OPINION BY JUDGE BROBSON.
This matter involves a petition to contest the results of the May 15, 2018 primary election for the Democratic Party nomination for representative of the General Assembly from the 197
For the reasons set forth below, we hold that Ramirez's notice of appeal, filed electronically with the trial court on July 2, 2018, was timely filed. Accordingly, and for this reason only, we affirm the trial court's July 13, 2018 order, denying Ramirez the opportunity to appeal nunc pro tunc
Following the primary election on May 15, 2018, the Philadelphia Board of Elections (Board of Elections)
Although the Contest Petition did not name any other petitioners in either the caption or the body of the Contest Petition, additional individuals who identified themselves as "petitioners" and registered voters signed the Contest Petition pursuant to Section 1742 of the Election Code, 25 P.S. § 3402. (Reproduced Record (R.R.) at 14-18.) As required by Section 1757 of the Election Code, 25 P.S. § 3457, five of those additional individuals verified the Petition by signing an affidavit, which counsel referred to as a verification. (Id. at 19-23.) Ramirez did not sign or verify the Contest Petition. The Contest Petition also contained a certificate of service, certifying that, on June 4, 2018, the Contest Petition was filed and served electronically via the trial court's electronic filing system and was also personally served upon Burgos. (Id. at 24.)
Along with the Petition, Ramirez provided the trial court with a proposed order, which provided:
(Id. at 9.)
The trial court judge issued a Rule to Show Cause order (Show Cause Order) dated June 13, 2018, but docketed on June 14, 2018. (Id. at 69.) The Show Cause Order directed "the Respondent and all interested parties" to show cause why the relief sought in the Contest Petition should not be granted. (Id.) It scheduled a hearing on the Contest Petition for June 20, 2018, designating a time and location. It also directed "[t]he Petitioner" to serve the Contest Petition and the Rule to Show Cause on "Respondent and all interested parties or their attorneys
The trial court judge conducted the hearing on June 20, 2018. At the outset of the hearing, Burgos's counsel challenged the Contest Petition on a variety of bases, resulting in the trial court dismissing the Petition before hearing any evidence or a merits determination. Specifically, Burgos's
(Id. at 14.) Underneath that paragraph, three individuals completed lines calling for the signature, the printed name, and the address, including the municipality, of the registered voter. The Contest Petition also includes page 9, which is the same as page 5, except that it includes the signature and information for one additional individual. (Id. at 18.)
Burgos's counsel did not contest that the four individuals on pages 5 and 9 are "petitioners." Rather, he directed the trial court to pages 6-8 of the Contest Petition, which each contain six sets of lines, identical to the lines completed by the three petitioners on page 5. (Id. at 15-17.) On each of these three pages, six individuals completed the requested information. Pages 6-8, however, do not contain the "WHEREFORE" language set forth above. Burgos's counsel took the position that there was no proof that the eighteen individuals who signed those pages knew that they were verifying the Contest Petition under Section 1742 of the Election Code, because there was no proof that pages 6-8 were attached to the Contest Petition at the time the individuals signed them, and the pages did not contain the language set forth above. (Id. at 76-81.) The trial court overruled the objection. (Id. at 81.)
Burgos's counsel also challenged the timeliness of the Contest Petition, noting that the primary election was held on May 15, 2018, and that any petition to contest had to be filed within twenty days of the election — i.e., by June 4, 2018. (Id. at 83-85.) He asserted that although Ramirez filed the Contest Petition on June 4, 2018, the trial court rejected the Contest Petition, and Ramirez refiled it on a later date, making it untimely. (Id.) The trial court overruled this objection, explaining that the confusion regarding the filing was the result of an administrative issue, and the trial court ultimately processed the Contest Petition. (Id. at 85.)
Finally, Burgos's counsel challenged the Contest Petition on the basis that Ramirez failed to comply with Section 1759 of the Election Code, which places a duty on the petitioners to file a bond within five days of filing a petition to contest election and expressly provides that failure to file a bond shall result in the dismissal of the petition to contest election. (Id. at 85-104.) Burgos's counsel observed that the petitioners had neither filed a bond nor any motion requesting the trial court to set the bond amount.
Counsel for Ramirez responded that the proposed order attached to the Contest Petition requested the trial court to set the
Thereafter, Burgos's counsel placed two additional objections on the record in order to preserve the objections for purposes of appeal. Neither of the objections contended that Ramirez was not a petitioner or lacked standing.
The trial court entered an order, dated June 20, 2018, but docketed on June 21, 2018, denying the Contest Petition. Ramirez filed a notice of appeal with the trial court on July 2, 2018. The trial court rejected the filing on July 3, 2018. Ramirez refiled the notice of appeal on July 3, 2018, and the trial court accepted it for filing on that date.
On July 5, 2018, Ramirez filed with the trial court a motion pursuant to Pa. R.C.P. No. 205.4(e)(4)(ii), requesting that the notice of appeal be accepted and filed nunc pro tunc. The motion avers that Jeremy A. Gunn, Esquire, represented Ramirez at the hearing on June 20, 2018. Attorney Gregory Harvey, co-counsel in this matter, contacted J. Matthew Wolfe, Esquire, about possible involvement in the matter. Attorney Wolfe reviewed the docket, noting the order and the strict ten-day deadline under Pa. R.A.P. 903 to appeal matters under the Election Code.
On July 23, 2018, the trial court filed an opinion pursuant to Pa. R.A.P. 1925(a) (Rule 1925(a) Opinion). At the outset, the trial court noted that, at the hearing on June 20, 2018, counsel for Burgos moved for dismissal of Ramirez's Contest Petition on the basis that the trial court lacked jurisdiction to hear and adjudicate the contest. The trial court then opined that, regardless of the merits of the appeal, all issues raised on appeal should be dismissed because Ramirez's notice of appeal, filed on July 3, 2018, was untimely. With regard to the merits of the appeal, the trial court calculated the five-day period for filing a bond under Section 1759 of the Election Code from June 7, 2018 (i.e., the date that the trial court docketed the Contest Petition), thereby establishing June 12, 2018, as the date by which the petitioners were required to file a bond. The trial court concluded that the petitioners failed to file a timely bond, advancing several reasons for this conclusion.
In his statement of issues to be presented on appeal, filed a day after the trial court issued its Rule 1925(a) Opinion, Ramirez identifies the issues for this Court's review as follows: (1) whether the trial court erred in dismissing his Contest Petition for failing to post a bond or request that the trial court set the amount of such bond; and (2) whether Ramirez acted in good faith and made reasonable efforts to timely file the notice of appeal in this matter, such that the appeal should be deemed timely. We must also consider Ramirez's Application for Nunc Pro Tunc Relief, asserting the same factual basis for relief recited in the motion that Ramirez filed with the trial court on July 5, 2018, and Burgos's Motion to Dismiss, requesting that the Court dismiss the appeals due to Ramirez's lack of standing, lack of this Court's jurisdiction, and the untimeliness of the appeals.
As to the timeliness of Ramirez's appeal to this Court, an appeal of "[a]n order in any matter arising under the Pennsylvania Election Code" "shall be taken within ten days after the entry of the order from which the appeal is taken." Pa. R.A.P. 903. Thus, in this instance, Ramirez had until July 2, 2018, to appeal from the trial court's order docketed on June 21, 2018. As noted above, Ramirez electronically filed his notice of appeal on July 2, 2018, but the trial court rejected it on July 3, 2018, based on a defect in the certificate of service. Ramirez refiled the notice of appeal the same day the trial court rejected it, and the trial court then accepted it for filing with a date of July 3, 2018, thereby causing the trial court to consider it untimely. At issue is whether Ramirez's appeal was timely when he filed the notice of appeal on July 2, 2018, the trial court rejected it, and then the trial court accepted a refiled notice of appeal on the following day.
In support of the timeliness of the appeal, Ramirez points to Pa. R.C.P. No. 205.4(e), relating to electronic filing and service of legal papers (commonly referred to as the eFiling Rescue Rule), which provides:
(Emphasis added.)
Thus, Pa. R.C.P. No. 205.4 authorizes courts to utilize electronic filing and to establish local rules relating thereto. Importantly, it also provides that the prothonotary shall not refuse for filing any "pleading or other legal paper that complies with the Pennsylvania Rules of Civil Procedure." Pa. R.C.P. No. 205.4(e)(2). It further provides for notification to a party when a filing is not accepted or is rejected and allows for the court to order that a filing be accepted nunc pro tunc upon a showing of good faith and reasonable efforts.
In reviewing whether Ramirez made a good faith effort and took reasonable steps to electronically file, it is apparent to this Court that Ramirez's initial filing on July 2, 2018, was sufficient under Pa. R.A.P. 902, relating to manner of taking an appeal, such that the trial court erred in rejecting the filing. Pa. R.A.P. 902 provides:
(Emphasis added.) This Court has held that, under Pa. R.A.P. 902, "timeliness is the only requirement to make a notice of appeal valid," and the lack of inclusion of the trial judge on the certificate of service does not affect the timeliness of the filing. Brown v. Levy, 993 A.2d 364, 366 (Pa. Cmwlth.), appeal denied, 608 Pa. 670, 13 A.3d 480 (2010).
In Brown, a prisoner filed a notice of appeal with a court of common pleas, but the notice of appeal was defective in that the prisoner failed to attach case docket
Williams, 106 A.3d at 588.
As we conclude that Ramirez timely filed his notice of appeal on July 2, 2018, Ramirez did not require nunc pro tunc relief under Pa. R.C.P. No. 205.4. For this reason, and this reason alone, we affirm the trial court's July 13, 2018 order. We emphasize that the fact that Ramirez electronically filed the notice of appeal does not in any way alter the analysis under Pa. R.A.P. 902. Moreover, we reiterate that Pa. R.C.P. No. 205.4(e)(2) makes clear that an electronically filed document that complies with the Pennsylvania Rules of Civil Procedure cannot be rejected based upon "local rule or local administrative procedure or practice pertaining to the electronic filing of legal papers."
As a preliminary matter, Burgos challenges whether Ramirez has standing to bring this matter before our Court. Pa. R.A.P. 501 provides: "Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom." (Emphasis added.) Section 1743 of the Election Code, 25 P.S. § 3403, provides that in a Class IV contest,
Burgos argues that Ramirez was not a petitioner in the matter before the trial court because he chose not to name himself in the Contest Petition. Rather, Burgos contends that only the twenty-two individuals who signed the Contest Petition were parties to the trial court proceedings. Burgos notes that Ramirez did not sign or verify the Contest Petition, the Contest Petition did not plead Ramirez's address in order to establish that he could have been a petitioner, and Ramirez did not intervene in the proceedings before the trial court. As such, Ramirez was never a party to the action. Moreover, Burgos notes that Ramirez does not have standing by virtue of being a fiduciary whose estate or trust was aggrieved or by an express statute. Burgos maintains that, for these reasons, Ramirez
Ramirez responds by arguing that Burgos cannot raise the issue of standing for the first time on appeal, noting that Burgos did not preliminarily object on that basis nor did he raise the issue at the hearing before the trial court. Objections to lack of standing, including claims of lack of capacity to sue, must be raised at the earliest opportunity and are waived if not promptly raised. Erie Indem. Co. v. Coal Operators Cas. Co., 441 Pa. 261, 272 A.2d 465, 467 (1971); Twp. of Bristol v. 1 Enters., LLC, 177 A.3d 1045, 1051 (Pa. Cmwlth. 2018).
In reply, Burgos counters that the election contest matter did not reach the answer stage and, thus, he did not have an opportunity to raise an objection based on standing. Furthermore, Burgos notes that this issue only became significant because Ramirez is the only person who appealed, while the other individuals who "unquestionably had standing, did not do so." (Appellee's Reply Br. at 1.)
Burgos's argument that Ramirez lacks standing to appeal to this Court is premised entirely on his characterization that Ramirez was not a petitioner in the proceedings below. This Court, however, disagrees with that characterization. The Contest Petition is titled "Petition of Frederick Ramirez to Contest Election" and indicates that Ramirez is contesting the nomination of Burgos. (R.R. at 10.) While Ramirez indicates in the Contest Petition that he is a candidate who received less votes in the election than Burgos, that fact does not disqualify Ramirez from also being a petitioner. Moreover, Ramirez is the only petitioner named in the body of the Contest Petition; the other petitioners signed (and five of them verified) the Contest Petition, providing their addresses. Although Ramirez did not sign the Contest Petition, there is no requirement in the statute that he do so. Rather, Section 1757 of the Election Code, 25 P.S. § 3457, only requires that the petitioners shall be registered electors who voted at the primary or election so contested and that five of the petitioners verify the petition.
Furthermore, we agree with Ramirez that Burgos waived the issue of Ramirez's standing by not raising it before the trial court. Burgos's assertion that he did not have the opportunity to do so is belied by the record. At the hearing, Burgos raised five objections to the Contest Petition, including whether there was a sufficient number of petitioners for the matter to proceed. At no point during the hearing did Burgos assert that Ramirez was not a petitioner and lacked standing. Even after the trial court ruled in favor of Burgos regarding petitioners' failure to post a bond, Burgos placed on the record two additional objections to the Contest
For the reasons set forth above, to the extent that Burgos's Motion to Dismiss seeks dismissal on the basis of lack of standing by Ramirez, the Motion to Dismiss is denied.
Next, we address whether the trial court erred in dismissing the Contest Petition under Section 1759 of the Election Code, relating to the posting of a bond. That section provides:
(Emphasis added.)
Ramirez takes the position that it was impossible for him to file a bond, because the trial court did not designate an amount for the bond within five days. Ramirez's entire argument is: "The action of the [trial] court administration to reject the Petition filed pursuant to [Section 1741 of the Election Code,] 25 P.S. § 3401[,] in the [trial court] rendered it impossible for Petitioners to enter bond within five days in conformity with [Section 1759 of the Election Code], which also requires that the bond be in `such sum ... as the court shall designate.'" (Appellant's Br. at 4 (omission in original).)
In response, Burgos cites two Pennsylvania Supreme Court cases, both decided under a prior, but similar statute — In re McChesney, 326 Pa. 438, 192 A. 415 (1937), and In re Moritz, 256 Pa. 537, 100 A. 1033 (1917). In In re McChesney, McChesney moved for the dismissal of the petition to contest his election, arguing that the bond was not in conformity with the requirements of the now-repealed Section 9 of the Act of May 19, 1874, P.L. 208, repealed by the Act of June 3, 1937, P.L. 1333, as amended,
In re McChesney, 192 A. at 416 n.1. Citing In re Moritz, the Supreme Court wrote:
In re McChesney, 192 A. at 416. In In re Moritz, the Supreme Court affirmed the dismissal of an election contest where the petitioners failed to file a bond with a seal affixed to it, concluding that the bond was irregular. The Supreme Court wrote: "The provision is not only plain with respect to the essential character of the security to be given, but mandatory that, [unless] the prescribed bond be filed within [ten] days after the filing of the petition to contest, the court shall dismiss the petition." In re Moritz, 100 A. at 1035.
Neither of these decisions, however, addresses the circumstances presently before the Court. In both, the respective common pleas courts, upon the filing of petitions to contest election, issued orders setting their matters for hearing and designating the amounts of the statutory bonds. Thereafter, the petitioners complied and filed bonds. The Pennsylvania Supreme Court concluded that the filed bonds were deficient under the terms of the statute then-in-effect and, therefore, the petitions should have been dismissed. Here, by contrast, Ramirez never filed a bond such that the legal conformity of the instrument could be challenged. Rather, this case presents the question of how the statutory bond requirement in Section 1759 of the Election Code should, or can, be administered where the common pleas court does not designate the amount of the bond.
Burgos also cites Bristol Township Election Contest, 70 Pa. D. & C. 2d 275 (C.P. Bucks Co. 1975), wherein the Court of Common Pleas of Bucks County dismissed an election contest where no bond had been posted and the record disclosed that the petitioners had not requested the common pleas court to set the amount of the bond. The petitioners in Bristol Township Election Contest had argued that the common pleas "court ha[d] the duty to designate the amount of the bond and, having failed to so designate an amount (in the absence of a request), no bond is required." Bristol Twp. Election Contest, 70 Pa. D. & C.2d at 276. The common pleas court rejected that argument, noting that the election contest petition did not request the amount of a bond be set, the petitioner did not file an independent petition requesting a bond be set, and the petitioner made no attempt to file any bond in any amount as required by Section 1759 of the Election Code. Ultimately, the common pleas court concluded that it had "no jurisdiction to hear or consider the present matter because of [the] petitioner's failure to comply with the statutory requirement to post a proper bond." Id. at 279.
The Court of Common Pleas of Pike County reached a different conclusion in In re General Election of November 4, 1975 (No.1), 71 Pa. D. & C. 2d 68 (C.P. Pike Co. 1975). The petitioners in that case filed their election contest petition on November 13, 1975. A petition to fix the amount of the bond was filed the same day, but the court did not act on it, and the statutory period for filing the bond lapsed. A motion to quash the petition for failure to file the bond followed. Within the statutory period to contest the election, the same petitioners filed a second petition, identical to the first, along with a request to set the bond amount. This time, the common pleas court promptly set the bond amount and the petitioners filed the bond. The common pleas court refused to quash the first appeal for failure to file a timely bond, concluding primarily that the second petition and filed bond effectively cured
In re General Election of November 4, 1975 (No. 1), 71 Pa. D. & C.2d at 75-77 (citation omitted).
The circumstances in this case are, at least, just as unusual as those encountered by the Pike County Common Pleas Court. Ramirez attempted to file his timely Contest Petition on June 4, 2018. It was not until June 7, 2018, that the trial court accepted it, correcting its earlier jurisdictional error. Phila. Civ. R. 206.1(a) designates a petition under the Election Code (a statutory petition) as a petition subject to the procedures set forth in Pa. R.C.P. Nos. 206.1 through 206.7. With respect to the content and form of the petition, the Pennsylvania Rules of Civil Procedure provide:
Pa. R.C.P. No. 206.1(b), (c). When filing a petition, Pa. R.C.P. No. 206.5(b) requires that the petitioner attach to the petition a form order. Pa. R.C.P. No. 206.5(b) and cmt. This form order is the Rule to Show Cause order, not the order granting the ultimate relief sought in the petition. It provides for such things as service upon the respondent, the time by which the respondent must answer the petition, and whether and, if so, when the court will conduct a hearing on the petition. The form of the order must substantially follow the form established by the court. Pa. R.C.P. No. 206.5(d); Phila. Civ. R. 206.4(c). Succinctly, under petition practice, the petitioner sets forth in the petition the relief he seeks in the matter, while the proposed order addresses pre-disposition procedural matters.
In this case, Ramirez appears to have complied with the petition practice. He filed his petition with a proposed order that substantially followed the form required under the Philadelphia Civil Rules. Because, however, this was a contest petition under the Election Code, Ramirez included in his proposed order a line item for the trial court to designate the amount of the statutorily-required bond. Ramirez even included a citation in the proposed order to the governing statute. The trial court did not docket the Contest Petition until June 7, 2018. The issuance of a rule
Although the parties appeared before the trial court for the hearing on June 20, 2018, they never reached the merits of the Contest Petition. Instead, as noted above, counsel for Burgos raised multiple grounds for dismissal, one of which addressed the bond requirement. Despite the foregoing history and rules governing petition practice, the trial court granted Burgos's oral motion to dismiss on the bond issue, but refused Ramirez's oral motion for the trial court to set the bond amount at the hearing and allow him to file the bond nunc pro tunc. In this respect, the trial court erred. The trial court in its Rule 1925(a) Opinion and Burgos in his brief on appeal focus on the five-day filing requirement. They ignore, however, the equally mandatory requirement that the petitioners file the bond "in such sum as ... said court shall designate." Section 1759 of the Election Code. The statute does not authorize the petitioners to file a bond in the amount of their choosing. Indeed, under the clear language of the statute, doing so would appear to be just as defective as filing the bond on the sixth day.
The question, then, is whether Ramirez, acting under a very compressed timeline and notwithstanding the trial court's original erroneous decision to reject the Contest Petition, attempted in good faith to comply with Section 1759 of the Election Code. Like the petitioners in In re General Election of November 4, 1975 (No. 1), we believe that he did. He filed the Contest Petition timely under the Election Code along with the mandated proposed order. Within the mandated proposed order, Ramirez appropriately notified the trial court of the need for the trial court to establish the amount of the bond under Section 1759 of the Election Code, providing a line in the proposed order for the trial court to designate the bond amount. The trial court originally rejected the Contest Petition in error, requiring Ramirez to focus his efforts immediately on correcting that oversight. Once corrected, it appears that rather than follow the trial court's own rules by issuing the Rule to Show Cause "as of course," this time-sensitive matter was assigned to the trial court judge. The trial court judge, however, omitted any reference to the amount of the bond in her Show Cause Order. Again, operating under a compressed timeframe, when the bond
If the question is whether Ramirez could have filed a separate motion/petition with the trial court to set the amount of the bond at some point prior to the expiration of the five-day statutory period, the answer is certainly yes. If the question is whether the Election Code or the circumstances in this particular matter compelled him to do so, the answer is no. The parties and the courts are operating under a very compressed calendar in these election matters. Based on the record before us and considering the arguments of the parties as well as the trial court's Rule 1925(a) Opinion, it is evident that Ramirez's failure to file a bond in the amount designated by the trial court within the five-day statutory period was due not to his inaction, but to a breakdown in the trial court's handling and consideration of the Contest Petition. Moreover, we do not see how Burgos suffered any prejudice, as the matter never proceeded to a disposition on the merits.
For these reasons, we reverse the trial court's dismissal of the action for failure to file the bond required by Section 1759 of the Election Code. On remand, the trial court shall, as expeditiously as possible, designate the amount of the bond to be filed in this case and afford Ramirez five days to file the same. If Ramirez fails to file the bond at that point, the trial court shall dismiss the Contest Petition. Otherwise, the trial court should proceed expeditiously to a hearing on the merits and final ruling on the Contest Petition.
Accordingly, we affirm the trial court's July 13, 2018 order. We reverse the trial court's June 20, 2018 order, dismissing Ramirez's Contest Petition for failure to file a bond as required by Section 1759 of the Election Code. We dismiss as moot Ramirez's Application for Nunc Pro Tunc Relief, and we deny Burgos's Motion to Dismiss. We remand this matter for further proceedings consistent with this opinion.
AND NOW, this 7th day of August, 2018, the June 20, 2018 order of the Court of Common Pleas of Philadelphia County (trial court), dismissing Appellant Frederick Ramirez's (Appellant) petition to contest election, is REVERSED, and this matter is REMANDED to the trial court for further proceedings in accordance with the accompanying opinion. The July 13, 2018 order of the trial court, denying Appellant's request to pursue his appeal from the June 20, 2018 order nunc pro tunc, is AFFIRMED on alternative grounds.
It is further ordered that Appellant's application for relief in the form of a motion
Jurisdiction relinquished.
(Emphasis added.)
