In Re: Nom. of G. Masino ~ of M. Grimes Santilli & D. Bond

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Nomination Petition of :

Gary Masino :

:

Petition of Maria Grimes Santilli and :

Donna Bond : No. 319 C.D. 2023

: Submitted: April 7, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: April 12, 2023

Maria Grimes Santilli and Donna Bond (Objectors) appeal from the Order of

the Court of Common Pleas of Philadelphia County (common pleas) docketed

March 27, 2023, denying their Petition to Set Aside (Petition to Set Aside) the

Nomination Petition of Gary Masino (Candidate) in which he seeks to be the

Democratic nominee for the City of Philadelphia’s City Council for the 10th District.

On appeal, Objectors argue common pleas erred and/or abused its discretion by not

treating their challenges to certain signature lines, coded as “Not Registered at

Address” (NRA) on common pleas’ “Election Spreadsheet” (spreadsheet), as

encompassing a challenge to those electors not being registered in the Democratic

Party. Alternatively, they argue common pleas erred and/or abused its discretion in

not allowing them to amend their Petition to Set Aside to include that challenge.

Finally, Objectors argue common pleas erred and/or abused its discretion in

quashing subpoenas they issued to two circulators of multiple pages of Candidate’s

Nomination Petition based on common pleas’ conclusion that the circulators’

testimony was not relevant to the objections raised. Upon careful review, the Court

concludes common pleas erred in not allowing Objectors to amend their objections

to signature lines, already challenging the signers’ registration status, to include an

objection that the electors were not registered in the Democratic Party, and abused

its discretion in quashing Objectors’ subpoenas. Accordingly, the Court is

constrained to vacate common pleas’ Order and remand for further proceedings

consistent with this opinion.

I. PROCEEDINGS BEFORE COMMON PLEAS

Candidate filed a Nomination Petition to run as a candidate to be the

Democratic nominee for the City of Philadelphia’s City Council for 10th District in

the May 2023 Municipal Primary Election (Primary Election). Objectors filed the

Petition to Set Aside challenging Candidate’s Nomination Petition on the basis that

Candidate failed to obtain the 750 valid signatures of registered members of

Candidate’s party to have his name appear on the Primary Election ballot. Relevant

to the issues in this appeal, Objectors challenged hundreds of signature lines as

invalid under the NRA code. Many of those signature lines were also challenged on

other grounds. Other signature lines were challenged on the basis they were either

bad signatures, i.e., the signature on the Nomination Petition did not match the

signature in the Statewide Uniform Registry of Electors (SURE) system, or the line

information was written in the hand of another.

Following efforts by Objectors and Candidate to meet and confer over the

disputed signature lines, and after the seven-day period to file objections to

nomination petitions had expired, it was discovered during this process that many of

the signature lines challenged as NRA were registered electors at the listed address

but were not registered electors of the Democratic Party at the address. (Motion to

Amend the Petition to Set Aside Nomination Petition (Motion to Amend), Original

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Record (O.R.) at Item 7.) Objectors filed the Motion stating, “[i]n reviewing the

nomination petitions in question [Objectors] reviewed a list of all of the Democratic

voters in the 10th Council District, the only ones who would have been eligible to

sign nomination petitions for that district.” (Id. ¶ 2.) A number of signers were

found not to be on the list, and many challenges to these were identified as NRA on

the spreadsheet. Objectors stated in the Motion to Amend that while “Candidate

agreed that the [electors] were not eligible to sign,” he would not stipulate to striking

the signatures. (Id.) Objectors requested common pleas to strike these signature

lines on this basis, as the electors were not qualified to sign the Nomination Petition

or, alternatively, to allow Objectors to amend the Petition to Set Aside to include a

challenge to the electors because they were not registered in the Democratic Party.

Objectors argued in their supporting brief the NRA code should be inclusive of this

challenge because it gave Candidate adequate notice that he would have to defend

those electors’ registration status, which became clear during the meet and confer.

Alternatively, Objectors asked to amend the Petition to Set Aside to include the

challenge based on political party registration, because they were not asserting new

factual averments, but additional legal arguments as to why the challenged signature

lines were invalid, and Candidate had notice that he would have to defend these

signature lines.

Candidate filed a brief opposing the Motion to Amend, arguing the

Pennsylvania Election Code1 (Election Code) did “not permit challenge-by-

ambush,” requires objections to nomination petitions to “specifically set[ ]forth the

objections thereto,” and requires objections to be filed within the seven-day time

period set forth in the Election Code. (Candidate’s Brief in Opposition to Motion to

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

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Amend (Candidate’s Br. in Opp.) at 1 (quoting Section 977 of the Election Code, 25

P.S. § 2937), O.R. Item 8.) Candidate contended that new substantive objections

could not be added after the seven-day period had expired and allowing an

amendment to add new objections would prevent Candidate from being able to

present a defense to those objections. According to Candidate, the NRA objection

is very specific, particularly after the Supreme Court’s decision in In re Major, 248

A.3d 445, 454 (Pa. 2021), and relates to an elector using an address on a nomination

petition that differs from the “address where [the elector] is duly registered and

enrolled.” (Id. at 2-3.) Had Objectors intended to challenge the signature lines

because the electors were not registered in the correct party, Candidate believed such

challenges should “obviously” be brought under the “Not Registered” (NR)

objection. (Id.) Having not asserted this challenge in the Petition to Set Aside,

Candidate argued Objectors had forfeited that issue.

Common pleas conducted hearings on March 21, 2023, and March 24, 2023,

on the Petition to Set Aside. At the March 21, 2023 hearing, Objectors and

Candidate presented argument on the Motion to Amend and request to strike

signature lines that had been marked NRA where the electors were not registered in

the Democratic Party. Objectors argued there is no category on the spreadsheet for

“not registered in party,” and the NRA should be read to include this challenge, and,

if this argument was rejected, common pleas had the discretion to allow them to

amend the Petition to Set Aside. (Hearing Transcript (Hr’g Tr.) March 21, 2023 at

4-8.) Candidate responded, reiterating his positions from his brief in opposition, and

maintained Objectors did not provide proper notice of this challenge. (Id. at 9-11.)

When common pleas inquired as to how many signature lines were impacted,

Objectors indicated 361 total lines were marked as NRA challenges but some of

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those lines were subject to additional challenges or had been stipulated as invalid for

other reasons and posited the number as 77, while Candidate indicated it could be a

different number. (Id. at 12-14, 24, 26, 28.) Common pleas denied the Motion to

Amend and held any challenge identified on the spreadsheet as NRA, in which

Objectors sought to strike based on the elector not being registered in the Democratic

Party, had been waived. (Id. at 29.) Common pleas issued an order dated March 21,

2023, denying the Motion to Amend based on the reasoning stated in the record.2

At the March 24, 2023 hearing, when the parties attempted to agree on the

number of signature challenges that remained unresolved, Objectors disputed

Candidate’s numbers, asserting the signature lines affected by the denied Motion to

Amend could encompass between 76 and 192 lines. (Hr’g Tr. March 24, 2023 at

18, 23-25.) Candidate’s counsel indicated during the hearing the number was closer

to 200 than 77. (Id. at 141.) Ultimately, common pleas used 77 as the number of

signature lines that would be affected by the denied Motion to Amend, although it

indicated the number could be more and would have to be revisited if its decisions

were reversed, and added 77 to Candidate’s valid signature total. (Id. at 242-43.)

Also at the March 24, 2023 hearing, Objectors sought to call two circulators

to whom they had issued subpoenas, one of whom was present in the courtroom and

one of whom could not appear until Monday, March 27, 2023, per a physician’s

note, due to his being ill. (Id. at 34-36.) Candidate objected, asserting the circulators

had been subpoenaed for improper purposes because Objectors had never claimed

there was a defect in the circulator statements. (Id. at 33.) Objectors asserted the

circulators were being called to discuss “serious discrepancies” in their pages,

2

The March 21, 2023 order contains a typographical error in its reference to the date

“March 20, 2023,” as no hearing or argument occurred on the Motion to Amend on that date but,

rather, occurred on March 21, 2023.

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including an alleged dead woman’s signature being forged. (Id.) Common pleas

noted whether the signature was forged was a criminal matter to be brought to the

district attorney, that Objectors had brought a handwriting expert to ascertain which

signatures were valid and which were not, the circulators’ testimony was not going

to assist common pleas in determining whether the signatures were valid, and

Objectors had not raised any challenge to circulators’ statements. (Id. at 34-35.)

Therefore, common pleas stated the testimony of the circulators was not relevant and

quashed the subpoenas. (Id. at 35.) Objectors strongly disagreed with the ruling,

and common pleas stated if they still believed it to be an issue, they could re-raise it

but common pleas was not “hearing witness testimony beyond the [E]xpert on what

[was] in front of [it] . . . All right? That’s it.” (Id. at 34-36.)

The parties proceeded to go through the signature challenges, during which

Objectors’ handwriting expert opined regarding the validity, or not, of certain

signature lines. When common pleas determined that Candidate had 757 valid

signatures, reflecting 575 lines that had been either unchallenged or conceded to be

valid, 105 that common pleas found to be valid during the hearings, and 77 that were

valid due to common pleas ruling on the Motion to Amend, it denied the Petition to

Set Aside.

Objectors filed a notice of appeal to this Court. Relevant to the arguments on

appeal, common pleas issued an opinion supporting its denial of the Petition to Set

Aside. Common pleas held the Nomination Petition was presumed valid and

Objectors had the burden of proving that Candidate lacked the necessary signatures

to appear on the ballot. Common pleas explained the NRA challenge related to

whether an elector used the address at which they were registered on the nomination

petition as is required by Section 908 of the Election Code, 25 P.S. § 2868, and

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Major, 248 A.3d at 454. (1925(a) Opinion at 4.) Common pleas indicated there are

other challenge codes that apply to party affiliation, which were not used, and,

therefore, it did not err in not expansively reading NRA to include a challenge to the

party registration of the elector. Common pleas stated it did not grant the Motion to

Amend because objections to nomination petitions must provide a candidate fair

notice and sufficient information to mount a defense to a challenge. (Id. at 5 (citing

In re Nomination Petition of Bishop, 579 A.2d 860, 862-63 (Pa. 1990)).) Fair notice

is required, common pleas indicated, to “advise a candidate of the proof he or she

must present at the hearing.” (Id. (citing In re Nomination Petition of Williams, 625

A.2d 1279, 1282-83 (Pa. Cmwlth. 1993)).) Common pleas recognized that if an

objection is made to a specific signature on a nomination petition, other challenges

can be asserted during a subsequent hearing, but concluded entirely new challenges

cannot be raised in a motion to amend. (Id.) Common pleas observed Objectors’

Petition to Set Aside included several hundred NRA challenges, many of which

contained additional challenges, and that, almost a week after the challenges’ filing,

Objectors sought to amend only those lines where the NRA challenge was the only

challenge and where the elector was registered at the address used but was not a

registered Democrat in the 10th District. According to common pleas, the party

affiliation of an elector should have been easily identified by Objectors prior to filing

the Petition to Set Aside, but Objectors claimed only to discover during the meet and

confer period that their NRA challenges meant to articulate party affiliate challenges,

a separate challenge that involved a different defensive response by Candidate.

Common pleas further noted that “Objectors were never – even up until the last

hearing day – able to identify the exact number of signatures impacted by the

Motion” to Amend, with their numbers ranging from 77 to 341. (Id. at 6-7.)

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Common pleas stated “Objectors were never able to present a concrete number of

challenged signatures” but common pleas nonetheless engaged in a line-by-line

review to determine if Candidate had obtained the requisite 750 valid signatures.

(Id. at 10.) Thus, common pleas contended it properly found the party affiliation

challenges waived, denied the Motion to Amend, and included 77 signatures asserted

by Objectors to be affected by the Motion to Amend in Candidate’s total, which

ultimately exceeded the 750 needed. (Id. at 7.)

As for Objectors’ subpoenas, common pleas indicated it quashed the

subpoenas determining that the circulators’ testimony was not relevant to the line-

by-line challenges. Common pleas explained Objectors claimed the testimony was

relevant for the first time at the March 24, 2023 hearing, but noted that no circulator

challenges were filed and it found Objectors’ expert witness’s testimony to be the

most relevant and probative to Objectors’ line-by-line challenges. (Id. at 11.)

II. DISCUSSION

A. Whether common pleas erred or abused its discretion by not permitting

Objectors to present challenges based on the electors’ party affiliation.

On appeal, Objectors argue there are 361 signature lines at issue and common

pleas erred in narrowly interpreting the NRA code, a designation that is not statutory

but court-created to aid in reviewing election petition challenges, to exclude the

challenge they sought to make. Objectors contend their challenge was sufficiently

specific to provide Candidate notice of what was at issue, which is that there was no

registered Democrat at the address used in the Nomination Petition, because they

identified the page number, line, and reason for the invalidity, which is all that is

required by the Election Code. See Bishop, 579 A.2d 860; In re Nominating

Petitions of Duffy, 635 A.2d 111 (Pa. 1993). According to Objectors, Candidate

became aware of the basis of these objections during the meet and confer period,

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which led to the Motion to Amend. Objectors maintain common pleas should have

enforced the Election Code’s requirements, rather than the spreadsheet’s

designations, by either broadly construing the NRA code to include this challenge

or allowing them to amend the Petition to Set Aside to add that challenge.

Amendment, Objectors assert, was appropriate because they were seeking to add an

alternative legal basis to an already objected-to signature line and limitations on a

court’s discretion on allowing amendments are focused on the relationship between

the proposed amendment and the timely-filed objections. Here, they contend, the

relationship between the proposed amendment – not a registered Democrat at the

address – is sufficiently close to the timely-filed objection – the elector is not

registered at the address – that common pleas abused its discretion in denying the

Motion to Amend. They conclude not allowing amendment does not serve to

preserve election integrity and is contrary to the Election Code’s purpose.

(Objectors’ Brief (Br.) at 32.)

Candidate asserts there was no abuse of discretion in common pleas not

allowing Objectors to convert the NRA challenge, which has a set meaning in

election law parlance, into a completely different challenge after the seven-day

period had expired. (Candidate’s Br. at 2-4.) Candidate maintains the meaning of

the NRA challenge is set – and was confirmed in Major – as being that the elector is

registered, but not at the address used on the nomination petition, and the challenge

to an elector’s party affiliation is better raised as a “Not Registered” (NR) challenge.

(Id. at 2-3.) According to Candidate, Objectors are bound by the objections they

filed on the spreadsheet attached to the Petition to Set Aside and they could not raise

new substantive challenges. (Id. at 4-5.) As in In re Nomination Petition of Brown,

846 A.2d 783, 788 (Pa. Cmwlth. 2004) (Friedman, J.) (single-judge op.) (Brown),

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where this Court rejected an objector’s attempt to convert a not registered in the

district into a party affiliation challenge because the candidate lacked notice and the

ability to defend against the new challenge, Candidate argues allowing the expansive

reading of the NRA code or amendment to the Petition to Set Aside does not provide

him with sufficient notice to defend against that new challenge. (Id. at 4-6.)

Therefore, Candidate argues, common pleas properly denied Objectors’ attempts to

expand the grounds of their objections.

“In reviewing an order adjudicating challenges to a nomination petition, [the

appellate] standard of review permits reversal only where the findings of fact are

unsupported by substantial evidence, where there was an abuse of discretion, or

where an error of law was committed.” In re Nomination Petition of Beyer, 115

A.3d 835, 838 (Pa. 2015). The courts have long held that the Election Code must be

construed liberally “so as not to deprive an individual of his right to run for office,

or the voters of their right to elect a candidate of their choice.” Nomination Petition

of Ross, 190 A.2d 719, 720 (Pa. 1963). Furthermore, “the purpose of the Election

Code is to protect, not defeat, a citizen’s vote.” Dayhoff v. Weaver, 808 A.2d 1002,

1006 (Pa. Cmwlth. 2002). Thus, nomination petitions are presumed to be valid, and

it is the objector’s heavy burden to prove that a candidate’s nomination petition is

invalid. In re Nomination Petition of Shimkus, 946 A.2d 139, 141 (Pa. Cmwlth.

2008) (Cohn Jubelirer, J.) (single-judge op.). “A party alleging defects in a

nominat[ion] petition has the burden of proving such defects, and, where the court

is not convinced that challenged signatures are other than genuine, the challenge is

to be resolved in favor of the candidate.” In re Nomination Petition of Scott, 138

A.3d 687, 691 (Pa. Cmwlth. 2016) (Cohn Jubelirer, J.) (single-judge op.) (citation

omitted).

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However, the signature requirement serves as a means of preventing forgery

and assuring that each elector personally signs the petition with an understanding of

what the elector is signing. In re Nomination Petition of Flaherty, 770 A.2d 327,

332 (Pa. 2001), abrogated in part on other grounds by In re Nomination Petition of

Vodvarka, 140 A.3d 639 (Pa. 2016), abrogated on other grounds by statute as

recognized in Major, 248 A.3d 445. The Court is, therefore, mindful that a balance

must be struck between the liberal purposes of the Election Code and “the provisions

of the [E]lection [C]ode relating to nominati[on] petitions . . . [which] are necessary

. . . to prevent fraud and to preserve the integrity of the election process.” Shimkus,

946 A.2d at 154. The courts are “entrusted with the responsibility of protecting the

Commonwealth’s compelling interest in preserving the integrity of the election

process.” In re Nomination Petition of Carlson, 430 A.2d 1210, 1212 (Pa. Cmwlth.

1981) (Crumlish, J.) (single-judge op.). The Court must balance these competing

interests to determine if common pleas erred in not allowing Objectors to assert,

either as part of their initial Petition to Set Aside or as an amendment thereto,

challenges to certain signature lines based on the electors’ party affiliation.

The first issue is whether Objectors’ Petition to Set Aside, and in particular,

the designation NRA on the spreadsheet for an elector that was not a registered

member of the Democratic party at the address provided on the Nomination Petition,

was sufficiently specific to place Candidate on notice of the challenge. Section 977

of the Election Code states that a petition to set aside a nomination petition must

“specifically” set forth the objections. 25 P.S. § 2937. This means that the

allegations must state the specific grounds of invalidity so as to sufficiently advise

the proposed candidate of the errors, so that the candidate is in a position to present

a defense. Duffy, 635 A.2d at 112. Thus, objections must be specific enough to give

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fair notice to a candidate, which means that they must provide enough information

to permit a reasonable person to ascertain the substance of the claimed deficiency

and the proof that must be presented at the hearing to mount a defense. Bishop, 579

A.2d at 863; In re Williams, 625 A.2d 1279 (Pa. Cmwlth. 1993). This has been

interpreted as meaning the “page, line, and the reason for the invalidity[.]” Duffy,

635 A.2d at 112.

Objectors assert they used the NRA code on the spreadsheet to indicate a

challenge based on the elector not being a registered member of the Democratic party

at that address because there was no column to raise that challenge, and no

instructions regarding how the party affiliation challenge should be raised. The

Court recognizes that Objectors are correct.3 However, in their Petition to Aside,

Objectors did identify certain signature lines they were challenging on the basis that

the elector was not registered in the Democratic Party by specifically stating in the

space provided for description that the elector was a Republican, Libertarian, or

Non-affiliated with a party. (Petition to Set Aside challenges to page 6, line 1 (Non-

affiliated); page 19, line 1 (Republican); page 21, line 1 (Republican); page 39, lines

3-4 (Republican); page 66, lines 4 (Republican) & 16 (Libertarian); page 91, line 2

(Republican); page 124, line 1 (Republican); page 126, lines 2-3 (Republican), O.R.

at Item 1 Ex. B.) From this, it appears that Objectors knew how to clearly state that

an elector was not registered in the Democratic Party, and did not do so for the lines

they subsequently asserted were subject to this challenge. Therefore, the Court

discerns no error in common pleas’ decision not to allow Objectors to construe their

3

Candidate suggests the better challenge code is NR (not registered), but the Court

questions whether this is any more specific than NRA because if an elector is registered in another

party or is unaffiliated, they technically are registered to vote. It may be time for the courts to

review the spreadsheet categories.

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NRA challenges as including a challenge to the signer not being registered in the

Democratic Party at that address, albeit for a slightly different reason.

This does not end the inquiry because Objectors sought, as alternative relief,

to amend their reasons for challenging the lines identified in the Motion to Amend

to include that the signers were not validly registered in the Democratic Party.

Common pleas denied the request to amend reasoning amendments were not

permitted after the seven-day challenge period had expired and the party affiliation

of the electors should have been easily identified by Objectors prior to filing the

Petition to Set Aside. (Hr’g Tr., March 21, 2023, at 4-13; 1925(a) Opinion at 5-6.)

Objectors argue this was an abuse of discretion because the amendment was only to

lines already challenged on the basis of registration status, and the original and

amended challenges to registration status were closely related. While the Court

appreciates common pleas’ desire not to prolong the underlying proceedings, and

the exigency in which these matters are heard, the Court agrees with Objectors that

it was an abuse of discretion not to allow the amendment.

Section 977 of the Election Code requires, in relevant part, that petitions

challenging a nomination petition be filed within seven days of the last day to file

the nomination petition. 25 P.S. § 2987. Ordinarily, second or supplemental

petitions to set aside may not be filed after the seven-day period expires. Bishop,

579 A.2d at 862. However, our courts have consistently held that, as long as an

objector has challenged signatures on a nomination petition, the objector is not

precluded, after the seven-day period, from seeking to advance a challenge to those

signatures on other grounds in the Election Code at the hearing on a petition to set

aside. See In re Nomination Petition of Stuski, 697 A.2d 235, 238 n.7 (Pa. 1995);

Appeal of Beynon, 88 A.2d 789, 792 (Pa. 1952); In re Nomination Paper of Rogers,

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908 A.2d 942 (Pa. Cmwlth. 2006) (Colins, J.) (single-judge op.); In re Nomination

Petition of Delle Donne, 779 A.2d 1, 4 (Pa. Cmwlth. 2001) (Doyle, J.) (single-judge

op.). “Courts have discretion to allow amendments,” but that discretion is not

unlimited. In re Nomination Petition of Brown, 992 A.2d 882, 883 (Pa. 2010)

(Roebuck). “[T]he limits of such discretion are defined by the relationship between

the attempted amendment and the timely-filed objections.” Id.

This relationship is not as narrow as Candidate contends. In Stuski, the

Supreme Court rejected an argument that this Court erred in considering objections

to signature lines that had not been specifically raised in the petition to set aside,

broadly stating that if a signature line was challenged, other challenges based on the

Election Code could be asserted to that signature line at the hearing.4 697 A.2d at

238 n.7. See also Rogers, 908 A.2d at 944 (allowing an objector to amend a line

initially challenged as illegible to also assert that the electors’ addresses did not

match their registration once the elector was identified). However, amendments that

seek to challenge new signature lines or to assert a new non-signature line based

substantive challenge, such as a challenge to a circulator’s statement or the failure

to file a statement of financial interests, are not permitted after the seven-day period

expires. In re Nomination Petition of Bryant, 852 A.2d 1193, 1195 & n.4, 1196 (Pa.

2004) (sought to add a challenge based on a candidate’s failure to file a statement of

financial interests); Delle Donne, 779 A.2d at 3 (dismissing an objector’s

supplemental petition to set aside filed after the seven-day period expired that sought

to challenge additional signatures lines). Through these cases, a principle has

developed that delineates between additional challenges to an already objected-to

signature line, which are subject to amendment after the seven-day period expires,

4

Here, Objectors filed a written motion, though precedent appears to permit such an

amendment be made orally at the hearing.

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and new non-signature line challenges or attempts to add new signature lines to the

petition to set aside, which cannot be amended.

In denying the Motion to Amend, common pleas did not consider the

relationship between the original timely-filed objection and the proposed

amendment. Rather, it held amendments to add new challenges, particularly given

the number of signature lines that would be affected, were not allowed, even though

they were to signature lines already subject to timely-filed objections. This is not

consistent with the above legal principles. Here, Objectors sought to amend

signature lines already challenged based on the signer’s registration status to include

another registration-based challenge. Both the timely filed first and the subsequent

registration challenge relate to specific eligibility requirements for electors to sign a

nomination petition set forth in Section 908 of the Election Code. 25 P.S. § 2868.

Thus, this relationship unquestionably supports Objectors’ requested amendment to

the Petition to Set Aside.

Although Candidate asserts Brown supports common pleas’ denial, in

addition to being an outlier in the above precedent, Brown is not precedential and is

distinguishable. In Brown, the candidate and objectors did not meet prior to the

hearing to review the challenged signature lines, and in their joint stipulation

indicated that what they observed on the computer cards reflected the electors were

not registered in the Democratic Party. The Court stated this stipulation did not

constitute evidence of the registration status of the electors at the time of signing the

nomination petition, but at some point after, which is not the relevant time period.

The Court further observed that the objectors’ attempt to amend the petition to set

aside at the hearing to include a different reason to a challenged signature line was

the first notice the candidate had of the expanded dispute. In not allowing the

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challenge, the Court was concerned that the lack of notice to the candidate created a

situation where the candidate was unable to mount a defense by presenting proof

that the signers were registered in the Democratic Party at the time they signed the

petitions. Brown, 846 A.2d at 788. Here, in contrast, Candidate and Objectors met

and conferred prior to the hearing during which it became apparent that the NRA

challenge to signature lines may reflect that an elector was not registered in the

Democratic Party at that address at the time of signing. The information relevant to

this challenge, and to the defense of such challenge, such as that the elector changed

their registration after signing the nomination petition, id., can be found in the SURE

system, to which Candidate had access during the meet and confer and at the hearing

thereby allowing him to be able to mount a defense to the challenge. Because

Candidate was aware of the challenge before the hearing, he also had the opportunity

for the signer to present evidence at the hearing, unlike in Brown. Accordingly, the

concerns raised in Brown are not present here.

Finally, the Court is cognizant of the judiciary’s responsibility to “protect[]

the Commonwealth’s compelling interest in preserving the integrity of the election

process.” Carlson, 430 A.2d at 1212. Here, there was a signature line challenge

asserted based on the signer’s registration status, candidate was placed on notice of

the issue before the hearing, and the record indicates the challenge related to

potentially hundreds of electors signing a nomination petition. To preclude the

amendment of the objection to allow another challenge to the signer’s registration

status is not consistent with the courts’ responsibility to preserve election integrity.

For this and the above reasons, the Court concludes common pleas abused its

discretion in not allowing Objectors to amend their Petition to Set Aside to include

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the registration challenge of not registered in the Democratic Party at that address to

those signature lines that had already been challenged as NRA.

B. Whether common pleas abused its discretion in quashing Objectors’

subpoenas of the circulators.

Objectors next argue common pleas erred by quashing the duly served

subpoenas, which they maintain were an attempt to obtain the circulators’ testimony

that would establish the signature pages they circulated were fraudulent or otherwise

invalid. Objectors assert they were attempting to establish fraud, at least as to one

of the signature lines. According to Objectors, the testimony of these circulators

was necessary for them to meet their heavy burden of challenging certain signature

lines and the circulators’ testimony would have been more illuminating and reliable

than their handwriting expert’s testimony regarding the signatures, upon which

common pleas indicated it would rely. Objectors maintain they preserved this

objection by arguing against Candidate’s motion to quash the subpoena after which

common pleas definitively ruled on the motion despite its earlier statement that

Objectors could re-raise it during the proceedings.

Candidate argues the enforcement of a subpoena is within the sound discretion

of common pleas and there was no abuse of discretion because Objectors never

pleaded any circulator defects or specified any such defects in their objections

spreadsheet. Candidate further asserts the circulators’ testimony was not necessary

for the purpose sought, as Objectors’ expert’s testimony was sufficient to resolve the

line-by-line challenges and “Objectors failed to identify any single page or line

regarding these circulators to which stipulations had already been” reached.

(Candidate’s Br. at 6-7.)

“Whether a subpoena shall be enforced rests in the sound discretion of the

court.” In re Semeraro, 515 A.2d 880, 882 (Pa. 1986) (citation omitted). The Court

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“will not disturb a discretionary ruling of a lower court unless the record

demonstrates an abuse of the court’s discretion.” Id. To the extent Candidate’s

arguments could be read as claiming Objectors did not preserve the issue, the Court

is not persuaded that the objection to common pleas’ ruling was not preserved in the

record. Pennsylvania Rule of Evidence 103(a)(2) and (b) provides “(a) Preserving

a Claim of Error. A party may claim of error to a ruling to admit or exclude

evidence only: . . . (2) if the ruling excludes evidence, a party informs the court of

its substance by an offer of proof, unless the substance was apparent from the

context” and “(b) Not Needing to Renew an Objection or Offer of Proof. Once

the court rules definitively on the record--either before or at trial--a party need not

renew an objection or offer of proof to preserve a claim of error for appeal.” Pa.R.E.

103(a)(2), (b). Here, Objectors provided argument opposing Candidate’s challenge

to the subpoenas and in support of the relevancy of that testimony, common pleas

“rule[d] definitively on the record . . . at trial,” id., stating “[t]hat is the definitive

ruling on that,” quashing the subpoenas, and stating it would not hear any other

witnesses’ testimony at the hearing. (Hr’g Tr., March 24, 2023, at 33-35.) Objectors

stated they strongly disagreed with that ruling. (Id. at 34.) The Court concludes

these actions were sufficient to preserve a challenge to common pleas’ decision

quashing the subpoenas.

Common pleas found the subpoenaed circulators’ testimony was not relevant

because Objectors had not filed any challenges to the circulators’ affidavits but were

challenging specific signature lines, for which circulators’ testimony was not

necessary as the validity could be reviewed by Objectors’ handwriting expert. (Id.

at 33-34; 1925(a) Opinion at 11.) “Evidence is relevant if: it (a) has any tendency

to make a fact more or less probable than it would be without the evidence; and

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(b) the fact is of consequence in determining the action.” Pennsylvania Rule of

Evidence 401, Pa.R.E. 401. Contrary to common pleas’ determination, a circulator’s

testimony may be relevant in a line-by-line challenge as it is the circulator who is

charged with being present when all of the signatures on the page are obtained. See,

e.g., Flaherty, 770 A.2d at 336-37 (Pa. 2001) (holding that circulators must be

present when electors sign a petition); In re Nomination Petitions of Smith, 182 A.3d

12, 25 (Pa. Cmwlth. 2018) (McCullough, J.) (single-judge op.) (circulator testified

in response to a signature line challenge based on the omission of line information);

In re Payton, 945 A.2d 279, 285-86 (Pa. Cmwlth. 2008) (Smith-Ribner, J.) (single-

judge op.) (circulator called to respond to line challenges based on “bad signature”).

When the genuineness of a handwritten writing is in question, it can be authenticated

by the opinion of any person acquainted with the handwriting of the supposed writer

or by a person who witnessed its execution, and direct evidence of a witness who

saw the execution can overcome the testimony of an expert witness. See Obici v.

Third Nat’l Bank & Tr. Co. of Scranton, 112 A.2d 94, 96 (Pa. 1955).

Here, Objectors sought to introduce the testimony of these circulators in an

effort to establish that certain signature lines were invalid due to “serious

discrepancies.” (Hr’g Tr., March 24, 2023, at 33-34.) As the circulators whose

testimony Objectors sought had to have been present when the relevant pages were

signed, their testimony as to what and who they observed completing the information

could make the validity of those signatures “more or less probable than it would be

without the evidence.” Pa.R.E. 401. This is particularly true where common pleas

did not always seek or rely upon Objectors’ expert testimony in ruling on signature

line challenges that a circulators’ testimony could have aided in determining the

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line’s validity, such as those claiming parts of signatures were in the hand of another.

Accordingly, common pleas abused its discretion in quashing Objectors’ subpoenas.

III. CONCLUSION

For the foregoing reasons, the Court vacates common pleas’ Order, and this

matter is remanded for further proceedings during which Objectors may amend the

Petition to Set Aside to add, to already challenged signature lines, challenges based

on the party affiliation of electors who signed the Nomination Petition and, if

necessary, enforce the subpoenas against the circulators. Such proceedings, and a

decision by common pleas resulting therefrom, shall be completed no later than

April 14, 2023.

RENÉE COHN JUBELIRER, President Judge

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Nomination Petition of :

Gary Masino :

:

Petition of Maria Grimes Santilli and :

Donna Bond : No. 319 C.D. 2023

ORDER

NOW, April 12, 2023, the Order of the Court of Common Pleas of

Philadelphia County (common pleas) dismissing the Petition to Set Aside the

Nomination Petition of Gary Masino (Candidate) filed by Maria Grimes Santilli and

Donna Bond (Objectors) and quashing Objectors’ subpoenas is VACATED, and

this matter is REMANDED to common pleas for further proceedings in accordance

with this opinion. Given the shortened timeframe, common pleas should complete

these proceedings and render a new decision and order by April 14, 2023, from

which an appeal can be taken.

Jurisdiction relinquished.

RENÉE COHN JUBELIRER, President Judge