In Re: Nom. of G. Masino ~ of M. Grimes Santilli & D. Bond

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Nomination Petition of :
Gary Masino :
:
Petition of Maria Grimes Santilli and :
Donna Bond : No. 319 C.D. 2023
: Submitted: April 7, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: April 12, 2023
Maria Grimes Santilli and Donna Bond (Objectors) appeal from the Order of
the Court of Common Pleas of Philadelphia County (common pleas) docketed
March 27, 2023, denying their Petition to Set Aside (Petition to Set Aside) the
Nomination Petition of Gary Masino (Candidate) in which he seeks to be the
Democratic nominee for the City of Philadelphia’s City Council for the 10th District.
On appeal, Objectors argue common pleas erred and/or abused its discretion by not
treating their challenges to certain signature lines, coded as “Not Registered at
Address” (NRA) on common pleas’ “Election Spreadsheet” (spreadsheet), as
encompassing a challenge to those electors not being registered in the Democratic
Party. Alternatively, they argue common pleas erred and/or abused its discretion in
not allowing them to amend their Petition to Set Aside to include that challenge.
Finally, Objectors argue common pleas erred and/or abused its discretion in
quashing subpoenas they issued to two circulators of multiple pages of Candidate’s
Nomination Petition based on common pleas’ conclusion that the circulators’
testimony was not relevant to the objections raised. Upon careful review, the Court
concludes common pleas erred in not allowing Objectors to amend their objections
to signature lines, already challenging the signers’ registration status, to include an
objection that the electors were not registered in the Democratic Party, and abused
its discretion in quashing Objectors’ subpoenas. Accordingly, the Court is
constrained to vacate common pleas’ Order and remand for further proceedings
consistent with this opinion.
I. PROCEEDINGS BEFORE COMMON PLEAS
Candidate filed a Nomination Petition to run as a candidate to be the
Democratic nominee for the City of Philadelphia’s City Council for 10th District in
the May 2023 Municipal Primary Election (Primary Election). Objectors filed the
Petition to Set Aside challenging Candidate’s Nomination Petition on the basis that
Candidate failed to obtain the 750 valid signatures of registered members of
Candidate’s party to have his name appear on the Primary Election ballot. Relevant
to the issues in this appeal, Objectors challenged hundreds of signature lines as
invalid under the NRA code. Many of those signature lines were also challenged on
other grounds. Other signature lines were challenged on the basis they were either
bad signatures, i.e., the signature on the Nomination Petition did not match the
signature in the Statewide Uniform Registry of Electors (SURE) system, or the line
information was written in the hand of another.
Following efforts by Objectors and Candidate to meet and confer over the
disputed signature lines, and after the seven-day period to file objections to
nomination petitions had expired, it was discovered during this process that many of
the signature lines challenged as NRA were registered electors at the listed address
but were not registered electors of the Democratic Party at the address. (Motion to
Amend the Petition to Set Aside Nomination Petition (Motion to Amend), Original
2
Record (O.R.) at Item 7.) Objectors filed the Motion stating, “[i]n reviewing the
nomination petitions in question [Objectors] reviewed a list of all of the Democratic
voters in the 10th Council District, the only ones who would have been eligible to
sign nomination petitions for that district.” (Id. ¶ 2.) A number of signers were
found not to be on the list, and many challenges to these were identified as NRA on
the spreadsheet. Objectors stated in the Motion to Amend that while “Candidate
agreed that the [electors] were not eligible to sign,” he would not stipulate to striking
the signatures. (Id.) Objectors requested common pleas to strike these signature
lines on this basis, as the electors were not qualified to sign the Nomination Petition
or, alternatively, to allow Objectors to amend the Petition to Set Aside to include a
challenge to the electors because they were not registered in the Democratic Party.
Objectors argued in their supporting brief the NRA code should be inclusive of this
challenge because it gave Candidate adequate notice that he would have to defend
those electors’ registration status, which became clear during the meet and confer.
Alternatively, Objectors asked to amend the Petition to Set Aside to include the
challenge based on political party registration, because they were not asserting new
factual averments, but additional legal arguments as to why the challenged signature
lines were invalid, and Candidate had notice that he would have to defend these
signature lines.
Candidate filed a brief opposing the Motion to Amend, arguing the
Pennsylvania Election Code1 (Election Code) did “not permit challenge-by-
ambush,” requires objections to nomination petitions to “specifically set[ ]forth the
objections thereto,” and requires objections to be filed within the seven-day time
period set forth in the Election Code. (Candidate’s Brief in Opposition to Motion to
1
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
3
Amend (Candidate’s Br. in Opp.) at 1 (quoting Section 977 of the Election Code, 25
P.S. § 2937), O.R. Item 8.) Candidate contended that new substantive objections
could not be added after the seven-day period had expired and allowing an
amendment to add new objections would prevent Candidate from being able to
present a defense to those objections. According to Candidate, the NRA objection
is very specific, particularly after the Supreme Court’s decision in In re Major, 248
A.3d 445, 454 (Pa. 2021), and relates to an elector using an address on a nomination
petition that differs from the “address where [the elector] is duly registered and
enrolled.” (Id. at 2-3.) Had Objectors intended to challenge the signature lines
because the electors were not registered in the correct party, Candidate believed such
challenges should “obviously” be brought under the “Not Registered” (NR)
objection. (Id.) Having not asserted this challenge in the Petition to Set Aside,
Candidate argued Objectors had forfeited that issue.
Common pleas conducted hearings on March 21, 2023, and March 24, 2023,
on the Petition to Set Aside. At the March 21, 2023 hearing, Objectors and
Candidate presented argument on the Motion to Amend and request to strike
signature lines that had been marked NRA where the electors were not registered in
the Democratic Party. Objectors argued there is no category on the spreadsheet for
“not registered in party,” and the NRA should be read to include this challenge, and,
if this argument was rejected, common pleas had the discretion to allow them to
amend the Petition to Set Aside. (Hearing Transcript (Hr’g Tr.) March 21, 2023 at
4-8.) Candidate responded, reiterating his positions from his brief in opposition, and
maintained Objectors did not provide proper notice of this challenge. (Id. at 9-11.)
When common pleas inquired as to how many signature lines were impacted,
Objectors indicated 361 total lines were marked as NRA challenges but some of
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those lines were subject to additional challenges or had been stipulated as invalid for
other reasons and posited the number as 77, while Candidate indicated it could be a
different number. (Id. at 12-14, 24, 26, 28.) Common pleas denied the Motion to
Amend and held any challenge identified on the spreadsheet as NRA, in which
Objectors sought to strike based on the elector not being registered in the Democratic
Party, had been waived. (Id. at 29.) Common pleas issued an order dated March 21,
2023, denying the Motion to Amend based on the reasoning stated in the record.2
At the March 24, 2023 hearing, when the parties attempted to agree on the
number of signature challenges that remained unresolved, Objectors disputed
Candidate’s numbers, asserting the signature lines affected by the denied Motion to
Amend could encompass between 76 and 192 lines. (Hr’g Tr. March 24, 2023 at
18, 23-25.) Candidate’s counsel indicated during the hearing the number was closer
to 200 than 77. (Id. at 141.) Ultimately, common pleas used 77 as the number of
signature lines that would be affected by the denied Motion to Amend, although it
indicated the number could be more and would have to be revisited if its decisions
were reversed, and added 77 to Candidate’s valid signature total. (Id. at 242-43.)
Also at the March 24, 2023 hearing, Objectors sought to call two circulators
to whom they had issued subpoenas, one of whom was present in the courtroom and
one of whom could not appear until Monday, March 27, 2023, per a physician’s
note, due to his being ill. (Id. at 34-36.) Candidate objected, asserting the circulators
had been subpoenaed for improper purposes because Objectors had never claimed
there was a defect in the circulator statements. (Id. at 33.) Objectors asserted the
circulators were being called to discuss “serious discrepancies” in their pages,
2
The March 21, 2023 order contains a typographical error in its reference to the date
“March 20, 2023,” as no hearing or argument occurred on the Motion to Amend on that date but,
rather, occurred on March 21, 2023.
5
including an alleged dead woman’s signature being forged. (Id.) Common pleas
noted whether the signature was forged was a criminal matter to be brought to the
district attorney, that Objectors had brought a handwriting expert to ascertain which
signatures were valid and which were not, the circulators’ testimony was not going
to assist common pleas in determining whether the signatures were valid, and
Objectors had not raised any challenge to circulators’ statements. (Id. at 34-35.)
Therefore, common pleas stated the testimony of the circulators was not relevant and
quashed the subpoenas. (Id. at 35.) Objectors strongly disagreed with the ruling,
and common pleas stated if they still believed it to be an issue, they could re-raise it
but common pleas was not “hearing witness testimony beyond the [E]xpert on what
[was] in front of [it] . . . All right? That’s it.” (Id. at 34-36.)
The parties proceeded to go through the signature challenges, during which
Objectors’ handwriting expert opined regarding the validity, or not, of certain
signature lines. When common pleas determined that Candidate had 757 valid
signatures, reflecting 575 lines that had been either unchallenged or conceded to be
valid, 105 that common pleas found to be valid during the hearings, and 77 that were
valid due to common pleas ruling on the Motion to Amend, it denied the Petition to
Set Aside.
Objectors filed a notice of appeal to this Court. Relevant to the arguments on
appeal, common pleas issued an opinion supporting its denial of the Petition to Set
Aside. Common pleas held the Nomination Petition was presumed valid and
Objectors had the burden of proving that Candidate lacked the necessary signatures
to appear on the ballot. Common pleas explained the NRA challenge related to
whether an elector used the address at which they were registered on the nomination
petition as is required by Section 908 of the Election Code, 25 P.S. § 2868, and
6
Major, 248 A.3d at 454. (1925(a) Opinion at 4.) Common pleas indicated there are
other challenge codes that apply to party affiliation, which were not used, and,
therefore, it did not err in not expansively reading NRA to include a challenge to the
party registration of the elector. Common pleas stated it did not grant the Motion to
Amend because objections to nomination petitions must provide a candidate fair
notice and sufficient information to mount a defense to a challenge. (Id. at 5 (citing
In re Nomination Petition of Bishop, 579 A.2d 860, 862-63 (Pa. 1990)).) Fair notice
is required, common pleas indicated, to “advise a candidate of the proof he or she
must present at the hearing.” (Id. (citing In re Nomination Petition of Williams, 625
A.2d 1279, 1282-83 (Pa. Cmwlth. 1993)).) Common pleas recognized that if an
objection is made to a specific signature on a nomination petition, other challenges
can be asserted during a subsequent hearing, but concluded entirely new challenges
cannot be raised in a motion to amend. (Id.) Common pleas observed Objectors’
Petition to Set Aside included several hundred NRA challenges, many of which
contained additional challenges, and that, almost a week after the challenges’ filing,
Objectors sought to amend only those lines where the NRA challenge was the only
challenge and where the elector was registered at the address used but was not a
registered Democrat in the 10th District. According to common pleas, the party
affiliation of an elector should have been easily identified by Objectors prior to filing
the Petition to Set Aside, but Objectors claimed only to discover during the meet and
confer period that their NRA challenges meant to articulate party affiliate challenges,
a separate challenge that involved a different defensive response by Candidate.
Common pleas further noted that “Objectors were never – even up until the last
hearing day – able to identify the exact number of signatures impacted by the
Motion” to Amend, with their numbers ranging from 77 to 341. (Id. at 6-7.)
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Common pleas stated “Objectors were never able to present a concrete number of
challenged signatures” but common pleas nonetheless engaged in a line-by-line
review to determine if Candidate had obtained the requisite 750 valid signatures.
(Id. at 10.) Thus, common pleas contended it properly found the party affiliation
challenges waived, denied the Motion to Amend, and included 77 signatures asserted
by Objectors to be affected by the Motion to Amend in Candidate’s total, which
ultimately exceeded the 750 needed. (Id. at 7.)
As for Objectors’ subpoenas, common pleas indicated it quashed the
subpoenas determining that the circulators’ testimony was not relevant to the line-
by-line challenges. Common pleas explained Objectors claimed the testimony was
relevant for the first time at the March 24, 2023 hearing, but noted that no circulator
challenges were filed and it found Objectors’ expert witness’s testimony to be the
most relevant and probative to Objectors’ line-by-line challenges. (Id. at 11.)
II. DISCUSSION
A. Whether common pleas erred or abused its discretion by not permitting
Objectors to present challenges based on the electors’ party affiliation.
On appeal, Objectors argue there are 361 signature lines at issue and common
pleas erred in narrowly interpreting the NRA code, a designation that is not statutory
but court-created to aid in reviewing election petition challenges, to exclude the
challenge they sought to make. Objectors contend their challenge was sufficiently
specific to provide Candidate notice of what was at issue, which is that there was no
registered Democrat at the address used in the Nomination Petition, because they
identified the page number, line, and reason for the invalidity, which is all that is
required by the Election Code. See Bishop, 579 A.2d 860; In re Nominating
Petitions of Duffy, 635 A.2d 111 (Pa. 1993). According to Objectors, Candidate
became aware of the basis of these objections during the meet and confer period,
8
which led to the Motion to Amend. Objectors maintain common pleas should have
enforced the Election Code’s requirements, rather than the spreadsheet’s
designations, by either broadly construing the NRA code to include this challenge
or allowing them to amend the Petition to Set Aside to add that challenge.
Amendment, Objectors assert, was appropriate because they were seeking to add an
alternative legal basis to an already objected-to signature line and limitations on a
court’s discretion on allowing amendments are focused on the relationship between
the proposed amendment and the timely-filed objections. Here, they contend, the
relationship between the proposed amendment – not a registered Democrat at the
address – is sufficiently close to the timely-filed objection – the elector is not
registered at the address – that common pleas abused its discretion in denying the
Motion to Amend. They conclude not allowing amendment does not serve to
preserve election integrity and is contrary to the Election Code’s purpose.
(Objectors’ Brief (Br.) at 32.)
Candidate asserts there was no abuse of discretion in common pleas not
allowing Objectors to convert the NRA challenge, which has a set meaning in
election law parlance, into a completely different challenge after the seven-day
period had expired. (Candidate’s Br. at 2-4.) Candidate maintains the meaning of
the NRA challenge is set – and was confirmed in Major – as being that the elector is
registered, but not at the address used on the nomination petition, and the challenge
to an elector’s party affiliation is better raised as a “Not Registered” (NR) challenge.
(Id. at 2-3.) According to Candidate, Objectors are bound by the objections they
filed on the spreadsheet attached to the Petition to Set Aside and they could not raise
new substantive challenges. (Id. at 4-5.) As in In re Nomination Petition of Brown,
846 A.2d 783, 788 (Pa. Cmwlth. 2004) (Friedman, J.) (single-judge op.) (Brown),
9
where this Court rejected an objector’s attempt to convert a not registered in the
district into a party affiliation challenge because the candidate lacked notice and the
ability to defend against the new challenge, Candidate argues allowing the expansive
reading of the NRA code or amendment to the Petition to Set Aside does not provide
him with sufficient notice to defend against that new challenge. (Id. at 4-6.)
Therefore, Candidate argues, common pleas properly denied Objectors’ attempts to
expand the grounds of their objections.
“In reviewing an order adjudicating challenges to a nomination petition, [the
appellate] standard of review permits reversal only where the findings of fact are
unsupported by substantial evidence, where there was an abuse of discretion, or
where an error of law was committed.” In re Nomination Petition of Beyer, 115
A.3d 835, 838 (Pa. 2015). The courts have long held that the Election Code must be
construed liberally “so as not to deprive an individual of his right to run for office,
or the voters of their right to elect a candidate of their choice.” Nomination Petition
of Ross, 190 A.2d 719, 720 (Pa. 1963). Furthermore, “the purpose of the Election
Code is to protect, not defeat, a citizen’s vote.” Dayhoff v. Weaver, 808 A.2d 1002,
1006 (Pa. Cmwlth. 2002). Thus, nomination petitions are presumed to be valid, and
it is the objector’s heavy burden to prove that a candidate’s nomination petition is
invalid. In re Nomination Petition of Shimkus, 946 A.2d 139, 141 (Pa. Cmwlth.
2008) (Cohn Jubelirer, J.) (single-judge op.). “A party alleging defects in a
nominat[ion] petition has the burden of proving such defects, and, where the court
is not convinced that challenged signatures are other than genuine, the challenge is
to be resolved in favor of the candidate.” In re Nomination Petition of Scott, 138
A.3d 687, 691 (Pa. Cmwlth. 2016) (Cohn Jubelirer, J.) (single-judge op.) (citation
omitted).
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However, the signature requirement serves as a means of preventing forgery
and assuring that each elector personally signs the petition with an understanding of
what the elector is signing. In re Nomination Petition of Flaherty, 770 A.2d 327,
332 (Pa. 2001), abrogated in part on other grounds by In re Nomination Petition of
Vodvarka, 140 A.3d 639 (Pa. 2016), abrogated on other grounds by statute as
recognized in Major, 248 A.3d 445. The Court is, therefore, mindful that a balance
must be struck between the liberal purposes of the Election Code and “the provisions
of the [E]lection [C]ode relating to nominati[on] petitions . . . [which] are necessary
. . . to prevent fraud and to preserve the integrity of the election process.” Shimkus,
946 A.2d at 154. The courts are “entrusted with the responsibility of protecting the
Commonwealth’s compelling interest in preserving the integrity of the election
process.” In re Nomination Petition of Carlson, 430 A.2d 1210, 1212 (Pa. Cmwlth.
1981) (Crumlish, J.) (single-judge op.). The Court must balance these competing
interests to determine if common pleas erred in not allowing Objectors to assert,
either as part of their initial Petition to Set Aside or as an amendment thereto,
challenges to certain signature lines based on the electors’ party affiliation.
The first issue is whether Objectors’ Petition to Set Aside, and in particular,
the designation NRA on the spreadsheet for an elector that was not a registered
member of the Democratic party at the address provided on the Nomination Petition,
was sufficiently specific to place Candidate on notice of the challenge. Section 977
of the Election Code states that a petition to set aside a nomination petition must
“specifically” set forth the objections. 25 P.S. § 2937. This means that the
allegations must state the specific grounds of invalidity so as to sufficiently advise
the proposed candidate of the errors, so that the candidate is in a position to present
a defense. Duffy, 635 A.2d at 112. Thus, objections must be specific enough to give
11
fair notice to a candidate, which means that they must provide enough information
to permit a reasonable person to ascertain the substance of the claimed deficiency
and the proof that must be presented at the hearing to mount a defense. Bishop, 579
A.2d at 863; In re Williams, 625 A.2d 1279 (Pa. Cmwlth. 1993). This has been
interpreted as meaning the “page, line, and the reason for the invalidity[.]” Duffy,
635 A.2d at 112.
Objectors assert they used the NRA code on the spreadsheet to indicate a
challenge based on the elector not being a registered member of the Democratic party
at that address because there was no column to raise that challenge, and no
instructions regarding how the party affiliation challenge should be raised. The
Court recognizes that Objectors are correct.3 However, in their Petition to Aside,
Objectors did identify certain signature lines they were challenging on the basis that
the elector was not registered in the Democratic Party by specifically stating in the
space provided for description that the elector was a Republican, Libertarian, or
Non-affiliated with a party. (Petition to Set Aside challenges to page 6, line 1 (Non-
affiliated); page 19, line 1 (Republican); page 21, line 1 (Republican); page 39, lines
3-4 (Republican); page 66, lines 4 (Republican) & 16 (Libertarian); page 91, line 2
(Republican); page 124, line 1 (Republican); page 126, lines 2-3 (Republican), O.R.
at Item 1 Ex. B.) From this, it appears that Objectors knew how to clearly state that
an elector was not registered in the Democratic Party, and did not do so for the lines
they subsequently asserted were subject to this challenge. Therefore, the Court
discerns no error in common pleas’ decision not to allow Objectors to construe their
3
Candidate suggests the better challenge code is NR (not registered), but the Court
questions whether this is any more specific than NRA because if an elector is registered in another
party or is unaffiliated, they technically are registered to vote. It may be time for the courts to
review the spreadsheet categories.
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NRA challenges as including a challenge to the signer not being registered in the
Democratic Party at that address, albeit for a slightly different reason.
This does not end the inquiry because Objectors sought, as alternative relief,
to amend their reasons for challenging the lines identified in the Motion to Amend
to include that the signers were not validly registered in the Democratic Party.
Common pleas denied the request to amend reasoning amendments were not
permitted after the seven-day challenge period had expired and the party affiliation
of the electors should have been easily identified by Objectors prior to filing the
Petition to Set Aside. (Hr’g Tr., March 21, 2023, at 4-13; 1925(a) Opinion at 5-6.)
Objectors argue this was an abuse of discretion because the amendment was only to
lines already challenged on the basis of registration status, and the original and
amended challenges to registration status were closely related. While the Court
appreciates common pleas’ desire not to prolong the underlying proceedings, and
the exigency in which these matters are heard, the Court agrees with Objectors that
it was an abuse of discretion not to allow the amendment.
Section 977 of the Election Code requires, in relevant part, that petitions
challenging a nomination petition be filed within seven days of the last day to file
the nomination petition. 25 P.S. § 2987. Ordinarily, second or supplemental
petitions to set aside may not be filed after the seven-day period expires. Bishop,
579 A.2d at 862. However, our courts have consistently held that, as long as an
objector has challenged signatures on a nomination petition, the objector is not
precluded, after the seven-day period, from seeking to advance a challenge to those
signatures on other grounds in the Election Code at the hearing on a petition to set
aside. See In re Nomination Petition of Stuski, 697 A.2d 235, 238 n.7 (Pa. 1995);
Appeal of Beynon, 88 A.2d 789, 792 (Pa. 1952); In re Nomination Paper of Rogers,
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908 A.2d 942 (Pa. Cmwlth. 2006) (Colins, J.) (single-judge op.); In re Nomination
Petition of Delle Donne, 779 A.2d 1, 4 (Pa. Cmwlth. 2001) (Doyle, J.) (single-judge
op.). “Courts have discretion to allow amendments,” but that discretion is not
unlimited. In re Nomination Petition of Brown, 992 A.2d 882, 883 (Pa. 2010)
(Roebuck). “[T]he limits of such discretion are defined by the relationship between
the attempted amendment and the timely-filed objections.” Id.This relationship is not as narrow as Candidate contends. In Stuski, the
Supreme Court rejected an argument that this Court erred in considering objections
to signature lines that had not been specifically raised in the petition to set aside,
broadly stating that if a signature line was challenged, other challenges based on the
Election Code could be asserted to that signature line at the hearing.4 697 A.2d at
238 n.7. See also Rogers, 908 A.2d at 944 (allowing an objector to amend a line
initially challenged as illegible to also assert that the electors’ addresses did not
match their registration once the elector was identified). However, amendments that
seek to challenge new signature lines or to assert a new non-signature line based
substantive challenge, such as a challenge to a circulator’s statement or the failure
to file a statement of financial interests, are not permitted after the seven-day period
expires. In re Nomination Petition of Bryant, 852 A.2d 1193, 1195 & n.4, 1196 (Pa.
2004) (sought to add a challenge based on a candidate’s failure to file a statement of
financial interests); Delle Donne, 779 A.2d at 3 (dismissing an objector’s
supplemental petition to set aside filed after the seven-day period expired that sought
to challenge additional signatures lines). Through these cases, a principle has
developed that delineates between additional challenges to an already objected-to
signature line, which are subject to amendment after the seven-day period expires,
4
Here, Objectors filed a written motion, though precedent appears to permit such an
amendment be made orally at the hearing.
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and new non-signature line challenges or attempts to add new signature lines to the
petition to set aside, which cannot be amended.
In denying the Motion to Amend, common pleas did not consider the
relationship between the original timely-filed objection and the proposed
amendment. Rather, it held amendments to add new challenges, particularly given
the number of signature lines that would be affected, were not allowed, even though
they were to signature lines already subject to timely-filed objections. This is not
consistent with the above legal principles. Here, Objectors sought to amend
signature lines already challenged based on the signer’s registration status to include
another registration-based challenge. Both the timely filed first and the subsequent
registration challenge relate to specific eligibility requirements for electors to sign a
nomination petition set forth in Section 908 of the Election Code. 25 P.S. § 2868.
Thus, this relationship unquestionably supports Objectors’ requested amendment to
the Petition to Set Aside.
Although Candidate asserts Brown supports common pleas’ denial, in
addition to being an outlier in the above precedent, Brown is not precedential and is
distinguishable. In Brown, the candidate and objectors did not meet prior to the
hearing to review the challenged signature lines, and in their joint stipulation
indicated that what they observed on the computer cards reflected the electors were
not registered in the Democratic Party. The Court stated this stipulation did not
constitute evidence of the registration status of the electors at the time of signing the
nomination petition, but at some point after, which is not the relevant time period.
The Court further observed that the objectors’ attempt to amend the petition to set
aside at the hearing to include a different reason to a challenged signature line was
the first notice the candidate had of the expanded dispute. In not allowing the
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challenge, the Court was concerned that the lack of notice to the candidate created a
situation where the candidate was unable to mount a defense by presenting proof
that the signers were registered in the Democratic Party at the time they signed the
petitions. Brown, 846 A.2d at 788. Here, in contrast, Candidate and Objectors met
and conferred prior to the hearing during which it became apparent that the NRA
challenge to signature lines may reflect that an elector was not registered in the
Democratic Party at that address at the time of signing. The information relevant to
this challenge, and to the defense of such challenge, such as that the elector changed
their registration after signing the nomination petition, id., can be found in the SURE
system, to which Candidate had access during the meet and confer and at the hearing
thereby allowing him to be able to mount a defense to the challenge. Because
Candidate was aware of the challenge before the hearing, he also had the opportunity
for the signer to present evidence at the hearing, unlike in Brown. Accordingly, the
concerns raised in Brown are not present here.
Finally, the Court is cognizant of the judiciary’s responsibility to “protect[]
the Commonwealth’s compelling interest in preserving the integrity of the election
process.” Carlson, 430 A.2d at 1212. Here, there was a signature line challenge
asserted based on the signer’s registration status, candidate was placed on notice of
the issue before the hearing, and the record indicates the challenge related to
potentially hundreds of electors signing a nomination petition. To preclude the
amendment of the objection to allow another challenge to the signer’s registration
status is not consistent with the courts’ responsibility to preserve election integrity.
For this and the above reasons, the Court concludes common pleas abused its
discretion in not allowing Objectors to amend their Petition to Set Aside to include
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the registration challenge of not registered in the Democratic Party at that address to
those signature lines that had already been challenged as NRA.
B. Whether common pleas abused its discretion in quashing Objectors’
subpoenas of the circulators.
Objectors next argue common pleas erred by quashing the duly served
subpoenas, which they maintain were an attempt to obtain the circulators’ testimony
that would establish the signature pages they circulated were fraudulent or otherwise
invalid. Objectors assert they were attempting to establish fraud, at least as to one
of the signature lines. According to Objectors, the testimony of these circulators
was necessary for them to meet their heavy burden of challenging certain signature
lines and the circulators’ testimony would have been more illuminating and reliable
than their handwriting expert’s testimony regarding the signatures, upon which
common pleas indicated it would rely. Objectors maintain they preserved this
objection by arguing against Candidate’s motion to quash the subpoena after which
common pleas definitively ruled on the motion despite its earlier statement that
Objectors could re-raise it during the proceedings.
Candidate argues the enforcement of a subpoena is within the sound discretion
of common pleas and there was no abuse of discretion because Objectors never
pleaded any circulator defects or specified any such defects in their objections
spreadsheet. Candidate further asserts the circulators’ testimony was not necessary
for the purpose sought, as Objectors’ expert’s testimony was sufficient to resolve the
line-by-line challenges and “Objectors failed to identify any single page or line
regarding these circulators to which stipulations had already been” reached.
(Candidate’s Br. at 6-7.)
“Whether a subpoena shall be enforced rests in the sound discretion of the
court.” In re Semeraro, 515 A.2d 880, 882 (Pa. 1986) (citation omitted). The Court
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“will not disturb a discretionary ruling of a lower court unless the record
demonstrates an abuse of the court’s discretion.” Id. To the extent Candidate’s
arguments could be read as claiming Objectors did not preserve the issue, the Court
is not persuaded that the objection to common pleas’ ruling was not preserved in the
record. Pennsylvania Rule of Evidence 103(a)(2) and (b) provides “(a) Preserving
a Claim of Error. A party may claim of error to a ruling to admit or exclude
evidence only: . . . (2) if the ruling excludes evidence, a party informs the court of
its substance by an offer of proof, unless the substance was apparent from the
context” and “(b) Not Needing to Renew an Objection or Offer of Proof. Once
the court rules definitively on the record--either before or at trial--a party need not
renew an objection or offer of proof to preserve a claim of error for appeal.” Pa.R.E.
103(a)(2), (b). Here, Objectors provided argument opposing Candidate’s challenge
to the subpoenas and in support of the relevancy of that testimony, common pleas
“rule[d] definitively on the record . . . at trial,” id., stating “[t]hat is the definitive
ruling on that,” quashing the subpoenas, and stating it would not hear any other
witnesses’ testimony at the hearing. (Hr’g Tr., March 24, 2023, at 33-35.) Objectors
stated they strongly disagreed with that ruling. (Id. at 34.) The Court concludes
these actions were sufficient to preserve a challenge to common pleas’ decision
quashing the subpoenas.
Common pleas found the subpoenaed circulators’ testimony was not relevant
because Objectors had not filed any challenges to the circulators’ affidavits but were
challenging specific signature lines, for which circulators’ testimony was not
necessary as the validity could be reviewed by Objectors’ handwriting expert. (Id.
at 33-34; 1925(a) Opinion at 11.) “Evidence is relevant if: it (a) has any tendency
to make a fact more or less probable than it would be without the evidence; and
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(b) the fact is of consequence in determining the action.” Pennsylvania Rule of
Evidence 401, Pa.R.E. 401. Contrary to common pleas’ determination, a circulator’s
testimony may be relevant in a line-by-line challenge as it is the circulator who is
charged with being present when all of the signatures on the page are obtained. See,
e.g., Flaherty, 770 A.2d at 336-37 (Pa. 2001) (holding that circulators must be
present when electors sign a petition); In re Nomination Petitions of Smith, 182 A.3d
12, 25 (Pa. Cmwlth. 2018) (McCullough, J.) (single-judge op.) (circulator testified
in response to a signature line challenge based on the omission of line information);
In re Payton, 945 A.2d 279, 285-86 (Pa. Cmwlth. 2008) (Smith-Ribner, J.) (single-
judge op.) (circulator called to respond to line challenges based on “bad signature”).
When the genuineness of a handwritten writing is in question, it can be authenticated
by the opinion of any person acquainted with the handwriting of the supposed writer
or by a person who witnessed its execution, and direct evidence of a witness who
saw the execution can overcome the testimony of an expert witness. See Obici v.
Third Nat’l Bank & Tr. Co. of Scranton, 112 A.2d 94, 96 (Pa. 1955).
Here, Objectors sought to introduce the testimony of these circulators in an
effort to establish that certain signature lines were invalid due to “serious
discrepancies.” (Hr’g Tr., March 24, 2023, at 33-34.) As the circulators whose
testimony Objectors sought had to have been present when the relevant pages were
signed, their testimony as to what and who they observed completing the information
could make the validity of those signatures “more or less probable than it would be
without the evidence.” Pa.R.E. 401. This is particularly true where common pleas
did not always seek or rely upon Objectors’ expert testimony in ruling on signature
line challenges that a circulators’ testimony could have aided in determining the
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line’s validity, such as those claiming parts of signatures were in the hand of another.
Accordingly, common pleas abused its discretion in quashing Objectors’ subpoenas.
III. CONCLUSION
For the foregoing reasons, the Court vacates common pleas’ Order, and this
matter is remanded for further proceedings during which Objectors may amend the
Petition to Set Aside to add, to already challenged signature lines, challenges based
on the party affiliation of electors who signed the Nomination Petition and, if
necessary, enforce the subpoenas against the circulators. Such proceedings, and a
decision by common pleas resulting therefrom, shall be completed no later than
April 14, 2023.
RENÉE COHN JUBELIRER, President Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Nomination Petition of :
Gary Masino :
:
Petition of Maria Grimes Santilli and :
Donna Bond : No. 319 C.D. 2023
ORDER
NOW, April 12, 2023, the Order of the Court of Common Pleas of
Philadelphia County (common pleas) dismissing the Petition to Set Aside the
Nomination Petition of Gary Masino (Candidate) filed by Maria Grimes Santilli and
Donna Bond (Objectors) and quashing Objectors’ subpoenas is VACATED, and
this matter is REMANDED to common pleas for further proceedings in accordance
with this opinion. Given the shortened timeframe, common pleas should complete
these proceedings and render a new decision and order by April 14, 2023, from
which an appeal can be taken.
Jurisdiction relinquished.
RENÉE COHN JUBELIRER, President Judge