In re General Election 2014

111 A.3d 785, 2015 Pa. Commw. LEXIS 100
CourtCommonwealth Court of Pennsylvania
DecidedMarch 11, 2015
StatusPublished
Cited by3 cases

This text of 111 A.3d 785 (In re General Election 2014) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re General Election 2014, 111 A.3d 785, 2015 Pa. Commw. LEXIS 100 (Pa. Ct. App. 2015).

Opinion

OPINION BY

President Judge PELLEGRINI.

Helen Banushi and Elizabeth Elkin, Philadelphia Registered Electors (collectively, Objectors) appeal the order of the Philadelphia County Court of Common Pleas (trial court) granting the Emergency Application for Absentee Ballot (Emergency Application) filed by Muriel Kauffman (Kauffman) to vote by absentee ballot for the November 4, 2014 General Election (General Election). We quash the appeal.

On the evening of the General Election, Iaela Grant (Grant), the Director’s Assistant Manager at Power Back Rehabilitation Center (Power Back) in Philadelphia, filed the Emergency Application for absentee ballots for Kauffman and four other Power Back patients with the City Commissioner’s Office.1 At a hearing before the trial court, Thomas Boland, a Voter Registration Clerk in the City Commis[788]*788sioner’s Office, explained that he informed Grant that the wrong forms had been completed 2 and that she should appear before the trial court for relief because all of the patients involved are registered electors in the City and County of Philadelphia. (N.T. 11/4/143 at 4). Boland stated that the correct forms say “Emergency Alternative Ballot Application;” has the voter’s signature and address, and can be used up to the election day. {Id. at 22).

Jonathan Goldstein, Esquire, counsel for the Republican State Committee,4 questioned Grant and she explained [790]*790that she brought applications for five Power Back patients5 that had been admitted on October 29 or 30, 2014, prior to October 31, 2014, after the first Tuesday preceding the General Election, but before the first Friday before the General Election. Grant testified that Power Back is a rehabilitation facility and the patients would not know when they would be discharged. She explained that the average stay is two weeks, but that it depends on the diagnosis and that a one- or two-day stay was unlikely. She stated that she would not be surprised to learn that there is a law office nearby, but that she did not know if there is a notary nearby.

At the conclusion of her testimony, Attorney Goldstein argued that the patients were required to apply for absentee ballots in a substantially different form than the one submitted because while all of the Emergency Applications were signed by a physician, they were not signed and notarized affidavits as required by Section 1302.1(c) of the Election Code.

Adam Bonin, Esquire, counsel for Wolf for Governor (Gubernatorial Candidate), then questioned Grant and she explained that patients would not know the date of discharge because it is based upon their progression and recovery from the reason for admission and the actual discharge date comes from the doctor and the therapist. Grant stated that there is not a notary in the facility and the doctors normally do not have enough free time to leave and find a notary. She testified that the patients themselves made the request for the absentee ballots and that she first became aware of their need for emergency absentee ballots that day.

Bonin argued that based on Grant’s testimony, these voters fall within the provisions of Section 1302.1(a.2), and while they may not have filled out the correct form or included a notarized affidavit, the guiding principle of the Election Code is that every registered voter should have the opportunity to vote. He argued that these patients were recently admitted to rehab and had reason to believe that they could vote at the polls and submitted the Emergency Applications when they recognized that they would not be able to do so.

Linda Kerns, Esquire, counsel for the Republican City Committee, questioned Grant and Grant testified that the patients involved could not go to their polling places themselves because they are not allowed to leave the facility unless accompanied by a friend or family member. Grant stated that the patients first learned that they could not leave the facility upon their admission. Attorney Kerns argued that the specific emergency ballot provided for in Section 1302.1(a.2) does not apply in this case because the patients were aware of their inability to appear at their polling place prior to 5:00 p.m. on the Friday preceding the General Election and even if [791]*791it did apply, the instant applications do not contain a sworn affidavit or that they were signed under penalty of perjury as required by that section.

At the conclusion of the hearing, the trial court granted the Emergency Applications stating, in pertinent part, that the patients would have been entitled to receive an Emergency Alternative Ballot if they had filled out the proper application which required the same information as provided in the patients’ Emergency Applications. (N.T. 11/4/14 at 28-24). The trial court also determined that because the Emergency Applications that were submitted did not “fl[y] in the face of the intent of the Legislature” and because Power Back did not have the correct forms, not allowing the patients to vote would be “elevating form over substance.” (N.T. 11/4/14 at 24). As a result, the trial court issued an order granting Kauffman’s Emergency Application and issuing Kauff-man an absentee ballot for the General Election over Attorney Goldstein’s and Attorney Kerns’ objections. (Id.). While neither the Republican State nor City Committee appealed, Objectors filed this appeal of the trial court’s order.6

Objectors first claim that the trial court erred in determining that they do not have standing to appeal its order because they are registered electors in the City of Philadelphia and they have a substantial, immediate and pecuniary interest that the Election Code be obeyed and that the absentee ballots that Kauffman and the other Power Back patients cast affected the outcome of the General Election in which Objectors voted.7 We do not agree.

Pa. R.A. P. 501 states, in relevant part, that “[ejxcept where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order ... may appeal therefrom.” While “party” is not defined in the Rules of Appellate Procedure, Section 102 of the Judicial Code8 defines the term as “[a] person who commences or against whom relief is sought in a matter. The term includes counsel for such a person who is represented by counsel.” 42 Pa.C.S. § 102. As the Supreme Court has held, “[t]here is but one way to become a party litigant in a court and that is by appearing in the proceedings.” Appeal of Greco, 434 Pa. 431, 254 A.2d 6, 7 (1969). Because Objectors [792]*792were not parties in the proceedings before the trial court, they do not have standing to appeal its order disposing of the instant Emergency Application to this Court. See Commonwealth v. Alessi, 105 Pa.Cmwlth. 453, 524 A.2d 1052, 1053 (1987) (“We must quash DPW’s appeal, however, inasmuch as Pa. R.A.P. 501, with certain exceptions not applicable here, permits an appeal to this Court only by a party.”) (emphasis in original).

Additionally, in order to file an appeal under Pa. R.A.P. 501, a party must be “aiggrieved” by the appealed order. See In re T.J.,

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111 A.3d 785, 2015 Pa. Commw. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-general-election-2014-pacommwct-2015.