Opinion
No. 1715 C.D. 2011
03-08-2012
In Re: Petition for Initiative to Prevent the Sale and/or Lease of Gracedale Filed with Northampton County Elections Commission January 18, 2011 Appeal of: Gracedale Initiative Petition Committee, a/k/a Coalition of Alzheimer's Families
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
The Gracedale Initiative Petition Committee (Committee) appeals from the order of the Court of Common Pleas of Northampton County (trial court) denying reconsideration of the Committee's motion for attorney fees and costs. Because a trial court order denying reconsideration is not appealable, the Committee's appeal is quashed.
The facts of this case are explained more fully in our previous decision In Re: Petition for Initiative to Prevent the Sale and//or Lease of Gracedale, 269 C.D. 2011 (Filed April 1, 2011). For purposes of clarity, we note that the underlying case involves a dispute over the potential sale of the Gracedale Nursing Home (Gracedale), which is currently owned and operated by Northampton County (County). For several years Gracedale operated at a loss, and given the County's budgetary shortfalls, the Northampton County Council (Council) considered the possibility of selling Gracedale. Therefore, on August 19, 2010, Council passed a resolution directing County Executive John Stoffa to pursue a sale of Gracedale to private entities.
Numerous County residents and employees of Gracedale opposed the resolution and potential sale of the facility. In an effort to prevent the sale, a group of 12 registered voters within the County created the Committee and commenced a petition drive to place the following proposed ordinance on the May 17, 2011 primary ballot: "The county nursing home, known as Gracedale, shall not be sold and/or leased by the County of Northampton for a period of five years from the date of the approval of this ordinance." In support of this petition initiative, the Committee submitted 507 signature petitions to the County Election Commission (Commission) purportedly containing the signatures of 23,391 registered voters. The Commission initially rejected the petition; however, after the County Registrar conducted a thorough examination of each petition and signature, the Committee certified the petition for submission to Council for further action.
Article XI, Section 1102 of the County's Home Rule Charter states that any 12 registered voters can commence the initiative procedure by forming a petition committee.
County registered elector Bernard O'Hare III and Council Member Ronald Angle (together, Objectors) filed a joint petition challenging numerous signatures and petitions contained in the Committee's submission, alleging they violated the Pennsylvania Election Code and should be invalidated. Objectors argued that after subtracting the unverified, invalid signatures and petitions, the Committee failed to meet the 10% threshold required by Article XI, Section 1103(c) of the County's Home Rule Charter in order for the initiative to be placed on the ballot. While the trial court found numerous petitions and signatures to be invalid, the Committee's initiative was still supported by more than enough registered voters to meet the 10% threshold; therefore, the trial court denied the objection. Objectors appealed to this Court, which affirmed the trial court's order.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.
According to the Home Rule Charter, in order to place an initiative or referendum on a ballot, a petition committee must obtain signatures "by registered voters of the County equal in number to at least 10% of the number of voters registered for the last election held in the county." Article XI, Section 1103(c).
As the prevailing party in this election contest, the Committee filed a motion for the award of attorney fees and costs pursuant to Section 977 of the Election Code, 25 P.S. §2937 on February 11, 2011. After a hearing on the matter, the trial court denied the Committee's motion by order dated March 7, 2011. Notably, the Committee never appealed this order. Subsequently, a Lehigh Valley newspaper published several articles alleging that Objectors used tax money to illicitly fund their challenge of the initiative. The articles alleged that Objectors paid approximately $10,800 in County funds to a private law firm to review the petitions and signatures submitted by the Committee and aid in the preparation of Objectors' petition. Given this newly acquired information, the Committee filed a petition for reconsideration of its motion for attorney fees and costs on April 28, 2011. In its petition for reconsideration, the Committee alleged that Objectors and several County officials agreed to conspire to use County tax money to assist in the private challenge to the Committee's initiative and requested a rehearing in light of this new evidence. The Committee also filed a surcharge against Objectors and other County officials for at least $10,800 for the alleged misappropriation of tax money for a partisan political purpose. The Committee later withdrew the motion for a surcharge.
Section 977 of the Election Code provides for the award of costs to a prevailing party in an election matter, stating, "In case any such petition is dismissed, the court shall make such order as to the payment of the costs of the proceedings, including witness fees, as it shall deem just." 25 P.S. §2937.
On August 30, 2011, after a hearing on the matter, the trial court issued an order denying the Committee's motion for reconsideration of its order dated March 7, 2011. The trial court stated that the Committee failed to proffer any additional evidence demonstrating "vexatious, obdurate, dilatory or bad faith actions by [Objectors] in bringing or prosecuting their challenge to the Petition Initiative." (Reproduced Record at 68). The trial court also stated that Objectors raised a legitimate issue in the underlying matter and that their challenge was not brought in bad faith. Finally, the trial court noted that the Committee basically sought to recover County funds it believed were wrongfully spent, and such an issue was properly brought in a surcharge matter, not a motion for reconsideration of attorney fees and costs.
The Committee then filed the instant appeal with this Court, which it captioned as an appeal of the trial court's August 30, 2011 order denying the petition for reconsideration. However, a trial court's denial of reconsideration of a final order is not reviewable on appeal. Kohr v. Lower Windsor Township Board of Supervisors, 910 A.2d 152, 161 (Pa. Cmwlth. 2006) (citing Thorn v. Newman, 538 A.2d 105 (Pa. Cmwlth. 1988)). In addition, the Committee failed to file an appeal of the trial court's final order dated March 7, 2011, and the Committee's petition for reconsideration was not filed within the time provided by law because it was not filed until 52 days after issuance of the trial court order.
Rule 1701(b)(3) of the Rules of Appellate Procedure states that a trial court may grant reconsideration if an application for reconsideration of the trial court's order is filed within the time provided by law. Pa. R.A.P. No. 1701(b)(3)(i). Rule 903(a) of the Rules of Appellate Procedure states that the notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa. R.A.P. 903(a). The Committee did not file its petition for reconsideration until April 28, 2011, 52 days after the trial court order was issued. Therefore, the Committee's request for reconsideration was not timely filed. --------
Given all of these reasons, the Committee's appeal of the trial court's denial of reconsideration must be quashed.
/s/_________
DAN PELLEGRINI, President Judge Judge Simpson did not participate in the decision in this case. ORDER
AND NOW, this 8th day of March, 2012, the Gracedale Initiative Petition Committee's appeal from the order of the Court of Common Pleas of Northampton County, dated August 30, 2011, is quashed.
/s/_________
DAN PELLEGRINI, President Judge