In re Szydlowski, 133 M.D. 2014

• Decision Date: 31 March 2014
• Docket Number: No. 133 M.D. 2014,133 M.D. 2014
• Parties: In Re: The Nomination Petition of Brendan F. Boyle As Candidate For State Representative In The 170th Legislative District Petition of: Michelle Szydlowski
• Court: Pennsylvania Commonwealth Court

In Re: The Nomination Petition of Brendan F. Boyle As Candidate
For State Representative In The 170th Legislative District

Petition of: Michelle Szydlowski

No. 133 M.D. 2014

COMMONWEALTH COURT OF PENNSYLVANIA

Heard: March 27, 2014
March 31, 2014

BEFORE: HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE COLINS

This matter is a petition filed by Michelle Szydlowski (Objector) to set aside the nomination petition of Brendan F. Boyle (Candidate) as a candidate for the position of Representative in the Pennsylvania General Assembly, 170th Legislative District, in the May 20, 2014 Democratic primary. An evidentiary hearing on the petition to set aside was held before this Court on March 27, 2014, following which the Court denied Objector's challenge to Candidate's nomination petition and entered an Order dismissing the petition to set aside. This Opinion sets forth the reasons for the Court's decision.

Candidate's nomination petition consists of 86 pages containing a total of 1,054 signatures. Section 912.1(14) of the Pennsylvania Election Code¹ provides that a nomination petition for the office of Representative in the

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Pennsylvania General Assembly must contain at least 300 valid signatures. 25 P.S. § 2872.1 (14). Candidate, the incumbent Representative for this legislative district, is unopposed in the May 20, 2014 primary. No other candidate has filed any nomination papers for this office. Candidate has also filed nomination papers as a candidate for the United States House of Representatives in the 13th Congressional District in the May 20, 2014 primary.

Objector has not challenged the genuineness of any of the 1,054 individual signatures as signatures of registered Democratic voters residing in the 170th Legislative District and has not alleged any impropriety in the gathering of any of the signatures on Candidate's nomination petition. Objector, however, has challenged 68 pages of the nomination petition and contends that the 833 signatures on those pages are invalid on the ground that those pages were notarized by a notary public who is a member of Candidate's legislative staff. Because the unchallenged 18 pages of the nomination petition notarized by other notaries contain only 221 signatures, Objector asserts that Candidate's nomination petition does not contain the required 300 valid signatures.

Pages 1-22, 24-34, 37-49, 59, 64-80, 82-84, and 87 of Candidate's nomination petition were notarized by Nicholas Himebaugh.² (Stipulation ¶4.) Those pages contain 833 signatures. (Stipulation ¶2.) Mr. Himebaugh was not a circulator of any of those pages of the nomination petition. (Stipulation ¶9.) Mr. Himebaugh is Candidate's legislative assistant in his local district office. (Stipulation ¶¶3, 5; Exhibit P-14.) Mr. Himebaugh, however, is employed and

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paid by the Pennsylvania House Democratic Caucus (Caucus), not by Candidate. (Stipulation ¶¶5-6; Exhibit P-14; Exhibit R-2.) The Caucus has the authority to hire, fire, transfer or reassign Mr. Himebaugh, and his employment with the Caucus could continue by reassignment if Candidate is not reelected. (Stipulation ¶¶6-7.)

The only witness who testified at the hearing in this matter was Nicholas Himebaugh, whom Objector called to testify on cross-examination. Mr. Himebaugh testified that he notarized pages of Candidate's 170th Legislative District nomination petition, and that he performed these notarizations at Candidate's campaign office. Mr. Himebaugh did not circulate any pages of Candidate's 170th Legislative District nomination petition. Mr. Himebaugh testified that he circulated pages of Candidate's congressional nomination petition and of the nomination petition of State Representative Kevin Boyle, Candidate's brother, in whose legislative district Mr. Himebaugh resides. Mr. Himebaugh testified that he also notarized pages of both of the congressional and Kevin Boyle petitions that he did not circulate.

Mr. Himebaugh testified that he performed all of his notarizations of campaign petitions outside of working hours. That testimony is corroborated by the documentary evidence and record. All but one of the 68 pages of Candidate's 170th Legislative District nomination petition that Mr. Himebaugh notarized, and all but three of the pages of the congressional and Kevin Boyle petitions that Objector introduced in evidence, were notarized on March 8 and 9, 2014, a Saturday and Sunday. There is no evidence suggesting that any of those other four petition pages, which were notarized on March 10, 2014, were notarized during the work day. Mr. Himebaugh testified that he volunteered on his own initiative to

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circulate petitions for Candidate's congressional candidacy and for his legislative representative, Kevin Boyle, and that he circulated those petitions on evenings and weekends. Mr. Himebaugh testified that he also filed supplemental pages of Candidate's congressional petition and a few supplemental pages of Candidate's 170th Legislative District nomination petition in Harrisburg on March 11, 2014. That activity was on his own personal time; the Caucus's employment records show that Mr. Himebaugh requested leave to take that day off from...