In Re: Primary Election of May 15, 2018 In Re: Nomination of the Democratic Candidate for the Office of Representative in the General Assembly From the 197th Legislative District ~ Appeal of: F. Ramirez , 192 A.3d 313 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Primary Election of :
May 15, 2018 :
:
In Re: Nomination of the :
Democratic Candidate for the : Nos. 977 C.D. 2018 and
Office of Representative in the : 1009 C.D. 2018
General Assembly From the : Submitted: July 26, 2018
197th Legislative District :
:
Appeal of: Frederick Ramirez :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 7, 2018
This matter involves a petition to contest the results of the May 15, 2018
primary election for the Democratic Party nomination for representative of the
General Assembly from the 197th Legislative District (Contest Petition), pursuant to
Sections 1741 through 1759 of the Pennsylvania Election Code (Election Code), Act
of June 3, 1937, P.L. 1333, 25 P.S. §§ 3401-3459.1 In this consolidated appeal,
Appellant Frederick Ramirez (Ramirez) appeals from two orders of the Court of
Common Pleas of Philadelphia County (trial court). The first order, dated
1
As an election law appeal, this matter is proceeding under Sections 258 and 412(c) of the
Commonwealth Court’s Internal Operating Procedures.
June 20, 2018, granted the oral motion of the successful candidate, Appellee Danilo
Burgos (Burgos), to dismiss the Contest Petition due to Ramirez’s failure to file the
statutorily-required bond. The second order, dated July 13, 2018, denied Ramirez’s
request to pursue his appeal from the June 20, 2018 order nunc pro tunc. Also before
the Court for disposition are the following applications for relief: (1) Ramirez’s
application for relief in the form of a motion pursuant to Pa. R.C.P.
No. 205.4(e)(4)(ii) (Application for Nunc Pro Tunc Relief), seeking nunc pro tunc
relief from this Court as to his notice of appeal of the trial court’s June 20, 2018
order; and (2) Burgos’s application for relief in the form of a motion to dismiss
(Motion to Dismiss), requesting that the Court dismiss Ramirez’s appeal for lack of
standing, lack of jurisdiction, and untimeliness.
For the reasons set forth below, we hold that Ramirez’s notice of
appeal, filed electronically with the trial court on July 2, 2018, was timely filed.
Accordingly, and for this reason only, we affirm the trial court’s July 13, 2018 order,
denying Ramirez the opportunity to appeal nunc pro tunc.2 Consistent with this
holding, we dismiss as moot Ramirez’s application to this Court for nunc pro tunc
relief. With respect to the trial court’s June 20, 2018 order, in light of the peculiar
facts in this case, we hold that the trial court erred in dismissing the Contest Petition
on Burgos’s oral motion under Section 1759 of the Election Code, 25 P.S. § 3459,
and we remand the matter to the trial court for further proceedings. We also deny
Burgos’s Motion to Dismiss.
2
We may affirm the trial court on any basis appearing in the record. Kohl v. New Sewickley
Twp. Zoning Hearing Bd., 108 A.3d 961, 973 n.12 (Pa. Cmwlth. 2015).
2
I. BACKGROUND
Following the primary election on May 15, 2018, the Philadelphia
Board of Elections (Board of Elections)3 certified Burgos as the winner of the
Democratic Party nomination with 1,308 votes. The Board of Elections certified
Ramirez as having received 1,230 votes. Thereafter, on June 4, 2018, Ramirez
attempted to filed the Contest Petition with the trial court. The trial court initially
refused to accept the filing on jurisdictional grounds in error. It later accepted the
filing and docketed the Contest Petition as of June 7, 2018. In the Contest Petition,
Ramirez specifically averred that he was contesting the nomination of Burgos and
further averred malfunctioning voting machines, irregularities, and voter
intimidation in certain districts within the 19th Ward of the 197th Legislative District.
Ramirez requested that results for certain divisions of the 19 th Ward be cast aside
and the remaining votes recomputed and that he be declared the winner of the
nomination.
Although the Contest Petition did not name any other petitioners in
either the caption or the body of the Contest Petition, additional individuals who
identified themselves as “petitioners” and registered voters signed the Contest
Petition pursuant to Section 1742 of the Election Code, 25 P.S. § 3402. (Reproduced
Record (R.R.) at 14-18.) As required by Section 1757 of the Election Code,
25 P.S. § 3457, five of those additional individuals verified the Petition by signing
an affidavit, which counsel referred to as a verification. (Id. at 19-23.) Ramirez did
not sign or verify the Contest Petition. The Contest Petition also contained a
certificate of service, certifying that, on June 4, 2018, the Contest Petition was filed
3
The Board of Elections filed a notice of non-participation, advising the Court that the
Board of Elections was not a party in the trial court proceedings and will not be participating in
this matter but is an interested party in this litigation.
3
and served electronically via the trial court’s electronic filing system and was also
personally served upon Burgos. (Id. at 24.)
Along with the Petition, Ramirez provided the trial court with a
proposed order, which provided:
ORDER
AND NOW, this ____ day of ___________, 2018,
upon consideration of the Petition of Frederick Ramirez to
Contest Election, pursuant to [Section 1741 of the Election
Code,] 25 P.S. § 3401[,] it is hereby ORDERED AND
DECREED:
1. A hearing to consider the Petition shall be
held on June ___, 2018 commencing at ___________ in
Courtroom __________________________,
Pennsylvania.
2. Petitioners shall serve a copy of the Petition
and this Order on putative nominee for the Office of
Pennsylvania House of Representative for the
197th District Danilo Burgos. Proof of service shall be
promptly filled [sic] with the Prothonotary.
3. The Court further designates the sum of
$_______________ as the amount of the bond to be filed
by the Petitioners, pursuant to 25 P.S. § 3459, with the
Prothonotary of the Court of Common Pleas by June ____,
2018.
DATED: BY THE COURT
_______________________
,J
(Id. at 9.)
The trial court judge issued a Rule to Show Cause order (Show Cause
Order) dated June 13, 2018, but docketed on June 14, 2018. (Id. at 69.) The Show
Cause Order directed “the Respondent and all interested parties” to show cause why
the relief sought in the Contest Petition should not be granted. (Id.) It scheduled a
4
hearing on the Contest Petition for June 20, 2018, designating a time and location.
It also directed “[t]he Petitioner” to serve the Contest Petition and the Rule to Show
Cause on “Respondent and all interested parties or their attorneys personally.” (Id.
(emphasis in original).) The Show Cause Order did not establish a bond amount.
The trial court judge conducted the hearing on June 20, 2018. At the
outset of the hearing, Burgos’s counsel challenged the Contest Petition on a variety
of bases, resulting in the trial court dismissing the Petition before hearing any
evidence or a merits determination. Specifically, Burgos’s counsel challenged the
Contest Petition as lacking the requisite number of petitioners, because Section 1742
of the Election Code requires “at least twenty registered electors of . . . the legislative
district” to petition the trial court in order for the trial court to hear the complaints
of illegality or false return. He questioned whether the “petitioners” are Ramirez or
whether the “petitioners” include some or all of the individuals who signed the
Contest Petition and verifications attached to the Contest Petition. (Id. at 76-81.)
Burgos’s counsel directed the trial court to page 5 of the Contest Petition, which
provides:
WHEREFORE, the undersigned Petitioners under
Section 1742 of the Pennsylvania Election Code, Act of
June 3, 1937, P.L. 1333, as amended, 25 P.S. § 3402,
believe the facts stated in the foregoing petition are true,
that according to the best of their knowledge and belief,
the primary election for the Democratic nomination for
State Representative (197th District) was illegal and the
return thereof not correct, and that the petition to contest
the same is made in good faith.
(Id. at 14.) Underneath that paragraph, three individuals completed lines calling for
the signature, the printed name, and the address, including the municipality, of the
registered voter. The Contest Petition also includes page 9, which is the same as
5
page 5, except that it includes the signature and information for one additional
individual. (Id. at 18.)
Burgos’s counsel did not contest that the four individuals on
pages 5 and 9 are “petitioners.” Rather, he directed the trial court to pages 6-8 of
the Contest Petition, which each contain six sets of lines, identical to the lines
completed by the three petitioners on page 5. (Id. at 15-17.) On each of these three
pages, six individuals completed the requested information. Pages 6-8, however, do
not contain the “WHEREFORE” language set forth above. Burgos’s counsel took
the position that there was no proof that the eighteen individuals who signed those
pages knew that they were verifying the Contest Petition under Section 1742 of the
Election Code, because there was no proof that pages 6-8 were attached to the
Contest Petition at the time the individuals signed them, and the pages did not
contain the language set forth above. (Id. at 76-81.) The trial court overruled the
objection. (Id. at 81.)
Burgos’s counsel also challenged the timeliness of the Contest Petition,
noting that the primary election was held on May 15, 2018, and that any petition to
contest had to be filed within twenty days of the election—i.e., by June 4, 2018.
(Id. at 83-85.) He asserted that although Ramirez filed the Contest Petition on
June 4, 2018, the trial court rejected the Contest Petition, and Ramirez refiled it on
a later date, making it untimely. (Id.) The trial court overruled this objection,
explaining that the confusion regarding the filing was the result of an administrative
issue, and the trial court ultimately processed the Contest Petition. (Id. at 85.)
Finally, Burgos’s counsel challenged the Contest Petition on the basis
that Ramirez failed to comply with Section 1759 of the Election Code, which places
a duty on the petitioners to file a bond within five days of filing a petition to contest
6
election and expressly provides that failure to file a bond shall result in the dismissal
of the petition to contest election. (Id. at 85-104.) Burgos’s counsel observed that
the petitioners had neither filed a bond nor any motion requesting the trial court to
set the bond amount.
Counsel for Ramirez responded that the proposed order attached to the
Contest Petition requested the trial court to set the bond amount. When the trial
court did not do so, Ramirez’s counsel assumed that the trial court would set an
amount for the bond at the hearing. (Id. at 86.) Counsel for Ramirez noted that he
included the request for the bond in his proposed order accompanying the Contest
Petition, but the trial court did not set the amount in its Show Cause Order.
(Id. at 94-95.) Recognizing that the statutory period for filing the bond had
technically passed, counsel for Ramirez asked the trial court to allow him to file the
bond out of time, owing to the lack of any action by the trial court in setting the
amount prior to the hearing. (Id. at 96.) The trial court, concluding that the filing of
a bond within five days was a jurisdictional requirement, sustained the objection and
dismissed the matter.4
Thereafter, Burgos’s counsel placed two additional objections on the
record in order to preserve the objections for purposes of appeal. Neither of the
objections contended that Ramirez was not a petitioner or lacked standing.5
4
In addition to the challenges discussed above, Burgos’s counsel raised an objection based
on lack of service, but the trial court overruled that objection, finding that Ramirez properly served
Burgos. (R.R. at 73-76.) Furthermore, Burgos’s counsel challenged the Contest Petition based on
the verifications themselves, arguing that there is no proof that the notary verified the identity of
the person signing the verification. (Id. at 81-83.) The trial court overruled this objection as well.
(Id. at 83.)
5
Burgos’s counsel described the preserved objections as “failure in this case to sufficient
claim and . . . lapse.” (R.R. at 104.)
7
The trial court entered an order, dated June 20, 2018, but docketed on
June 21, 2018, denying the Contest Petition. Ramirez filed a notice of appeal with
the trial court on July 2, 2018. The trial court rejected the filing on July 3, 2018.
Ramirez refiled the notice of appeal on July 3, 2018, and the trial court accepted it
for filing on that date.
On July 5, 2018, Ramirez filed with the trial court a motion pursuant to
Pa. R.C.P. No. 205.4(e)(4)(ii), requesting that the notice of appeal be accepted and
filed nunc pro tunc. The motion avers that Jeremy A. Gunn, Esquire, represented
Ramirez at the hearing on June 20, 2018. Attorney Gregory Harvey, co-counsel in
this matter, contacted J. Matthew Wolfe, Esquire, about possible involvement in the
matter. Attorney Wolfe reviewed the docket, noting the order and the strict ten-day
deadline under Pa. R.A.P. 903 to appeal matters under the Election Code.6 Attorney
Harvey authorized Attorney Wolfe to file an entry of appearance and to file an appeal
around 4:00 p.m., on July 2, 2018. Attorney Wolfe promptly filed an entry of
appearance that the trial court confirmed and approved on July 2, 2018. Attorney
Wolfe also promptly filed with the trial court a notice of appeal that the trial court
confirmed that same day. The trial court, however, rejected the filing of the notice
of appeal in the early afternoon of July 3, 2018, on the basis that the certificate of
service was inadequate because it did not include the information of the trial court
judge. Attorney Wolfe promptly corrected and refiled the notice of appeal, and the
trial court accepted it that day. The motion also averred that Ramirez, through
Attorney Wolfe, made a good faith effort to electronically file the notice of appeal
by the July 2, 2018 deadline and demonstrated reasonable efforts pursuant to
6
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
8
Pa. R.C.P. No. 205.4(e)(4)(ii) to timely present and file the notice of appeal. By
order dated July 13, 2018, the trial court denied Ramirez’s motion.
Following the trial court’s denial of nunc pro tunc relief, Ramirez filed
a notice of appeal from the July 13, 2018 order, which Ramirez characterized as a
collateral order under Pa. R.A.P. 313. On July 19, 2018, Burgos filed a petition for
fees and costs, alleging bad faith.
On July 23, 2018, the trial court filed an opinion pursuant to
Pa. R.A.P. 1925(a) (Rule 1925(a) Opinion). At the outset, the trial court noted that,
at the hearing on June 20, 2018, counsel for Burgos moved for dismissal of
Ramirez’s Contest Petition on the basis that the trial court lacked jurisdiction to hear
and adjudicate the contest. The trial court then opined that, regardless of the merits
of the appeal, all issues raised on appeal should be dismissed because Ramirez’s
notice of appeal, filed on July 3, 2018, was untimely. With regard to the merits of
the appeal, the trial court calculated the five-day period for filing a bond under
Section 1759 of the Election Code from June 7, 2018 (i.e., the date that the trial court
docketed the Contest Petition), thereby establishing June 12, 2018, as the date by
which the petitioners were required to file a bond. The trial court concluded that the
petitioners failed to file a timely bond, advancing several reasons for this conclusion.
II. ISSUES ON APPEAL
In his statement of issues to be presented on appeal, filed a day after the
trial court issued its Rule 1925(a) Opinion, Ramirez identifies the issues for this
Court’s review as follows: (1) whether the trial court erred in dismissing his Contest
Petition for failing to post a bond or request that the trial court set the amount of such
bond; and (2) whether Ramirez acted in good faith and made reasonable efforts to
timely file the notice of appeal in this matter, such that the appeal should be deemed
9
timely. We must also consider Ramirez’s Application for Nunc Pro Tunc Relief,
asserting the same factual basis for relief recited in the motion that Ramirez filed
with the trial court on July 5, 2018, and Burgos’s Motion to Dismiss, requesting that
the Court dismiss the appeals due to Ramirez’s lack of standing, lack of this Court’s
jurisdiction, and the untimeliness of the appeals.
III. DISCUSSION
A. Timeliness of Appeal
As to the timeliness of Ramirez’s appeal to this Court, an appeal of
“[a]n order in any matter arising under the Pennsylvania Election Code” “shall be
taken within ten days after the entry of the order from which the appeal is taken.”
Pa. R.A.P. 903. Thus, in this instance, Ramirez had until July 2, 2018, to appeal
from the trial court’s order docketed on June 21, 2018. As noted above, Ramirez
electronically filed his notice of appeal on July 2, 2018, but the trial court rejected it
on July 3, 2018, based on a defect in the certificate of service. Ramirez refiled the
notice of appeal the same day the trial court rejected it, and the trial court then
accepted it for filing with a date of July 3, 2018, thereby causing the trial court to
consider it untimely. At issue is whether Ramirez’s appeal was timely when he filed
the notice of appeal on July 2, 2018, the trial court rejected it, and then the trial court
accepted a refiled notice of appeal on the following day.
In support of the timeliness of the appeal, Ramirez points to Pa. R.C.P.
No. 205.4(e), relating to electronic filing and service of legal papers (commonly
referred to as the eFiling Rescue Rule), which provides:
(e)(1) A filing party shall be responsible for any delay,
disruption, interruption of the electronic signals and
legibility of the document electronically filed, except
when caused by the failure of the electronic filing system’s
website.
10
Note: The filing party accepts the risk that a document
filed by means of electronic filing may not be properly or
timely filed with the prothonotary.
(2) No pleading or other legal paper that complies with
the Pennsylvania Rules of Civil Procedure shall be refused
for filing by the prothonotary or the electronic filing
system based upon a requirement of a local rule or local
administrative procedure or practice pertaining to the
electronic filing of legal papers.
Note: See also Rule 205.2 governing filing legal papers
with the prothonotary.
(3) If a pleading or other legal paper is not accepted upon
presentation for filing or is refused for filing by the
electronic filing system, the prothonotary or the electronic
filing system, as may be appropriate, shall immediately
notify the party presenting the legal paper for filing of the
date of presentation, the fact that the document was not
accepted or refused for filing by the system, and the reason
therefor.
(4)(i) The court upon motion shall resolve any dispute
arising under paragraphs (1) and (2) of this subdivision.
(ii) If a party makes a good faith effort to electronically
file a legal paper but it is not received, accepted or filed
by the electronic filing system, the court may order that
the paper be accepted and filed nunc pro tunc upon a
showing that reasonable efforts were made to timely
present and file the paper.
(Emphasis added.)
Thus, Pa. R.C.P. No. 205.4 authorizes courts to utilize electronic filing
and to establish local rules relating thereto. Importantly, it also provides that the
prothonotary shall not refuse for filing any “pleading or other legal paper that
complies with the Pennsylvania Rules of Civil Procedure.” Pa. R.C.P.
No. 205.4(e)(2). It further provides for notification to a party when a filing is not
accepted or is rejected and allows for the court to order that a filing be accepted nunc
pro tunc upon a showing of good faith and reasonable efforts.
11
In reviewing whether Ramirez made a good faith effort and took
reasonable steps to electronically file, it is apparent to this Court that Ramirez’s
initial filing on July 2, 2018, was sufficient under Pa. R.A.P. 902, relating to manner
of taking an appeal, such that the trial court erred in rejecting the filing.
Pa. R.A.P. 902 provides:
An appeal permitted by law as of right from a lower court
to an appellate court shall be taken by filing a notice of
appeal with the clerk of the lower court within the time
allowed by Rule 903 (time for appeal). Failure of an
appellant to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal,
but it is subject to such action as the appellate court deems
appropriate, which may include, but is not limited to,
remand of the matter to the lower court so that the omitted
procedural step may be taken.
(Emphasis added.) This Court has held that, under Pa. R.A.P. 902, “timeliness is the
only requirement to make a notice of appeal valid,” and the lack of inclusion of the
trial judge on the certificate of service does not affect the timeliness of the filing.
Brown v. Levy, 993 A.2d 364, 366 (Pa. Cmwlth.), appeal denied, 13 A.3d 480
(Pa. 2010).
In Brown, a prisoner filed a notice of appeal with a court of common
pleas, but the notice of appeal was defective in that the prisoner failed to attach case
docket entries, provide the requisite number of copies, and failed to provide a
certificate of service indicating service upon the trial judge. The prothonotary
returned the prisoner’s notice of appeal rather than accept it. This Court held that
the prothonotary’s rejection of the notice of appeal constituted an abuse of
discretion, because Pa. R.A.P. 902 only requires a notice of appeal to be timely, not
free of defects, in order to be valid. This analysis is consistent with our Supreme
12
Court’s subsequent decision in Commonwealth v. Williams, 106 A.3d 583
(Pa. 2014), wherein the Supreme Court opined:
The clerk of courts . . . lacks the authority to reject, as
defective, a timely notice of appeal. To hold otherwise
would repudiate the directive of [Pa. R.A.P.] 902 that a
timely notice of appeal is self-perfecting. It would also
contravene the plain language of [Pa. R.A.P.] 905(a)(3),
which unequivocally requires the clerk for the lower court
to time-stamp a notice of appeal immediately upon receipt.
Williams, 106 A.3d at 588.
As we conclude that Ramirez timely filed his notice of appeal on
July 2, 2018, Ramirez did not require nunc pro tunc relief under Pa. R.C.P.
No. 205.4. For this reason, and this reason alone, we affirm the trial court’s
July 13, 2018 order. We emphasize that the fact that Ramirez electronically filed
the notice of appeal does not in any way alter the analysis under Pa. R.A.P. 902.
Moreover, we reiterate that Pa. R.C.P. No. 205.4(e)(2) makes clear that an
electronically filed document that complies with the Pennsylvania Rules of Civil
Procedure cannot be rejected based upon “local rule or local administrative
procedure or practice pertaining to the electronic filing of legal papers.”7
B. Standing
As a preliminary matter, Burgos challenges whether Ramirez has
standing to bring this matter before our Court. Pa. R.A.P. 501 provides: “Except
where the right of appeal is enlarged by statute, any party who is aggrieved by an
appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal
7
As we conclude that Ramirez timely filed his July 2, 2018 notice of appeal, we dismiss
Ramirez’s Application for Nunc Pro Tunc Relief as moot. Similarly, to the extent that Burgos’s
Motion to Dismiss seeks dismissal on the basis of the untimeliness of Ramirez’s appeal, the Motion
to Dismiss is denied.
13
therefrom.” (Emphasis added.) Section 1743 of the Election Code, 25 P.S. § 3403,
provides that in a Class IV contest,8 such as the one now before the Court, “the
petitioners complaining of nomination or the election, and the person returned as
nominated or elected, shall be the parties thereto.”
Burgos argues that Ramirez was not a petitioner in the matter before
the trial court because he chose not to name himself in the Contest Petition. Rather,
Burgos contends that only the twenty-two individuals who signed the Contest
Petition were parties to the trial court proceedings. Burgos notes that Ramirez did
not sign or verify the Contest Petition, the Contest Petition did not plead Ramirez’s
address in order to establish that he could have been a petitioner, and Ramirez did
not intervene in the proceedings before the trial court. As such, Ramirez was never
a party to the action. Moreover, Burgos notes that Ramirez does not have standing
by virtue of being a fiduciary whose estate or trust was aggrieved or by an express
statute. Burgos maintains that, for these reasons, Ramirez does not have standing to
pursue this appeal. Because the appeal was filed only on behalf of Ramirez and not
on behalf of the individuals who signed as petitioners, Burgos urges the Court to
dismiss the appeal due to lack of standing.
Ramirez responds by arguing that Burgos cannot raise the issue of
standing for the first time on appeal, noting that Burgos did not preliminarily object
on that basis nor did he raise the issue at the hearing before the trial court. Objections
to lack of standing, including claims of lack of capacity to sue, must be raised at the
earliest opportunity and are waived if not promptly raised. Erie Indem. Co. v. Coal
8
“Class IV” refers to “[n]ominations and elections of Senators and Representatives in the
General Assembly, and nominations of Representatives in Congress.” Section 1711 of the Election
Code, 25 P.S. § 3291.
14
Operators Cas. Co., 272 A.2d 465, 467 (Pa. 1971); Twp. of Bristol v. 1 Enters., LLC,
177 A.3d 1045, 1051 (Pa. Cmwlth. 2018).
In reply, Burgos counters that the election contest matter did not reach
the answer stage and, thus, he did not have an opportunity to raise an objection based
on standing. Furthermore, Burgos notes that this issue only became significant
because Ramirez is the only person who appealed, while the other individuals who
“unquestionably had standing, did not do so.” (Appellee’s Reply Br. at 1.)
Burgos’s argument that Ramirez lacks standing to appeal to this Court
is premised entirely on his characterization that Ramirez was not a petitioner in the
proceedings below. This Court, however, disagrees with that characterization. The
Contest Petition is titled “Petition of Frederick Ramirez to Contest Election” and
indicates that Ramirez is contesting the nomination of Burgos. (R.R. at 10.) While
Ramirez indicates in the Contest Petition that he is a candidate who received less
votes in the election than Burgos, that fact does not disqualify Ramirez from also
being a petitioner. Moreover, Ramirez is the only petitioner named in the body of
the Contest Petition; the other petitioners signed (and five of them verified) the
Contest Petition, providing their addresses. Although Ramirez did not sign the
Contest Petition, there is no requirement in the statute that he do so. Rather, Section
1757 of the Election Code, 25 P.S. § 3457, only requires that the petitioners shall be
registered electors who voted at the primary or election so contested and that five of
the petitioners verify the petition.9
9
Section 1757 of the Election Code provides:
In each of the aforesaid second, third, fourth and fifth classes, the
petitioners shall be registered electors who voted at the primary or
election so contested. In cases of the third class, each petition shall
be verified by the affidavits of at least ten of the petitioners; in the
15
Furthermore, we agree with Ramirez that Burgos waived the issue of
Ramirez’s standing by not raising it before the trial court. Burgos’s assertion that
he did not have the opportunity to do so is belied by the record. At the hearing,
Burgos raised five objections to the Contest Petition, including whether there was a
sufficient number of petitioners for the matter to proceed. At no point during the
hearing did Burgos assert that Ramirez was not a petitioner and lacked standing.
Even after the trial court ruled in favor of Burgos regarding petitioners’ failure to
post a bond, Burgos placed on the record two additional objections to the Contest
Petition so that the objections would be preserved for purposes of appeal. Neither
of those objections challenged whether Ramirez was a petitioner in the matter or
otherwise lacked standing.
For the reasons set forth above, to the extent that Burgos’s Motion to
Dismiss seeks dismissal on the basis of lack of standing by Ramirez, the Motion to
Dismiss is denied.
C. Bond
Next, we address whether the trial court erred in dismissing the Contest
Petition under Section 1759 of the Election Code, relating to the posting of a bond.
That section provides:
Whenever a petition to contest nomination or contest
election of any class shall be presented to the General
Assembly or to the court, it shall be the duty of said
second, fourth and fifth classes, by the affidavit of at least five of the
petitioners. Such affidavits shall be taken and subscribed before
some person authorized by law to administer oaths, and shall set
forth that they believe the facts stated therein are true, that according
to the best of their knowledge and belief, the primary or election was
illegal and the return thereof not correct, and that the petition to
contest the same is made in good faith.
(Emphasis added.)
16
petitioners, within five days thereafter, to file a bond,
signed by at least five of the said petitioners in such sum
as the presiding officer of the Senate or said court shall
designate, with two or more individual sureties or a
corporate surety to be approved by the said officer or court
or judge, conditioned for the payment of all costs which
may accrue in said contested nomination or election
proceeding, in case the said petitioners by decree shall be
adjudged liable to pay said costs, and if the said bond shall
not be filed, as herein provided, the said petition to contest
the nomination or election shall be dismissed.
(Emphasis added.)
Ramirez takes the position that it was impossible for him to file a bond,
because the trial court did not designate an amount for the bond within five days.
Ramirez’s entire argument is: “The action of the [trial] court administration to reject
the Petition filed pursuant to [Section 1741 of the Election Code,] 25 P.S. § 3401[,]
in the [trial court] rendered it impossible for Petitioners to enter bond within five
days in conformity with [Section 1759 of the Election Code], which also requires
that the bond be in ‘such sum . . . as the court shall designate.’” (Appellant’s Br.
at 4 (omission in original).)
In response, Burgos cites two Pennsylvania Supreme Court cases, both
decided under a prior, but similar statute—In re McChesney, 192 A. 415 (Pa. 1937),
and In re Moritz, 100 A. 1033 (Pa. 1917). In In re McChesney, McChesney moved
for the dismissal of the petition to contest his election, arguing that the bond was not
in conformity with the requirements of the now-repealed Section 9 of the Act of
May 19, 1874, P.L. 208, repealed by the Act of June 3, 1937, P.L. 1333, as
amended,10 formerly 25 P.S. § 2525, which provided:
10
This section was amended by the Act of April 28, 1899, P.L. 118, 25 P.S. § 2525, which
is the same section at issue in In re Moritz. It appears that both In re McChesney and In re Moritz
addressed the statutory language set forth above.
17
Whenever a petition to contest an election . . . shall be
presented to the court, it shall be the duty of said
petitioners, within ten days thereafter, to file a bond signed
by at least five of the said petitioners in such sum as the
said court . . . shall designate, with sureties, to be approved
by the said court or judge, conditioned for the payment of
all costs . . . and if the said bond shall not be filed, as herein
provided, the said petition to contest the election shall be
dismissed.
In re McChesney, 192 A. at 416 n.1. Citing In re Moritz, the Supreme Court wrote:
The filing of a bond which conforms to the requirements
of the Act of Assembly and within the time prescribed is a
condition precedent not only of the petitioners’ right to
proceed with the election contest, but also of the court’s
jurisdiction to hear and determine the contest. In our
opinion, the bond here filed was irregular, and the court
below had no alternative but to dismiss the petition.
In re McChesney, 192 A. at 416. In In re Moritz, the Supreme Court affirmed the
dismissal of an election contest where the petitioners failed to file a bond with a seal
affixed to it, concluding that the bond was irregular. The Supreme Court wrote:
“The provision is not only plain with respect to the essential character of the security
to be given, but mandatory that, [unless] the prescribed bond be filed within [ten]
days after the filing of the petition to contest, the court shall dismiss the petition.”
In re Moritz, 100 A. at 1035.
Neither of these decisions, however, addresses the circumstances
presently before the Court. In both, the respective common pleas courts, upon the
filing of petitions to contest election, issued orders setting their matters for hearing
and designating the amounts of the statutory bonds. Thereafter, the petitioners
complied and filed bonds. The Pennsylvania Supreme Court concluded that the filed
bonds were deficient under the terms of the statute then-in-effect and, therefore, the
petitions should have been dismissed. Here, by contrast, Ramirez never filed a bond
such that the legal conformity of the instrument could be challenged. Rather, this
18
case presents the question of how the statutory bond requirement in Section 1759 of
the Election Code should, or can, be administered where the common pleas court
does not designate the amount of the bond.
Burgos also cites Bristol Township Election Contest, 70 Pa. D. & C.2d
275 (C.P. Bucks Co. 1975), wherein the Court of Common Pleas of Bucks County
dismissed an election contest where no bond had been posted and the record
disclosed that the petitioners had not requested the common pleas court to set the
amount of the bond. The petitioners in Bristol Township Election Contest had
argued that the common pleas “court ha[d] the duty to designate the amount of the
bond and, having failed to so designate an amount (in the absence of a request), no
bond is required.” Bristol Twp. Election Contest, 70 Pa. D. & C.2d at 276. The
common pleas court rejected that argument, noting that the election contest petition
did not request the amount of a bond be set, the petitioner did not file an independent
petition requesting a bond be set, and the petitioner made no attempt to file any bond
in any amount as required by Section 1759 of the Election Code. Ultimately, the
common pleas court concluded that it had “no jurisdiction to hear or consider the
present matter because of [the] petitioner’s failure to comply with the statutory
requirement to post a proper bond.” Id. at 279.
The Court of Common Pleas of Pike County reached a different
conclusion in In re General Election of November 4, 1975 (No.1), 71 Pa. D. & C.2d
68 (C.P. Pike Co. 1975). The petitioners in that case filed their election contest
petition on November 13, 1975. A petition to fix the amount of the bond was filed
the same day, but the court did not act on it, and the statutory period for filing the
bond lapsed. A motion to quash the petition for failure to file the bond followed.
Within the statutory period to contest the election, the same petitioners filed a second
19
petition, identical to the first, along with a request to set the bond amount. This time,
the common pleas court promptly set the bond amount and the petitioners filed the
bond. The common pleas court refused to quash the first appeal for failure to file a
timely bond, concluding primarily that the second petition and filed bond effectively
cured any defect. The common pleas court’s analysis of the issue, however, is
instructive:
The contest petition was originally filed
November 13, 1975. On the same day, a petition to fix
bond was filed but never acted upon by the court. We
agree that time elements required by the Election Code
must be strictly enforced. We further agree that, under
ordinary circumstances, the failure to file a bond is fatal to
the validity of the contest proceeding. However, there are
present here some unusual circumstances. A request to fix
bond was presented to the court within the statutory time.
Judge Marsh did not act upon it. As stated earlier, he
understood it was to be presented to the writer of this
opinion as President Judge of the court for action upon it.
There was no lack of diligence on the part of counsel in
requesting that the amount of the bond be fixed by the
court. While we agree that the court is generally without
authority to extend the time for filing any proceeding
beyond the statutory period, yet it is also true if the delay
is induced by some breakdown in the court’s operation, the
court does have the power to extend the statutory
period.[11]
Under the circumstances here present, it would be
manifestly unfair to petitioners to summarily quash their
petition without first holding an evidentiary hearing to
determine whether the cause of the delay was due to the
inaction of petitioners, or was it due to a breakdown in the
court’s operation.
11
In support, the common pleas court cited the Pennsylvania Supreme Court’s decision in
Nixon v. Nixon, 198 A. 154, 157 (Pa. 1938) (authorizing nunc pro tunc relief from statutory
deadlines).
20
However, in light of the events which followed the
original filing of the petition, we think the issue has
become moot. Respondents argue that petitioners should
have brought mandamus proceedings to force the court to
fix the amount of the bond within the statutory period. We
consider such a move on the part of petitioners to be
impractical because the time period was too short in which
to act. We also see with what reluctance an attorney would
move for a writ of mandamus against a judge, particularly
where petitioners had the alternative remedy of refiling the
petition.
The request to fix the amount of the bond was made
to the writer of this opinion on November 25, 1975. On
that day, the amount was fixed and the bond was filed on
November 26, 1975.
We agree that the petition filed November 24, 1975,
was not an amendment of the petition filed on
November 13, 1975, since it was an exact duplicate of the
first petition. Whether or not the court had the authority
to grant leave to file the petition on November 24, 1975, is
immaterial. Petitioners had the absolute statutory right to
contest the election within the statutory period.
November 24, 1975, was the last day such petition could
be legally filed. Counsel for petitioner advised the court
on November 24, 1975, of his concern that his request to
fix bond had not been acted upon. To obviate any
problem, he refiled his petition on November 24, 1975,
after being told by the court, “You can file as of today.”
The amount of the bond was fixed on November 25, 1975,
and the bond filed the next day. Thus, the time
requirements of the Election Code were satisfied.
We have not found, nor has counsel referred us to,
any appellate or lower court case which has passed upon
the particular circumstances before us. The facts are
unique which likely explains such lack of legal precedents.
We conclude that petitioners could perfect their
election contest petition by refiling it within the required
statutory period without leave of court and without a
formal withdrawal of their first petition. We think it would
be unjust to rule otherwise under the unusual
circumstances here present. We do not find any evidence
21
of dilatory action on the part of counsel for petitioners.
They acted promptly to have the amount of the bond fixed
after the original filing of their contest petition. When this
was not done, they acted alertly to overcome the possible
quashing of the original filing, by refiling the petition
within the statutory period. Neither do we see any
prejudice to respondents in such a ruling. If the petition
was filed for the first time on November 24, 1975, they
could not properly object to the filing date.
In re General Election of November 4, 1975 (No. 1), 71 Pa. D. & C.2d at 75-77
(citation omitted).
The circumstances in this case are, at least, just as unusual as those
encountered by the Pike County Common Pleas Court. Ramirez attempted to file
his timely Contest Petition on June 4, 2018. It was not until June 7, 2018, that the
trial court accepted it, correcting its earlier jurisdictional error. Phila. Civ.
R. 206.1(a) designates a petition under the Election Code (a statutory petition) as a
petition subject to the procedures set forth in Pa. R.C.P. Nos. 206.1 through 206.7.
With respect to the content and form of the petition, the Pennsylvania Rules of Civil
Procedure provide:
(b) A petition shall specify the relief sought and
state the material facts which constitute the grounds
therefor. All grounds for relief, whether to strike or open
a default judgement, shall be asserted in a single petition.
(c) A petition shall be divided into paragraphs
numbered consecutively. Each paragraph shall contain as
far as practicable only one material allegation.
Pa. R.C.P. No. 206.1(b), (c). When filing a petition, Pa. R.C.P. No. 206.5(b) requires
that the petitioner attach to the petition a form order. Pa. R.C.P. No. 206.5(b) and
cmt. This form order is the Rule to Show Cause order, not the order granting the
ultimate relief sought in the petition. It provides for such things as service upon the
respondent, the time by which the respondent must answer the petition, and whether
22
and, if so, when the court will conduct a hearing on the petition. The form of the
order must substantially follow the form established by the court. Pa. R.C.P.
No. 206.5(d); Phila. Civ. R. 206.4(c). Succinctly, under petition practice, the
petitioner sets forth in the petition the relief he seeks in the matter, while the
proposed order addresses pre-disposition procedural matters.12
In this case, Ramirez appears to have complied with the petition
practice. He filed his petition with a proposed order that substantially followed the
form required under the Philadelphia Civil Rules. Because, however, this was a
contest petition under the Election Code, Ramirez included in his proposed order a
line item for the trial court to designate the amount of the statutorily-required bond.
Ramirez even included a citation in the proposed order to the governing statute. The
trial court did not docket the Contest Petition until June 7, 2018. The issuance of a
rule to show cause is discretionary with the trial court “unless the [trial] court by
local rule adopts the procedure of Rule 206.6 providing for issuance as of course.”
Pa. R.C.P. No. 206.4(a)(1). Philadelphia Civil Rule 206.4(c) adopts the rule to show
cause process set forth in Pennsylvania Rule of Civil Procedure No. 206.6 and
provides, in relevant part: “Upon the filing of a petition, a rule to show cause shall
be issued as of course by the Motion Court clerk on behalf of the [trial c]ourt.”13
(Emphasis added.) Based on our review of the record, however, that did not happen.
Instead, according to the docket, the Contest Petition was assigned to the trial court
12
There is no requirement that a request for bond must be made in the petition to contest
election. The statute provides only that the bond shall be in an amount designated by the court.
The section does not provide for any process by which the amount of the bond can, should, or must
be set.
13
This Court has previously explained that the trial court lacks discretion when a statute or
rule utilizes the word “shall.” See Jennison Family Ltd. P’ship v. Montour Sch. Dist.,
802 A.2d 1257, 1262 (Pa. Cmwlth. 2002), appeal denied, 815 A.2d 635 (Pa. 2003).
23
judge four days later, on June 11, 2018. The trial court judge then issued the Show
Cause Order, which was not docketed until June 14, 2018. The Show Cause Order
set the matter for hearing on June 20, 2018, four business days later. Despite the
inclusion of the bond line item in the mandated proposed order accompanying the
Contest Petition, the trial court judge did not include a line item for the bond in the
Show Cause Order. By this time, regardless, the statutory five-day period
post-petition for filing the bond had expired.
Although the parties appeared before the trial court for the hearing on
June 20, 2018, they never reached the merits of the Contest Petition. Instead, as
noted above, counsel for Burgos raised multiple grounds for dismissal, one of which
addressed the bond requirement. Despite the foregoing history and rules governing
petition practice, the trial court granted Burgos’s oral motion to dismiss on the bond
issue, but refused Ramirez’s oral motion for the trial court to set the bond amount at
the hearing and allow him to file the bond nunc pro tunc. In this respect, the trial
court erred. The trial court in its Rule 1925(a) Opinion and Burgos in his brief on
appeal focus on the five-day filing requirement. They ignore, however, the equally
mandatory requirement that the petitioners file the bond “in such sum as . . . said
court shall designate.” Section 1759 of the Election Code. The statute does not
authorize the petitioners to file a bond in the amount of their choosing. Indeed, under
the clear language of the statute, doing so would appear to be just as defective as
filing the bond on the sixth day.
The question, then, is whether Ramirez, acting under a very compressed
timeline and notwithstanding the trial court’s original erroneous decision to reject
the Contest Petition, attempted in good faith to comply with Section 1759 of the
Election Code. Like the petitioners in In re General Election of November 4, 1975
24
(No. 1), we believe that he did. He filed the Contest Petition timely under the
Election Code along with the mandated proposed order. Within the mandated
proposed order, Ramirez appropriately notified the trial court of the need for the trial
court to establish the amount of the bond under Section 1759 of the Election Code,
providing a line in the proposed order for the trial court to designate the bond
amount. The trial court originally rejected the Contest Petition in error, requiring
Ramirez to focus his efforts immediately on correcting that oversight. Once
corrected, it appears that rather that following its own rules and issuing the Rule to
Show Cause “as of course,” this time-sensitive matter was assigned to the trial court
judge. The trial court judge, however, omitted any reference to the amount of the
bond in her Show Cause Order. Again, operating under a compressed timeframe,
when the bond issue came up at the hearing on June 20, 2018, but before any
consideration of the merits of the Contest Petition, Ramirez asked the trial court
judge to set the bond amount, and the trial court judge refused.
If the question is whether Ramirez could have filed a separate
motion/petition with the trial court to set the amount of the bond at some point prior
to the expiration of the five-day statutory period, the answer is certainly yes. If the
question is whether the Election Code or the circumstances in this particular matter
compelled him to do so, the answer is no. The parties and the courts are operating
under a very compressed calendar in these election matters. Based on the record
before us and considering the arguments of the parties as well as the trial court’s
Rule 1925(a) Opinion, it is evident that Ramirez’s failure to file a bond in the amount
designated by the trial court within the five-day statutory period was due not to his
inaction, but to a breakdown in the trial court’s handling and consideration of the
25
Contest Petition. Moreover, we do not see how Burgos suffered any prejudice, as
the matter never proceeded to a disposition on the merits.14
For these reasons, we reverse the trial court’s dismissal of the action for
failure to file the bond required by Section 1759 of the Election Code. On remand,
the trial court shall, as expeditiously as possible, designate the amount of the bond
to be filed in this case and afford Ramirez five days to file the same. If Ramirez fails
to file the bond at that point, the trial court shall dismiss the Contest Petition.
Otherwise, the trial court should proceed expeditiously to a hearing on the merits
and final ruling on the Contest Petition.15
IV. CONCLUSION
Accordingly, we affirm the trial court’s July 13, 2018 order. We
reverse the trial court’s June 20, 2018 order, dismissing Ramirez’s Contest Petition
for failure to file a bond as required by Section 1759 of the Election Code. We
dismiss as moot Ramirez’s Application for Nunc Pro Tunc Relief, and we deny
Burgos’s Motion to Dismiss. We remand this matter for further proceedings
consistent with this opinion.
P. KEVIN BROBSON, Judge
14
As noted in Section 1759 of the Election Code, the purpose of the bond is to secure a
source of payment in the event the contest is unsuccessful and costs are assessed against the
petitioners.
15
In his Motion to Dismiss, Burgos argues that the Court should dismiss this appeal due
to Ramirez’s failure to post a bond in the proceedings before the trial court. Although
Section 1759 of the Election Code makes the filing of the bond a jurisdictional prerequisite for
proceedings before the trial court, it does not divest this Court of jurisdiction to consider the
propriety of a court of common pleas’ dismissal. To hold otherwise would necessarily mean that
our Supreme Court lacked jurisdiction to issue its decisions in In re McChesney and In re Moritz—
decisions upon which Burgos himself relies for the conclusion that Ramirez’s failure to post a
bond divested the trial court of jurisdiction.
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Primary Election of :
May 15, 2018 :
:
In Re: Nomination of the :
Democratic Candidate for the : Nos. 977 C.D. 2018 and
Office of Representative in the : 1009 C.D. 2018
General Assembly From the :
197th Legislative District :
:
Appeal of: Frederick Ramirez :
ORDER
AND NOW, this 7th day of August, 2018, the June 20, 2018 order of
the Court of Common Pleas of Philadelphia County (trial court), dismissing
Appellant Frederick Ramirez’s (Appellant) petition to contest election, is
REVERSED, and this matter is REMANDED to the trial court for further
proceedings in accordance with the accompanying opinion. The July 13, 2018 order
of the trial court, denying Appellant’s request to pursue his appeal from the
June 20, 2018 order nunc pro tunc, is AFFIRMED on alternative grounds.
It is further ordered that Appellant’s application for relief in the form
of a motion pursuant to Pa. R.C.P. No. 205.4(e)(4)(ii), seeking nunc pro tunc relief
as to his notice of appeal of the trial court’s June 20, 2018 order is DISMISSED AS
MOOT, and Appellee Danilo Burgos’s application for relief in the form of a motion
to dismiss, requesting that the Court dismiss the appeals due to Appellant’s lack of
standing, lack of this Court’s jurisdiction, and the untimeliness of the appeals, is
DENIED.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge