Opinion
No. 508 C.D. 2014
04-09-2014
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Stephen Ciment (Objector) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) dismissing his petition to set aside the nomination petition of Andrew Masi (Candidate) for the position of Democratic Committeeperson. The trial court held that Objector failed to present sufficient evidence to prove that Candidate did not live at his registered address, which is located in the district Candidate seeks to represent. We affirm.
On February 26, 2014, Candidate filed a nomination petition for the office of Democratic Committeeperson for the First Ward, Division 2, certifying that he lives in that ward and division. His voter registration indicates that he resides at 1022 Mountain Street, which is located in the First Ward, Division 2. Voting records indicated that Candidate voted in 2011 and 2012 from the Mountain Street address.
Objector's petition alleged that Candidate does not actually reside in the First Ward, Division 2 of the City of Philadelphia. At the March 25, 2014, hearing on the petition, Objector presented the testimony of Alan Kurtz, a private investigator, who testified that on March 18, 2014, he witnessed Candidate leave a house at 3008 16th Street at 9 a.m. and return at 6 p.m. That house is not located in the First Ward, Division 2. After waiting approximately 45 minutes to an hour, Kurtz proceeded to 1022 Mountain Street. Kurtz testified that Candidate did not return to the Mountain Street address by 11 p.m., at which time Kurtz left. Kurtz testified that he did not see Candidate at the Mountain Street address. On cross-examination, Kurtz acknowledged that he had no knowledge of what Candidate was doing on March 18, 2014, or whether the house at 3008 South 16th Street contained furniture or other property.
Candidate did not appear at the hearing to testify because he was working, although he had been present in the courtroom one day earlier when the hearing was originally scheduled. Objector did not subpoena Candidate or arrange with Candidate's counsel to secure his presence at the hearing. Objector requested that the trial court draw an adverse inference from Candidate's non-appearance, which the trial court denied.
At the conclusion of the hearing, the trial court dismissed Objector's challenge and allowed Candidate to remain on the election ballot. The court stated:
I've already explained that the evidence with regard to surveillance was awfully thin. I believe [Kurtz] when he says he never saw [Candidate] anywhere other than 3008 South 16th Street. However, he didn't provide us with an awful lot of detail about how much time he spent in other places looking for [Candidate]. On the times that he did see [Candidate] coming
and going from 3008 South 16th Street, it was very few and of limited significance. I don't believe that [Objector] has made out their burden with regard to the residence of [Candidate].Notes of Testimony, March 25, 2014, at 30. Objector now appeals.
On appeal, Objector argues that the trial court erred in failing to strike Candidate's nominating petition. Specifically, Objector contends that the trial court erred in determining that Objector presented insufficient evidence that Candidate resides outside the First Ward, Division 2. Additionally, Objector argues that the trial court erred in not drawing an adverse inference from Candidate's non-appearance at the hearing.
In cases involving challenges to the validity of nominating petitions, 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 Nomination Petition of Flaherty, 564 Pa. 671, 678, 770 A.2d 327, 331 (2001).
Section 2814 of the Pennsylvania Election Code establishes the rules for determining a candidate's residence for election purposes. Residence is determined, inter alia, by the candidate's presence or absence at the claimed residence where members of the household reside; whether the candidate pays rent at the property claimed to be his residence; where the candidate sleeps; what belongings and personal effects the candidate keeps at an address; and whether the candidate owns another home to which he appears more permanently attached. In re Shimkus, 946 A.2d 139, 149 (Pa. Cmwlth. 2008). The Election Code is liberally construed in order 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). An objector has the burden of proving that the candidate is not domiciled at the address indicated in the Candidate's nominating petition. Id.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §2814.
In relevant part, Section 2814 states:
(a) That place shall be considered the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.
(b) A person shall not be considered to have lost his residence who leaves his home and goes into another state or another election district of this State for temporary purposes only, with the intention of returning.
(c) A person shall not be considered to have gained a residence in any election district of this State into which he comes for temporary purposes only, without the intention of making such election district his permanent place of abode.
Objector first argues that Kurtz's surveillance of Candidate proved that Candidate did not reside on Mountain Street address but, rather, at a house on 16th Street. In support, Objector cites In re Carabello, 516 A.2d 784 (Pa. Cmwlth. 1984), and In re Hanssens, 821 A.2d 1247 (Pa. Cmwlth. 2003). In each case, the candidate was married. The candidate's nominating petition identified one address for purposes of the nomination petition, but the evidence showed that the candidate's family resided at a different address. The rules are unique for married candidates because the court must also consider the residence of the candidate's spouse. In re Nomination Petition of Driscoll, 577 Pa. 501, 510, 847 A.2d 44, 50 (2004). In the present case, Objector presented no evidence that Candidate is married or has a family. Therefore, the cases are distinguishable.
The trial court held that Objector's evidence was "thin." Kurtz testified about a single day of observation, and he terminated his surveillance of Candidate's asserted Mountain Street address around 11 p.m. The trial court did not err or abuse its discretion in concluding that the above-cited evidence was inadequate to prove that Candidate did not reside at 1022 Mountain Street.
Objector next argues that the trial court erred in not drawing an adverse inference from Candidate's failure to attend the hearing. Candidate counters that Objector did not subpoena Candidate or arrange to have Candidate present at the hearing. In addition, Candidate argues that because Objector failed to meet his burden, the adverse inference rule does not apply. We agree with Candidate.
An adverse inference may be drawn when a potential witness is available only to one of the parties and the witness has special information material to the issue. Commonwealth v. Moore, 453 Pa. 302, 305, 309 A.2d 569, 570 (1973). In such an instance, the fact finder may infer that the testimony of the witness would have been unfavorable. Id. However, an adverse inference will not aid a party with the burden of proof when that party has failed to satisfy their burden. Fitzpatrick v. Philadelphia Newspapers, Inc., 567 A.2d 684, 688 (Pa. Super. 1989). Objector could have subpoenaed Candidate or arranged with Candidate's attorney to have Candidate present at the hearing, but he did not. Consequently, the trial court did not err in declining to draw an adverse inference.
For all of the above reasons, the order of the trial court is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 9th day of April, 2014, the order of the Court of Common Pleas of Philadelphia County in the above captioned matter dated March 25, 2014, is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
25 P.S. §§2814(a)-(c).