In re Nomination Petition of Cooper

643 A.2d 717
CourtCommonwealth Court of Pennsylvania
DecidedApril 18, 1994
StatusPublished

This text of 643 A.2d 717 (In re Nomination Petition of Cooper) 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 Nomination Petition of Cooper, 643 A.2d 717 (Pa. Ct. App. 1994).

Opinion

DOYLE, Judge.

Before the Court is a petition to set aside the nomination petition of Charles Cooper, a candidate for the Democratic Nomination for Senator in the General Assembly from the Second District (Philadelphia), by Harvey M. Rice (Petitioner) another candidate for that office. The challenge is made under Section 977 of the Pennsylvania Election Code (Code), Act of June 3, 1927, P.L. 1333, as [719]*719amended, 25 P.S. § 2937.1 A full hearing was conducted conducted over the course of three days, concluding at 1:00 a.m. on March 29, 1994. At the conclusion of the hearings the parties were granted permission to file supporting memoranda of law.

Cooper’s nomination petition, filed on February 22, 1994, contained 854 signatures on twenty-four pages. The State Bureau of Elections struck 12 signatures when the nomination petition was filed in Harrisburg, leaving 842 signatures.2

Petitioner argues that the nomination petition must be set aside because (1) Cooper has not resided in the Second Senatorial District and within the Commonwealth of Pennsylvania for the requisite period of time required by the Pennsylvania Constitution; (2) Cooper failed to obtain 500 valid signatures required for nomination, challenging 566 of the signatures of the 842 total accepted by the Bureau; (3) the circulator’s affidavits on the twenty-four pages of the petition to nominate are null and void because they were notarized by Cooper’s niece. We will address each argument seriatim.

I. RESIDENCY

Petitioner first argues that Cooper’s nomination petition should be set aside because he has not satisfied the requirements of residency.

The Petition to Set Aside alleged:

Charles Cooper pursuant to Pennsylvania Constitution, ARTICLE II, Section 5 (“Senators shall be at least twenty-five years of age. They shall have been citizens and inhabitants of the State four years, and inhabitants of their respective districts one year next before their election (unless absent on the public business of the United States or of this State) and shall reside in their respective district during their terms of service.”) is ineligible to seek this office for he will not be a bona fide resident of the Second Senatorial District one year prior to the election, November 8, 1994.

Petition to Set Aside ¶ 6. During the hearing, and after a discussion of the Supreme Court’s opinion In Re Jones, 505 Pa. 50, 476 A.2d 1287 (1984) (which holds that a court may not make a determination of whether a candidate meets the constitutional requirements for the office of a state senator on constitutional grounds alone), Petitioner moved to amend his petition to allege that Cooper made false statements in his candidate’s affidavit, to wit:

The candidate’s affidavit, filed by Charles Cooper with the Nomination Petition, contains a material defect or error to the extent that it attests that Charles Cooper (1) is and will be an inhabitant of the Second Senate District for one year prior to the general election and (2) is an will be an inhabitant of Pennsylvania for four years before the general election.

Amended Petition to Set Aside ¶ 10. This motion was taken under advisement by the Court. We now grant that motion for the following reasons.

The allowance of amendments, of course, is within the discretion of this Court. Appeal of Beynon, 370 Pa. 532, 88 A.2d 789 (1952). Cooper was on notice that his residency was at issue in Petitioner’s challenge. This amendment merely changes the legal basis for Petitioner’s argument that the nomination petition must be set aside. See Nomination Petition of Lefkowitz, 102 Pa.Commonwealth Ct. 93, 516 A.2d 1297 (1982) (citing with approval Katz Nomination Papers, 65 Pa.D & C 13 (Dauphin County 1948), wherein Judge Woodside distinguished factual amendments and legal amendments, holding that amendments raising legal challenges could be permitted, while factual challenges [720]*720generally should not be permitted because of prejudice to the candidate/respondent). Accordingly, Petitioner’s motion to amend his petition in this regard is granted, and the merits of this challenge will be addressed.

A false candidate’s affidavit is a fatal defect which cannot be amended. Nomination of Cianfrani, 467 Pa. 491, 359 A.2d 383 (1976). Accordingly, if statements sworn to on the affidavit are found to be false, the nomination petition must be set aside. Id.; see also Section 977 of the Code, 25 P.S. § 2937.

The affidavit provides, in relevant part: I do swear (or affirm) that my residence, my election district and the title of the office for which I desire to be a candidate are as specified above, that I am eligible for said office ...; that if I am a candidate for the General Assembly, I will satisfy the eligibility requirements of Article II, Sections 5 and 7 of the Pennsylvania Constitution; that unless absent on public business of the United States or this state, I shall have been a citizen and an inhabitant of Pennsylvania for four years and an inhabitant of the electoral district specified above one year next before the election; ...3

The heavy burden of proving that Cooper is not an inhabitant of the senate district he seeks to represent rests squarely on the Petitioner, as the objector to the nomination petition. Nomination Petition of Street, 102 Pa.Commonwealth Ct. 155, 516 A.2d 791 (1986). Thus, Petitioner must prove that Cooper is not a resident of the district in question; Cooper did not have to prove that he is. Id. Hence, if the Petitioner proves that Cooper was either not an inhabitant of the Second Senatorial District for one year prior to the forthcoming general election on November 8, 1994, or that he was not a citizen and inhabitant of Pennsylvania for four years prior to that election, we must set aside Cooper’s nominating petition.4 Id.

A. Inhabitance in the Electoral District

At the hearing Petitioner called Charles Cooper as on cross-examination and also offered the testimony of Councilman Joseph C. Vignola. Cooper later testified on his own behalf and presented the testimony of Louis and Claire DiLonardo, and Donna Wagner.

Petitioner alleges that Cooper was not an inhabitant of the address, 1644 Granite Street, as stated on the candidate’s affidavit, but was in inhabitant of either 7236 Marsden Street, or 10903 Carey Place, both of which are located in Philadelphia, but outside the Second Senatorial District.

Cooper testified emphatically that he abandoned his residence of 32 years at 7236 Marsden Street in June 1992, as a consequence of a permanent separation from his wife.

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Related

In Re Jones
476 A.2d 1287 (Supreme Court of Pennsylvania, 1984)
Citizens Committee to Recall Rizzo v. Board of Elections
367 A.2d 232 (Supreme Court of Pennsylvania, 1976)
In Re Nomination Petition of Elliott
362 A.2d 438 (Commonwealth Court of Pennsylvania, 1976)
In Re Nomination of Cianfrani
359 A.2d 383 (Supreme Court of Pennsylvania, 1976)
In Re Nomination Petition of Carabello
516 A.2d 784 (Commonwealth Court of Pennsylvania, 1984)
Petition of Thompson
516 A.2d 1278 (Commonwealth Court of Pennsylvania, 1984)
In Re Nomination Petition of Milton
516 A.2d 791 (Commonwealth Court of Pennsylvania, 1986)
In Re Nomination Petition of Freeman
540 A.2d 606 (Commonwealth Court of Pennsylvania, 1988)
Wolfe v. SWITAJ
525 A.2d 825 (Commonwealth Court of Pennsylvania, 1985)
In Re Nomination Petition of Minotti
574 A.2d 119 (Commonwealth Court of Pennsylvania, 1990)
Beynon Appeal
88 A.2d 789 (Supreme Court of Pennsylvania, 1952)
Lesker Case
105 A.2d 376 (Supreme Court of Pennsylvania, 1954)
In re Nomination Petition of McLaughlin
362 A.2d 469 (Commonwealth Court of Pennsylvania, 1976)
In re Nomination Petition of Lefkowitz
516 A.2d 1297 (Commonwealth Court of Pennsylvania, 1982)

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