IN THE COMMONWEALTH COURT OF PENNSYLVANIA In Re: Nomination Petition of Alan: Kennedy-Shaffer + No, 540 C.D. 2015 : Submitted: April 14, 2015 Appeal of: Alan Kennedy-Shaffer BEFORE; HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: April 23, 2015 ‘Alan Kennedy-Shaffer (Candidate) appeals from the April 3, 2015, order of the Court of Common Pleas of Dauphin County (trial court) that granted Jan Prosseda’s (Objector) Petition to Set Aside Candidate’s Nomination Petition (Petition),! This court affirms.” In March 2015, Candidate filed a nomination petition to certify his name for nomination in the 2015 democratic primary election as a candidate for council in the City of Harrisburg. The nomination petition consisted of 12 signature sheets. ' After consideration, this court denies Candidate’s application for this case to be assigned to apanel or en bane court and for oral argument. 2 This single judge opinion is decided without circulation to, or participation by, the other members of this court.Objector filed the Petition, alleging that the signatures on sheets 1-5 and 7-12 were invalid because Candidate notarized the circulators’ affidavits in violation of The Notary Public Law (Law). The trial court conducted a hearing, and counsel stipulated to most of the facts. Candidate is a licensed Pennsylvania attomey who previously held elected office, Candidate is also a notary, initially licensed in 2008 and re-licensed in 2012. Before the trial court, the Director of the Dauphin County Bureau of Voter Registration and Elections (Director) testified that he attended a candidates’ workshop where Candidate was present. Candidate specifically asked Director whether Candidate could notarize his own nomination petition. Director advised Candidate that he was not an attorney, but cautioned Candidate against it. Director further advised Candidate that, as an attorney, Candidate should research the matter himself or seek legal advice. ‘The trial court granted Objector’s Petition, ‘The trial court concluded that Candidate has a direct interest in his nomination petition and, therefore, under the Law, Candidate had no authority to notarize it. Thus, the signatures on the contested sheets that were notarized by Candidate were invalid. Because Candidate’s petition 3 Act of August 21, 1953, P.L. 1323, ay amended, 57 P.S. §§147-169.did not contain the requisite number of valid signatures, the trial court ordered Candidate's name removed from the 2015 primary ballot. This appeal followed In In re Nominating Petition of Berg, 973 A.2d 447 (Pa, Cmwith,), aff’d, 971 A.2d 486 (Pa, 2009), this court addressed the same issue present here, whether a candidate can notarize the circulators’ affidavits. This court observed that in accordance with section 909 of the Pennsylvania Election Code (Code), 25 P.S. §2869,5 “[a] nomination petition may contain several sheets, which electors have signed; however, each sheet must have a circulator’s affidavit appended thereto.” Berg, 973 A.2d at 448-49. ‘This court noted that section 19(e) of the Law provides that ““[nJo notary public may act as such in any transaction in which he is a party directly or pecuniarily interested.”” Berg, 973 A.2d at 449 (quoting 57 P.S. §165(e)). This court determined that “[a] candidate has a direct interest in his own candidacy.” Jd, at 450, ‘Thus, a candidate has no authority to notarize his own nomination petition, and the act of notarizing the nomination petition is a nullity. Jd. at 452, ‘This court further stated that failure to make an affidavit before a notary is a fatal defect. Jd. “ Our scope of review in an election appeal is limited to determining whether the trial court committed an error of law or whether the trial court's findings were supported by substantial evidence, Dayhoff, Weaver, 808 A.2d 1002, 1005 n.4 (Pa, Cmwlth. 2002). 5 Act of June 3, 1937, P.L. 1333, as amended. ° As Candidate correctly states, a reported opinion of a single judge in an election matter filed after October 1, 2013, may be cited as binding precedent in an election law matter. Those filed previous to that date, such as Berg, are persuasive but not binding. See 210 Pa. Code §69.414 (b) & (@). Subsequent to Berg, this court decided In re Nomination Petition of Boyle, 91 A.3d 260, 263 (Footnote continued on next page...) 3Candidate argues, however, that a violation of the Law does not constitute a violation of the Code, Specifically, Candidate argues that a nomination petition can only be set aside pursuant to section 977 of the Code, 25 P.S, §2937, if it “js defective under the provisions of section 976, or does not contain a sufficient number of genuine signatures of electors entitled to sign the same under the provisions of this act, or was not filed by persons entitled to file the same.” Here, the signatures on 11 of the 12 sheets were invalid because they were notarized by Candidate, Consequently, Candidate’s nomination petition does not contain a sufficient number of signatures.” Candidate also argues that the trial court erred in determining that the affidavits were fatally defective and denying his request to amend, As previously stated, Candidate did not have authority to notarize the circulators’ affidavits because the transaction being notarized was his own nomination petition, in which he had a direct interest, Berg, 973 A.2d at 451-52, Because “the notary had no authority to notarize the [nomination {pletition, his act was a nullity, and it is as if the circulators’ affidavits had not been notarized at all.” Id. at 452. As such, the trial court properly concluded that Candidate’s notarization of his own nomination petition was a fatal defect that could not be amended.* (continued...) (Pa, Cmwlth, 2014), and stated that “[3] candidate’ s notarization of his own nominetion petition and a circulator’s notarization of his own circulation affidavits violate this prohibition and are invalid.” 7 The trial court noted that Candidate had only 6 of the 100 signatures required. * Even if this were an amendable defect, the trial court concluded that “Candidate failed to act in good faith or due diligence based on his status as an attorney licensed with the (Footnote continued on next page...) 4Accordingly, this court affirms. Mnehisite Bi scadcaten ROCHELLE §. FRIEDMAN, Senior Judge (continued Commonwealth of Pennsylvania, a twice[-Jlicensed Notary, and the testimony of the Director.” (Trial Ct Op. at 5.)IN THE COMMONWEALTH COURT OF PENNSYLVANIA, In Re: Nomination Petition of Alan : Kennedy-Shaffer : No, 540 C.D. 2015 Appeal of: Alan Kennedy-Shafier ORDER a AND NOW, this_23ra__ day of _aprit 2015, this court hereby denies the application filed by Alan Kennedy-Shafler for this case to be assigned to a panel or en banc court, and for oral argument. The April 3, 2015, order of the Court of Common Pleas of Dauphin County is affirmed. ROCHELLE 8. FRIEDMAN, Senior Judge Cortiied from the Record APR 28 2015 and Oere |