              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Nomination Papers of                     :
B. DeNeice Welch as a Candidate                 :
for Pittsburgh City Council-District 9          :   No. 1257 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 B. DeNeice Welch (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. In light of the liberal construction afforded to the
Election Code and the nature of the change from “Independent” to “Citizens for
Welch,” we conclude the alteration was not material in that the signers were, in fact,
citizens for Welch. That is, the signers supported (were for) Candidate’s (Welch’s)



      1
          Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2936.
nomination for the office of councilperson. Accordingly, we affirm the trial court’s
Order.
       The facts of this matter are not in dispute.                Candidate circulated her
Nomination Papers bearing the appellation of “Independent” as the name of the
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, “[n]o . . . nomination paper . . . shall be permitted to be
filed if . . . (g) . . . the appellation set forth therein 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. A representative at the
Elections Division advised Candidate to change the appellation on her Nomination
Papers. Candidate then crossed out “Independent” and wrote in “Citizens for
Welch” as the name of the political body.                The Elections Division accepted
Candidate’s Nomination Papers bearing the appellation “Citizens for Welch.”
       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 alleged that the Elections Division

       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 Barbara Daniels for
identical reasons as those presented here. That matter is subject of an appeal at docket number
1258 C.D. 2019. Objector sought to consolidate these matters, which the Court denied.


                                                2
should have rejected Candidate’s Nomination Papers because they contain an
appellation identical to a political body that already filed nomination papers.
      A hearing on the Petition was held before the trial court on August 27, 2019,
at which time the parties stipulated to the facts being identical to those involving
another candidate who likewise changed her nomination papers on the advice of the
Elections Division. Candidate explained to the trial court that her intent is to run as
an independent candidate. The trial court concluded

      there was no misrepresentation and the result that the . . . [Elections
      Division] arrived at is that [Candidate] is running as not affiliated with
      any known or recognized party . . . and in effect, [Candidate] is running
      as an Independent, but because of the requirement of the straight lever
      ticket, she was not allowed to use the term Independent.

(Hr’g Tr. at 5.) 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
evidence to support that no fraud or misrepresentation by . . . Candidate occurred.”
(Trial Court Opinion at 3.)
      Pursuant to this Court’s order expediting disposition, Objector and Candidate
filed briefs. 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


                                           3
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
contends 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.
      Candidate responds by reminding the Court that the Election Code is to be
liberally construed so that a candidate is not unduly denied the opportunity to run
for public office and voters are not deprived of the right to vote for the candidate of
their choice. Candidate argues the cases Objector cites in support of setting aside
the Nomination Papers are inapposite because there is no potential for deception or
confusion here when she changed her appellation from “Independent” to an
appellation that contained her own name, “Citizens for Welch.” Candidate further
argues that, unlike some of the cases, the only issue here is the appellation.
Candidate also argues the Elections Division admitted it advised Candidate to
change the appellation. Because she reasonably relied upon the Elections Division’s
erroneous advice, Candidate asserts she should be permitted to amend her
Nomination Papers back to “Independent” and because “the other candidate
designated as an Independent had not completed filing the necessary signatures for
his candidacy, . . . his candidacy was a nullity at that point,” and her Nomination
Papers should have been accepted. (Candidate’s Brief at 4-5.) Finally, Candidate
argues she is entitled to attorney’s fees because Objector’s appeal is frivolous.



                                          4
      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
      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. Therefore, the issue is
whether Candidate’s act of changing the appellation to “Citizens for Welch” after
circulation was a “material alteration[] made after signing without the consent of the
signers.” Id. Under these circumstances, we conclude it was not.




                                             5
       Preliminarily, the Court is cognizant that the Election Code must “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). We also recognize the Election Code’s requirements concerning
nominating petitions or nomination papers “are not mere technicalities but are
necessary 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).
       At issue is whether the alteration here is “material.” 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),4 the Court granted a candidate’s request to compel the

       4
          Williams is a single-judge unreported opinion in an election matter, which, under Section
414(b) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(b), may only be cited
for its persuasive value and not as binding precedent.


                                                6
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 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.5 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

       5
         Although not binding on this Court, decisions by courts of common pleas may be
persuasive. Township of Washington v. Township of Upper Burrell, 184 A.3d 1083, 1091 n.6 (Pa.
Cmwlth. 2018).


                                             7
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.
      The 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. We agree with Candidate
that Tumolo and Anastasi are distinguishable because those candidates had
longstanding associations with a major political party, which could readily result in



                                            8
confusion by the signers, who may still associate those candidates with those parties,
particularly when they did not include any appellation reflecting the name of a
political body on their nomination papers. That is not the case here. Nor are we
persuaded by Stern because here, Candidate did not change the name of the political
body to something entirely different which signers would find objectionable.
Candidate changed “Independent” to “Citizens for Welch.” This alteration is more
akin to the alteration in Williams, which changed the appellation from “Leon
Williams’ Education Party” to “Leon’s Education Party.” The individuals who
signed Candidate’s Nomination Papers undoubtedly supported Candidate, as
evidenced by their signing.           We, therefore, cannot say the change from
“Independent” to “Citizens for Welch” would have affected the signers’ decision to
sign the Nomination Papers.
       Objector argues allowing a candidate to alter the appellation after circulation
could result in a candidate changing the political body name to something with
which the signers disagree, and we agree that is a possibility. However, these matters
are fact-specific, and under the facts presented here, the change was not material.
Here, the change is consistent with their signing her Nomination Papers; the signers
support (or are “for”) Candidate (Welch).


       Accordingly, the trial court’s Order denying the Petition is affirmed.6



                                           _____________________________________
                                           RENÉE COHN JUBELIRER, Judge


       6
        Given our disposition, we need not address Candidate’s other arguments. In addition, we
deny Candidate’s request for attorney’s fees, as Objector’s appeal was not frivolous.


                                              9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Nomination Papers of                :
B. DeNeice Welch as a Candidate            :
for Pittsburgh City Council-District 9     :   No. 1257 C.D. 2019
                                           :
Appeal of: Carmen Brown                    :
                                           :


                                    ORDER


      NOW, September 27, 2019, the Order of the Court of Common Pleas of
Allegheny County, dated August 27, 2019, is AFFIRMED.



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


In Re: Nomination Papers of                     :
B. DeNeice Welch as a Candidate                 :
for Pittsburgh City Council-District 9          :   No. 1257 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 disposition of this appeal. The only issue on appeal appears
to be whether the alteration to the political body appellation on the nomination
papers of B. DeNeice Welch (Candidate) in this matter was a material alteration
prohibited by the Pennsylvania Election Code (Code),1 specifically Section 976.2
I agree with the majority that it was not. I, therefore, concur with the majority’s
decision to affirm the Order of the Court of Common Pleas of Allegheny County
(trial court).
                 I write separately only to observe that under the Code, no candidate can
appear on the ballot as a lowercase-“i” independent, as that term is generally
understood in the context of elections. The trial court rightly observed below that
the collective intent of the electors in this matter who signed Candidate’s nomination


       1
           Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3554.
       2
           25 P.S. § 2936.
papers was to place a truly independent candidate on the municipal election ballot—
i.e., a candidate not affiliated with a political party or a political body. The Code,
however, only permits candidates to secure a ballot position either through the
primary election process, as a political party candidate, or through the filing of
nomination papers, as a political body candidate. For whatever reason, the truly
unaffiliated candidate and the electors who wish to support the truly unaffiliated
candidate have no clear path under the Code. Instead, they must affiliate under the
banner of at least a political body, which the Code defines loosely as something less
than a political party.3
               If we are to honor this system chosen by our General Assembly, then
we should not allow potential candidates to designate a political body appellation on
nomination papers that misleads voters into believing that the candidate is
unaffiliated with a political party or political body—i.e., the generally recognized
and understood meaning of a truly independent candidate. When it comes to the
nomination papers process under the Code, there simply is no such thing. Every
candidate must be affiliated with a political body and that political body must be
identified by name in such a way as not to confuse or mislead voters. By allowing
the first-filed candidate to claim the appellation “Independent,” while rejecting the
same appellation from subsequent candidates, the Allegheny County Elections
Division (Elections Division) has, in my assessment, conferred a benefit on the first
candidate that is not permitted under the Code—that being the perception of running
as an unaffiliated candidate.
               Accordingly, the Elections Division should have rejected, under
Section 976 of the Code, every candidate’s nomination papers with a political body


      3
          Sections 102 and 801 of the Code, 25 P.S. §§ 2602, 2831.
                                           PKB - 2
appellation of “Independent” as containing “a material error or defect apparent on
the face thereof,” that being the failure to identify a political body by name that does
not mislead voters.




                                 P. KEVIN BROBSON, Judge




                                       PKB - 3
