Opinion
No. 2233 C.D. 2013
03-20-2015
Tom Lingenfelter, Bill O'Neill and John Ryan v. 2013 Bucks County Board of Elections Diane Ellis-Marseglia, Robert Loughery and Charles Martin, In their official capacity only Deena Dean, Director of Board of Elections, in her official Capacity only Appeal of: Tom Lingenfelter
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Tom Lingenfelter appeals the December 12, 2013, order of the Court of Common Pleas of Bucks County (trial court), which dismissed, with prejudice, his amended complaint in mandamus against the Bucks County Board of Elections. The trial court held that Lingenfelter failed to comply with Pennsylvania Rule of Civil Procedure 1033 by not seeking consent of the Board of Elections or leave of court before amending his complaint. We affirm on different grounds.
We note that initially the complaint in the instant matter was filed by Lingenfelter, Bill O'Neill, and John Ryan. However, as discussed below, an amended complaint was filed amending the caption to include only Lingenfelter. For purposes of clarity, we will only refer to Lingenfelter in this opinion.
Rule 1033 states:
A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.PA. R.C.P. No. 1033 (emphasis added). Amendments to pleadings are not permitted as a matter of right, but Rule 1033 has been interpreted to require the trial court to liberally permit amendments. Horowitz v. Universal Underwriters Insurance, 580 A.2d 395, 398 (Pa. 1990). Amendments may be permitted before, during, and after trial. Id.
This court may affirm the decision of the trial court on any grounds. Belitskus v. Hamlin Township, 764 A.2d 669, 671 n.4 (Pa. Cmwlth. 2000). Because we conclude that the complaint fails to state a claim under mandamus, we do not address the trial court's conclusion that the amended complaint did not comply with Pennsylvania Rule of Civil Procedure 1033.
This appeal, inter alia, concerns a challenge to the 2013 candidacy of Edward Donnelly for Sheriff of Bucks County. In March 2013, Donnelly filed nomination petitions stating that his name should appear on the ballot as Edward "Duke" Donnelly. Simultaneous with the filing of his nomination petitions, Donnelly filed an "affidavit for primary ballot name change request" with the Board of Elections seeking to have his name appear on the official ballot as Edward "Duke" Donnelly. Lingenfelter petitioned the trial court to set aside Donnelly's nomination petitions, arguing that Donnelly's inclusion of his nickname, "Duke," on the ballot violated the Pennsylvania Election Code and the Board of Election's rules.
Lingenfelter argues that his appeal is not moot even though the election he challenges in his mandamus complaint is over. The Board of Elections did not raise the issue of mootness and, thus, we need not address it.
The affidavit for primary ballot name change request is a pre-printed form provided by the Board of Elections. It is modeled after a similar affidavit used by the Department of State's Bureau of Elections.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.
Following a hearing, the trial court denied Lingenfelter's petition to set aside Donnelly's nomination petitions. Lingenfelter appealed to this Court, and it affirmed in a single-judge opinion filed April 29, 2013. In re: The Nomination Petition and Papers of Edward "Duke" Donnelly (Pa. Cmwlth., No. 607 C.D. 2013, filed April 29, 2013), petition for allowance of appeal denied, 67 A.3d 798 (Pa. 2013). This Court held that the Election Code does not expressly prohibit a candidate from using a nickname on his nomination petitions, nor does it require a candidate to use his name exactly as it appears on his voter registration card. This Court further noted that the affidavit of name change request is sufficient to allow the Board of Elections to verify the identity of the candidate.
On April 26, 2013, while Lingenfelter's initial appeal to this Court was still pending, he filed the instant complaint and motion for writ of peremptory mandamus, averring that the Board of Elections, by accepting Donnelly's nomination petitions, violated Pennsylvania election law and the Board's own policy, which states:
Given names must be used. Titles such as Dr., Mr. or Mrs., etc. are not permitted. A nickname is allowed only if it is a derivative of the legal given name.Supplemental Reproduced Record (S.R.R.) at 22b. Lingenfelter asked the trial court to order the Board of Elections to "list the proper name of all candidates on the 2013 Republican Primary Ballot without the use of nicknames." S.R.R. 9b. Following a hearing on May 7, 2013, the trial court denied Lingenfelter's motion for writ of peremptory mandamus and dismissed the complaint. Lingenfelter appealed to this Court on May 13, 2013. By order dated May 15, 2013, this Court quashed the appeal as interlocutory. The primary election was held on May 21, 2013, and Donnelly won the Republican nomination for sheriff.
On July 24, 2013, Lingenfelter filed a motion to compel production of documents. Approximately one month later, on August 26, 2013, Lingenfelter filed an "Amended Caption and Complaint in Mandamus." The amended complaint listed Lingenfelter as the sole plaintiff, and requested the trial court to issue a writ of mandamus directing the Board "to reject all improper petitions and list the legal name of all candidates on the 2013 Ballot without the use of nicknames which are not a derivative of their legal name, and on all future primary, municipal and general elections." S.R.R. 100b. The amended complaint also sought a writ of mandamus "ordering a retroactive rejection of all petitions submitted for the 2013 primary election which violated the rules for circulating nomination petitions for county and municipal office." Id.
The Board of Elections filed preliminary objections on August 30, 2013, arguing, inter alia, that the amended complaint should be dismissed because Lingenfelter failed to obtain leave of court or the Board's consent prior to amending his pleading. PA. R.C.P. No. 1033. The trial court sustained the Board's preliminary objections. In its opinion and order, the trial court noted that a request for production of documents presupposes an existing complaint. Because the original complaint was dismissed on May 7, 2013, and this Court had quashed the appeal therefrom as interlocutory, Lingenfelter should have filed a new complaint. The trial court further held that, in any event, Lingenfelter failed to seek leave of court or the Board of Elections' consent before amending the complaint. Lingenfelter now appeals.
On appeal, Lingenfelter raises several issues, which we summarize as follows. He contends that the Board of Elections' policy on nicknames is clear and that the Board has violated this policy on numerous occasions, most recently by allowing the name Edward "Duke" Donnelly to appear on the 2013 Republican primary ballot. Lingenfelter argues that the present case is an election matter and therefore the Pennsylvania Rules of Civil Procedure, including PA. R.C.P. No. 1033, do not apply. The Board counters, inter alia, that this Court's single-judge opinion filed May 15, 2013, determined that a candidate's use of a nickname on his nomination papers is permissible under the Election Code.
Our review determines whether the 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 Nomination Petition of Flaherty, 770 A.2d 327, 331 (Pa. 2001).
In his Statement of Questions Involved, Lingenfelter asks (1) whether the trial court abused its discretion, (2) whether the trial court's decision is supported by the evidence, (3) whether the trial court erred in concluding that its prior ruling ended the case, (4) whether the trial court erred in interpreting the petition as directed at the Board of Elections and not a specific candidate, and (5) whether the trial court erred in refusing to order the Board to follow its own procedures. However, Lingenfelter's argument in his brief focuses on only two issues: whether the Board violated its own rules and the Election Code and, therefore, his complaint is not governed by the Rules of Civil Procedure.
However, the Pennsylvania Rules of Civil Procedure apply to mandamus actions, regardless of their subject matter. "[T]he procedure in the action of mandamus shall be in accordance with the amended rules relating to a civil action." PA. R.C.P. No. 1091.
The Board of Elections also contends that Lingenfelter failed to join the affected candidates as indispensable parties; lacked standing; failed to exhaust statutory remedies under the Election Code; did not serve the complaint in accordance with the Pennsylvania Rules of Civil Procedure; improperly deleted parties; and filed an untimely amended complaint.
Mandamus is an extraordinary remedy used to compel a public official's performance of a ministerial act or mandatory duty that does not involve the exercise of discretion. Chadwick v. Dauphin County Office of the Coroner, 905 A.2d 600, 602 (Pa. Cmwlth. 2006). Mandamus requires a showing that: (1) the petitioner has a clear legal right to relief, (2) the official owes the petitioner a duty, and (3) there are no other adequate remedies at law. Wilson v. Pennsylvania Board of Probation & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). Mandamus is not the appropriate means to establish legal rights, but rather to enforce those rights which are already established. Jamieson v. Pennsylvania Board of Probation and Parole, 495 A.2d 623, 625 (Pa. Cmwlth. 1985). Mandamus does not lie where there are other remedies available, such as a declaratory judgment action. Hamm v. Board of Education for School District of Philadelphia, 470 A.2d 189, 191 (Pa. Cmwlth. 1984).
We conclude that the trial court properly dismissed Lingenfelter's amended complaint. As discussed above, this Court has already ruled that the use of nicknames on the ballot, such as "Duke," is permitted under the Election Code. In re: The Nomination Petition and Papers of Edward "Duke" Donnelly (Pa. Cmwlth., No. 607 C.D. 2013, filed April 29, 2013), petition for allowance of appeal denied, 67 A.3d 798 (Pa. 2013). This Court also held that the use of an affidavit to put a nickname on the ballot, as set forth in the Board's policy, did not offend the Election Code.
This Court observed in Donnelly that a candidate's use of a nickname might violate the Election Code, such as where a candidate is trying to conceal his true identity. However, Lingenfelter has not alleged that Donnelly or any other candidate in Bucks County has engaged in fraud or attempted to mislead voters by using a nickname on the ballot. Lingenfelter's only objection is that nicknames are not permitted at all, an argument this Court has already rejected.
Lingenfelter's counsel acknowledged at the May 7th hearing that the issue presented is one of first impression. Mandamus is available only where the plaintiff's right to relief is clear; it is not a proceeding for establishing legal rights, particularly where alternative remedies exist such as a declaratory judgment action. Hamm, 470 A.2d at 191. Simply, Lingenfelter's right to relief is not clear in light of this Court's decision in Donnelly. Thus, we conclude that the trial court properly dismissed Lingenfelter's mandamus complaint.
At the hearing, the following exchange took place:
The Court: And you're telling me that this is a case of first impression as it relates to a ballot - name on a ballot?S.R.R. 61b.
[Counsel for Lingenfelter]: I would think so.
For these reasons, we affirm the trial court's decision.
Because we accept the Board's argument that this issue has already been decided and Lingenfelter does not have a clear right to relief, we need not address the Board's alternate arguments. --------
/s/_________
MARY HANNAH LEAVITT, Judge Judge Covey did not participate in the decision in this case. ORDER
AND NOW, this 20th day of March, 2015, the amended order of the Bucks County Court of Common Pleas dated December 12, 2013, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge