Morley v. Farnese
| Decision Date | 24 January 2018 |
| Docket Number | No. 1405 C.D. 2017,1405 C.D. 2017 |
| Citation | 178 A.3d 910 |
| Parties | John H. MORLEY, Jr., Appellant v. Lawrence M. FARNESE, Jr., Kevin Michael Greenberg, George J. Farrell, Gaetano Piccirilli, Michael Weiss and Karen Greenberg |
| Court | Pennsylvania Commonwealth Court |
John H. Morley, Jr., pro se.
Gaetano P. Piccirilli, Philadelphia, for appellees Lawrence Farnese, Gaetano Piccirilli, Michael Weiss and Karen Greenberg.
Joanne K. Kernicky, Philadelphia, for appellees Kevin Michael Greenberg and George J. Farrell.
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY SENIOR JUDGE COLINS
This matter is an appeal filed by John H. Morley, Jr. (Plaintiff), pro se , from an order of the Court of Common Pleas of Philadelphia County (common pleas court) that sustained preliminary objections and dismissed with prejudice his civil action against Lawrence M. Farnese, Jr. (Farnese), Kevin Michael Greenberg and George J. Farrell (Attorney Defendants), and Gaetano Piccirilli, Michael Weiss and Karen Greenberg (Objector Defendants) (collectively, Defendants). Plaintiff's action asserted a claim for wrongful use of civil proceedings, claims under attorney fees and costs statutes, and claims for abuse of process, conspiracy and concert of action arising out of Defendants' ballot challenge to Plaintiff's 2016 candidacy for the Pennsylvania State Senate. For the reasons set forth below, we affirm.
On February 16, 2016, Plaintiff timely filed a nomination petition to place his name on the April 26, 2016 Primary Election ballot as a Democratic candidate for Senator in the General Assembly from the 1st Senatorial District. (Second Amended Complaint ¶¶ 1, 15, 23, Reproduced Record (R.R.) at 13a, 15a, 16a; In re Morley (Morley II) , 636 Pa. 230,141 A.3d 1275, 1276 (2016).1 ) The only other candidate to file for the Democratic primary for that office was defendant Farnese, the incumbent State Senator for the district. (Second Amended Complaint ¶¶ 2, 10, R.R. at 13a–14a.)
Under the Pennsylvania Election Code (Election Code),2 a nomination petition to place a candidate for State Senator on the primary ballot must contain at least 500 valid signatures of voters who are eligible to vote in that primary. Section 912.1(13) of the Election Code, 25 P.S. § 2872.1(13).3 The Election Code also requires that each page of a nomination petition have an affidavit of a circulator who was present when the voters signed the page; if the individual who signed the circulator affidavit was not present when the signatures were gathered, those signatures are not valid. Section 909 of the Election Code, 25 P.S. § 2869 ; In re Nomination Petition of Farnese (Farnese I) , 609 Pa. 573, 17 A.3d 375, 377 (2011) ; In re Nomination Petition of Flaherty , 564 Pa. 671, 770 A.2d 327, 336–38 (2001), overruled on other issue by In re Nomination Petition of Vodvarka (Vodvarka III) , 636 Pa. 16, 140 A.3d 639 (2016) ; In re Petition to Set Aside Nomination of Fitzpatrick , 822 A.2d 867, 869 n.2 (Pa. Cmwlth. 2003).
Plaintiff's nomination petition contained 1,047 signatures. (Second Amended Complaint ¶ 24, R.R. at 17a; Morley II , 141 A.3d at 1276.) Each of the 37 pages of the nomination petition was attested to by Plaintiff as circulator. (Second Amended Complaint ¶¶ 24, 33, R.R. at 17a–18a; Morley II , 141 A.3d at 1276.) On February 23, 2016, Objector Defendants, represented by Attorney Defendants, timely filed a petition to set aside Plaintiff's nomination petition, asserting that Plaintiff did not have 500 valid signatures because the circulator affidavits for pages that he did not circulate were invalid and because, even if the circulator affidavits were valid, 646 individual signature lines were invalid. .)
This Court held four days of argument and testimonial hearings on the petition to set aside. (In re Morley (Morley I) , (Pa. Cmwlth., No. 102 M.D. 2016, filed March 31, 2016), slip op. at 3.) Plaintiff represented himself pro se in all hearings and proceedings on the petition to set aside. (Morley I Docket Entries, R.R. at 2a.) Based on Plaintiff's testimony at the hearings on the petition to set aside, the Court found that four pages of the nomination petition, containing 120 signatures, were not circulated by Plaintiff or in his presence and that 11 signatures on a fifth page were gathered outside of Plaintiff's presence. (Morley I , slip op. at 5–6.) The Court, accordingly, held that Plaintiff's circulator affidavits were invalid as to those signatures and struck those 131 signatures. (Id. , slip op. at 4–9, 11.) Plaintiff and Objector Defendants agreed that 428 of the remaining signatures on the nomination petition were valid and that 355 other signatures were invalid, leaving 133 signature line challenges as to which the parties did not agree. (Id. , slip op. at 11–13.) Twenty-seven of those were signatures of registered Democratic voters in the senatorial district, challenged on the ground that their address on their registration did not match the address that they wrote on the nomination petition (commonly referred to as "not-registered-at-address" or "NRA" challenges). (Id. , slip op. at 19.) The other 106 lines were challenged on various non-NRA grounds, including incomplete signature line, inconsistency with the voter's signature on the registration and registration outside the senatorial district. (Id. , slip op. at 13–19.) The Court rejected 69 of the non-NRA challenges, bringing Plaintiff's number of valid signatures to 497, and struck 37 disputed signatures as invalid on non-NRA grounds. (Id. , slip op. at 12–19.)
The NRA challenges turned on the legal issue of whether a non-matching address invalidates an otherwise valid voter signature on a ballot petition. In 2001, the Pennsylvania Supreme Court held in Flaherty that, absent extraordinary circumstances, a person who moved from the address where he was registered to vote and had not filed a change of address was no longer a valid registered voter, and that signatures with non-matching addresses must therefore be stricken. 770 A.2d at 333–34. Although there was conflicting, non-binding case law in this Court as to whether Flaherty remained good law on this issue under current Pennsylvania voter registration laws, compare , e.g. , In re Nomination Petition of Vodvarka (Vodvarka I) , 994 A.2d 25 (Pa. Cmwlth. 2010) (single-judge opinion) with In re Nomination Petition of Brown , 846 A.2d 783 (Pa. Cmwlth. 2004) (single-judge opinion), the Supreme Court had not overruled Flaherty at the time that the petition to set aside was filed and litigated in this Court. On March 31, 2016, this Court held en banc in In re Nomination Petition of Vodvarka (Vodvarka II) , 135 A.3d 246 (Pa. Cmwlth. 2016), that Flaherty remained good law and that signatures with non-matching addresses are invalid.
Because the 27 signatures on Plaintiff's nomination petition challenged on NRA grounds were invalid under the Supreme Court's Flaherty decision and this Court's en banc Vodvarka II decision and Plaintiff therefore had only 497 valid signatures under the existing law, the Court on March 31, 2016 granted Objector Defendants' petition to set aside Plaintiff's nomination petition. (Morley I , slip op. at 19–21.) Plaintiff appealed this Court's decision. On April 19, 2016, after this Court's decision on Plaintiff's nomination petition, the Supreme Court overruled Flaherty "to the extent that it imposes a matching address requirement in connection with signatures on a nominating petition," holding that, under Pennsylvania's current voter registration laws and those laws in effect at the time that Flaherty was decided, a move to a new address without filing a change of address does not invalidate that voter's registration. Vodvarka III , 140 A.3d at 647–51. Based on Vodvarka III , the Supreme Court ruled that the 27 NRA signatures on Plaintiff's nomination petition were valid and reversed this Court's decision removing Plaintiff from the ballot. Morley II , 141 A.3d at 1277.
In accordance with the Supreme Court's direction, this Court on remand ordered that Plaintiff's name be reinstated on the ballot. (Morley I Docket Entries, R.R. at 9a.) Plaintiff did not request that this Court award costs or any other further relief following the reversal and remand. (Id. , R.R. at 9a–10a.) Plaintiff was unsuccessful in his candidacy, receiving only 26% of the vote in the April 26, 2016 primary. (Second Amended Complaint ¶ 14, R.R. at 14a.)
On February 14, 2017, Plaintiff filed this action against Defendants in the common pleas court. Following preliminary objections to the complaint and to an amended complaint, Plaintiff filed a second amended complaint in which he alleged that Objector Defendants and Attorney Defendants filed the petition to set aside his nomination petition at Farnese's instigation and sought damages from all Defendants on the ground that the petition to set aside was filed in bad faith and without probable cause. (Second Amended Complaint ¶¶ 25, 31, 38, 41, 45–47, 51–52, 54, 65–75, 101, 113–16, 136–39 & Prayer for Relief, R.R. at 17a–20a, 22a–23a, 26a–28a, 30a, 39a.) In this six-count complaint, Plaintiff asserted a claim for wrongful use of civil proceedings, claims under 42 Pa. C.S. § 2503(7), (9), and (10), and Section 977 of the Election Code, 25 P.S. § 2937, and claims for abuse of process, conspiracy and concert of action. (Id. ¶¶ 157–208, R.R. at 33a–38a.)
Defendants filed preliminary objections in the nature of demurrer to all of the counts of Plaintiff's second amended complaint. On July 11, 2017, the common pleas court sustained Defendants' preliminary objections and dismissed the action with prejudice on the ground that Defendants had probable cause as a matter of law for their petition to set aside Plaintiff's nomination petition. On July 17, 2017, Plaintiff filed...
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