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 a nd Leah Hoopes ( Observers ) appeal the O rder 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 Obse rvers’ 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 th e pre

- canvass and canvassing of

ballots after the November 3 , 202 0 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 resol ved

.

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 Obse rvers filed a reproduced record with this Court, but failed to comply with P a.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 cont ained in the

R eproduced R ecord

.3

42 Pa. C.S. §5505 (“ Except as otherwise provided or presc ribed 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,

2 020, Observers and Dasha Pruett (Candidate) , a c andidate for the United States

House of Representatives ( U.S. House )

, 3 filed the instant Emergency Petition to

Intervene 4 and the Emergency Petition for Sanctions. 5 On January 12, 2021, the trial

court is sued 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 contemp ts) 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 distri ct 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 o rder

.

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 P etitions on the following bases: (1) there was no active case or controversy in which Observers may intervene and the C ommittee adequately represented their interests in the proceedings in which the trial court issued its November 4, 202 0 order; (2) the trial court lost jurisdiction over the matter 30 days after issu ing its November 4, 2020 order and Observers neither soug ht 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 inju nction 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 Observ ation

, 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 1 0 days after the trial court i ssued 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 a nd 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 c ourt’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

. . . o f this Commonwealth to the court having juris diction 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 furthe r 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

vexat ious. ” 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 impose d “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 th e relevant considerations, we exercise our discretion and decline to award attorneys’ fees in this case

. Ultimately , t he instant matter flows from the trial court’s November 4, 2020 order directing how Observers may participate in the pre

- canvass and canv assing 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 det ermined 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 Qu ash 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 O pinion of the

Honorable John F. Capuzzi, Sr.

, disposing of Observers’ Emergency Petition to

Intervene and the Emergency Petitio n 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 wa s 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 ‘l iberally co nstrued 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 Stens trom and : Leah Hoopes :

O R D E R

AND NOW, this 13 th day of December , 20 2 1, 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

Attorne ys’ Fees is DENIED.

__________________________________ MICHAEL H. WOJCIK, Judge