In rе PETITION FOR AGENDA INITIATIVE to Place a Proposed Ordinance on the Agenda of a Regular Meeting of Council for Consideration and Vote as Follows: “An Ordinance of the County of Allegheny, Commonwealth of Pennsylvania, Directing that a Referendum Question Amending Article III, Section 3 of the Allegheny County Home Rule Charter, Pursuant to the Home Rule Charter and Optional Plans Law and Second Class County Charter Law, Be Placed on the May 20, 2003 Municipal Primary Ballot.”
Commonwealth Court of Pennsylvania
April 14, 2003
821 A.2d 203
Objection of Thomas E. FLAHERTY, in His Individual Capacity and as Chairman of the Democratic Party of Allegheny County. Appeal of Allegheny County Division of Elections, Department of Administrative Services. Appeal of Sean W. Moran. Appeal of Thomas E. Flaherty. Argued March 5, 2003.
Objection of Thomas E. FLAHERTY, in His Individual Capacity and as Chairman of the Democratic Party of Allegheny County.
Appeal of Allegheny County Division of Elections, Department of Administrative Services.
In re Petition For Agenda Initiative to Place a Proposed Ordinance on the Agenda of a Regular Meeting of Council for Consideration and Vote as Follows: “An Ordinance of the County of Allegheny, Commonwеalth of Pennsylvania, Directing that a Referendum Question Amending Article III,
Objection of Thomas E. Flaherty, in His Individual Capacity and as Chairman of the Democratic Party of Allegheny County.
Appeal of Sean W. Moran.
In re Petition For Agenda Initiative to Place a Proposed Ordinance on the Agenda of a Regular Meeting of Council for Consideration and Vote as Follows: “An Ordinance of the County of Allegheny, Commonwealth of Pennsylvania, Directing that a Referendum Question Amending Article III, Section 3 of the Allegheny County Home Rule Charter, Pursuant to the Home Rule Charter and Optional Plans Law and Second Class County Charter Law, Be Placed on the May 20, 2003 Municipal Primary Ballot.”
Objection of Thomas E. FLAHERTY, in His Individual Capacity and as Chairman of the Democratic Party of Allegheny County.
Appeal of Thomas E. Flaherty.
Commonwealth Court of Pennsylvania.
Argued March 5, 2003.
Decided April 14, 2003.
Charles P. McCullough and Allan J. Opsitnick, Pittsburgh, for appellant Allegheny County Division of Elections.
Robert J. Ridge, Pittsburgh, for appellee, S. Moran
BEFORE: COLINS, President Judge, SMITH-RIBNER, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, COHN, Judge, SIMPSON, Judge, and LEAVITT, Judge.
OPINION BY Judge SMITH-RIBNER.
This case involves consolidated appeals by the Allegheny County Division of Elections, Department of Administrative Services (County), Sean Moran (Moran) and Thomas E. Flaherty (Flaherty) from the February 4, 2003 order of the Court of Common Pleas of Allegheny County, which sustained in part Flaherty‘s appeal and set aside an Agenda Initiative Petition filed by Moran because it lacked the required 500 signatures from registered voters of Allegheny County. The petition sought to have the Allegheny County Council consider and vote on a proposed ordinance directing that a referendum be placed before the voters in the May 2003 municipal primary election to amend the Allegheny County Home Rule Charter (Charter),
I
The Charter was approved by the voters of Allegheny County on May 19, 1998 and became effective on January 1, 2000. See the Act commonly known as the Second Class County Charter Law, Article XXXI-C of the Second Class County Code, Act of July 28, 1953, P.L. 723, as amended, added by Section 3 of the Act of May 20, 1997, P.L. 149,
Pursuant to the Charter, the County Council enacted the Allegheny County Administrative Code (Administrative Code) by Ordinance No. 8 on June 20, 2000, which established procedures, among others, for the agenda initiative petition and voter referendum process. Under Section 1101.01, an agenda referendum рetition is the same as an agenda initiative petition, and under Section 1101.02(C) agenda initiatives and voter referendums proposing amendments to the Charter must follow procedures in the Home Rule Charter and Optional Plans Law (Home Rule Charter Law),
On November 19, 2002, Moran, representing a group known as the Citizens for Democratic Reform, filed with the County Council Clerk an Agenda Initiative Petition proposing an ordinance for consideration and vote by the County Council establishing a referendum on changing the selection process for Row Officers and consolidating their functions. Moran requested the County Council to submit the following question to the voters in the May 2003 primary election:
Shall Allegheny County‘s Home Rule Charter, Article III, Section 3, be amended to (a): replace the elected Clerk of Court, Jury Commissioners, Prothonotary, Recorder of Deeds and Register of Wills with a Clerk of Records appointed by the Chief Executive and confirmed by County Council and (b) replace the elected Coroner, Sheriff and Treasurer with a Medical Examiner, Sheriff and Treasurer respectively, appointed by the Chief Executive and confirmed by County Council.1
On December 9, 2002, the Council Clerk certified Moran‘s petition as complete. On December 16, 2002, Flaherty appealed to the Court of Common Pleas requesting that it set aside the petition on the grounds that it lacked at least 500 signatures from registered voters, that the proposed amendment must be submitted to a government study commission before being presented to the voters and that any change in the form of government could not take place before January 1, 2005, or five years from the “effective date” of the Charter.
The County filed preliminary objections in the nature of a demurrer, contending that a government study commission was not required and that under Section 6111-C(c) of the Second Class County Charter Law,
On January 27, 2003, thе trial court heard testimony relating to voter registration records and voter signatures from Mark Wolosik, an official of the Division of Elections, whom the court found to be a credible witness. The court, in addition, examined sworn affidavits presented by Moran in an attempt to rehabilitate many of the signatures that Flaherty challenged, particularly those involving printed names, and it also reviewed voter registration cards and compared their information and signatures with the petition as well as in some cases with the affidavits. The court heard oral argument on the timing of the referendum and whether a government study commission was required.
In holding that only 464 of the proffered 606 signatures were valid, the trial court noted that the largest group of invalid signatures included printеd names and that it also struck signatures because names, addresses or signatures on the petition differed from the respective voter registration cards. Relying on In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327 (2001), and
As for the government study commission, the trial court noted that the County adоpted its Charter pursuant to the Second Class County Charter Law, which provides that the entire Act is to be considered and construed in pari materia with the Home Rule Charter Law. The court determined that any amendment to the Charter through voter referendum must follow the procedure set forth in the Home Rule Charter Law, and neither Section 2943 of the Law,
The last question that the trial court resolved was the date on which the five-year period began to run for submitting changes in the form of government through the Agendа Initiative Petition. Section 6111-C(c) of the Second Class County Charter Law provides that the question of changing a form of government approved by the voters may not be submitted to the voters earlier than five years after the Charter‘s approval date, whereas Section 2929 of the Home Rule Charter Law,
II
The Court‘s review will focus initially on the trial court‘s order regarding the validity of the signatures on Moran‘s Agenda Initiative Petition, recognizing that if the Court agrees with the trial court‘s decision it need not reach the essentially two remaining issues presented in this case regarding the need for a government study commission or the date from which the five-year moratorium on charter change begins to run. If the petition does not meet the threshold requirements of whether it contained 500 valid signatures, it consequently must be set aside, and any discussion of the remaining issues would amount to nothing more than an advisory opinion, which this Court may not issue. See Borough of Marcus Hook v. Pennsylvania Municipal Retirement Board, 720 A.2d 803 (Pa.Cmwlth.1998). The Court‘s review will be limited to determining whether the trial court‘s findings are supported by substantial evidence or whether it abused its discretion or committed an error of law. Nomination Petition of Flaherty.
Moran argues that the uncontested sworn affidavits were sufficient to rehabilitate the printed signatures and that the trial court thus erred in striking those signatures. He contends that in Nomination Petition of Flaherty the Supreme Court did not establish an absolute per se prohibition against validating printed signatures, but rather it allowed rehabilitation of such signatures upon substantial proof. Furthermore, the Court in Department of Transportation, Bureau of Traffic Safety v. Mitchneck, 25 Pa.Cmwlth. 145, 360 A.2d 831 (1976), held that the typewritten name of the acting director of the bureau was insufficient to meet the document certification requirements of former Section 1224 of The Vеhicle Code, Act of April 29, 1959, P.L. 58, as amended, formerly
Moran asserts that 33 uncontested sworn affidavits were submitted from voters who printed their names and that they attested to the genuineness of their signatures on the Agenda Initiative Petition, which was sufficient to rehabilitate their signatures. The triаl court invalidated as well three signatures because the women signers, registered to vote under their maiden names, signed the petition with some form of their married names. Moran analogizes these signatures to those which, under In re Nomination Petition of Cooper, 163 Pa.Cmwlth. 430, 643 A.2d 717 (1994), would not be invalidated merely for lack of a marital prefix. Moran cites Cooper also for authority to rehabilitate three signatures where the voters used a nickname or initials, and he maintains that affidavits from these voters provided substantial proof to confirm their identities on the petition.5
In response Flaherty submits that the holdings in Nomination Petition of Flaherty and in Mitchneck require substantial proof that the voters intended their printed names to be their actual signatures. Here, the sworn affidavits merely stated that the affiants reviewed their voter registration cards and the Agenda Initiative Petition and that they recognized and affirmed their signatures on the petition as their own. According to Flaherty, an indication that a printed name is the signature used to sign checks or other legal documents is the type of evidence required to rehabilitate the printed signature, and Moran failed to proffer such evidence. Further, signatures should be stricken under Nomination Petition of Flaherty when it is shown that the voters failed to properly notify election authorities of a change in the voters’ names or addresses.
III
Contrary to Moran‘s view that the trial court should have reviewed the County Council Clerk‘s certification under an abuse of discretion standard, the court relied on Article XI, § 1101.09(E) of the Administrative Code, which requires the court to follow procedures set forth in Section 977 of the Pennsylvania Election Cоde, Act of June 3, 1937, P.L. 1333, as amended,
In setting aside the Agenda Initiative Petition, the trial court followed Nomination Petition of Flaherty, in which the Supreme Court rejected printed and other defective signatures on the candidate‘s nominating petitions and in doing so articulated the following principles:
Section 908 of the Election Code directs that all electors shall sign their name to a candidate‘s nomination petition.
25 P.S. § 2868 ; In re Nomination Petition of Silcox, 543 Pa. 647, 647, 674 A.2d 224, 225 (1996). Electors are required to sign their name to a candi-date‘s nomination petition as a means of preventing forgery and assuring that each elector personally signs the petition with an understanding of what he is signing. Following each election, the registration commission has the duty of comparing a voter‘s signature upon voting with the voter‘s signature on file with the district registrar in order to assure that the voter‘s signature is genuine. 25 P.S. § 961.702 . An elector‘s name will be stricken where the elector prints his name upon a candidate‘s nomination petition so that it does not match his signature on his voter registration card. In re Nomination Petition of Cooper, 163 Pa.Commw. 430, 447, 643 A.2d 717, 725 (1994).. . . .
[W]e note that electors have a responsibility, as where an elector moves to a new address, to contact the registration commission and obtain a new registration card when their card is damaged or destroyed. In any event, we find that an elector who prints her name on a nomination petition has not properly signed the petition, as required by the plain language of Section 908 of the Election Code,
25 P.S. § 2868 . We believe that there is a discernible difference between a name as printed and a name as signed. A person‘s name as signed is perceived to be an insignia used by that person to represent herself and generally is made in a manner that is not easily traceable, as in the case of a person‘s printed name. Given this difference, as well as the importance of insuring the integrity of the election process, we find that in stating that a person must ‘sign’ the nomination petition, the General Assembly intended that a person make that insignia that the person uses to represent herself, rather than print her name. See25 P.S. § 2868 ;1 Pa.C.S. § 1921(b) . Therefore, absent substantial proof that the person intended her printed name to be her signature, a person may not validly print her name upon a nomination petition. See e.g., Commonwealth Dep‘t of Transp. v. Mitchneck, 25 Pa.Commw. 145, 147-48, 360 A.2d 831, 832 (1976) (a typewritten name cannot be a person‘s signature without proof that the person intended the typewritten name to act as his signature). . . .Next, Appellant argues that the Commonwealth Court improperly accepted the signatures of seven electors from Erie County and nine electors from Philadelphia County whose addresses on Candidate‘s nomination petition did not match the addresses stated on their voter registration cards. We agree.
A person is required to indicate, under penalty of perjury, his or her plаce of residence in order to register as an elector.
25 P.S. § 961.501 . Furthermore, when electors move either within the same county or to another county within the Commonwealth, they must notify the registration commission of their new address by filing a removal notice generally no later than 30 days preceding an election. . . . Thus, absent extraordinary circumstances, electors who declare a residence at an address different than the address listed on their voter registration card are not qualified electors at the time they sign a nomination petition unless they have completed the removal notice required by the Voter Registration Act.
Id., 564 Pa. at 679-681, 770 A.2d at 332-333 (emphasis added).
The affidavits submitted to rehabilitate the printed signatures did not constitute substantial proof that the voters intended their printed names to be their
After an exhaustive review of the record, the Court concludes that the trial court‘s findings were supported by substantial evidence and, moreover, that the
ORDER
AND NOW, this 14th day of April, 2003, the order of the Court of Common Pleas of Allegheny County is hereby affirmed as modified in accordance with the foregoing opinion.
DISSENTING OPINION BY Judge FRIEDMAN.
I respectfully dissent. The majority holds that the trial court properly concluded that the affidavits submitted by Sean W. Moran (Moran) to rehabilitate thirty-
Briefly, I would conclude that the trial court improperly admitted the affidavits, which constitute uncorroborated hearsay, and improperly rejected them based on the inadequacy of their content.1 I would hold that the statements made in the affidavits were sufficient to rehabilitate the printed names on the Petition because each affidavit affirmed that the affiant personally “signed”2 the Petition and that the printed name on a particular line of the Petition was to serve as the affiant‘s “signature.”3 (See R.R. at 233a.) However, because the affidavits are hearsay,4 I also would hold that the affidavits were insufficient to rehabilitate the printed names absent corroborating evidence. Inasmuch as the trial court refused to consider whether the signatures on the voter registration cards corroborated the signatures on the affida-
As a preliminary matter, I point out that copies of the affidavits appear in the reproduced record, but the affidavits themselves are not part of the certified record. Ordinarily, this court will not consider documents as evidence if they are absent from the certified record.5 However, because the trial court clearly “moved” the “exhibits” into evidence,6 it appears that the affidavits’ omission from the certified record was inadvertent. Because there is no motion before this court to strike any portion of the reproduced record, I concludе that it is proper for this court to consider the affidavits.
Moran‘s argument is that the trial court erred in concluding that thirty-three affidavits he submitted from voters who printed their names on the Petition were insufficient to rehabilitate the voters’ signatures.
Where an elector has printed his or her name instead of signing it in the cursive manner as signed on the voter registration
1. I have reviewed my Voter Registration Card, a copy of which is attached hereto as Exhibit A. I am the individual registered thereon.
2. I have reviewed the Agenda Initiative Petition, a copy of which is attached hereto as Exhibit B. I recognize and affirm the signature at line number [ ] of the Agenda Initiаtive Petition attached hereto as being my own, having personally signed the Agenda Initiative Petition as a registered voter of Allegheny County on the date indicated.
(See R.R. at 233a) (emphasis added). Certainly, this statement, which affirms that the printed name on the Petition is made
However, an ex parte affidavit made out of court ordinarily is not admissible to prove the facts stated in the affidavit, particularly when the affiant is alive and available to testify. See 8 Standard Pennsylvania Practice § 53:31 (1999). Indeed, affidavits are hearsay and, as such, they cannot support a finding of fact without corroborating evidence. See In re Nomination Petition of Delle Donne, 779 A.2d 1 (Pa.Cmwlth.), aff‘d, 565 Pa. 561, 777 A.2d 412 (2001); Dale v. Philadelphia Board of Pensions and Retirement, 702 A.2d 1160 (Pa.Cmwlth.1997), appeal denied, 556 Pa. 696, 727 A.2d 1123 (1998); see also Walker v. Unemployment Compensation Board of Review, 27 Pa.Cmwlth. 522, 367 A.2d 366 (1976).
Thus, if we permitted printed signatures, which as a general rule are not self-authenticating, it would invite fraud and overburden the courts to prove otherwise. But that is not to say that merely printing one‘s name should defeat a person‘s eligibility to exercise a right pertinent to the right to vote. If an eligible elector comes before a court and states that he or she printed her name on a petition, the court should recognize that person‘s identity as an eligible voter.
Judge PELLEGRINI joins in this dissent.
DISSENTING OPINION BY Judge LEAVITT.
Respectfully, I dissent.
In In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327 (2001), our Supreme Court stated:
[W]e find that an elector who prints her name on a nomination petition has not properly signed the petition, as required by the plain language of Section 908 of the Election Code. We believe that there is a discernible difference between a name as printed and a name as signed. A person‘s name as signed is perceived to be an insignia used by that person to represent herself and generally is made in a manner that is not easily traceable, as in the case of the person‘s printed name. Given this difference, as well as the importance of insuring the integrity of the election process, we find that in stating that a person must “sign” the nomination petition, the General Assembly intended that a person make that insignia that the person uses to represent herself, rather than print her name. Therefore, absent substantial proof that the person intended her printed name to be her signature, a person may not validly print her name upon a nomination petition.
Id. at 680-681, 770 A.2d at 332-333 (emphasis added, citations omitted). I disagree with the trial court‘s application of Flaherty to this case.
Here, unlike in Flaherty, Moran presented the trial court with more than 60 uncontested affidavits signed by electors in support of many of the challenged signatures. The affidavits contained the individual‘s sworn statement that she had reviewed her voter registration card, signed the Agenda Initiative Petition on the date indicated, and affirmed her signature, specifying its line on the Petition. R.R. 233a. The trial court‘s Opinion does not specifically explain why these affidavits do not constitute “substantial proof.”
Further, Flaherty arose under the Election Code, which does not apply to challenges to an Agenda Initiative Petition. Article XI of the Administrative Code of Allegheny County (Administrative Code), “Agenda Initiative and Voter Referendum,”1 provides for the initiation procedure, petition requirements, filing procedure, and certification procedure for agenda initiative and voter referendum petitions. Article XI, Section 1101.08 of the Administrative Code deals with the certification of agenda initiative petitions. Subsection E, “Challenges to Agenda Initiative Petitions Certified as Sufficient,” provides that “[t]he dеcision of the County Council Clerk shall be subject to appeal to the Court of Common Pleas within seven (7) days of the date of the statement of certification.” ALLEGHENY COUNTY, ADMINISTRATIVE CODE art. XI, § 1101.08(E) (2000). This provision does not mention the Election Code.
Pursuant to
25 P.S. [§] 2937 ,2 Voter Referendum Petitions certified sufficient shall be deemed to be valid, unless, within seven (7) days after the statement of certification by the Board of Elections concerning the Voter Referendum Petition, a petition is presented to the Court of Common Pleas specifically setting forth the objection thereto, and asking that the said Voter Referendum Petition be set aside. A copy of said petition shall, within said period, be served on the authorized representative of the Board of Elections with whom said petition was filed. Upon presentation of such petition, the Court shall follow the procedure set forth in25 P.S. [§] 2937 regarding objections to petitions insofar as they may be applicable.
ALLEGHENY COUNTY, ADMINISTRATIVE CODE art. XI, § 1101.09(E) (2000).
The Administrative Code treats agenda initiative petitions and voter referendum petitions as separate and distinct matters. This difference is probably based upon the fact that an agenda initiative petition merely gets an ordinance before the County Council; the Council decides whether it goes on the ballot.
I disagree with the trial court‘s premise, i.e., that it is “obvious” that the Election Code applies to a challenge to an agenda initiative petition. Opinion at 4. To the contrary, it appears obvious that the Election Code is to be followed only in a challenge to a voter referendum petition. Nevertheless, the Administrative Code does not define “signature,” and it was not inappropriate for the trial court to follow Flaherty as precedent. However, Flaherty did not establish a per se rule that printed signatures are invalid. Accordingly, I would remand for specific findings on whether the 60 uncontested affidavits constitute substantial proof within the meaning of Flaherty.
Dr. Ira SOLOMON and Ronald Smack, Petitioners,
v.
WORKERS’ COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs Nov. 8, 2002.
Decided April 15, 2003.