Delaware County Republican Executive Committee v. Board of Elections ~ Appeal of: G. Stenstrom & L. Hoopes

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delaware County Republican

Executive Committee

v. : No. 125 CD. 2021

: Argued: November 18, 2021

Board of Elections :

Appeal of: Gregory Stenstrom and

Leah Hoopes

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: December 13, 2021

Gregory Stenstrom and Leah Hoopes (Observers) appeal the Order of

the Delaware County Court of Common Pleas (trial court) denying Observers’

Emergency Petition to Intervene in an action filed by the Delaware County

Republican Executive Committee (Committee), and denying Observers’ Emergency

Petition for Sanctions filed against the Delaware County Board of Elections (Board)

for its purported violation of a trial court order and the provisions of the

Pennsylvania Election Code (Election Code).'! We affirm.

On November 4, 2020, the Committee filed an emergency petition in

the trial court requesting increased access at the Board’s office for its party

representatives designated as ballot observers, including Observers, and for

' Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.

designated seating areas for its observers during the pre-canvass and canvassing of

ballots after the November 3, 2020 General Election. Following a hearing, the trial

court issued an order granting the following relief:

1. Four [o]bservers in total (2 observers from _ the

Republican Party, or affiliated candidates, and 2 observers

from the Democratic Party, or affiliated candidates) are

permitted to observe the resolution area [in the Board’s

office] at all hours while ballots are being resolved.

2. Two observers (1 representing the Republican Party, or

affiliated candidates, and 1 representing the Democratic

Party, or affiliated candidates), are permitted to observe

the sorting machine area [in the Board’s office] at all times

while the machine is in use. However, all observers shall

stand back while the machine is in use due to safety

concerns.

3. At two-hour intervals, two observers in total (1

representing the Republican Party, or affiliated candidates,

and 1 representing the Democratic [Plarty, or affiliated

candidates) are permitted to enter the ballot room [in the

Board’s office], to examine the room; however, [they] are

not permitted to examine the physical ballots contained

within the room, individually. They must be escorted by

a member of the [Board] Staff with the time not to exceed

five minutes each visit.

4. Any observer may not interfere[] with the process, nor

may any observer object to individual ballots.

Reproduced Record (R.R.) at 34-35. The Committee did not appeal the trial court’s

order to this Court or seek its modification or sanctions of any kind based on the

purported violation of its provisions. See, e.g., Section 5505 of the Judicial Code,

? Observers filed a reproduced record with this Court, but failed to comply with Pa.R.A.P.

2173, which requires that reproduced record pages be numbered followed by a small “a.”

Accordingly, this Court references the document consistent with the pagination contained in the

Reproduced Record.

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42 Pa. C.S. §5505 (“Except as otherwise provided or prescribed by law, a court upon

notice to the parties may modify or rescind any order within 30 days after its entry

...1f no appeal from such order has been taken or allowed.”’); Section 5571(b) of

the Judicial Code, 42 Pa. C.S. §5571(b) (“[A]n appeal ... from a court to an

appellate court must be commenced within 30 days after the entry of the order from

which the appeal is taken, in the case of an interlocutory or final order.’’).

Forty-eight days after the trial court entered its order, on December 22,

2020, Observers and Dasha Pruett (Candidate), a candidate for the United States

House of Representatives (U.S. House),* filed the instant Emergency Petition to

Intervene* and the Emergency Petition for Sanctions.> On January 12, 2021, the trial

court issued an Opinion and Order denying the Emergency Petition to Intervene and

> Candidate is not a party to the instant appeal.

* See Pa.R.Civ.P. 2327 (“At any time during the pendency of an action, a person not a party

thereto shall be permitted to intervene therein, subject to these rules ....”); Pa.R.Civ.P. 2329(2)

and (3) (“[A]n application for intervention may be refused, if . . . the interest of the petitioner is

already adequately represented; or . . . the petitioner has unduly delayed in making application for

intervention... .”).

> See Section 1806 of the Election Code, 25 P.S. §3506 (“Any member of a county board

... who shall refuse to permit any overseer or watcher . . . to be present... at any . . . computation

and canvassing of returns of any ... election, ... shall be guilty of a misdemeanor, and, upon

conviction thereof, shall be sentenced to pay a fine not exceeding [$1,000.00], or to undergo an

imprisonment not exceeding [1] year, or both, in the discretion of the court.”); Section 4133 of the

Judicial Code, 42 Pa. C.S. §4133 (“Except as otherwise provided by statute, the punishment of

commitment for contempt provided in [S]ection 4132 (relating to attachment and summary

punishment for contempts) shall extend only to contempts committed in open court. All other

contempts shall be punished by fine only.”). See also Section 1642(a) and (c) of the Election Code,

added by the Act of October 4, 1978, P.L. 893, as amended, 25 P.S. §3260b(a), (c) (“The Attorney

General shall have prosecutorial jurisdiction over all violations committed under this act . . . [and

t]he district attorney of any county in which a violation occurred has concurrent powers and

responsibilities with the Attorney General over such violations.”); Pa.R.Crim.P. 506(A) (“When

the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the

Commonwealth, who shall approve or disapprove it without unreasonable delay.”).

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the Emergency Petition for Sanctions with prejudice,° and Observers filed the instant

appeal of the trial court’s order.

On appeal,’ Observers claim that the trial court erred in: (1)

determining that they lacked standing to intervene; (2) determining that they acted

with undue delay implicating the doctrine of laches; (3) concluding that their

Petitions are not supported by a “scintilla” or “smidgen” of legal merit or that their

claims are “baseless”; and (4) concluding that the Supreme Court opinion in Jn re

Canvassing Observation is controlling in this matter or that their lack of citation to

that opinion supported denying the requested relief.*

© The trial court dismissed the Petitions on the following bases: (1) there was no active

case or controversy in which Observers may intervene and the Committee adequately represented

their interests in the proceedings in which the trial court issued its November 4, 2020 order; (2)

the trial court lost jurisdiction over the matter 30 days after issuing its November 4, 2020 order

and Observers neither sought to intervene or enforce the order, or appeal the order to this Court,

within that 30-day period; (3) the doctrine of laches precluded the grant of the requested relief; (4)

as part of the requested relief, Observers sought an order, declaration, or injunction precluding the

winning U.S. House candidate from exercising official authority, but Observers failed to join that

candidate as an indispensable party; (5) the matter was moot based on the Pennsylvania Supreme

Court opinion in Jn re Canvassing Observation, 241 A.3d 339, 350-51 (Pa. 2020), upholding the

limitations on observers imposed by the Philadelphia County Board of Elections; and (6)

Observers sought discretionary relief from the trial court, but had unclean hands by failing to

apprise the court of the Supreme Court’s opinion in Jn re Canvassing Observation. See Brief of

Appellants, Exhibit A at 1-11.

’ This Court’s scope of review from the denial of a petition to intervene is limited to

determining whether the trial court abused its discretion or committed an error of law. Wells Fargo

Bank, N.A. v. James, 90 A.3d 813, 815 n.5 (Pa. Cmwith. 2014). Likewise, this Court’s scope of

review when considering an appeal from the denial of a motion for civil contempt is limited to

considering whether the trial court abused its discretion or committed an error of law. American

Federation of State, County, and Municipal Employees, District Council 88 v. Lehigh County, 541

A.2d 46, 47 (Pa. Cmwlth. 1988).

8 On March 10, 2021, the Board filed a Motion to Quash or Dismiss Appeal and for Award

of Fees in which it asserts that this Court lacks subject matter jurisdiction because Observers filed

their Petition to Intervene more than 10 days after the trial court issued its January 12, 2021 order,

(Footnote continued on next page...)

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and because the trial court’s order denying intervention is a non-appealable interlocutory order.

However, because the instant appeal flows from the trial court’s order denying Observers’

Emergency Petition to Intervene and Emergency Petition for Sanctions, and not a proceeding

initiated under the provisions of the Election Code, the instant appeal is timely and we have

jurisdiction over the appeal because Observers’ notice of appeal was filed within 30 days of the

trial court’s final order. See Section 5571(a) of the Judicial Code, 42 Pa. C.S. §5571(a) (“The time

for filing an appeal ... in ... the Commonwealth Court shall be governed by general rules.”);

Pa.R.A.P. 903(a) (“[T]he notice of appeal required by [Pa. R.A.P.] 902 (manner of taking appeal)

shall be filed within 30 days after the entry of the order from which the appeal is taken.”).

Additionally, because the trial court’s order disposes of all claims against all parties, it is an

appealable final order. See Section 5105(a)(1) of the Judicial Code, 42 Pa. C.S. §5105(a) (“There

is aright of appeal . . . from the final order (including an order defined as a final order by general

rule) of every ... [cJourt ... of this Commonwealth to the court having jurisdiction of such

appeals.”); Pa.R.A.P. 341(b)(1) (“A final order . . . disposes of all claims and of all parties[.]’).

Finally, the Board seeks the award of attorneys’ fees under Pa.R.A.P. 2744(1), which states

that “an appellate court may award as further costs damages as may be just, including ... a

reasonable counsel fee . . . if it determines that an appeal is frivolous or taken solely for delay or

that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or

vexatious.” However, as this Court has explained:

The imposition of counsel fees is solely within the discretion of the

court. In determining the propriety of such an award, the court is

“ever guided by the principle that an appeal is not frivolous simply

because it lacks merit. Rather, it must be found that the appeal has

no basis in law or fact.” Such a high standard is imposed “in order

to avoid discouraging litigants from bringing appeals for fear of

being wrongfully sanctioned.”

Canal Side Care Manor, LLC v. Pennsylvania Human Relations Commission, 30 A.3d 568, 576

(Pa. Cmwlth. 2011) (citations omitted).

Upon review of the relevant considerations, we exercise our discretion and decline to award

attorneys’ fees in this case. Ultimately, the instant matter flows from the trial court’s November

4, 2020 order directing how Observers may participate in the pre-canvass and canvassing of ballots

following the contested November 3, 2020 General Election. Clearly, the necessity of such an

order demonstrates the high level of interest and participation by all involved in the electoral

process in that election. Although we have determined that the claims raised in this appeal are

without merit, we do not believe that the instant appeal meets the high standard outlined above to

support an award of attorneys’ fees. Accordingly, based on the foregoing, we deny the Board’s

Motion to Quash or Dismiss Appeal and for Award of Attorneys’ Fees.

However, upon review, we have determined that this matter was ably

disposed of in the comprehensive and well-reasoned Order and Opinion of the

Honorable John F. Capuzzi, Sr., disposing of Observers’ Emergency Petition to

Intervene and the Emergency Petition for Sanctions. Accordingly, we affirm the

trial court’s order on the basis of the Order and Opinion in Delaware County

Republican Executive Committee v. Board of Elections (C.P. Del., No. CV-2020-

007523, filed January 13, 2021).?

MICHAEL H. WOSJCIK, Judge

Judge Covey did not participate in the decision of this case.

Judge Fizzano Cannon did not participate in the decision of this case.

Judge Crompton did not participate in the decision of this case.

? On November 17, 2021, prior to argument, the Board filed an unopposed Application for

Leave to File Exhibit to supplement its appellate brief with an exhibit that is referenced in the brief,

but was inadvertently left off of the brief that was filed in this Court. The Board’s unopposed

Application is granted. See, e.g., Commonwealth v. Gambal, 561 A.2d 710, 714 (Pa. 1989) (“Our

Rules of Appellate Procedure provide that they are to be ‘liberally construed to secure the just,

speedy and inexpensive determination of every matter to which they are applicable.’ Pa.R.A.P.

105(a). Allowing parties to amend their briefs permits review of the discretionary aspects of

sentencing to proceed in an efficient and just manner.”).

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delaware County Republican

Executive Committee

v. : No. 125 C.D. 2021

Board of Elections

Appeal of: Gregory Stenstrom and

Leah Hoopes

ORDER

AND NOW, this 13" day of December, 2021, the Board of Elections’

unopposed Application for Leave to File Exhibit is GRANTED. The order of the

Delaware County Court of Common Pleas dated January 12, 2021, is AFFIRMED.

The Board of Elections’ Motion to Quash or Dismiss Appeal and for Award of

Attorneys’ Fees is DENIED.

MICHAEL H. WOSJCIK, Judge

ORIGINAL

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA

CIVIL DIVISION

DELAWARE COUNTY REPUBLICAN NO.: CV-2020-007523

EXECUTIVE COMMITTEE

Vv.

BOARD OF ELECTIONS

ORDER

Before the Court are two Petitions. The first is the Emergency Petition to Intervene of

. Candidate for Political Office, Dasha Pruett, and Observers Gregory Stenstrom and Leah Hoopes.

The second is an Emergency Petition Against the Board of Elections for Contempt for Violating

Judge Capuzzi’s 1 1/4/2020 Order and for Violating Election Code Provisions Allowing Observers.

For the reasons set forth in the Opinion below, both Petitions are DENIED WITH PREJUDICE.

OPINION

Without per adventure, the general election of 2020 was the most contentious, most

impassioned and most disputed in modern history. While this Court is not oblivious to this, it is

the duty of the judiciary to apply the rule of Jaw free and clear of outside influences or the clamor

that has arisen. A fair and impartial jurist who adheres to the Constitution of the United States and

the Constitution of the Commonwealth of Pennsylvania in accordance the oath of law that binds

the conscience is. what is mandated and what is expected. It is through this lens that the Court has

addressed the issues presented.

The essence of the Petitions are as follows: First Petitioners seek to intervene in the original

matter as captioned above. Second, Petitioners seek to have the Board held in contempt for

1

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allegedly violating the Court’s order as follows: Petitioners claim that they were not granted full

access to a rear room where mail-in and absentee ballots were being resolved; observers were not

c

permitted to enter a rear locked area where ballots were stored; and observers were confined to a

“pen” which did not allow meaningful access to observe/view the area where the sorting machine

was in use. As a result, Petitioners seek the USB V cards that when inserted into the computer

tabulated the votes and to enjoin the United States House of Representatives from seating Dasha

Pruett’s opponent. These claims lack a scintilla of legal merit.

At the very outset it is extremely important to highlight that the Delaware County

Republican Executive Committee, which was the party that filed the original petition, has not

raised an issue with the Board of Elections compliance with the Court’s Order of November 4,

2020. Likewise, the Republican Executive Committee has not filed a response to the Petitions

presently before the Court. Furthermore, each alleged factual averment within the petitions was

known weeks before this 11" hour, pre-holiday filing of December 22, 2020 and, thus, did not

constitute such an emergency that the Board of Elections not be given adequate time to research

and respond accordingly.’

In order to place the current controversy in perspective and to appreciate the canvassing of

ballots, it is necessary to set forth the election process of 2020, which, in this Commonwealth, was

substantially different from prior elections. Following the general election of 2016, there was

grave concern that foreign governments had interfered with the election process. There was further

concern that these foreign governments or others could or may have hacked into the computerized

voting systems employed in many jurisdictions. Additionally, some of these computerized

1 The time frame set forth in the Petitions was between November 3, 2020 and November 5, 2020, and whereas

the Petitions were not filed until December 22, 2020, the Court deemed these not to be emergent and did

mandate that the Board of Elections be given adequate time to respond.

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systems lacked a paper trail that could be subject to audit, if needed or required, in order to validate

the count. Finally, it was crystal clear that the expected voter turnout would far surpass recent

elections. It is with this backdrop.that Governor Wolf and the Legislature changed, altered, and/or

modified the manner in which elections in the Commonwealth are conducted.

In 2018, US. Department of Homeland Security Secretary, Kirstjen Nielsen, called on all

state and local election officials to make certain that by the 2020 presidential election every

American votes on a system that produces a paper record or ballot that can be checked and verified

by the voter and audited by election officials. The Pennsylvania Department of State informed all

67 counties that it must have voting machines that produce voter-verifiable records and meet 21°

century standards of security, auditability and accessibility by December 31, 2019. As of June

2020, all Pennsylvania counties had complied. See, Department of State website.

In addition to absentee ballots, the Legislature significantly modified the election process

by adding a provision which enabled any qualified elector to apply for a mail-in ballot without

restriction or reason. 25 Pa. C.S. §3150,12 (a). See, Section 14 of Act 2019, October 31, P.L. 552,

No. 77.

NO CASE OR CONTROVERSY IN WHICH TO INTERVENE

The original petitioner was the Delaware County Republican Executive Committee. The

original petitioner has not challenged this Court’s original ruling and order, nor has it filed anything

in response to the current petitioners’ request to intervene. Therefore, there is nothing before this

court that would require the intervention of a third-party.

Pennsylvania Rule of Civil Procedure 2327 sets forth who may intervene. The Rule is as

follows: “At any time during the pendency of an action, a person not a party thereto shall be

permitted to intervene therein, subject to these rules if:

(1) The entry of judgment in such action or the satisfaction of such judgment

will impose any liability upon such person to indemnify in whole or in

part the party against whom judgment may be entered; or

(2) Such person is so situated as to be adversely affected by a distribution or

other disposition of property in the custody of the court or an officer

thereof; or

(3) Such person could have joined as an original party in the action or could

have been joined therein; or

(4) The determination of such action may affect any legally enforceable

interest of such person whether or not such person may be bound by a

_ Judgment in the action.

Pursuant to Pa. R.C.P. 2329, the court may refuse an application for intervention where

the interest of the petitioner is adequately represented; or the petitioner has unduly delayed in

making application for intervention. Here, the interests of the observers were more than adequately

represented by the Delaware County Republican Executive Committee at the relevant time.

Furthermore, the alleged violation occurred on November 5", making this post-election

application of December22nd untimely. Thus, the denial.

Ironically, in the very action they wish to be part of, Petitioners’ claim that the Delaware

County Republican Executive Committee does not adequately represent their interest. As the

transcript of the emergency hearing that was held the evening of November 4, 2020 demonstrates,

the resolution of the controversy adequately addressed the claims of the original petitioner who

stood in the shoes of the Republican observers and candidates. Additionally, the ruling by this

court fully comported with the law as it pertained to observers and no appeal was taken of the

order that was issued.

The third-party cannot latch onto the original petition. If the third-party truly believed

there was a violation of this court’s order, then is should have filed a new action under a separate

docket number.

LACK OF JURISDICTION

The Order that Petitioners contend has been violated was issued on November 4, 2020.

That Order specifically addressed the issue of when and where observers were permitted.

Once an order is issued, the Court of Common Pleas retains jurisdiction for thirty (30) days.

During this thirty-day period, the court may modify or rescind the original order. 42 Pa. C.S.

§55085.

In the instant matter, the Petitioners could have challenged the manner in which the Board

of Elections complied with the Order at the time they allege they were denied the opportunity to

observe and requested a modification of the Order. As noted in the Petition, observer Stenstrom

called this judge’s chambers twice on November 5" and was advised by the judge’s staff to obtain

legal representation. This was not done.

It must also be noted that during this thirty-day period, the observers could have filed an

appeal to the Commonwealth Court if they believed this Court’s directive did not comport with

election law. Again, this was not done.

DOCTRINE OF LACHES

Petitioners’ challenge violates the doctrine of laches given their utter failure to act with due

diligence in commencing this action. Laches is an equitable doctrine that bars relief when a

complaining party is guilty of want of due diligence in falling to promptly institute an action in

prejudice of another. Stilp v. Hafer, 718 A.2d 290, 292 (Pa. 1998).

A plain reading of the Petition for Sanctions sets forth allegations that occurred during the

pre-canvassing and canvassing of election ballots. Assuming arguendo, that the allegations

enjoyed even some smidgen of merit, the remedy rested at the time of the occurrence, not seven

weeks after the canvassing was completed. This is the epitome of lack of due diligence.

INDISPENSIBLE PARTY

An indispensable party is one whose rights are directly connected with and affected by the

litigation that he must be a party of record to protect such rights. Columbia Gas Transmission

Corporation v. Diamond Fuel Company, et al., 464 Pa. 377, 346 A.2d 788 (Pa. 1975). It has long

been established that unless all necessary and indispensable parties are parties to the action, the

Court is powerless to grant relief. Tigue v, Basalyga, 451 Pa. 436, 304 A.2d 119 (Pa. 1973). Under

Pennsylvania law, the failure to join an indispensable party implicates the trial court’s subject

matter jurisdiction. Orvian v. Mortgage IT., 118 A.3d 403 (Pa. Super. 2015).

Petitioners, in the ad damnum clause, seek an order, declaration and/or injunction enjoining

the “winning” U.S. House of Representative canclidate from exercising official authority. The

Court takes judicial notice that the winning candidate was U.S. Representative Mary Gay Scanlon.

Representative Scanlon has a direct interest in this matter, as it seeks to prevent her from exercising

her duties in the House of Representatives. Therefore, Representative Scanlon is an indispensable

party; yet, Petitioners never served her with process, thereby denying her the right to be heard.

Furthermore, failure to do so deprives this court of subject matter jurisdiction.

MOOTNESS

The identical issue before this court has been addressed by our Supreme Court. IN RE:

Canvassing Observation, Appeal of: City of Philadelphia Board of Elections, 241 A.3d 339 (Pa.

2020) decided November 17, 2020. In advance of the election, the Philadelphia Board of Elections

arranged workspace for its employees at the Philadelphia Convention Center for the pre-

canvassing and canvassing of mail-in and absentee ballots.” Discreet sections of a designated area

within the Convention Center were devoted to various aspects of the process.

Pursuant to the election code, designated observers were permitted to physically enter the

Convention Center hall and observe the entirety of the process from behind a waist-high security

fence that separated the observers from the work-space of Board employees. At 7:45 a.m. on the

morning of the election, the Trump Campaign filed a suit challenging the location where observers

could watch the process. A hearing was held at which time the attorney for the Campaign argued

“that Section 3 146.8(b) of the Election Code- which allows designated watchers or observers of

a candidate to be present when the envelopes containing official absentee ballots and mail-in

ballots are opened and when such ballots are counted and recorded, 25 P.S. §3146.8(b) — requires

that the observers have the opportunity to “meaningfully” see the process. In rejecting the

argument, the trial court noted that Section 3146.8 contained no language mandating “meaningful

observation”; rather, the court interpreted the section as requiring only that the observers be

allowed to be “present” at the opening, counting and recording of the absentee or mail-in ballots.”

Id. @ 343. The trial court also noted that Section 4146.8 provides for no further specific activities

for the watchers to do other than to simply be present. The court went onto opine that, under this

2 The Delaware County Board of Elections leased space at the Wharf Office Building in Chester in order to

accommodate the work staff and necessary machines,

section, watchers are not directed to audit ballots or to verify signatures, to verify voter addresses,

or to do anything else that would require a watcher to see the writings or markings on the outside

of either envelope, including challenging the ballot or ballot signatures. Jd.

Later, on election day, the trial court denied the Campaign’s request that the Board modify

the work area to allow for closer observation of the on-going ballot canvassing. The Campaign

immediately appealed to the Commonwealth Court, wherein Judge Fizzano-Cannon held a status

conference on the night of November 4, 2020 and issued an order on the morning of November 5,

2020, which reversed the trial court. Judge Fizzano-Cannon’s order directed the trial court to enter

an order by 10:30 a.m. to require “all candidates, watchers, or candidate representatives to be

permitted to observe all aspects of the canvassing process within 6 feet, while adhering to COVID-

19 protocols.” Id. 343, 344. In her opinion filed later that day, Judge Fizzano-Cannon found

Section 3146.8(b) to be ambiguous and that in order for representatives to fulfill their reporting

duty to their candidate, they are required to “have the opportunity to observe the process upon

which they are to report, and so mere physical presence of the observers was insufficient to

guarantee this “meaningful observation.” Jd. @ 344. The Board then filed an emergency petition

for allowance of appeal with Supreme Court on the morning of November 5, 2020.

By Order dated November 9, 2020, the Supreme Court granted the Petition and set forth

three issues, one of which was whether the Commonwealth Court erred in reversing the trial court.

At the outset, the Court noted that because ballots were still being canvassed by the Board, the

question was not moot and thus, ripe for determination.

The Supreme Court addressed the issue by stating that 3146.8(g)(1.1) requires only that an

authorized representative”

“be permitted to remain in the room in which the absentee ballots and mail-in

ballots are pre-canvassed (emphasis added) and Section 3146.8(g)(2) likewise

mandates merely that an authorized representative “be permitted to remain in the

room in which the absentee ballots and the mail-in ballots are canvassed.

(emphasis added). While the language contemplates an opportunity to broadly

observe the mechanics of the canvassing process, we note that these provisions

do no not set a minimum distance between authorized representatives and

canvassing activities occurring while they “remain in the room.” The General

Assembly, had it so desired, could have easily established such parameters:

however, it did not. It would be improper for this Court to judicially rewrite the

- statute by imposing distance requirements where the legislature has, in the

exercise of its policy judgment, seen fit not to do so. See Sivick v. State Ethics

Commission __Pa.__, 238 A.3d 1250 (2020). Rather we deem the absence of

proximity parameters to reflect the legislature’s deliberate choice to leave such

parameters to the informed discretion of county boards of elections, who are

empowered by Section 2642(f) of the Election Code to make and issue such rules,

regulations and instructions, not inconsistent with law, as they may deem

necessary: for the guidance of ... elections officers.” IN RE: Canvassing

Observation, Appeal of: City of Philadelphia Board of Elections, 349, 350.

In -full accordance with the Supreme Court holding, the Delaware County Board of

Elections was charged with establishing observation areas. Prior to the above Supreme Court

ruling, this court entered an order which required the Board to allow for designated areas and times

for observation activities which deviated from the areas established by the Board. The Board

adhered to this order. Strikingly, at the time of the filing of this frivolous action, the issue now

brought forth by the Petitioners had been adjudicated by the highest court in the Commonwealth,

ie., the Delaware County Board of Elections had full authority to establish observation areas as it

deemed fit. Consequently, there is a total absence of legal merit in the Petitions.

RULE OF PROFESSIONAL CONDUCT

Petitioners, through counsel, pray the court hold the Board or Elections in contempt for

disobeying the Order of November4, 2020; hold the Board of Elections guilty of a misdemeanor

for violation of provisions of the Election Code; require the Board of Elections to pay a $1,000.00

sanction to Dasha Pruett; and sentence members of the Board of Elections to 1 year in prison.

Rule 3.3. requires Candor Toward the Tribunal. Pursuant to Section 2, a lawyer shall not

- knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to

the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

The above cited Supreme Court opinion was published on November 17, 2020, No where

in the Petition, the accompanying memorandum of law, or Petitioner’s Reply to Response of the

Board of Elections does counsel for the Petitioners reference, let alone cite, this opinion which

contains the controlling law. As one who obviously has invested significant time in crafting the

legal positions of the client, due diligence mandated that counsel keep abreast of the legal

landscape which was unfolding, and which was published on the Court’s web site, and duly noted

in newspapers of general circulation and The Legal Intelligencer. To neglect to exercise due

diligence, when the claims made seek to alter or change the election canvassing process and the

election results, is unconscionable and inexcusable. Consequently, this dereliction of duty has

caused this court, court staff and the respondent to waste valuable time when the resultant ruling

was preordained. While the Petitioners seek sanctions against the Board of Elections, they come

before this court with unclean hands and they themselves are the ones whose conduct is

contemptable.

CONCLUSION

The Delaware County Board of Elections had the authority to establish observation areas

in the facility where the pre-canvassing and canvassing of the absentee ballots and mail-in ballots

was taking place. In response to a petition by the Delaware County Republican Executive

Committee, this Court ordered the Board to allow for closer observation at specific locations and

specific time intervals, as the case warranted. The Board fully complied with this order.

10

The Petitions herein are untimely and do not comport with the law. As our Supreme Court

stated, it is the responsibility of the legislature to define distance parameters for positioning of

observers and, absent these, the responsibility lies with county board of elections.

BY THE COURT:

Ce: Deborah Silver, Esquire

Manly Parks, Esquire

William Martin, Esquire

11

FILED

01-13-2021 09:15 AM

OFFICE OF JUDICIAL SUPPORT

DELAWARE COUNTY, PA