          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James D. Lewis, Jr.                :
and James P. Ryan, Jr.,            :
                                   :
                        Appellants :
                                   :
                  v.               : No. 859 C.D. 2018
                                   : Submitted: August 3, 2018
Philadelphia County Board          :
of Elections                       :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                               FILED: August 13, 2018



             James D. Lewis, Jr. and James P. Ryan, Jr. (collectively, Objectors),
Democratic Committeepersons elected in the City of Philadelphia’s (City) 58th
Ward, 41st Division, appeal the order of the Philadelphia County Court of Common
Pleas (trial court) dismissing their appeal of the decision of the Philadelphia County
Board of Elections (Board) computing and/or certifying 11 other Democratic
Committeepersons in the City’s 58th Ward1 following the May 16, 2018 General
Primary Election. We affirm.

      1
         Objectors challenge the election of the following Democratic Committeepersons: (1)
Melvine Kriesman in the 58th Ward, 2nd Division; (2) Anna Hickson in the 58th Ward, 3rd
Division; (3) James McLaughlin in the 58th Ward, 3rd Division; (4) Lon Weisman in the 58th
Ward, 8th Division; (5) Marimama Abraham in the 58th Ward, 13th Division; (6) Katherine
                 Following their election as Democratic Committeepersons for the
City’s 58th Ward, 41st Division, Objectors ran for the offices of Ward Leader and
Ward Chair at their Ward’s Organizational Meeting, losing by one vote.2 On May
31, 2018, Objectors filed the instant appeal in the trial court pursuant to Section 1407
of the Election Code,3 alleging that each of the challenged Democratic


Montgomery in the 58th Ward, 27th Division; (7) Benji Eisenstein in the 58th Ward, 27th Division;
(8) Cynthia German in the 58th Ward, 32nd Division; (9) Marshall Leibovitz in the 58th Ward,
37th Division; (10) Veronica Fossett in the 58th Ward, 43rd Division; and (11) Paul Karetny in
the 58th Ward, 18th Division. Objectors later withdrew their challenges to the election of James
McLaughlin and Anna Hickson.

       2
         Section 812 of the Election Code, Act of June 3, 1937, P.L. 1333, added by the Act of
June 14, 1947, P.L. 610, 25 P.S. §2842, states:

                  Whenever two or more members of a political party shall be elected
                 or appointed, as the rules of the party may provide, as members of a
                 political committee to represent the members of such party in the
                 respective election districts, such members shall constitute a
                 political committee of said political party to function within such
                 election district: Provided, that, When acting in the capacity of a
                 political committee, such duly elected or appointed members shall
                 be subject to the control, direction and supervision of the political
                 committee of which they are members.

Additionally, Rule II, Article 2, Section B of the Rules of the Democratic Party of the City and
County of Philadelphia provides, “All members of the Ward committee representing certain
districts shall during their term of office have the proper qualifications and be resident voters of
the district they represent in the said Ward Committee.”

       3
           Section 1407(a) states, in relevant part:

                  (a) Any person aggrieved by any order or decision of any county
                 board regarding the computation or canvassing of the returns of any
                 primary or election, . . . may appeal therefrom within two days after
                 such order or decision shall have been made, whether then reduced
                 to writing or not, to the court specified in this subsection, setting
                 forth why he feels that an injustice has been done, and praying for


                                                   2
Committeepersons who were purportedly elected as “write-in” candidates4 did not
receive the minimum number of votes at the election to hold that office as required
by Section 1405 of the Election Code.5
                 Following two hearings, the trial court issued an order dismissing the
appeal.6 In the opinion filed in support of its order, the trial court determined: (1)


                 such order as will give him relief. . . . Unless a recount or recanvas
                 is made under section 1404(g), the appeal must be made to the court
                 of common pleas of the proper county.

25 P.S. §3157(a). See also Section 1756 of the Election Code, 25 P.S. §3456 (“The
commencement of proceedings in the case of contests of the . . . fifth class[] shall be by petition,
which shall be made and filed, as herein required . . . . The petition shall concisely set forth the
cause of the complaint, showing where it is claimed that the primary or election is illegal . . . .”).

       4
          Section 1101(4) of the Election Code defines “irregular ballot” as “the paper or other
material on which a vote is cast on a voting machine for persons who do not appear on the ballot
labels[.]” 25 P.S. §3001(4).

       5
           25 P.S. §3155. Section 1405 states, in pertinent part:

                   The county board, in computing the votes cast at any primary or
                 election, shall compute and certify votes cast on irregular ballots
                 exactly as such names were written, stamped, affixed to the ballot
                 by sticker, or deposited or affixed in or on receptacles for that
                 purpose, and as they have been so returned by the election officers.
                 . . . In the primary, the county board shall not certify the votes cast
                 on irregular ballots for any person for . . . local party office unless
                 the total number of votes cast for said person is equal to or greater
                 than the number of signatures required on a nomination petition for
                 the particular office.

In turn, Section 912.1(35) of the Election Code, added by the Act of December 12, 1984, P.L. 968,
as amended, 25 P.S. §2872.1(35), requires a total of 10 votes for the office of party
committeeperson.

       6
        Committeeperson Eisenstein intervened in the appeal, and the City’s Democratic
Committee; 1st Ward Republican Executive Committee; 36th Ward Republican Executive


                                                   3
Objectors lacked standing to initiate the appeal challenging the election under
Section 1407 of the Election Code; (2) Objectors’ appeal under Section 1407 is
procedurally improper because they do not challenge the computation of the write-
in votes that were cast in the election; and (3) pursuant to Section 810 of the Election
Code,7 committeepersons may be properly elected to office by a plurality of 10 or
more write-in votes cast in an election. Objectors then filed the instant appeal.8




Committee; 1st Ward Republican Ward Leader; 36th Ward Republican Ward Leader; and the
former Republican Ward Leaders participated as amici curiae.

        7
          Section 810 states, in pertinent part, “Candidates for other party offices, who receive a
plurality of the votes of the party electors at a primary, shall be the party officers of their respective
parties.” 25 P.S. §2840.

        8
            With respect to appeals involving Section 1407(a), this Court has explained:

                 [S]ection 1407(b) of the Election Code, 25 P.S. §3157(b), states that
                 there shall be no appeal from the common pleas court. This section,
                 enacted in 1937, no longer has force since the passage in 1976 of the
                 Judicial Code, which grants this Court jurisdiction over appeals in
                 Election Code cases. In addition, Section 1407(b) existed prior to
                 the passage in 1968 of Article 5, Section 9 of the Pennsylvania
                 Constitution, which provides that there “shall be a right of appeal
                 from . . . an administrative agency to a court of record or to an
                 appellate court . . . .” Further, the Supreme Court noted in In re
                 Petition to Contest the General Election for District Justice in
                 Judicial District 3603-03 Nunc Pro Tunc, [670 A.2d 629 (Pa.
                 1996)], that this Court obtained jurisdiction over appeals involving
                 elections when it was created in 1970.

Dayhoff v. Weaver, 808 A.2d 1002, 1005 n.5 (Pa. Cmwlth. 2002), appeal denied, 819 A.2d 548
(Pa. 2003). On appeal, “[o]ur scope of review in election contest cases is limited to examination
of the record to determine whether the trial court committed errors of law and whether the court’s
findings were supported by adequate evidence.” Id. at 1005 n.4 (citation omitted).



                                                    4
                 Objectors first argue that the trial court erred in determining that they
did not have standing to prosecute the appeal regarding the election of the challenged
Democratic Committeepersons under Section 1407 of the Election Code. With
regard to the issue of standing, while Objectors may have been aggrieved by the
results of the election of the Ward Leader and Ward Chair at the Ward’s
Organizational Meeting,9 Objectors were not aggrieved by the Board’s computation
and/or certification of the votes cast in the relevant Divisions of the 58th Ward from
which the challenged Democratic Committeepersons were elected.10                              After

       9
           Section 807 of the Election Code states, in relevant part:

                  There may be in each county a county committee for each political
                 party within such county, the members of which shall be elected at
                 the spring primary . . . . The county committee of each party may
                 make such rules for the government of the party in the county, not
                 inconsistent with law or with the State rules of the party, as it may
                 deem expedient, and may also revoke, alter or renew in any manner
                 not inconsistent with law or with such State rules, any present or
                 future county rules of such party.

25 P.S. §2837.

         In turn, Rule VI, Article 1, Section B of the Rules of the Democratic Party of the City and
County of Philadelphia states, “All contests pertaining to the election of the County
Committeeman and ward officers shall be filed with the County Committee. . . . In the case of the
election of ward officers, the contest shall be heard by the Committee on Organization.” We have
explained that the judiciary “should not and may not interfere in the determinations of an
association, including this political party, until the available internal remedies have been
exhausted.” Fox v. Tucker, 320 A.2d 919, 921 (Pa. Cmwlth. 1974).
         10
            As the Supreme Court has explained, with respect to standing in an election matter,
“‘[f]or a party to be aggrieved, it must have: 1) a substantial interest in the subject matter of the
litigation; 2) the party’s interest must be direct; and 3) the interest must be immediate and not a
remote consequence of the action.’” Erfur v. Commonwealth, 794 A.2d 325, 329 (Pa. 2002),
abrogated on other grounds, League of Women Voters v. Commonwealth, 178 A.3d 737, 812-13
(Pa. 2018) (citation omitted). See also Section 1404(e) of the Election Code, 25 P.S. §3154(e)
(“[U]pon petition of three voters of any district, verified by affidavit, that an error, although not


                                                   5
reviewing the record, the parties’ appellate briefs, and the law, we conclude that the
trial court properly determined that Objectors did not have standing to prosecute the
appeal under Section 1407 of the Election Code and this issue has been ably resolved
in the thorough and well-reasoned opinion of the Honorable Daniel J. Anders of the
Philadelphia County Court of Common Pleas. Therefore, we affirm the trial court’s
order based on its disposition of this issue in its opinion in the matter of James D.
Lewis, Jr. and James P. Ryan, Jr. v. Philadelphia County Board of Elections (C.P.
Phila., Case No. 180503453, filed July 31, 2018).11




apparent on the face of the returns, had been committed therein, . . . the [Board] shall at any time
prior to the completion of the computation of all of the returns for the county, summon the election
officers of the district, and said officers . . . shall conduct a recount or recanvas of all ballots cast.”);
Section 1701(a) of the Election Code, 25 P.S. §3261(a) (“[T]he court of common pleas, or a judge
thereof, of the county in which any election district is located in which ballots were used, shall
open the ballot box of such election district used at any . . . primary election held therein, and cause
the entire vote thereof to be correctly counted by persons designated by such court or judge, if
three qualified electors of the election district shall file . . . a petition duly verified by them, alleging
that upon information which they consider reliable they believe that fraud or error . . . was
committed in the computation of the votes cast . . . for any particular office or offices in such
election district, or in the marking of the ballots, or otherwise in connection with such ballots.”);
Section 1702(a)(1) of the Election Code, 25 P.S. §3262(a)(1) (“[T]he court of common pleas, or a
judge thereof, of the county in which any election district is located, shall make visible the
registering counters of the voting machine or machines used in such election district at any primary
or election, and . . . shall recanvas the vote cast therein, if three qualified electors of the election
district shall file a petition, duly verified by them, alleging that, upon information which they
consider reliable, they believe that fraud or error . . . was committed in the canvassing of the votes
cast on such machine or machines.”); Section 1751 of the Election Code, 25 P.S. §3431
(“[Certification challenge c]ases of the fifth class shall be tried and determined upon petition of
twenty registered electors, as hereinafter provided, by the court of common pleas of the county in
which such contested election was held.”).
         11
            Based on our disposition of this issue, we will not reach the other claims raised by
Objectors in this appeal, and we do not adopt the trial court’s reasoning in any other respect.
                                                     6
MICHAEL H. WOJCIK, Judge




 7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James D. Lewis, Jr.                :
and James P. Ryan, Jr.,            :
                                   :
                        Appellants :
                                   :
                  v.               : No. 859 C.D. 2018
                                   :
Philadelphia County Board          :
of Elections                       :


                                  ORDER


            AND NOW, this 13th day of August, 2018, the order of the Philadelphia
County Common Pleas Court dated June 8, 2018, is AFFIRMED.



                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
