidate's affidavit is amendable at the discretion of the court but that mistakes made in bad faith in order to deceive the public are not amendable. In re Nomination Petition of Shimkus, 946 A.2d 139, 152 (Pa. Cmwlth. 2008). Citing its finding that Candidate intended to deceive the voting public, the trial court stated that it exercised its discretion in refusing to permit Candidate to amend his Affidavit. The trial court also noted that the testimony of Evans, the notary, lacked credibility, as she was "abundantly aware that her signature follows every stamp of her seal. The fact that she stated that she forgot was a blatant attempt to deceive [the] court and is an extension of [Candidate's] deceitful behavior throughout his candidacy." (Trial court op. at 7.) The trial court expressed its belief that someone other than Evans was in possession of her notary stamp on the evening of February 23, 2015.
On appeal, Candidate first argues that the trial court erred in failing to dismiss Objector's set aside petition based on Objector's failure to offer proof of timely service of the petition on the County Board of Elections. We disagree.
Our scope of review is limited to determining whether the trial court's findings of fact are supported by substantial evidence, whether the trial court abused its discretion or whether the trial court committed an error of law. In re Hanssens, 821 A.2d 1247, 1251 (Pa. Cmwlth.), appeal denied, 825 A.2d 640 (Pa. 2003).
Section 977 of the Election Code provides, in pertinent part, that:
All nomination petitions and papers received and filed within the periods limited by this act shall be deemed to be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition or paper be set aside. A copy of said petition shall, within said period, be served on the officer or board with whom said nomination petition or paper was filed . . . The office of the Prothonotary of the Commonwealth Court and the office of the Secretary of the Commonwealth and the various offices of prothonotary of the court of common pleas shall be open between the hours of eight-thirty o'clock A.M. and five o'clock P.M. on the last day to withdraw after filing nomination petitions and on the last day to file objections to nomination petitions.25 P.S. §2937. In In re Petition of Acosta, 578 A.2d 407, 409 (Pa. 1990), cert. denied sub. nom., Kane v. Secretary of Pennsylvania, 498 U.S. 851 (1990), our Supreme Court held that "[s]ervice of a petition to set aside a nomination petition upon the officer or board with whom a nomination petition has been filed within the time limit prescribed by section 977 of the Election Code is mandatory." (Emphasis in original) (citation omitted). The court further held that "when the Legislature amended section 977 of the Election Code in 1974, to include the final sentence which prescribes the office hours for the Secretary of the Commonwealth on 'the last day to file objections to nomination petitions,' 25 P.S. §2937, it did so to ensure that the Secretary would receive a copy of the petition to set aside within the time limits set forth in that section." Id.
In the present case, the last day to file objections to Candidate's nomination petitions was March 17, 2015. The record includes an affidavit of service from Counsel for Objector stating that a copy of the set aside petition was served on the County Board of Elections on March 17, 2015, at 4:17 p.m. in Room 296 of City Hall, within the time limits set forth in section 977. Candidate did not challenge or raise any issue regarding service of the set aside petition before the trial court. Hence, this issue is waived. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."); In Re: Nomination Papers of Nevin Mindlin for the Office of Mayor of Harrisburg, 81 A.3d 1012 (Pa. Cmwlth. 2013) (holding that defective service of an objection petition on the board of elections is a matter of personal jurisdiction that cannot be raised for the first time on appeal).
Candidate next argues that the trial court erred in not allowing him to amend his timely filed SFI. Again, we disagree.
Sections 1104(b)(2) of the Ethics Act address a candidate's filing of a SFI:
Any candidate for county-level or local office shall file a statement of financial interests for the preceding calendar year with the governing authority of the political
subdivision in which he is a candidate on or before the last day for filing a petition to appear on the ballot for election. A copy of the statement of financial interests shall also be appended to such petition.65 Pa.C.S. §1104(b)(2). Section 1104(b)(3) provides that "[f]ailure to file the statement in accordance with the provisions of this chapter shall, in addition to any other penalties provided, be a fatal defect to a petition to appear on the ballot." 65 Pa.C.S. §1104(b)(3).
Candidate correctly notes that a mistake on a timely filed SFI is amendable. In In re Nomination Petition of Paulmier, our Supreme Court held that:
the fatality rule announced in Section 1104 of the Ethics Act was intended by the Legislature to bar only those candidates from the ballot who fail to file statements of financial interests or who file them in an untimely manner. Section 1104 does not bar any candidate from the ballot if he or she files in a timely manner, even if there are defects on the face of the form, so long as that candidate subsequently amends the form to correct the defect and comes into compliance with the Act in a timely manner. In other words, all defects related to the content of disclosures on a timely filed statement of financial interest are subject to timely amendment.937 A.2d at 371.
The court in In re Nomination Petition of Paulmier further considered section 1105(a) of the Ethics Act, which provides, in pertinent part, that "[a]ll information requested on the [SFI] shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation." 65 Pa.C.S. §1105(a). The court interpreted this provision as essentially imposing a "good faith" filing obligation on the part of a candidate, even though he may have an opportunity to amend. In re Nomination Petition of Paulmier, 937 A.2d at 371; see also In Re: Nomination Petition of Karen Wissinger, 18 A.3d 445 (Pa. Cmwlth. 2011) (adopting our Supreme Court's interpretation of this provision); In Re: Nomination Petition of Shimkus, 946 A.2d 139 (Pa. Cmwlth. 2008) (holding that defects on a timely filed SFI are amendable as long as they were not the result of bad faith).
In the present case, the trial court found that Candidate acted in bad faith and with specific intent to deceive the electorate. The trial court stated that Candidate failed to disclose on his original SFI his previous employment as the City's Chief Deputy City Commissioner, even though he had only left that employment on November 7, 2014. Further, the trial court found Candidate's testimony to be lacking credibility, including his explanation that he was rushed when filling out the SFI; the trial court noted that Candidate filed his nomination petitions and SFI on February 24, 2015, two weeks before the March 10, 2015 deadline.
"Issues of witness credibility and evidentiary weight are within the exclusive province of the fact finder." McMenamin v. Tartaglione, 590 A.2d 802, 810 (Pa. Cmwlth. 1991). "Here the trial court merely exercised its authority in reviewing the evidence and making such determinations." Id. Because the trial court found that Candidate failed to file his original SFI in good faith, the trial court did not err in denying Candidate permission to amend it.
Finally, Candidate argues that the trial court erred in not allowing him to amend his timely filed Affidavit. Once more, we disagree.
Section 910 of the Election Code addresses candidate affidavits, providing, in pertinent part, as follows:
Each candidate for any State, county, city, borough, incorporated town, township, ward, school district, poor district, election district, party office, party delegate or alternate, or for the office of United States Senator or Representative in Congress, shall file with his nomination
petition his affidavit stating--(a) his residence, with street and number, if any, and his post-office address; (b) his election district, giving city, borough, town or township; (c) the name of the office for which he consents to be a candidate; (d) that he is eligible for such office; (e) that he will not knowingly violate any provision of this act, or of any law regulating and limiting nomination and election expenses and prohibiting corrupt practices in connection therewith; (f) unless he is a candidate for judge of a court of common pleas, the Philadelphia Municipal Court or the Traffic Court of Philadelphia, or for the office of school director in a district where that office is elective or for the office of justice of the peace that he is not a candidate for nomination for the same office of any party other than the one designated in such petition; (g) if he is a candidate for a delegate, or alternate delegate, member of State committee, National committee or party officer, that he is a registered and enrolled member of the designated party; (h) if he is a candidate for delegate or alternate delegate the presidential candidate to whom he is committed or the term 'uncommitted'; (i) that he is aware of the provisions of section 1626 of this act requiring pre-election and post-election reporting of campaign contributions and expenditures; and (j) that he is not a candidate for an office which he already holds, the term of which is not set to expire in the same year as the office subject to the affidavit.25 P.S. §2870.
We addressed the issue of affidavits in In re Nomination Petition of Shimkus, stating as follows:
The provisions of the Election Code must be liberally construed so as not to deprive an individual of his right to run for office or the voters of their right to elect the candidate of their choice. However, the provisions of the Election Code relating to the form of nominating petitions and the accompanying affidavits are not mere technicalities but are necessary measures to prevent fraud and to preserve the integrity of the election process. The Election Code's requirements of sworn affidavits are to insure the legitimacy of information crucial to this process. Thus, the policy to liberally construe the language of the Code cannot
be distorted to emasculate those requirements necessary to assure the integrity of the election process. Before an affidavit may be declared void and invalid because it contains false information, there must be evidence that the candidate knowingly falsified the affidavit with the intent to deceive the electorate.946 A.2d at 154.
In that case, the objectors alleged that the candidate had provided a false address on his candidate's affidavit, SFI, and nomination petitions, and such was done to deceive the public. The objectors asserted that the candidate, a pastor, did not want the public to know that he had moved in with his fiancée. The candidate alleged that the address was correct because he occasionally stayed at the address in question; received mail at the address in question; notified his employer that his residence was the address in question; and changed his voter registration information to indicate his residence as the address in question. This Court conducted a hearing, which included testimony from the candidate and several other witnesses. We explained that under both the Ethics Act and the Election Code, we must evaluate a candidate's intent. Ultimately, we concluded that the address provided by the candidate was not his true residence and that the candidate acted in bad faith with an intent to deceive the electorate. Given the candidate's intent, we further concluded that the candidate was not permitted to amend his affidavit, SFI, or nomination petitions. As reflected in In re Nomination Petition of Shimkus, the good faith filing obligation is equally applicable to a candidate's affidavit.
We note that our Supreme Court reached an opposite conclusion in In Re Nomination of Driscoll, 847 A.2d 44 (Pa. 2004). Similar to the above case, the candidate's address was also an issue in In Re Nomination of Driscoll. However, the court concluded that the candidate had made an honest mistake and never intended to deceive the electorate, noting that he publicly acknowledged his correct address. Hence, the court permitted the candidate to amend his affidavit and nomination petitions.
In this case, the Affidavit filed on February 24, 2015, did not contain the signature of the notary. The trial court referenced section 12(b) of what was formerly known as The Notary Public Law, Act of August 21, 1953, P.L. 1323, as amended, 57 P.S. §158(b), which addresses the notarial seal and provides that "[i]t shall be stamped in a prominent place on the official notarial certificate near the notary's signature in such a manner as to be capable of photographic reproduction." The trial court cited Evans' testimony that she "stamped the [Affidavit] and just forgot to sign it," (N.T., March 23, 2015, p. 42), and rejected this testimony as "completely without credibility." (Trial court op. at 7.) The trial court further found that Evans was "abundantly aware that her signature follows every stamp of her seal. The fact that she stated that she forgot was a blatant attempt to deceive [the] court and is an extension of [Candidate's] deceitful behavior throughout his candidacy." Id.
In 2013, the General Assembly repealed several sections of what was known as The Notary Public Law, including section 1, 57 P.S. §147, which provided the short title, and enacted a new law, the Revised Uniform Law on Notarial Acts, Act of October 9, 2013, P.L. 609, 57 P.S. §§301-331. However, several sections of the former law, including section 12(b), remain in place and were not incorporated into the new law. --------
Indeed, Evans testified that she was aware of the requirement that a notarization include her signature, that she had notarized at least 70 student travel permits in the past, and that it was her general practice to sign every document that she notarized. (N.T., March 23, 2015, p. 39, 42-43). Evans acknowledged that she stamped but failed to sign any of 56 nomination petitions submitted by Candidate. The trial court described Evans' testimony as "a blatant attempt to deceive [the] court and . . . an extension of [Candidate's] deceitful behavior throughout his candidacy." (Trial court op. at 7.) In light of the trial court's finding of bad faith, the trial court did not err in denying Candidate permission to amend his Affidavit.
Accordingly, the order of the trial court is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 17th day of April, 2015, the order of the Court of Common Pleas of Philadelphia County, dated March 25, 2015, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge