In re Fitzpatrick
Decision Date | 01 May 2003 |
Citation | 822 A.2d 867 |
Court | Pennsylvania Commonwealth Court |
Parties | The PETITION TO SET ASIDE the NOMINATION OF Kathleen M. FITZPATRICK as a Democratic Candidate for the Office of Councilperson for the Seventh Councilmatic District of the City of Philadelphia. Objection of Candido Silva, Barbara Stuhl, Eileen Miller, Chester Zalenski and Walter de Truex, Jr. Appeal of Kathleen M. Fitzpatrick. |
Ralph J. Teti, Philadelphia, for appellant.
Ira B. Shrager, Philadelphia, for appellees.
BEFORE: COLINS, President Judge, and FRIEDMAN, Judge, and MIRARCHI, JR., Senior Judge.
OPINION BY JUDGE FRIEDMAN.
Candido Silva, Barbara Stuhl, Eileen Miller, Chester Zalenski and Walter de Truex, Jr. (collectively, Objectors) appeal from the order of the Court of Common Pleas of Philadelphia County (trial court) denying their petition to set aside Kathleen M. Fitzpatrick's (Fitzpatrick) Nomination Petition as a Democratic Candidate for the office of Councilperson for the Seventh Councilmanic District of the City of Philadelphia (Nomination Petition). We affirm.
Fitzpatrick filed a Nomination Petition containing 1,454 signatures, needing only 750 signatures in order to have her name placed on the May 20, 2003, primary ballot. Objectors filed their petition, and the trial court held an evidentiary hearing. After the hearing, the number of signatures on the Nomination Petition was reduced to 744; because the Nomination Petition lacked the requisite 750 signatures, the trial court issued an order setting aside the Nomination Petition.
Fitzpatrick appealed to this court, arguing that the trial court abused its discretion in striking thirteen signatures, due to the use of ditto marks, without considering Fitzpatrick's offer of proof that: (1) Fitzpatrick personally circulated her Nomination Petition to the thirteen signers at the Golden Slipper Jewish Home for the Aged; (2) all of the signers resided at the Golden Slipper Jewish Home for the Aged; (3) all of the signers were either in wheel chairs, bed-ridden, or on stretchers due to physical disabilities; and (4) all of the signers were retired. Because federal law mandates that the voting rights of the disabled are to be preserved and facilitated, we agreed with Fitzpatrick and remanded the case for consideration of evidence relating to Fitzpatrick's offer of proof.
On remand, the trial court heard testimony and made the following findings of fact.
Based on these findings, the trial court denied the Objectors' petition to set aside Fitzpatrick's Nomination Petition. The Objectors' now appeal to this court.1
The Objectors argue that the trial court erred in denying their petition to set aside Fitzpatrick's Nomination Petition because: (1) Fitzpatrick did not actually circulate the Nomination Petition at the Golden Slipper Jewish Home for the Aged;2 (2) Smith, a non-resident of the district, circulated the Nomination Petition;3 (3) the circulator affidavit is false;4 and (4) the signers were not disabled per se and did not request accommodation. However, the Objectors failed to raise these issues within seven days of the last day for filing a nomination petition, as required by section 977 of the Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2937. Therefore, these matters are waived.
The Objectors also argue that the signers did not complete the required information in accordance with section 908 of the Election Code, 25 P.S. § 2868. However, as indicated above, federal law mandates that the rights of the disabled be preserved and facilitated. See Dipietrae v. City of Philadelphia, 666 A.2d 1132 (Pa. Cmwlth.1995).
Here, the trial court found that: (1) the average age of a resident at the Golden Slipper Jewish Home for the Aged is eighty-five years old, (Findings of Fact, No. 5); (2) the Golden Slipper Jewish Home for the Aged is a "skilled nursing facility"5 in which all residents require assisted living, (Findings of Fact, No. 6); (3) Smith, being familiar with the signers, knew that they would have problems writing their addresses and occupations on the Nomination...
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