In re Mlinarich

Marco S. Attisano and Christine M. Selden, Pittsburgh, for Appellant.

Dwight D. Ferguson and Richard A. Monti, Sewickley, for Appellee.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

OPINION BY JUDGE COHN JUBELIRER

Scott Butler (Objector) appeals from the August 18, 2021 Order of the Court of Common Pleas of Allegheny County (trial court) that denied Objector's Petition to Set Aside the Nomination Papers (Petition) of Mark Mlinarich (Candidate), who is seeking to appear on the November 2, 2021 General Election ballot as an Independent candidate for Allegheny County Magisterial District Judge District 05-3-04 (District Judge). At issue are whether Sections 951.1 and 951(e)(6) of the Pennsylvania Election Code (Election Code),¹ 25 P.S. §§ 2911.1, 2911(e)(6), require Candidate's removal from the ballot. Section 951.1 provides that

[a]ny person who is a registered and enrolled member of a party during any period of time beginning with thirty (30) days before the primary and extending through the general or municipal election of that same year shall be ineligible to be the candidate of a political body in a general or municipal election held in that same year ....

25 P.S. § 2911.1 (30-day requirement). Section 951(e)(6) requires that, appended to each nomination paper, shall be an affidavit swearing that the candidate "was not a registered and enrolled member of a party thirty (30) days before the primary held prior to the general or municipal election in that same year." 25 P.S. § 2911(e)(6). In denying the Petition, the trial court found these provisions to be inapplicable to Candidate, who was not a "sore loser" because he had not been a candidate during the May 18, 2021 Primary Election, and Candidate had detrimentally relied on the statements of the Ballots & Returns Manager (Manager) of the Allegheny County Elections Division (Elections Division), who told him incorrectly that the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), changed the 30-day requirement to 15 days.

On appeal, Objector argues that, because Candidate was a registered member of a party until 20 days before the primary, Candidate did not meet the 30-day requirement set forth in Section 951.1, and is, therefore, "ineligible to be the candidate of a political body," 25 P.S. § 2911.1, and Candidate cannot rely on the misinformation from the Elections Division to overcome this ineligibility. Objector also argues that Candidate's Affidavit contains a material falsehood in that Candidate swore that he was not a registered member of a party 30 days before the primary and is eligible for the office, neither of which are true, which makes the Affidavit invalid and void and nullifies Candidate's Nomination Papers.

I. Background

A. Factual Background

The facts of this matter are not in dispute. On August 9, 2021, Objector filed the

Petition. (Original Record (O.R.) Item 1.) In the Petition, Objector stated that Candidate filed Nomination Papers as an Independent candidate for District Judge with the Allegheny County Board of Elections (Board) and filed a signed Political Body Candidate's Affidavit (Affidavit) with the Board on July 27, 2021 (Petition ¶¶ 4, 5; Exhibit (Ex). 2.) Candidate's Affidavit stated, in relevant part: "[I]f I am a candidate for election at a general or municipal election[,] I shall not be a registered and enrolled member of a political party at any time during the period of [30] days prior to the primary ...." (Id. ¶ 6 (quoting Ex. 2) (emphasis added).) Objector asserted that Candidate "was a registered and duly enrolled member of a political party ... within [30] days of the May 18, 2021 primary election." (Id. ¶ 9.) Objector submitted that Candidate did not change his voter registration until April 28, 2021. (Id. ¶ 10.) Objector asserted that 30 days before the May 18, 2021 primary was April 18, 2021, a Sunday, making Candidate's last day to disaffiliate from a political party Monday, April 19, 2021. (Id. ¶ 11 (citing In re Nomination Papers of Lahr , 577 Pa. 1, 842 A.2d 327, 330 (2004) ).) Accordingly, Objector contended that Candidate is ineligible to be a political body candidate in the November 2, 2021 General Election. (Id. ¶ 12.) Objector also alleged that Candidate's Affidavit materially misrepresented that Candidate was eligible for the office sought and had not been "a registered and enrolled member of a political party at any time during the period of [30] days prior to the primary," which rendered the Affidavit invalid. (Id. ¶¶ 13-14.) For these reasons, Objector requested the trial court sustain the objections and strike Candidate's Nomination Papers.

The trial court held a hearing on August 16, 2021, where Candidate appeared pro se and Objector was represented by counsel. (See Hearing Transcript (H.T.) at 3.) Candidate testified that he had spoken to Manager of the Elections Division regarding the procedures and protocols for disaffiliating and that Manager had stated that Candidate "was able to disaffiliate by May 3rd," or 15 days prior to the May 18, 2021 primary election, "from a political party and act as a candidate for nomination in the upcoming election[.]" (Id. at 11.) Citing the recent statutory changes to the deadline for receipt of voter registration applications from 30 days to not later than 15 days before the election under Section 1231 of the Election Code, 25 P.S. § 3071, added by Section 4 of Act 77,² Candidate further believed that "there's a reasonable expectation from a registered voter that the 30-day window [to disaffiliate] has been replaced by a 15-day window before the primary" such that "a voter can register 15 days prior to the primary and a registered voter can disaffiliate or change parties within 15 days of a primary as per Act 77." (Id. at 12.) Candidate did not dispute the accuracy of the dates that Candidate was supposed to disaffiliate and actually did disaffiliate. (Id. at 13.) Again, citing to Section 1231(b)(1), Candidate asserted: "Subsection B and Citation 1 basically says [sic] that the ballot voter registration application is received by the appropriate commission not later than 15 days before the election." (Id. at 15-16.) Candidate maintained that the General Assembly "is holding a political candidate body [sic] at a higher standard and a higher burden to disaffiliate from a political party of 30 days before a primary election, instead of the outlined legislation of 15 days for a

non[-]candidate[.]" (Id. at 16.) However, Candidate acknowledged that "all of the documentation that was given to" Candidate "seems to be reverting back to the old legislation where a voter or a candidate to disaffiliate from a political party had 30 days." (Id. at 11-12.) Conversely, Candidate introduced the 2021 Election Calendar and argued that it stated that May 3, 2021, was "the last day to register before the primary election and ... the last day to change party enrollment for a non[-]partisan enrollment before the primary ...." (Id. at 17.) Candidate, therefore, submitted that he should have had the ability to change party enrollment by May 3, 2021, which was 15 days prior to the primary. (Id. )

Manager agreed that she spoke with Candidate and exchanged emails with Candidate regarding when he had to change his registration in order to run as a political body candidate, which she believed was by May 3, 2021. (Id. at 24-25, 27.) On cross-examination, Objector asked Manager about the time frame of these conversations with Candidate, and Manager replied that an oral conversation took place on April 22, 2021, and the email exchange occurred on April 23, 2021. (Id. at 25-26.)

Candidate asserted that he also signed the Affidavit in reliance on Manager's erroneous advice. (Id. at 28-29.) Candidate further stated that, at "the time [Candidate] had signed the [A]ffidavit," Candidate "did not knowingly or willfully try to misrepresent any" fact but relied on Manager's advice. (Id. at 11-12, 29.) The trial court on the record stated that the trial court did not believe Candidate tried to misrepresent any fact knowingly or willfully in the Affidavit. (Id. at 29.)

The trial court denied Objector's Petition in its August 18, 2021 Order. (O.R. Item 2.) The trial court first determined that Objector's reliance on In re Guzzardi , 627 Pa. 1, 99 A.3d 381, 386 (2014), for the proposition that Pennsylvania courts may not mitigate statutory provisions through equity, was misplaced because that matter concerned a provision of the Public Official and Employee Ethics Act (Ethics Act),³ not the Election Code. The trial court further distinguished In re Guzzardi because the Ethics Act provision at issue included language stating that the failure of a candidate to file a statement of financial interest was a fatal defect, and Section 951.1 does not contain similar language. The trial court also determined that Candidate's reliance on the advice from Manager was reasonable, non-negligent, and supported the Petition's denial. (O.R. Item 2 (citing Appeal of Fairview Assocs., Inc. , 61 Pa.Cmwlth. 404, 433 A.2d 929, 930 (1981), and In re Nomination Papers of Kim D. Williams (Pa. Cmwlth., No. 412 C.D. 2019, filed April 17, 2019)).)

Objector filed a Motion for Reconsideration and brief in support, which the trial court denied. (O.R. Items 3-5.) Objector then appealed to this Court. Upon Objector's appeal, this Court, on August 30, 2021, directed the trial court to issue an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a) (Rule 1925(a) Opinion).

B. Trial Court's Rule 1925(a) Opinion

The trial court filed its Rule 1925(a) Opinion, explaining its decision. First, the trial court...