IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delaware County Republican :

Executive Committee :

:

 v. : No. 125 C.D. 2021

: Argued: November 18, 2021

Board of Elections :

:

Appeal of: Gregory Stenstrom and :

Leah Hoopes :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: December 13, 2021

Gregory Stenstrom and Leah Hoopes (Observers) appeal the Order of 

the Delaware County Court of Common Pleas (trial court) denying Observers’ 

Emergency Petition to Intervene in an action filed by the Delaware County 

Republican Executive Committee (Committee), and denying Observers’ Emergency 

Petition for Sanctions filed against the Delaware County Board of Elections (Board) 

for its purported violation of a trial court order and the provisions of the 

Pennsylvania Election Code (Election Code).1 We affirm.

On November 4, 2020, the Committee filed an emergency petition in 

the trial court requesting increased access at the Board’s office for its party 

representatives designated as ballot observers, including Observers, and for 

1 Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.
2

designated seating areas for its observers during the pre-canvass and canvassing of 

ballots after the November 3, 2020 General Election. Following a hearing, the trial 

court issued an order granting the following relief:

1. Four [o]bservers in total (2 observers from the 

Republican Party, or affiliated candidates, and 2 observers 

from the Democratic Party, or affiliated candidates) are 

permitted to observe the resolution area [in the Board’s 

office] at all hours while ballots are being resolved.

2. Two observers (1 representing the Republican Party, or 

affiliated candidates, and 1 representing the Democratic 

Party, or affiliated candidates), are permitted to observe 

the sorting machine area [in the Board’s office] at all times

while the machine is in use. However, all observers shall 

stand back while the machine is in use due to safety 

concerns.

3. At two-hour intervals, two observers in total (1 

representing the Republican Party, or affiliated candidates, 

and 1 representing the Democratic [P]arty, or affiliated 

candidates) are permitted to enter the ballot room [in the 

Board’s office], to examine the room; however, [they] are 

not permitted to examine the physical ballots contained 

within the room, individually. They must be escorted by 

a member of the [Board] Staff with the time not to exceed 

five minutes each visit.

4. Any observer may not interfere[] with the process, nor 

may any observer object to individual ballots.

Reproduced Record (R.R.) at 34-35.2 The Committee did not appeal the trial court’s 

order to this Court or seek its modification or sanctions of any kind based on the

purported violation of its provisions. See, e.g., Section 5505 of the Judicial Code, 

2 Observers filed a reproduced record with this Court, but failed to comply with Pa.R.A.P. 

2173, which requires that reproduced record pages be numbered followed by a small “a.” 

Accordingly, this Court references the document consistent with the pagination contained in the 

Reproduced Record.
3

42 Pa. C.S. §5505 (“Except as otherwise provided or prescribed by law, a court upon 

notice to the parties may modify or rescind any order within 30 days after its entry 

. . . if no appeal from such order has been taken or allowed.”); Section 5571(b) of 

the Judicial Code, 42 Pa. C.S. §5571(b) (“[A]n appeal . . . from a court to an 

appellate court must be commenced within 30 days after the entry of the order from 

which the appeal is taken, in the case of an interlocutory or final order.”).

Forty-eight days after the trial court entered its order, on December 22, 

2020, Observers and Dasha Pruett (Candidate), a candidate for the United States 

House of Representatives (U.S. House),

3

filed the instant Emergency Petition to 

Intervene4 and the Emergency Petition for Sanctions.5 On January 12, 2021, the trial 

court issued an Opinion and Order denying the Emergency Petition to Intervene and 

3 Candidate is not a party to the instant appeal.

4

See Pa.R.Civ.P. 2327 (“At any time during the pendency of an action, a person not a party 

thereto shall be permitted to intervene therein, subject to these rules . . . .”); Pa.R.Civ.P. 2329(2) 

and (3) (“[A]n application for intervention may be refused, if . . . the interest of the petitioner is 

already adequately represented; or . . . the petitioner has unduly delayed in making application for 

intervention . . . .”).

5

See Section 1806 of the Election Code, 25 P.S. §3506 (“Any member of a county board 

. . . who shall refuse to permit any overseer or watcher . . . to be present . . . at any . . . computation 

and canvassing of returns of any . . . election, . . . shall be guilty of a misdemeanor, and, upon 

conviction thereof, shall be sentenced to pay a fine not exceeding [$1,000.00], or to undergo an 

imprisonment not exceeding [1] year, or both, in the discretion of the court.”); Section 4133 of the 

Judicial Code, 42 Pa. C.S. §4133 (“Except as otherwise provided by statute, the punishment of 

commitment for contempt provided in [S]ection 4132 (relating to attachment and summary 

punishment for contempts) shall extend only to contempts committed in open court. All other 

contempts shall be punished by fine only.”). See also Section 1642(a) and (c) of the Election Code, 

added by the Act of October 4, 1978, P.L. 893, as amended, 25 P.S. §3260b(a), (c) (“The Attorney 

General shall have prosecutorial jurisdiction over all violations committed under this act . . . [and 

t]he district attorney of any county in which a violation occurred has concurrent powers and 

responsibilities with the Attorney General over such violations.”); Pa.R.Crim.P. 506(A) (“When 

the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the 

Commonwealth, who shall approve or disapprove it without unreasonable delay.”).
4

the Emergency Petition for Sanctions with prejudice,

6 and Observers filed the instant 

appeal of the trial court’s order.

On appeal,7 Observers claim that the trial court erred in: (1) 

determining that they lacked standing to intervene; (2) determining that they acted 

with undue delay implicating the doctrine of laches; (3) concluding that their 

Petitions are not supported by a “scintilla” or “smidgen” of legal merit or that their 

claims are “baseless”; and (4) concluding that the Supreme Court opinion in In re 

Canvassing Observation is controlling in this matter or that their lack of citation to 

that opinion supported denying the requested relief.8

6 The trial court dismissed the Petitions on the following bases: (1) there was no active 

case or controversy in which Observers may intervene and the Committee adequately represented 

their interests in the proceedings in which the trial court issued its November 4, 2020 order; (2) 

the trial court lost jurisdiction over the matter 30 days after issuing its November 4, 2020 order 

and Observers neither sought to intervene or enforce the order, or appeal the order to this Court, 

within that 30-day period; (3) the doctrine of laches precluded the grant of the requested relief; (4) 

as part of the requested relief, Observers sought an order, declaration, or injunction precluding the 

winning U.S. House candidate from exercising official authority, but Observers failed to join that 

candidate as an indispensable party; (5) the matter was moot based on the Pennsylvania Supreme 

Court opinion in In re Canvassing Observation, 241 A.3d 339, 350-51 (Pa. 2020), upholding the 

limitations on observers imposed by the Philadelphia County Board of Elections; and (6) 

Observers sought discretionary relief from the trial court, but had unclean hands by failing to 

apprise the court of the Supreme Court’s opinion in In re Canvassing Observation. See Brief of 

Appellants, Exhibit A at 1-11.

7 This Court’s scope of review from the denial of a petition to intervene is limited to 

determining whether the trial court abused its discretion or committed an error of law. Wells Fargo 

Bank, N.A. v. James, 90 A.3d 813, 815 n.5 (Pa. Cmwlth. 2014). Likewise, this Court’s scope of 

review when considering an appeal from the denial of a motion for civil contempt is limited to 

considering whether the trial court abused its discretion or committed an error of law. American 

Federation of State, County, and Municipal Employees, District Council 88 v. Lehigh County, 541 

A.2d 46, 47 (Pa. Cmwlth. 1988).

8 On March 10, 2021, the Board filed a Motion to Quash or Dismiss Appeal and for Award 

of Fees in which it asserts that this Court lacks subject matter jurisdiction because Observers filed 

their Petition to Intervene more than 10 days after the trial court issued its January 12, 2021 order, 

(Footnote continued on next page...)
5

and because the trial court’s order denying intervention is a non-appealable interlocutory order. 

However, because the instant appeal flows from the trial court’s order denying Observers’ 

Emergency Petition to Intervene and Emergency Petition for Sanctions, and not a proceeding 

initiated under the provisions of the Election Code, the instant appeal is timely and we have 

jurisdiction over the appeal because Observers’ notice of appeal was filed within 30 days of the 

trial court’s final order. See Section 5571(a) of the Judicial Code, 42 Pa. C.S. §5571(a) (“The time 

for filing an appeal . . . in . . . the Commonwealth Court shall be governed by general rules.”); 

Pa.R.A.P. 903(a) (“[T]he notice of appeal required by [Pa. R.A.P.] 902 (manner of taking appeal) 

shall be filed within 30 days after the entry of the order from which the appeal is taken.”). 

Additionally, because the trial court’s order disposes of all claims against all parties, it is an

appealable final order. See Section 5105(a)(1) of the Judicial Code, 42 Pa. C.S. §5105(a) (“There 

is a right of appeal . . . from the final order (including an order defined as a final order by general 

rule) of every . . . [c]ourt . . . of this Commonwealth to the court having jurisdiction of such 

appeals.”); Pa.R.A.P. 341(b)(1) (“A final order . . . disposes of all claims and of all parties[.]”).

Finally, the Board seeks the award of attorneys’ fees under Pa.R.A.P. 2744(1), which states 

that “an appellate court may award as further costs damages as may be just, including . . . a 

reasonable counsel fee . . . if it determines that an appeal is frivolous or taken solely for delay or 

that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or 

vexatious.” However, as this Court has explained:

The imposition of counsel fees is solely within the discretion of the 

court. In determining the propriety of such an award, the court is 

“ever guided by the principle that an appeal is not frivolous simply 

because it lacks merit. Rather, it must be found that the appeal has 

no basis in law or fact.” Such a high standard is imposed “in order 

to avoid discouraging litigants from bringing appeals for fear of 

being wrongfully sanctioned.”

Canal Side Care Manor, LLC v. Pennsylvania Human Relations Commission, 30 A.3d 568, 576 

(Pa. Cmwlth. 2011) (citations omitted).

Upon review of the relevant considerations, we exercise our discretion and decline to award 

attorneys’ fees in this case. Ultimately, the instant matter flows from the trial court’s November 

4, 2020 order directing how Observers may participate in the pre-canvass and canvassing of ballots 

following the contested November 3, 2020 General Election. Clearly, the necessity of such an 

order demonstrates the high level of interest and participation by all involved in the electoral 

process in that election. Although we have determined that the claims raised in this appeal are 

without merit, we do not believe that the instant appeal meets the high standard outlined above to 

support an award of attorneys’ fees. Accordingly, based on the foregoing, we deny the Board’s 

Motion to Quash or Dismiss Appeal and for Award of Attorneys’ Fees.
6

However, upon review, we have determined that this matter was ably 

disposed of in the comprehensive and well-reasoned Order and Opinion of the 

Honorable John F. Capuzzi, Sr., disposing of Observers’ Emergency Petition to 

Intervene and the Emergency Petition for Sanctions. Accordingly, we affirm the 

trial court’s order on the basis of the Order and Opinion in Delaware County 

Republican Executive Committee v. Board of Elections (C.P. Del., No. CV-2020-

007523, filed January 13, 2021).9

MICHAEL H. WOJCIK, Judge

Judge Covey did not participate in the decision of this case.

Judge Fizzano Cannon did not participate in the decision of this case.

Judge Crompton did not participate in the decision of this case.

9 On November 17, 2021, prior to argument, the Board filed an unopposed Application for 

Leave to File Exhibit to supplement its appellate brief with an exhibit that is referenced in the brief, 

but was inadvertently left off of the brief that was filed in this Court. The Board’s unopposed 

Application is granted. See, e.g., Commonwealth v. Gambal, 561 A.2d 710, 714 (Pa. 1989) (“Our 

Rules of Appellate Procedure provide that they are to be ‘liberally construed to secure the just, 

speedy and inexpensive determination of every matter to which they are applicable.’ Pa.R.A.P. 

105(a). Allowing parties to amend their briefs permits review of the discretionary aspects of 

sentencing to proceed in an efficient and just manner.”).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delaware County Republican :

Executive Committee :

:

 v. : No. 125 C.D. 2021

: 

Board of Elections :

:

Appeal of: Gregory Stenstrom and :

Leah Hoopes :

O R D E R

AND NOW, this 13th day of December, 2021, the Board of Elections’ 

unopposed Application for Leave to File Exhibit is GRANTED. The order of the 

Delaware County Court of Common Pleas dated January 12, 2021, is AFFIRMED. 

The Board of Elections’ Motion to Quash or Dismiss Appeal and for Award of 

Attorneys’ Fees is DENIED.

__________________________________

MICHAEL H. WOJCIK, Judge