Opinion
No. 523 C.D. 2014
04-14-2014
In Re: Nomination Petition of Meghan Reilly As Democratic Candidate for Office of Committee Person Appeal of: Michele Carpenito
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
In this appeal from the decision of the Court of Common Pleas of Philadelphia County overruling a challenge to the nomination petition of Meghan Reilly, we confront whether a circulator's affidavit is fatally defective when it inaccurately names the candidate as the circulator but contains the notarized signature of the actual circulator. We conclude that such a defect is not fatal to the nomination and affirm common pleas.
Meghan Reilly timely submitted a nomination petition seeking placement on the primary ballot as a nominee for democratic committee person, a nomination requiring ten signatures. Reilly's petition contains 14 signatures and a circulator's affidavit entitled, "Affidavit of Qualified Elector," on which Reilly's name is inappropriately printed in the blank space intended for the name of the circulator. The actual circulator signed the Affidavit and that signature is notarized.
Michele Carpenito filed a timely challenge to the nomination petition, asserting that the signature on line 14 is invalid and that the circulator's affidavit is defective and seeking to have the nomination set aside. Following a very brief hearing on March 21, 2014, common pleas, ruling from the bench, granted the petition to set aside. However, on March 24, common pleas reconsidered its ruling and directed that the County Board of Elections accept Reilly's nomination petition and place her name on the ballot. Carpenito sought reconsideration, which common pleas denied, and thereafter, Carpenito filed the present appeal.
As common pleas noted, this case is closely intertwined with that of two related appeals, In Re Nomination Petition of Timothy Reilly, Pa. Cmwlth. No. 524 C.D. 2014, and In Re Nomination Petition of Kerry Fitzpatrick, Pa. Cmwlth. No. 525 C.D. 2014. While not officially consolidated for hearing, all three cases were considered by common pleas sequentially and present the identical issue regarding the defect in the circulator's affidavit.
In her appeal, Carpenito asserts that common pleas erred as a matter of law in permitting amendment of the circulator's affidavit. According to Carpenito, the affidavit originally submitted with the nomination petition is essentially a nullity that leaves nothing to later be amended. Specifically, she contends that "the circulator's signature was defective because it did not match the signature of the person identified as the circulator in the body of the affidavit" and "the seal and signature of the notary is improper because it is the duty of the notary to assure that the person signing a document is the person named as the signatory." Appellant's brief at 4.
In the statement of issues filed in our court, Carpenito also asserted that common pleas erred in reconsidering ex parte its initial ruling, thus depriving Carpenito of due process. In her brief to our court, Carpenito has abandoned her due process argument and focuses only on the defective circulator affidavit.
Carpenito's argument that the defective affidavit is not amendable presents an issue of law over which this court exercises plenary review. In re James, 596 Pa. 442, 447, 944 A.2d 69, 72 (2008). The present case is essentially identical to In re Graham, 574 A.2d 1182 (Pa. Cmwlth. 1990) and, thus, the legal ruling in Graham that the defect is amendable, applies. In Graham, our court explained the issue as follows:
The issue before the common pleas court which is now before this Court on appeal is whether a "mismatched" circulator's affidavit attached to Graham's nomination petition is an amendable defect under Section 977 of the Pennsylvania Election Code (Election Code),[] 25 P.S. § 2937. The affidavit was "mismatched" in that the actual circulator, Horrita Bell, signed her name on the proper line of the circulator's affidavit, but the name of the candidate (Graham) was printed in the body of the affidavit form.Id. at 1183 (footnote added). In deciding this issue, the court said:
[Section 977 of the Election Code] provides in pertinent part that "material errors or defects apparent . . . on the face of the accompanying or appended affidavits" are amendable after hearing at the discretion of the court. It is beyond peradventure that the mismatched name and signature on the circulator's affidavit in this case is a defect apparent on the face of the affidavit. While we have not found, nor have any decisions on point by this Court been cited to us by the parties, the Superior Court has addressed this very issue in Conner Appeal, 175 Pa. Superior Ct. 382, 104 A.2d 758 (1954). The Conner Court held that where there was an obvious error in a circulator's affidavit in that the name of the candidate
rather than the affiant had been typed in, the common pleas court did not abuse its discretion by permitting an amendment to the affidavit striking out the candidate's name and inserting the affiant's name. We find this decision persuasive and controlling . . . .Id.at 1183-84. (footnote omitted). The mismatched affidavit in the present case is an amendable defect.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2601 - 3591.
The cases relied upon by Carpenito do not apply to change this conclusion. In In re Ford, 994 A.2d 9 (Pa. Cmwlth. 2010) (acknowledgement of circulator's affidavit by prothonotary who did not have knowledge or evidence of the signer's identity, did not verify the act of signing each affidavit, and did not ask the circulator to swear or affirm to the accuracy of the averments in the affidavit) and In re Berg, 973 A.2d 447 (Pa. Cmwlth. 2009) (candidate disqualified from notarizing circulator affidavits on his own nomination petition), the candidates failed in the first instance to obtain effective notarizations on their circulator's affidavits and the defect was not apparent on the face of the affidavits. The Objector in the present case does not assert that someone other than the signer circulated the nomination petition and does not assert any flaw in the notarization of the circulator's signature. The objection is based solely on the very same defect that occurred in Graham, an obvious mistake apparent on the face of the affidavit.
At the hearing on reconsideration, common pleas accepted an amended and notarized circulator's affidavit. Unfortunately, the amended affidavit has not been included in the record forwarded from common pleas. However, Carpenito focuses her argument almost entirely on the legal issue of amendability under Graham. Carpenito does not challenge the sufficiency of the amended affidavit to cure the defect but merely notes in her brief that "no [amended circulator's affidavit] was attached to the reconsideration petition served on counsel. Carpenito has not preserved any issue regarding the amended affidavit.
A petition to reconsider the March 21 Order striking the nomination does not appear in the certified record. The notes of testimony on March 24 are exceedingly brief. They consist of a short remark by the nominee's attorney informing the trial judge that the case is similar to matters on which she had just ruled and the trial judge's statement that:
So this is the same situation as the circulator signed in the correct place, but in the body of the affidavit put the wrong name. I will accept the affidavit that's been provided to the Court. There's an amended affidavit as well. I will accept the amended affidavit and I'll grant the reconsideration.
Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 14th day of April 2014, the order of the Court of Common Pleas of Philadelphia County is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
Hearing on March 24, 2014, N.T.at 4.