In Re Set Aside the Nomination Petition of Hanssens

821 A.2d 1247

• Court: Commonwealth Court of Pennsylvania
• Decided: May 20, 2003
• Status: Published

Opinions

OPINION BY

Judge FRIEDMAN.

Francis J. Hanssens, Jr. (Hanssens) appeals from the April 21, 2003, order of the Court of Common Pleas of Philadelphia County (trial court), which struck the Nomination Petition of Francis J. Hans-sens, Jr., as a Democratic Candidate for the Office of Councilperson for the Seventh Councilmanic District of the City of Philadelphia (Nomination Petition). We affirm.

Candido Silva, Barbara Stuhl, Eileen Miller, Chester Zalenski and Walter De-Treux, Jr. (collectively, the Objectors) filed a petition with the trial court to set aside Hanssens’ Nomination Petition. The Objectors alleged that Hanssens claimed in his affidavit to reside at 4268 Griscom Street, which is within the seventh district, but, in reality, Hanssens resides at 991 East Godfrey Avenue, which is outside the seventh district.

At the hearing before the trial court, the Objectors presented the testimony of Steven Killian, who fives across the street from 4268 Griscom Street. Killian essentially testified that he has not seen Hans-sens at the 4268 Griscom Street address. The Objectors also presented evidence in-' dicating that Hanssens’ wife resides at 991 East Godfrey Avenue. Moreover, Hans-sens’ utility bills for 4268 Griscom Street from January 15, 2003, to June 13, 2003,¹ show a minimum charge of $12.00 per month.

When the Objectors completed the presentation of their case, Hanssens demurred, contending that the Objectors failed to meet their burden of proving that Hanssens did not reside at 4268 Griscom Street. However, the trial court denied the demurrer, and Hanssens presented his case against the Objectors’ petition.

Hanssens testified that he has moved to 4268 Griscom Street, which he describes as disheveled, but his wife and son continue to reside at 991 East Godfrey Avenue. Hanssens stated that he intends to move his family in the fall of 2003, but that will depend on his income.² Hanssens indicated that he keeps a moderate amount of clothing and a minimal amount of food at 4268 Griscom Street, and uses a cell phone because there is no phone service there. Finally, Hanssens testified that he intentionally kept his utility bills at the minimum charge to save money, and, during the cold winter months, he slept in a thermal sleeping bag.³

The trial court found Killian to be credible but did not believe the testimony of Hanssens. After considering the evidence, the trial court concluded that the Objectors met their burden of proving that Hanssens does not reside at 4268 Griscom Street. Thus, the trial court set aside the Nomination Petition.

Hanssens filed an appeal with this court. At oral argument, Hanssens represented that he had discovered relevant evidence about the case after the hearing before the trial court. Upon consideration of the matter, this court issued an order vacating the trial court’s order and remanding this case for additional testimony on the after-discovered evidence, for new findings of fact and conclusions of law and for a new decision. This court also retained jurisdiction of the matter.

On April 21, 2003,. the trial court issued new findings of fact as follows.

1. Ed Killian made a statement before Private Investigator Frank Wallace on April 1, 2003.

2. The substance of that statement was that his brother Steve Killian was paid for his previous testimony before this Court on March 27, 2003.

3. Although this Court is not convinced that the evidence presented was sufficient to prove that the alleged bribe occurred, this evidence nevertheless seriously calls into question the reliability of Steve Killian’s testimony.

4. However, this Court is of the opinion that there is sufficient evidence on the record to support it’s [sic] original finding that the objectors’ [sic] sustained their burden of proving that the Respondent [Hanssens] did not reside at 4268 Griscom Street.

5. The Respondent’s wife, Valerie Hanssens resides at 991 East Godfrey Avenue in Philadelphia along with Respondent’s son.

6. It is undisputed that Respondent lived along with his wife and son at this property prior to January 13, 2003, the date he alleged to move into 4268 Gris-com Street.

7. Utility bills - from the Philadelphia Gas Works for the period beginning January 15, 2003 thru June 13, 2003 indicate minimum monthly billings of $12.00 for 4268 Griscom Street.

8. These charges are consistent with a charge for service only but not usage.

9. During the winter months of 2003 the Philadelphia área experienced a harsh winter with sub-freezing termper-atures.

10. Respondent had no definite idea of when his wife and son could move into the Griscom Street property.

11. No phone service existed at the Griscom Street property during the relevant time periods in issue.

12. Respondent keeps only a moderate amount of clothing at the Griscom Street property.

13. Respondent keeps a minimal ' amount of food at the Griscom Street property. -

14. By the Respondent’s own description the Griscom Street property is disheveled.

Based on these new findings of fact, the trial court concluded that the Objectors met their burden and that Hanssens failed to demonstrate the intent and physical presence necessary to change his legal residence. Thus, the trial court issued an order striking Hanssens’ Nomination Petition.

On appeal to this court,⁴ Hanssen argues that the trial court erred in con-eluding, based on the new findings of fact,⁵ that Hanssens failed to demonstrate the intent and physical presence necessary to change his legal residence to 4268 Griscom Street.⁶ We disagree.

A party alleging defects in a nominating petition has the burden of proving those defects. In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327 (2001). Thus, the burden of proving that Hanssens is not domiciled at 4268 Griscom Street rests on the Objectors.⁷ See In re Nomination Petition of Cooper, 168 Pa.Cmwlth. 430, 643 A.2d 717 (1994). In this regard, section 704(d) of the Election Code⁸ provides:

(d) The place where the family of a married man or woman resides shall be considered and held to be his or her place of residence,⁹ except where the husband and wife have actually separated and live apart, in which case the place where he or she has resided for two months or more shall be considered and held to be his or her place of residence.

25 P.S. § 2814(d) (emphasis added). Once the Objectors have established that Hans-sens’ family resides at 991 East Godfrey Avenue, the burden shifts to Hanssens to show that he and his wife have actually separated and live apart and that he has acquired a new domicile.¹⁰

A new domicile can be acquired only by: (1) physical presence at a new residence; and (2) intent to make that new residence the principal home. In re Pippy, 711 A.2d 1048 (Pa.Cmwlth.1998). Intent is the actual state of facts, not what one declares them to be. Id. Thus, a declaration of intent as to domicile that is self-serving and not followed by acts that are in accord with the declaration will not be regarded as conclusive. In re Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932).

Here,, the trial court found that Hanssens’ wife and son reside at 991 East Godfrey Avenue. It was also undisputed that Hanssens lived at that address prior to January 13, 2003. Thus, the Objectors presented prima facie evidence that Hans-sens does not reside at 4268 Griscom Street. The burden then shifted to Hans-sens to show that he and his wife have actually separated and live apart and that he has acquired a new domicile.

Here, the trial court did not make specific findings and conclusions as to whether Hanssens and his wife were separated and living apart.¹¹ Instead, the trial court focused on whether Hanssens proved the intent and physical presence necessary to establish a new domicile at 4268 Gris-com Street. A domicile is the place at which an individual has fixed the family home and principal establishment for an indefinite period of time. In re Prendergast.

In this regard, the trial court found that Hanssens had no definite idea when his family could move into the Griscom Street property. Indeed, Hanssens testified that he continues to make renovations to the interior of the property at 4268 Griscom Street and that he hopes to make 4268 Griscom Street the family home in the fall of 2003. However, that depends on his income. In other words, if Hanssens does not have the money to make the necessary renovations to the property, his family may not move to Griscom Street any time in 2003. Because Hanssens has not yet fixed the Griscom Street property as his family home, Hanssens incorrectly stated in his affidavit that 4268 Griscom Street is now his domicile.

Accordingly, we affirm.

ORDER

AND NOW, this 28th day of April, 2003, the order of the Court of Common Pleas of Philadelphia County, dated April 21, 2003, is hereby affirmed.

1 . Given the fact that it is not yet June of 2003, we suspect that this date is incorrect.

2 . Hanssens has been spending money to rehabilitate the property at 4268 Griscom and is still making renovations to the interior of the property.

3 .The trial court took judicial notice of a severe winter with subfreezing temperatures. Hanssens testified that he did not sleep at 4268 Griscom Street on the night of an extensive snow storm in February.

4 . Our scope of review is limited to determining whether the trial court’s findings of fact are supported by substantial evidence, whether the trial court abused its discretion or whether the trial court committed an error of law. In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327 (2001). In reviewing the trial court's determination, we keep in mind that the Election Code must be liberally construed to protect a candidate’s right to run for office and the voters’ rights to elect the candidate of their choice. Id.

5 . As indicated, this court vacated the trial court’s previous order and remanded for new findings of fact and a new decision. Thus, we will not consider any of the trial court’s prior findings and prior reasoning here.

6 . Hanssens also argues that the trial court erred in setting aside the Nomination Petition because the Objectors failed to prove that they had standing to challenge the Nomination Petition. However, Hanssens concedes that he did not raise this issue at the hearing. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa. R.A.P. 302(a).

7 . Technically, a person's eligibility to run for a particular office is determined by the location of the person's domicile, not residence. In re Nomination Petitions of McIntyre, 778 A.2d 746 (Pa.Cmwlth.) (citing In re Lesker, 377 Pa. 411, 105 A.2d 376 (1954)), aff'd, 564 Pa. 670, 770 A.2d 326 (2001).

8 . Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2814(d). Technically, section 704 of the Election Code provides rules for determining the residence of a person desiring to register or vote; however, this court has applied the rules to determine a candidate’s residency. See In re Nomination Petition of Cooper, 163 Pa.Cmwlth. 430, 643 A.2d 717 (1994); see also In re Carabello, 102 Pa.Cmwlth. 129, 516 A.2d 784 (1984).

9 . See In re Prendergast, 543 Pa. 498, 506, 673 A.2d 324, 327 (1996) (stating that a domicile is the place at which an individual has fixed the "family home” and principal establishment for an indefinite period of time).

10 . See In re Prendergast (stating that a domicile once acquired is presumed to continue until it is shown to have been changed and where a change is alleged, the burden of proving it rests upon whoever makes the allegation); see also In re Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932) (stating that the fact of residence in a particular place is prima facie evidence of domicile) (citing Collins v. City of Ashland, 112 F. 175 (E.D.Ky.1901) (stating that an established residence is prima facie evidence of domicile, and the presentation of such evidence shifts the burden to the other party to show a change of domicile)).

11 . Hanssens testified that his wife has visited him at 4268 Griscom Street. However, generally, he sees his family in the daytime, and, in the evening, he says goodbye and retires to the Griscom Street property.