              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Nomination Papers of                     :
Barbara Daniels as a Candidate                  :
for Pittsburgh City Council-District 9          :   No. 1258 C.D. 2019
                                                :   Submitted: September 20, 2019
Appeal of: Carmen Brown                         :
                                                :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION BY
JUDGE COHN JUBELIRER                                FILED: September 27, 2019


      Carmen Brown (Objector) appeals from an Order of the Court of Common
Pleas of Allegheny County (trial court) denying her Petition to Set Aside Nomination
Papers (Petition) of Barbara Daniels (Candidate) who is seeking to appear on the
November 2019 Municipal General Election ballot as a candidate for the Office of
Councilperson for the Ninth Councilmanic District of Pittsburgh City Council.
Objector claims Candidate’s act of changing the name of the political body on her
Nomination Papers after circulation is a material alteration that, under Section 976
of the Pennsylvania Election Code (Election Code),1 requires Candidate’s
Nomination Papers be rejected. Under the specific facts of this case, we are
constrained to agree, but permit Candidate to amend her Nomination Papers to cure
the material defect.
      The parties do not dispute the following relevant facts. Candidate circulated
her Nomination Papers bearing the appellation of “Independent” as the name of the

      1
          Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2936.
political body in the preamble. Upon presenting her Nomination Papers to the
Allegheny County Elections Division (Elections Division), Candidate was advised
that another candidate, Randall Taylor, had already filed his nomination papers with
the appellation “Independent” as the name of the political body. 2 Pursuant to Section
976 of the Election Code, when any nomination papers are presented for filing that
contain an appellation “identical with or deceptively similar to the words used . . .
by any political body, which has already filed nomination papers for the same
office,” the nomination papers should not be permitted. 25 P.S. § 2936. A
representative at the Elections Division advised Candidate to change the appellation.
Candidate then crossed out “Independent” and wrote in “Campaign of Compassion”
as the name of the political body. The Elections Division accepted Candidate’s
Nomination Papers bearing the appellation “Campaign of Compassion.”
       Thereafter, Objector filed the Petition with the trial court, seeking to set aside
Candidate’s Nomination Papers.3 Therein, Objector alleged Candidate’s act of
changing the appellation on the Nomination Papers after they were circulated
violates Section 976 of the Election Code, which provides a nomination paper shall
not be permitted if “it contains material alterations made after signing without the
consent of the signers.” Id. Objector further alleges that the Elections Division
should have rejected Candidate’s Nomination Papers because they contain an
appellation identical to a political body that had already filed nomination papers.
       A hearing on the Petition was held before the trial court on August 27, 2019.
At the hearing, the Elections Division’s manager (Manager) testified he was present

       2
          Mr. Taylor’s nomination papers have been challenged on other grounds, which is the
subject of an appeal at docket number 1256 C.D. 2019.
        3
          Objector also filed a petition to set aside the nomination papers of B. DeNeice Welch for
identical reasons as those presented here. That matter is subject of an appeal at docket number
1257 C.D. 2019. Objector sought to consolidate these matters, which the Court denied.


                                                2
when Candidate attempted to file her Nomination Papers, and he requested
Candidate change the name of the political body because another candidate had
already filed nomination papers as “Independent.” Manager explained his reasoning
for requesting the change was “[s]trictly the straight party,” referring to the ability
to vote on a straight party ticket for candidates of one political party or body. (Hr’g
Tr. at 15.) Counsel for the Elections Division added that to the extent there was an
error, the error was by the Elections Division and “should not be taken out” on
Candidate. (Id. at 16-17.) Counsel for Objector responded that the remedy would
be to return Candidate to the position she would have been in without the incorrect
advice, which would have been as an Independent. And, because someone had
already filed as an Independent, Objector’s counsel argued the result would be the
same: Candidate’s Nomination Papers would have been rejected. Candidate,
appearing pro se, argued removing her from the ballot “would be a great inequality”
and potentially could lead to corruption as candidates race to be the first to turn in
their nomination papers. (Id. at 18.)
      The trial court concluded there was no misrepresentation by Candidate and
“[t]hat the signers, the electors who signed [Candidate’s] nominating papers did so
in an effort to place an Independent candidate, using the terms generically, a non-
affiliated candidate, if you will, on the ballot to challenge the democratic candidate,
and that is what happened.” (Id. at 19.) Accordingly, the trial court issued the Order
denying the Petition.
      Objector then filed a Notice of Appeal to this Court. On September 11, 2019,
the trial court issued a brief opinion in support of its Order. Therein, the trial court
recounted the factual and procedural background before stating it “found the




                                           3
evidence to support that no fraud or misrepresentation by . . . Candidate occurred.”
(Trial Court Opinion at 3.)
      Pursuant to this Court’s order expediting disposition, the parties were directed
to file briefs. Objector filed a brief; Candidate did not. On appeal, Objector argues
Candidate’s alteration of the political body appellation after the Nomination Papers
are circulated is a material alteration under the Election Code and that the Elections
Division was without statutory authority to permit Candidate to alter the appellation.
Objector argues the purpose of the appellation appearing on the nomination papers
at the time of circulation is to prevent confusion and deception. Objector does not
assert Candidate engaged in fraud, but notes that there is no evidence that the signers
understood what they were signing or would consent to the change as required by
the Election Code. If alterations such as this were allowed, Objector argues a
candidate could circulate nomination papers under one political body’s name and
after circulation change the political body’s name to something with which the
signers would not have agreed. In addition, Objector argues the change has practical
effects on the Municipal General Election. Because there is a candidate running as
an Independent for district attorney, a candidate for another office running under the
same political body appellation provides for a straight party option when voting.
Objector argues the trial court’s use of “independent” in a general sense ignores the
term’s legal and practical effects.
      Section 952 of the Election Code sets the required content of nomination
papers, which includes “[t]he name or appellation of the political body which the
candidates nominated thereby represent, expressed in not more than three words
. . . .” 25 P.S. § 2912. Section 952 further provides that

      no words shall be used in any nomination paper to designate the name
      or appellation of the political body represented by the candidate’s name

                                          4
      in such nomination paper which are identical with or deceptively
      similar to the words used for a like purpose by any political body which
      has already filed nomination papers for the same office []or which
      contain part of the name or an abbreviation of the name or part of the
      name of a political body which has already filed nomination papers for
      the same office.

Id.
      This requirement is repeated in Section 976, which provides nomination
papers shall not be permitted to be filed if they contain an appellation which is
“identical with or deceptively similar to the words used . . . by any political body
which has already filed nomination papers for the same office.” 25 P.S. § 2936.
Additionally, nomination papers cannot be accepted when they contain “material
alterations made after signing without the consent of the signers.” Id. It is these
provisions that are at issue in this case.
      It is without dispute that Candidate originally sought to file her Nomination
Papers with the appellation “Independent.” The Elections Division did not accept
the filing because another candidate had already filed nomination papers with the
same appellation, citing Section 976 of the Election Code. Before us, the issue is
whether Candidate’s act of changing the appellation to “Campaign of Compassion”
after circulation was a “material alteration[] made after signing without the consent
of the signers.” Id. Given the purpose behind the requirement and the legal and
practical effects of permitting such a change under these circumstances, we are
constrained to conclude the alteration here was material.
      It is well settled that the Election Code “be liberally construed to protect a
candidate’s right to run for office and the voters’ right to elect the candidate of their
choice.” In re Vodvarka, 140 A.3d 639, 641 (Pa. 2016) (citation omitted). It is also
well established that the Election Code’s requirements concerning nominating
petitions or nomination papers “are not mere technicalities but are necessary

                                             5
measures to prevent fraud and to preserve the integrity of the election process.” In
re Nomination Petition of Cianfrani, 359 A.2d 383, 384 (Pa. 1976).
      In In re: Nomination Papers of Welch (Pa. Cmwlth., No. 1257 C.D. 2019,
filed September 27, 2019), which involves Objector’s challenge to the nomination
papers of another candidate on similar grounds that the candidate changed the
appellation after the candidate’s nomination papers were circulated, we examined
what materiality means:

      In general, an alteration is “material” if it is “[o]f such a nature that
      knowledge of the item would affect a person’s decision-making.”
      Black’s Law Dictionary 1066 (9th ed. 2009). More specifically, in the
      election context, the courts have examined whether the signers could
      have been misled by the change. For example, in Jackson v. Fields,
      386 A.2d 533, 534 (Pa. 1978) (per curiam), the Pennsylvania Supreme
      Court concluded that signers of a nomination petition that erroneously
      stated the candidate was seeking a seat for the 189th congressional
      district, which did not exist, instead of the 1st congressional district
      could not have been misled and it was not a “material error.” There
      was a 189th state assembly district within the 1st Congressional district,
      but the Court explained that signers of the nomination “petition could
      not have been misled by said error into thinking that [the candidate]
      was running for a seat in the [General A]ssembly” instead of the United
      States Congress given the consistent use of the term “Congress” within
      the nomination petition. Id. at 534.

      Similarly, in Williams v. Cortez (Pa. Cmwlth., No. 26 M.D. 2016, filed
      February 9, 2016),[] the Court granted a candidate’s request to compel
      the Department of State to allow him to amend his nomination papers.
      Among the defects was the candidate’s designation of the name of his
      political body as “Leon Williams’ Education Party,” which violated
      Section 952’s prohibition against political body names exceeding three
      words in length. Id., slip op. at 5. There, the Court noted “that the name
      of the political body can be a matter of importance to the signers of
      nomination papers and cannot be changed to a materially different
      name after voters have signed the nomination papers.” Id. at 6.
      Because the candidate sought to amend the name of his political body
      from “Leon Williams’ Education Party” to “Leon’s Education Party,”
      which would comply with the three-word limit, the Court concluded


                                          6
      amendment was permitted. Id. The Court reasoned that removal of one
      name “could not have any effect on the voters’ understanding of the
      political body name.” Id.

      In contrast, in two trial court opinions, In re Tumolo Nomination, 48
      Pa. D. & C.2d 134 (1969), and In re Anastasi Nomination, 48 Pa. D. &
      C.2d 143 (1969), cases on which Objector relies, the Court of Common
      Pleas of Philadelphia County found there was potential for confusion
      and deception in the alterations with respect to a party appellation and
      so they were material.[] In Tumolo, an appellation was not included on
      9 of the 11 petitions filed by the candidate. At the hearing, the candidate
      and two other witnesses testified the candidate told some signers that
      the candidate was “running on his own.” 48 Pa. D. & C.2d at 137.
      However, there was also testimony that the candidate “enjoyed a long
      association with the Democratic Party” as a committeeman, and
      candidate for various offices and was “well known among residents.”
      Id. The court found that “unless there was a party appellation upon the
      petitions before they were given to prospective signers, the probability
      of confusion and deception was present,” which “is just what the
      [Election Code] was intended to prevent.” Id. Accordingly, the court
      set aside the candidate’s nomination papers. In Anastasi, the candidate
      included the appellation “Independent” on only one of his papers,
      which he admitted was added at the time of filing of the nomination
      papers. The candidate testified that he was associated with the
      Republican Party for a period of four to five years, and also stated he
      informed almost 99 percent of the signers he was running as an
      independent. 48 Pa. D. & C.2d at 145. The court did not credit the
      candidate’s testimony and concluded it did “not negate the potential for
      confusion and deception which is inherent in a petition which lacks a
      party appellation.” Id. at 145-46.

      The Court of Common Pleas of Dauphin County reached a similar
      result in Stern Nomination Papers, 65 Pa. D. & C. 64 (1948), which
      Objector also cites. There, an objector challenged the candidate’s
      nomination papers on a number of grounds, including that one sheet did
      not include the name of the political body the candidate represented.
      The court there determined the defect was not amendable. Id. at 69.
      The court reasoned that “[a]n elector might sign thinking he was placing
      the named candidate on a certain ticket of his choice and later an
      entirely different political body objectionable to him could be inserted.”
      Id. Therefore, the objection related to appellation was sustained. Id.

Welch, slip op. at 6-8 (internal footnotes omitted).

                                          7
      As we stated in Welch, “[t]he cases interpreting whether an alteration to the
appellation on Nomination Papers is material have, thus, examined whether the
signers would be misled by the change, and the possibility for confusion or
deception.” Id. at 8. Unlike in Welch, though, where we held a change from
“Independent” to “Citizens for Welch” was not a material change because such an
alteration would not have affected the signers’ decision to sign the nomination
papers, id. at 8-9, we cannot reach the same conclusion here. Candidate did not
simply change the name of the political body from “Independent” to a neutral name
that unmistakably connected the political body to Candidate, such as the candidates
in Welch or Williams. Candidate changed it from “Independent” to “Campaign of
Compassion.” We understand that there are signers that may not object to the
alteration Candidate made. However, permitting candidates the unfettered ability to
completely change the name of their political bodies after their nomination papers
have been circulated to something that bears no obvious relationship to either the
originally circulated political body name or the candidate, without any evidence that
signers consent to such a change, invites confusion or potential deception. It can
also place the courts in the untenable position of making judgment calls as to which
political body appellations signers may object.
      While we understand the trial court’s view that signers understood Candidate
was running in the generic sense as an “independent,” meaning she was not affiliated
with a political party, under the law in Pennsylvania, the appellation of a political
body on nomination papers is not simply a declaration that the candidate
disassociates with a major political party. The appellation set forth on nomination
papers designates a particular political body under which the candidate will appear
on the ballot and, by virtue of their signing, with whom the signers are therefore



                                         8
connected. As we stated in Williams, “the name of the political body can be a matter
of importance to the signers. . . .” Id., slip op. at 6. Because the name “Campaign
of Compassion” is ambiguous and indefinite, and not connected to either the
Candidate or the appellation on the Nomination Papers when they were circulated,
we cannot conclude, as we did in Welch or Williams, that the alteration is not
material. Finding that the alteration is material, we must reverse the trial court’s
Order.
       The inquiry then becomes whether Candidate should be permitted an
opportunity to amend the appellation. Given the unique facts in this case, and
bearing in mind the liberal construction of the Election Code towards allowing a
candidate’s name to appear on the ballot, In re Vodvarka, 140 A.3d at 641, we hold
she may. Under Section 977 of the Election Code, “[i]f the objections relate to
material errors or defects apparent on the face of the nomination petition or paper,
the court, after hearing, may in its discretion, permit amendments within such time .
. . as the said court may specify.” 25 P.S. § 2937. Here, the Nomination Papers
contained a material defect on their face in that the original appellation was crossed
out, at the Elections Division’s suggestion,4 and replaced with a new appellation.
Unfortunately, as explained above, the new appellation Candidate chose could lead
to confusion. There is no evidence, though, that Candidate sought to deceive voters
with the change. The Pennsylvania Supreme Court has held that amendment is
permitted so long as the defect is not the result of a candidate’s intent to mislead
electors. In re Nomination Petition of Beyer, 115 A.3d 835, 836 (Pa. 2015). Thus,
we remand this matter to allow Candidate the opportunity to amend the appellation
on her Nomination Papers to a political body name that keeps with the intent of the

       4
        The Elections Division advised Candidate to change the appellation but did not suggest a
name of the political body.


                                               9
electors who signed Candidate’s Nomination Papers. Given the time constraints
associated with all election appeals, Candidate shall file amended Nomination
Papers by no later than the close of business on October 2, 2019, and the failure to
file amended Nomination Papers shall result in Candidate’s Nomination Papers
being set aside.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Nomination Papers of                :
Barbara Daniels as a Candidate             :
for Pittsburgh City Council-District 9     :   No. 1258 C.D. 2019
                                           :
Appeal of: Carmen Brown                    :
                                           :


                                    ORDER


       NOW, September 27, 2019, the Order of the Court of Common Pleas of
Allegheny County (trial court), dated August 27, 2019, is REVERSED and
REMANDED.          Upon remand, the trial court shall permit Barbara Daniels
(Candidate) the opportunity to amend the appellation on her Nomination Papers for
the Office of Councilperson for the Ninth Councilmanic District of Pittsburgh City
Council in the 2019 Municipal General Election. Amended Nomination Papers shall
be filed by no later than the close of business on October 2, 2019. Failure to
promptly file amended Nomination Papers shall result in Candidate’s original
Nomination Papers being set aside. Any objections to the Amended Nomination
Papers shall be filed within five (5) days of the date the Amended Nomination Papers
are filed.
       Jurisdiction relinquished.



                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Nomination Papers of                    :
Barbara Daniels as a Candidate                 :
for Pittsburgh City Council-District 9         :   No. 1258 C.D. 2019
                                               :   Submitted: September 20, 2019
Appeal of: Carmen Brown                        :



BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge



CONCURRING OPINION
BY JUDGE BROBSON                                   FILED: September 27, 2019

               Given the limited issues and argument on appeal in this case, I must
agree with the majority’s conclusion that the alteration to the political body
appellation on the nomination papers of Barbara Daniels (Candidate) in this matter
was a material alteration prohibited by the Pennsylvania Election Code (Code),1
specifically Section 976,2 but that amendment of Candidate’s nomination papers
under these circumstances is permissible under Section 977 of the Code.3
Nonetheless, I note, for the reasons set forth in my concurring opinion in
In re: Nomination Papers of Welch (Pa. Cmwlth., No. 1257 C.D. 2019, filed
September 27, 2019), my view is that the single word “Independent” is a misleading




      1
          Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3554.
      2
          25 P.S. § 2936.
      3
          25 P.S. § 2937.
and improper political body appellation that should be rejected under Section 976 of
the Code.




                                         P. KEVIN BROBSON, Judge




                                     PKB - 2
