In re Nomination Petition of Lawrence M. FARNESE, Jr., for the Democratic Nomination for Senator in the General Assembly for the First Senatorial District in the Primary of April 22, 2008 Appeal of Keith Olkowski and Theresa A. Paylor.
Supreme Court of Pennsylvania.
March 29, 2011
Argued April 15, 2009.
17 A.3d 357
David J. Montgomery, Clifford B. Levine, Pittsburgh, Thorp Reed & Armstrong, LLP, for Lawrence M. Farnese, Jr.
Louis Lawrence Boyle, PA Department of State, for Pennsylvania Department of State.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
OPINION
Chief Justice CASTILLE.
Appellants are unsuccessful objectors to the nomination petition of a candidate for office, who appeal the Commonwealth Court‘s decision to award costs of litigation to the candidate pursuant to Section 977 of the Election Code (“Section 977” or “cost-allocation provision“).1 For the reasons that follow, we reverse.
On February 11, 2008, Lawrence M. Farnese, Jr., (“candidate“) filed with the Secretary of the Commonwealth a petition for participation in the April 2008 primary election to secure the Democratic Party nomination for the office of Senator in the General Assembly from the First District (“nomination petition“). The nomination petition contained forty-nine signature pages, affidavits from eighteen circulators, and the candidate‘s affidavit.2 The candidate submitted a
On February 21, 2008, appellants Keith Olkowski and Theresa A. Paylor (“objectors“)—registered Democrats residing in the First District—filed an action in the original jurisdiction of the Commonwealth Court to set aside the nomination petition pursuant to Section 977 of the Election Code (“objectors’ petition“).4 The objectors alleged that over 1,500 of the signatures from the nomination petition were invalid and, therefore, the candidate submitted “at most 278 [valid] signatures” and failed to meet the statutory requirement for appearing on the ballot. The objectors’ main claims were the following:
- Individual signatures should be stricken because: voter‘s signature was written by another, voter‘s signature did not conform to signature in voter registration file, voter signed twice, voter was not a registered Democrat, voter‘s address was invalid/nonexistent, voter did not provide address, voter resided at different address,
voter‘s signature was obtained under false pretenses, or signature line was altered; - Individual pages should be stricken because: page was not validly notarized or page had a false circulator‘s affidavit (in light of many false and/or fraudulent individual signatures); and
- Nomination petition should be stricken in its entirety in view of the pervasive fraud in obtaining individual signatures, the false circulators’ affidavits, and the invalid notarization.
Objectors’ Petition at 2-4. Shortly after the objectors filed their petition, the Commonwealth Court, per the Honorable Rochelle S. Friedman, issued an expedited case management order setting the deadline for filing stipulations, expert reports, and witness lists for March 3, 2008, and scheduling a hearing on March 6, 2008. At the parties’ request, Judge Friedman extended the deadline for submitting stipulations to March 5 and rescheduled the hearing for March 7, 2008, which allowed the parties additional time to negotiate stipulations.
In the interim, both parties filed timely witness lists and expert reports. The objectors submitted an expert report prepared by forensic document examiner William J. Ries and a private investigator‘s report prepared by Russell Kolins, which detailed the candidate‘s alleged “fraud” and was supported by affidavits from witnesses who stated that their signatures on the nomination petition had been falsified. In support of his effort to rehabilitate individual signatures, the candidate filed an expert report prepared by document examiner Michelle Dresbold.
On March 5, 2008, the objectors filed proposed stipulations and a brief. According to the objectors’ stipulations, the candidate was withdrawing twenty-two signature pages (total of 934 signatures) from the nomination petition and the objectors were abandoning two full-page challenges. The objectors also stated that the parties agreed to the validity or invalidity of selected individual signatures on the remaining twenty-seven pages. The objectors stated that they “reserve[d] the
In the brief accompanying their proposed stipulations, the objectors explained their purported reservation of right, essentially making a “false-in-one, false-in-all” argument. According to the objectors, all of the circulators’ affidavits notarized by Jonathan J. Oriole—and the signature pages to which they were attached—had to be stricken because Mr. Oriole had falsely notarized a page (page 33) of the nomination petition. Page 33 was one of the twenty-two pages withdrawn by the candidate; it had been challenged as falsely notarized because someone other than the circulator signed the circulator‘s name on the affidavit, indeed misspelling the name. Similarly, the objectors also argued for striking all of the affidavits—and the signature pages to which they were attached—of circulators whose pages were withdrawn by the candidate after being challenged on grounds they contained numerous invalid signatures. The objectors sought to call the circulators of the withdrawn pages as witnesses at the March 7th hearing. According to the objectors, given the pervasive irregularities on some signature pages, the circulators of those pages “lied under oath” and, therefore, all the affidavits they signed and the attached signature pages should be deemed invalid. Objectors’ Brief, 3/5/08, at 1-2, 5. The objectors conceded that the outcome of their challenge to the candidate‘s nomination petition would depend on Judge Friedman‘s rulings on their “false-in-one, false-in-all” theory. Objectors’ Proposed Stipulation, 3/5/08, at 2.
In response, on March 6, 2008, the candidate filed his own proposed stipulations regarding the validity of individual signatures, two motions in limine, and a motion to strike certain challenges in the objectors’ petition. In the motion to strike, the candidate objected to two types of challenges the objectors raised to individual signatures: the “invalid signature” category on grounds of specificity, and the “circulator lives out of district” category on constitutional grounds. Candidate‘s Motion to Strike, 3/6/08, at 2-6. Via the motions in limine, the
At the March 7th hearing, the parties reviewed the competing stipulations and of the original 1,778 signatures, 934 were withdrawn by the candidate. In addition, the parties agreed that another 143 signatures were invalid. The objectors then argued to strike 270 of the remaining 701 signatures—several full pages—on the ground that the attached circulators’ affidavits were “incorrect or false.”
In support of their claim vis-à-vis the 270 signatures, the objectors sought to question the circulators of the withdrawn pages “on their understanding of the basic criteria of their oath and obligations as a circulator as defined by [Section] 909 of the Election Code.”5 According to the objectors, if a circulator stated that s/he did not understand or follow the legal criteria, all of that circulator‘s signature pages had to be stricken. If a circulator testified that s/he was aware and understood the legal criteria of Section 909, then the objectors wished to impeach his/her credibility with evidence of the allegedly “fraudulent or false affidavits concerning the [signature pages] that were withdrawn.” N.T., 3/7/08, at 9. The objectors argued that the affidavits were false, inter alia, because the nomination petition listed residences that did not exist but were vacant lots, listed group residences/homeless shelters that were not in operation, and listed signatures of persons who filed affidavits stating that they never signed the nomination petition and/or had no reason to provide a particular shelter as his/her residence. Id. at 10-11. The objectors contended that the withdrawn signature pages showed that those circulators were not familiar with their “requirements and obligations;” and if there was fraud or false affidavits with regard to the withdrawn signature pages, then the circulators’ other pages “should also be withdrawn, because one should not benefit by fraudulent conduct in the past and then present other [pages] during the same time period.” The objectors argued that the validity of the circulators’ affidavits could not be taken lightly, especially given the criminal penalties attached to making false statements in nomination petitions. Id. at 13. Finally, as an alternative to their “false-in-one, false-in-all” argument, the objectors sought to strike 3246 signatures based on individual signature challenges. Id. at 65.
The candidate moved to strike all allegations of fraud in the objectors’ petition as “immaterial and impertinent.” Id. at 25. According to the candidate, signature pages were withdrawn after review by his attorneys, who concluded that for those pages, the circulators did not “review or personally oversee” signatures. The candidate stated that his attorneys applied a
Judge Friedman granted the candidate‘s motions in limine. The objectors asked for clarification of the decision, renewing their argument that, if a circulator was called and admitted that s/he did not know the requirements then, regardless of whether a page contained otherwise valid signatures, the entire signature page had to be stricken. Id. at 38-61. The court ultimately permitted the objectors to call individual circulators but only to question them about individual signatures (i.e., did you circulate this signature page, did you get this signature, and did you get this page notarized). The court denied the objectors’ request to question the circulators’ knowledge of the legal requirements of an affidavit, Section 909, or their knowledge that some affidavits were false. N.T., 3/7/08, at 72-73.
Next, the court asked whether, in light of its ruling, the objectors had sufficient challenges to individual signatures to show that the candidate did not secure the required 500 signatures to appear on the April 2008 primary ballot. The objectors responded that they were contesting an additional 293 signatures, but conceded that over half of those challenges were unlikely to be successful and indicated that they would not prevail in striking the nomination petition on this ground.
On March 14, 2008, Judge Friedman issued a published opinion in support of the March 10 order. See In re Nomination Petition of Farnese, 945 A.2d 274 (Pa.Cmwlth.2008) (Farnese I). The court rejected the objectors’ “false-in-one, false-in-all” argument and held that because each individual signature page had its own circulator affidavit, it was “improper to strike any particular sheet based on the invalidity of the [c]irculator [a]ffidavit on another sheet.” Id. at 278. The court found support for this decision in the Election Code, which provides that the invalidity of any page of a nomination petition does not affect the validity of the entire petition and requires that each signature page have a separate circulator‘s affidavit. See id. (citing
Judge Friedman also explained her underlying evidentiary rulings relating to the withdrawn signature pages and the testimony of circulators, noting that “any evidence relating to the withdrawn pages would have been irrelevant to whether
The objectors appealed and, on April 8, 2008, this Court affirmed in part by per curiam order with an opinion to follow. See In re Nomination Petition of Farnese, 605 Pa. 375, 989 A.2d 1274 (2008).7 Specifically, we affirmed the order only to the extent it denied the petition to set aside the candidate‘s nomination petition. The order noted, however, that it was entered without prejudice to objectors subsequently seeking review of any future final order imposing costs, and directed the lower court to categorize and state its rationale if it chose to impose such costs.
Thereafter, on April 19, 2008, the candidate filed a bill of costs with the Commonwealth Court and requested an award of $11,426.22, itemized as follows:
| Telecopy | $ | 69.70 |
| Telephone | 18.90 | |
| Copies | 2,363.60 | |
| Business Development/Meals | 20.89 | |
| Business Development/Travel | 250.71 | |
| Travel Expense | 156.63 | |
| Dining Expense | 22.47 | |
| Airfare | 1,135.00 | |
| Lodging | 938.87 | |
| Taxis, Subways & Buses | 214.50 |
Outside Vendors
| Depositions/Transcripts: Veritext Pa. Reporting Co. | 317.95 | |
| Affidavits/Notary Fees: Tara Wallace | 725.00 | |
| Process Service: B & R Servs. for Professionals, Inc. | 118.00 | |
| Subpoenas: Commonwealth Court | 40.00 | |
| Handwriting Analysis/Written Report/Trial preparation: Michelle Dresbold | 4,909.00 | |
| Outside Copies | 125.00 | |
| Total Costs: | $11,426.22 |
Candidate‘s Bill of Costs, 4/19/08, at 2-3. The candidate also attached several supporting invoices. The request for costs, although made pursuant to Section 977 of the Election Code, did not include any legal argument regarding whether awarding costs here was “just.” See
The objectors filed exceptions to the bill of costs claiming that because they had not engaged in any “fraud or misconduct,” no costs should be awarded to the candidate. The objectors added that, although they were ultimately unsuccessful in striking the nomination petition, their challenge was forwarded in good faith, “showed serious and extensive problems” with the nomination petition, and resulted in the withdrawal of over half of the signatures initially filed with the Commonwealth‘s Secretary of State. According to the objectors, imposing costs would constitute an abuse of discretion because they acted “appropriately,” without delay or animosity between the parties. The objectors further claimed that imposition of costs here, where misconduct was absent, would
On May 5, 2008, Judge Friedman awarded the candidate $5,250.95 in costs, which represented payment in full for the hearing transcript, for twelve subpoenas, and for the handwriting expert services of Ms. Dresbold. In re Nomination Petition of Farnese, 948 A.2d 215, 221 (Pa.Cmwlth.2008) (Farnese II). The court concluded that pursuant to Section 977 and Nader III, supra, it had discretion to impose these costs.
According to the lower court, levying costs against the objectors, the losing party here, was proper except where such an award would be “unjust.” The lower court noted that although this Court had not provided specific guidance regarding the circumstances in which an award of costs is appropriate under Section 977, “the legislature [had] set forth some standards for the imposition of costs” via Section 1726 of the Judicial Code. Farnese II, 948 A.2d at 217 (citing
The governing authority10 shall prescribe by general rule11
the standards governing the imposition and taxation of costs, including the items which constitute taxable costs, the litigants who shall bear such costs, and the discretion vested in the courts to modify the amount and responsibility for costs in specific matters. All system and related personnel shall be bound by such general rules. In prescribing such general rules, the governing authority shall be guided by the following considerations, among others: (1) Attorney‘s fees are not an item of taxable costs except to the extent authorized by section 2503 (relating to right of participants to receive counsel fees).
(2) The prevailing party should recover his costs from the unsuccessful litigant except where the:
*
*
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(iii) Application of the rule would work substantial injustice.
The court then analyzed the individual categories of expenses cited by the candidate. First, the court deemed the following expenses to be attorneys’ fees and held that, under Section 1726 of the Judicial Code, attorneys’ fees were not “taxable costs” to be awarded to the candidate: Business Development/Meals, Business Development/Travel, Travel Expense, Dining Expense, Airfare, Lodging, Taxis, Subways & Buses. Second, the remaining expenses billed by the candidate‘s law firm and the request for costs of “outside copies” were rejected because of insufficient supporting documentation. The court concluded that it would be “unjust” to bill those amounts to the objectors in view of the deficiencies. Third, the court denied as “unjust” all costs relating to notary expenses for sixty-five affidavits which, the court concluded, would have had no evidentiary value. Fourth, the court denied the request for service of process costs associated with serving subpoenas on the objectors because the candidate had not included the objectors on his witness list so they would not have been permitted to testify. Id. at 218-21.
On May 7, 2008, the objectors appealed the award of costs to this Court.13 This Court noted probable jurisdiction, ordered the parties to file briefs, and then scheduled oral argument. The objectors raised two issues on appeal, one concerning the propriety of awarding costs at all in this instance, and one concerning the award of costs for a handwriting expert who did not ultimately testify.
In reviewing an award of costs, the lower court‘s conclusions of law are subject to plenary review under a de novo standard but, where the lower court‘s authority to award costs is clear, we are limited to determining only whether the court “palpably abused its discretion” in levying costs. See Nader III, 905 A.2d at 456; Lucchino v. Commonwealth, 570 Pa. 277, 809 A.2d 264, 268-69 (2002). “An abuse of discretion is not merely an error of judgment, but if in reaching a
Initially, the objectors claim that the lower court abused its discretion by awarding the candidate costs of litigation without finding that the objectors had acted in bad faith or engaged in intentional misconduct.14 In their view, the lower court‘s decision stands for the proposition that in an election challenge, costs will be automatically awarded to the prevailing party—candidate or challenger. The objectors argue that the court‘s application of the cost-allocation provision has a serious chilling effect on both candidates and voter-challengers. The objectors emphasize the narrow timeframe of election litigation15 and the expediency with which the parties must obtain “handwriting experts, computer review, statistical review, subpoenas, transcripts, investigation,” which come at a high cost that already is not affordable for many potential candidates and challengers. To properly balance the interests of protecting the integrity of the election process and ensuring ballot access, the objectors argue that this Court should hold that the court below was required to find that the objectors had
Second, the objectors argue that ballot access and candidate eligibility are protected by the U.S. Constitution and claim that the decision below violated their associational and equal protection rights under the First and Fourteenth Amendments. The objectors rely on cases in which federal courts have struck down: a poll tax; several mandatory filing fees for placement on the ballot; a requirement that a party conduct and fund primary elections as a condition of ballot access; and a requirement that minor political party candidates pay a fee to cover the state‘s cost of verifying signatures on nomination petitions. Objectors’ Brief, 7/15/08, at 32-37 (citing Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966) (poll tax unconstitutional); Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972) (filing fee unconstitutional); Belitskus v. Pizzingrilli, 343 F.3d 632 (3d Cir. 2003) (filing fee unconstitutional); Republican Party of Arkansas v. Faulkner County, 49 F.3d 1289 (8th Cir. 1995) (requirement to conduct and fund primary unconstitutional); Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992) (fee for signature verification unconstitutional)). According to the objectors, in Pennsylvania, allocating the high costs of election litigation to an unsuccessful party has the same “chilling impact” as the fees that were struck down in the federal cases. The objectors stress that automatic cost awards to a prevailing party burden both candidates and challengers equally. In the objectors’ view, levying costs should be the exception, available only in cases of “pervasive fraud and misconduct,” rather than the new rule. Id. at 39-40 (citing Nader III, supra).
As a final and more limited alternative, the objectors argue that the lower court should have denied the candidate‘s request for expert costs as excessive and unwarranted. The objectors emphasize that Ms. Dresbold, the candidate‘s hand-
The candidate does not dispute that there is no evidence of fraud, misconduct, or bad faith on the part of the objectors here. The candidate argues, however, that costs of litigation may be assessed at the court‘s discretion. He contends that, in reviewing that exercise of discretion, this Court may not make “a case by case assessment” of what the lower court found to be just but must affirm “absent a palpable abuse of discretion.” Candidate‘s Brief, 8/18/08, at 5 (citing Nader III, supra). According to the candidate, the lower court had “ample basis” for levying costs and cites the necessity of retaining a handwriting expert, collecting affidavits from witnesses, and expending considerable resources in order to remain on the ballot. In contrast, the candidate notes that the objectors did not present any expert or witness testimony and ultimately conceded that their line-by-line signature challenges lacked merit.
The candidate also dismisses the objectors’ constitutional claims as meritless. In his view, the objectors’ “constitutional challenge cannot succeed because the cost provision of Section 977 does not impinge upon any constitutional rights in a way that would warrant constitutional scrutiny.” Id. at 6 (quoting Nader III, supra).
Finally, the candidate claims that the lower court acted within its discretion to award expert costs even though Ms. Dresbold did not testify. According to the candidate, the court correctly ruled that Ms. Dresbold‘s services were re-
The objectors’ preserved statutory arguments pose one basic issue of statutory interpretation: whether, under Section 977 of the Election Code, the court has discretion to award costs to the challenged candidate on the apparent single ground that he prevailed in the underlying litigation. Section 977 states in relevant part:
All nomination petitions and papers received and filed within the periods limited by this act shall be deemed to be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition or paper be set aside. . . . In case any such petition is dismissed, the court shall make such order as to the payment of the costs of the proceedings, including witness fees, as it shall deem just.
For the reasons that follow, we agree with the objectors and hold that, under Section 977, an award of costs to the prevailing party is not warranted solely on the basis that the party prevailed in the underlying nomination petition challenge. We also necessarily conclude that the lower court abused its discretion in assessing costs against the objectors without identifying any reason specific to this case or, indeed, in these types of cases, why justice would demand shifting costs to them.
Indeed, the candidate here sought costs, not under Section 1726 or a rule/order of this Court, but under a specific statutory provision—Section 977 of the Election Code.16 Generally, Pennsylvania adheres to the “American Rule,” which states that litigants are responsible for their own litigation costs and may not recover them from an adverse party “unless there is express statutory authorization, a clear agreement of the parties, or some other established exception.” Trizechahn Gateway LLC v. Titus, 601 Pa. 637, 976 A.2d 474, 482-83 (2009); see Commonwealth, Dep‘t of Envtl. Prot. v. Bethenergy Mines, Inc., 563 Pa. 170, 758 A.2d 1168, 1173 (2000). Section 977 of the Election Code authorizes a court to award costs of the proceedings (including witness fees) to the prevailing party (the party securing dismissal of a petition) in an election matter, not automatically, but “as it shall deem just.”
In this case, the trial court cited to no reason specific to this case, where the losing party prevailed in significant
The objective factors here reveal no circumstances that would necessarily or obviously require an award of costs. Neither the trial court nor the candidate have cited anything in the conduct of the objectors, both in initiating and then pursuing their challenge, to indicate bad faith, harassment, or misconduct. This stands in contrast to the situation in Nader III. There, this Court affirmed an award of costs in favor of the objectors, holding that the Commonwealth Court did not abuse its discretion in assessing costs where the candidates’ conduct, “through their representatives (not their attorneys) shock[ed] the conscience of the [c]ourt.” 905 A.2d at 459. The record in Nader III showed extensive “fraud and deception implicated in [the candidates‘] signature-gathering efforts.” Id. In this case, the most that can be said is that the objectors ultimately withdrew their individual signature challenges; but, significantly, they did so only after the trial court rejected the “false-in-one, false-in-all” theory that was necessary to the success of those challenges.19
Given the extreme circumstances presented in Nader III, the objectors here predictably propose adoption of a simple, blackletter rule that parties must prove fraud, bad faith, intention, or gross misconduct to recover costs of litigation in election matters. We decline the invitation. The plain language of Section 977 does not establish such a high threshold.
We have no difficulty with the notion that, where fraud, bad faith, or gross misconduct is proven, justice may require an award of costs. But, it is equally self-evident that a party‘s conduct need not proceed to such an extreme before an award of costs may be dictated by justice. For example, there are positions taken in litigation which, though they may fall short of the legal standard of frivolous, nevertheless have so remote a chance of success, or are so clearly foreclosed by existing authority, that an award of costs may be justified.20 Not all parties who forward plainly meritless claims do so with bad intentions; it may be a lapse of judgment, or a failure to fully understand an arcane area of law in the short time available for challenges, etc. We thus reject the heightened rule posed by the objectors, just as we reject the prevailing party‘s position here.
Further, requirements as to form and contents of nomination petitions are “not mere technicalities but are necessary measures to prevent fraud and to preserve the integrity of the election process.” In re Nomination Petition of Cianfrani, 467 Pa. 491, 359 A.2d 383, 384 (1976); In re Nomination Papers of Nader, 580 Pa. 22, 858 A.2d 1167, 1171-73 (2004) (Nader I). The ability of a party to object to nomination papers when requirements are not met “provides an important check on the nomination process.” In re Nomination Petition of James, 596 Pa. 442, 944 A.2d 69, 72 (2008). Thus, at the same time that candidates for office should not be exposed to the time and expense of defending baseless challenges, candidates must be cognizant of their own obligations. In short, both candidates and objectors play important roles in our electoral process.
Second, in assessing what is just, the court must be cognizant of the practical reality that both parties in election contests are operating within the truncated timeframes of the Election Code. As a result, candidates generally err on the side of filing well in excess of the required signatures, perhaps with near certainty that a number of them will be invalid, and
With these considerations in mind, we hold that the award of costs in this case must be reversed because neither the court below nor the candidate has identified any circumstance, other than the simple fact that the candidate prevailed, to support a finding that an award of costs would be just here.21
Pursuant to long-standing precedent of this Court, we will not reach the constitutional arguments presented by the objectors, having been able to decide this case on statutory grounds. See P.J.S. v. Pa. State Ethics Comm‘n, 555 Pa. 149, 723 A.2d 174, 176 (1999)
For the above-stated reasons, we hold that the lower court abused its discretion in awarding the prevailing candidate costs of litigation in the amount of $5,250.95. The Order awarding costs is reversed.
Jurisdiction relinquished.
Justice GREENSPAN did not participate in the decision of this matter.
Justices BAER and TODD join the opinion.
Justice SAYLOR files a concurring opinion.
Justice McCAFFERY files a concurring opinion.
Justice EAKIN files a concurring and dissenting opinion.
Justice SAYLOR concurring.
I join the majority opinion, subject to the observation that I have been in a minority position in a number of the background decisions. Thus, I remain circumspect about: reading Section 977 of the Election Code as sanctioning discretionary cost awards against candidates, see In re Nader, 588 Pa. 450, 468-70, 905 A.2d 450, 461-62 (2006) (Saylor, J., dissenting);1 the character, scope, and legal significance of the signature irregularities noted in the Nader matter, see In re Nader, 580 Pa. 134, 135-48 & n. 13, 860 A.2d 1, 1-10 & n. 13 (2004) (Saylor, J., dissenting); and the import of potential inferences which may be drawn from truly wide scale signature impro-
Justice McCAFFERY, concurring.
I join the majority in determining that the award of costs must be reversed. I write separately to observe and emphasize that the objective factors here, including that the candidate conceded that 1077 of the 1778 signatures contained in his nomination petition were invalid, would support an inference that the appellant objectors acted in good faith in initiating and pursuing their challenge to the authenticity of the signatures contained in the petition. On this relevant fact alone, I believe, the court‘s award of costs to the candidate should be considered an abuse of discretion. Under the circumstances, the candidate should have expected that litigation would likely ensue, and I can see no just reason to support a judicial shifting of costs to the objectors where the candidate admitted that more than 60% of the signatures contained in his petition were invalid.
Moreover, this Court has stated that the statute permitting an assessment of costs where a court deems it just “is consistent with the interest of the Commonwealth in ensuring fair elections that are free from the taint of fraud.” In re Nomination Paper of Nader, 588 Pa. 450, 905 A.2d 450, 460 (2006). In our disposition of the appeal from the trial court‘s denial of the objectors’ petition to set aside the nomination petition in this case, we expressed our concern that a candidate for office “should not be permitted to submit a nomination petition that contains mostly illegitimate signatures without doubt being cast upon the propriety of the candidate‘s signature procurement process.” In re Nomination Petition of Farnese, 17 A.3d 375, 377 (Pa. 2011). The circumstances here cast doubt upon the candidate‘s method of procuring signatures and support a colorable allegation of fraudulent conduct. Accordingly, I believe the allocation of costs to the party that sought to shed greater light on the seemingly
Justice EAKIN, concurring and dissenting.
I agree with the majority‘s conclusion that the mere fact candidate prevailed against the challenge to his nomination petition is insufficient to support an award of costs to him. It will not suffice to submit an invoice with neither explanation of why the award of costs would be “just,” nor reference to
I disagree, however, that the proper remedy is simply reversal of the order awarding costs. The applicable standard is whether the lower court abused its discretion, see Majority Op., at 563, 17 A.3d at 369, and where, as here, the record is silent concerning the lower court‘s analysis, we cannot determine whether such discretion was properly exercised. Candidate should not be thrown completely out of court simply because the trial court was quick to grant relief but failed to provide its analysis. As long as the record provides some reason to suggest § 2937‘s standard for an award of fees may be met, remand for further elucidation is the better course. See Borough of Beaver v. Steckman, 728 A.2d 418, 420-21 (Pa. Cmwlth. 1999) (distinguishing reversal of award of attorney‘s fees without remand in Township of South Strabane v. Piecknick, 546 Pa. 551, 686 A.2d 1297 (1996), on grounds there was no indication of contemnor‘s bad faith on record in Piecknick, whereas record in Steckman indicated contemnor acted in bad faith). Similarly, while the trial court here provided no analysis of the applicable standard, the record does not indicate the standard cannot be met, so the award of costs may still be appropriate. Candidate‘s entitlement to costs cannot be ignored because the trial court originally acted too quickly and without articulation—the shortcoming seems the court‘s, not the litigant‘s, and the litigant‘s request should thus be given proper consideration. Accordingly, I would
Accordingly, I concur in the finding there was insufficient assessment of whether the award was just, but dissent as to the complete reversal of the award.