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In re General Election 2014 Muriel Kauffman

Commonwealth Court of Pennsylvania

March 11, 2015

In Re: General Election 2014 Muriel Kauffman; Appeal of: Helen Banushi, Philadelphia Registered Elector and Elizabeth Elkin, Philadelphia Registered Elector

Submitted February 9, 2015.

Page 786

Appealed from No. CP-51-CV-141100948-2014. Common Pleas Court of the County of Philadelphia. Cohen, J.

Linda A. Kerns, Philadelphia, for appellants.

Adam C. Bonin, Philadelphia, for appellees.



Page 787

DAN PELLEGRINI, President Judge

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 Commissioner's

Page 788

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. 11/4/14[3] 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

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[Entire Page Contains Footnotes]

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that she brought applications for five Power Back patients[5] 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

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it 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 23-24). 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 Kauffman 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 " [e]xcept 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 Code[8] 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 (Pa. 1969). Because Objectors

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were 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 (Pa. Cmwlth. 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 " aggrieved" by the appealed order. See In re T.J., 739 A.2d at 481 (" As a general matter, the core concept of the doctrine of standing is that a person who is not adversely affected in any way by the matter he seeks to challenge is not 'aggrieved' and has no right to obtain a judicial resolution of his challenge." ) (citation omitted). A party is aggrieved when he or she has a " substantial, direct, and immediate" interest in the subject matter of the appeal. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269, 282-84 (Pa. 1975). Specifically, " the requirement of a 'substantial' interest simply means that the individual's interest must have substance--there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law." Id. at 282. " The requirement that an interest be 'direct' simply means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains." Id. (footnote omitted). Finally, " [t]he remaining requirements of the traditional formulation of the standing test are that the interest be 'immediate' and 'not a remote consequence of the judgment.' [T]hese two requirements reflect a single concern. Here that concern is with the nature of the causal connection between the action complained of and the injury to the person challenging it." Id. at 283.

As outlined above, Objectors claim that they have standing to appeal the trial court's 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 the absentee ballots that Kauffman and the other patients cast affected the outcome of the General Election in which they voted.[9] However, these claims do not support a finding of standing in the instant matter because they were not parties in the trial court and they do not show a " substantial, direct, and immediate"

Page 793

interest in the subject matter of this appeal.

The trial court properly cited Kauffman v. Osser, 441 Pa. 150, 271 A.2d 236 (Pa. 1970), in which registered Democratic electors filed a declaratory judgment action[10] in the trial court against the Philadelphia Board of Elections and its chief clerk challenging the validity of Section 1301 of the Election Code which permits electors and their spouses who are on vacation to vote by absentee ballot and requires a deposit to challenge an absentee ballot. In that case, the electors claimed that if qualified electors and their spouses are permitted to vote by absentee ballot while on vacation or if the deposit to challenge the ballots is enforced, the electors and all other Democratic electors who intended to vote would have their votes diluted by the absentee ballots and the allegedly invalid provisions of Section 1301 will thereby " affect" their rights. Id. at 239.

In rejecting a finding of standing, the Supreme Court explained:

In our opinion, the interest of appellants is not peculiar to them, is not direct, and is too remote and too speculative to afford them, either in their individual capacities or in their claimed class representative capacity, a standing to attack these statutory provisions. Basic in appellants' position is the assumption that those who obtain absentee ballots, by virtue of statutory provisions which they deem invalid, will vote for candidates at the November election other than those for whom the appellants will vote and thus will cause a dilution of appellants' votes. This assumption, unsupported factually, is unwarranted and cannot afford a sound basis upon which to afford appellants a standing to maintain this action. While the voter-appellants in Baker v. Carr [, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962),] were able to demonstrate injury distinct from other voters in the state, the interest which appellants claim is nowise peculiar to them but rather it is an interest common to that of all other qualified electors. In the absence of any showing of a legal standing or a justiciable interest to maintain this action, we cannot permit their challenge to the validity of this statute.

Id. at 239-40 (emphasis in original). Likewise, in the instant appeal, Objectors have failed to show the requisite " substantial, direct, and immediate" interest by merely alleging the common interest of all qualified electors that the provisions of the Election Code be followed and the unsupported allegation that the five absentee ballots at issue in this matter in any way affected the outcome of the General Election.[11],[12]

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Accordingly, the appeal is quashed.[13]


AND NOW, this 11th day of March, 2015, the above-captioned appeal is quashed.

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