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Docket No.
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IN RE: PETITION FOR INITIATIVE TO PREVENT THE SALE AND/OR LEASE OF GRACEDALE FILED WITH NORTHAMPTON COUNTY ELECTIONS COMMISSION JANUARY 18, 2011 APPEAL OF GRACEDALE INITIATIVE PETITION COMMITTEE
PETITION FOR ALLOWANCE OF APPEAL FROM MARCH 8, 2012 ORDER OF COMMONWEALTH COURT
ELECTION MATTER
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APPELLANTS BRIEF
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LAWRENCE M. OTTER, ESQUIRE ATTORNEY FOR APPELLANTS PA ATTORNEY ID 31383 PO Box 2131 Doylestown, PA 18901 267-261-2948 215-230-7197 (FAX) email: larryotter@hotmail.com
TABLE OF CONTENTS
I. ORDER IN QUESTION II. OPINION (NOT RPEORTED) III. QUESTIONS PRESENTED FOR REVIEW IV. CONCISE STATEMENT OF FACTS V. CONCISE STATEMENT OF REASONS FOR ALLOWANCE OF APPEAL VI. CONCLUSION APPENDIX COMMONWEALTH COURT DOCKET ENTRIES COMMONWEALTH COURT OPINION MARCH 8, 2012 NORTHAMPTON COUNTY COURT OF COMMON PLEAS OPINION
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CERTIFICATE OF SERVICE
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TABLE OF AUTHORITES
PENNSYLVNAIA CASES A. SUPREME COURT Brannagan v. Great Atlantic & Pacific Tea Co., 352 Pa. 18, 41 A.2d 869 (1945) Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995) Commonwealth v.Wilson, 538 Pa. 485, 649 A.2d 435 (1994) In re Farnese, ___ Pa. ____, 17 A.3d 375 (March 29, 2011) 2, 3, 4, 8, 9
2, 3, 4, 8, 9, 2, 3, 4, 8, 9, 10 3, 5, 6, 8
Quest Land Development Group, LLC. v. Zoning Hearing 3, 4, 9, 10 Board of Lower Heidleberg Township, 594 Pa. 2, 934 A.2d 686 (2007)
B. COMMONWEALTH COURT Kohr v. Lower Windsor Township Board of Supervisors, 910 A. 2d 152, 161 (Pa. Cmwlth 2006) 3
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PETITION FOR ALLOWANCE OF APPEAL FROM MARCH 8, 2012 ORDER OF COMMONWEALTH COURT Notice is hereby given that the Gracedale Petition Initiative Committee, a/k/a Coalition of Alzheimers Families, by its attorney, Lawrence M. Otter, Esquire, hereby petitions for allowance of appeal to the Supreme Court of Pennsylvania from the Commonwealth Court order entered in this matter on the March 8, 2012. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. (Attached hereto as Exhibit A). I. ORDER IN QUESTION AND NOW, this 8th day of March, 2012, the Gracedale Initiative Petition Committees appeal from the order of the Court of Common Pleas of Northampton County, dated August 30, 2011, is quashed. II. OPINION NOT REPORTED See unreported opinion of a three judge panel of the Commonwealth Court at 1715 C.D. 2012. (Attached hereto as Exhibit B). III. QUESTIONS PRESENTED FOR REVIEW
A. Whether the Commonwealth Court erred as a matter of law in denying the appeal which was based upon after discovered evidence of wrongdoing by the Objectors to the GIPC petition initiative? Suggested Answer: In the Affirmative. The Commonwealth Court completely misread the basis of the appeal which was after discovered evidence which was unavailable to GIPC or their counsel after the objectors petition to set aside was dismissed. The Pennsylvania standard on this question is the same in both
To entitle a defendant to a new trial on this ground (afterdiscovered evidence) the evidence must have been discovered since the trial, and be such as could not have been obtained at the trial by the use of reasonable diligence; it must not be simply corroborative or cumulative, or merely to impeach the credibility of a witness; and it must be such as would likely result in a different verdict if a new trial were granted * * *. Such an application is not governed by the strict technical rules applicable to a writ of error, but is addressed to the sound discretion of the court * * * and the exercise of this discretion by the court in refusing a new trial will be reversed on appeal only where it has been clearly abused * * *. Brannagan v. Great Atlantic & Pacific Tea Co., 352 Pa. 18, 41 A.2d 869 (1945). See also: Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995); Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994). The evidence that Counsel for GIPC sought to offer the court dealt with information gleaned from post trial articles in the Morning Call which detailed legal bills from the law firm retained by the County to assist in the sale of Gracedale, the county nursing home. Those billings showed significant time for review of the GIPC petitions for the sole purpose of challenging those petitions. The second article detailed email correspondence among the objectors, OHare and Angle, the alleged private litigants , the county executive John Stoffa and the law firm retained by the county for the sale of Gracedale which clearly showed that tax money was used to assist OHare and Angle prosecution of their petition to set aside. This evidence was first brought to light by the Morning Call on March 14, 2011 (the billing article) and expanded in a subsequent article on April 19, 2001 (the email article). Neither GIPC nor counsel could have discovered this
information by reasonable diligence. This new and after discovered information is neither corroborative nor cumulative. This new and after discovered information would not have been used merely to impeach the credibility of a witness. This new and after discovered information would likely result in a different decision on the issue of an award of attorney fees and costs to GIPC, the winner in the election challenge matter at the heart of this case. See: In re Farnese, ___ Pa. ____, 17 A.3d 375 (March 29, 2011)
B. Whether this case should be remanded to the Commonwealth Court for remand to the Court of Common Pleas of Northampton County, Pennsylvania, with instructions to the Court of Common Pleas to consider whether upon motion of Petitioners, the petition for attorney fees and costs should be opened on the basis of after-discovered evidence, See Brannagan v. Great Atlantic & Pacific Tea Co., 352 Pa. 18, 41 A.2d 869, 870 (1945), and if so, whether upon motion of Petitioners, additional evidence should be received? SUGGESTED ANSWER: In the Affirmative. See: Brannagan v. Great Atlantic & Pacific Tea Co., 352 Pa. 18, 41 A.2d 869 (1945). Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995); Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994); Quest Land Development Group, LLC. V. Zoning Hearing Board of Lower Heidleberg Township, 594 Pa. 2, 934 A.2d 686 (2007).
C. Whether the Commonwealths Court erred in its conclusion that a trial courts denial of reconsideration of a final order is not reviewable on appeal? SUGGESTED ANSWER: In the Affirmative. See: PA RAP 341. Contra: Kohr v. Lower Windsor Township Board of Supervisors, 910 A. 2d 152, 161 (Pa. Cmwlth 2006). But see: Brannagan v. Great Atlantic & Pacific Tea Co., 352 Pa. 18, 41 A.2d 869, 870 (1945); Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995); Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994); Quest Land Development Group, LLC. V. Zoning Hearing Board of Lower Heidleberg Township, 594 Pa. 2, 934 A.2d 686 (2007).
D. Whether the Commonwealth Court elevated form over substance in determining that the appeal was untimely when the basis of the appeal was after discovered evidence that was covered up by the original objectors and unavailable to the Petitioners and their counsel at the time of the original hearing on its petition for costs and fees as the winner of an election challenge mater?. SUGGESTED ANSWER: In the Affirmative. See: Brannagan v. Great Atlantic & Pacific Tea Co., 352 Pa. 18, 41 A.2d 869, 870 (1945); Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995); Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994); Quest Land Development Group, LLC. V. Zoning Hearing Board of Lower Heidleberg Township, 594 Pa. 2, 934 A.2d 686 (2007).
IV.
CONCISE STATEMENT OF FACTS On February 11, 2001, as the prevailing party in an election challenge matter,
Gracedale Initiative Petition Committee, pursuant to 25 P.S. 2937, filed a motion for an award of attorney fees and expenses for work performed by its attorney in this action prior to the verdict in its favor on February 9, 2011. The Common Pleas Court held a hearing on the matter on March 4, 2011 and subsequently denied the motion. Unbeknownst to either the Committee or the Court at the time of the hearing was the fact that the County Executive secretly assisted in the preparation of the petition challenge by having a law firm paid for with tax money review 300 of the 507 page petition and thousands of signatures and prepare a page and line challenge to over 1000 signatures submitted by the committee which became part of the OHare/Angle filing.. Eleven (11) days later, this secret was exposed on March 15, when The Morning Call published an article which revealed for the first time the illicit use of tax money authorized by the County Executive John Stoffa and his minions to assist Objectors and private citizens OHare and Angle in furtherance of the filing of their Petition to Set
Aside the Initiative. See :- Did taxpayers fund Gracedale petition fight? The article recounts various January 2011 billings by the law firm of Eckert Seamans specifically for the review of petition signatures submitted to the Board of Elections by GIPC. The labor intensive review of petition signatures for defects is fundamental for any petition challenge. The firm billed for 80 hours for signature reviews at a cost of $10,800.00. This bill was approved by John Conklin and John Stoffa and paid by the County of Northampton. On March 29, 2011, the Supreme Court handed down its decision In re: Farnese, ___ Pa.____, 17 A.3d 375 (March 29, 2011) which outlines the standards for imposition of costs in an election case. On April 12, 2011, the Commonwealth Court upheld the decision of lower Court on the petition challenge. See: Docket No: 273 C.D. 2011. On April 20, 2011, the Morning Call published another story about the Gracedale matter but this time it was based upon email correspondence between OHare, Stoffa, Ron Angle, John Conklin and Mark Stewart, Esquire. The article states, inter alia: Executive John Stoffa's administration and his lawyers worked with blogger Bernie O'Hare on his and Councilman Ron Angle's failed attempt to keep Northampton County voters from having a say on the sale of Gracedale nursing home. An attorney from Eckert Seamans, the firm the county hired to help privatize Gracedale, charged the county about $15,000 to revise Angle and O'Hare's court challenge and to produce evidence submitted as Exhibit A in the challenge. On January 20, 2011 at 11:46 PM, Eckert Seamans provided Bernard OHare with a spread sheet that then became EXHIBIT A and was attached to his and
Angles petition to set aside the Initiative. On January 24, 2011 at 6:54PM significant revisions of the OHare Angle Challenge petition were emailed from Mark Stewart to Bernie OHare. Those revisions and the Exhibit A spreadsheet were incorporated into the document filed with this Court on January 25, 2011. Regarding Exhibit A, John Stoffa had the audacity to suggest to the Morning Call that: "It was public information," Stoffa said. "We would have given it to anybody who asked for it." (Emphasis added). None of this information was known or available to GIPC or its counsel at the time of the March 4, 2011 hearing on the original motion. On April 28, 2011, GIPC/COAF filed a motion for reconsideration of the original denial of attorney fees and costs in light of the information gleaned from the Morning Call, the original documents and the Supreme Court Farnese decision. On May 5, 2011, GIPC/COAF then amended its motion which is the subject matter of this appeal, to include a surcharge action but the surcharge was later withdrawn without prejudice on July 1, 2011. A conference on the motion was held on August 18, 2011. Judge Baratta completely misconstrued the facts, the Election Code and the Farnese case by focusing on the partial success of the OHare/Angle petition challenge and determining that some of the merits of the challenge precluded him from awarding attorney fees. The Judge below noted that the objectors were fairly successful with regard to the signatures to these signatures listed in the petition. The Trial Court below seemed to totally disregard the fact that the Objectors OHare and Angle lost, and GIPC won, which is a prerequisite to bringing a motion for attorney fees and costs under the Election Code. See: 25 P.S. 2937; In Re Farnese, supra.
The Court below confused the reconsideration motion for GIPCs counsel fees and costs against OHare and Angle with a surcharge against county officials for illegal use of tax money for partisan political purposes, specifically a petition challenge to the Gracedale Initiative Petition, styling it a hybrid surcharge matter. (The surcharge action was withdrawn on July 1, 2011. The Court below repeatedly commingled the surcharge action with the motion for reconsideration. On August 30, 2011, the Court formally denied the reconsideration on the motion for attorney fees and costs related to the election matter. The Court stated We note that there were no new allegations proffered by counsel related to vexatious, obdurate, dilatory or bad faith actions by OHare/Angle in bringing or prosecuting their challenge to the Petition Initiative. On September 8, 2011, GIPC/COAF appealed that decision to Commonwealth Court. On March 8, 2012, the Commonwealth Court quashed the appeal. On Monday March 19, 2012, GIPC appealed to the Supreme Court.
V.
CONCISE STATEMENT OF REASONS FOR ALLOWANCE OF APPEAL The Commonwealth Court completely misread the basis of the appeal which was after discovered evidence which was unavailable to GIPC or their counsel after the objectors petition to set aside was dismissed. The Pennsylvania standard on this question is the same in both the criminal and civil context. This court stated:
To entitle a defendant to a new trial on this ground (afterdiscovered evidence) the evidence must have been discovered since the trial, and be such as could not have been obtained at the trial by the use of reasonable diligence; it must not be simply corroborative or cumulative, or merely to impeach the credibility of a witness; and it must be such as would likely result in a different verdict if a new trial were granted * * *. Such an application is not governed by the strict technical rules applicable to a writ of error, but is addressed to the sound discretion of the court * * * and the exercise of this discretion by the court in refusing a new trial will be reversed on appeal only where it has been clearly abused * * *. Brannagan v. Great Atlantic & Pacific Tea Co., 352 Pa. 18, 41 A.2d 869 (1945). See also: Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995); Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994). The evidence that Counsel for GIPC sought to offer the court dealt with information gleaned from post trial articles in the Morning Call which detailed legal bills from the law firm retained by the County to assist in the sale of Gracedale, the county nursing home. Those billings showed significant time for review of the GIPC petitions for the sole purpose of challenging those petitions. The second article detailed email correspondence among the objectors, OHare and Angle, the alleged private litigants , the county executive John Stoffa and the law firm retained by the county for the sale of Gracedale which clearly showed that tax money was used to assist OHare and Angle prosecution of their petition to set aside. This evidence was first brought to light by the Morning Call on March 14, 2011 (the billing article) and expanded in a subsequent article on April 19, 2001 (the email article). On March 29, 2011, this Court decided In re Farnese, ___ Pa. ____, 17 A.3d 375 (March 29, 2011), which established the definitive standards for an award of counsel fees and costs in an election challenge case.
Neither GIPC nor counsel could have discovered this post trial information by reasonable diligence. This new and after discovered information is neither corroborative nor cumulative. This new and after discovered information would not have been used merely to impeach the credibility of a witness. This new and after discovered information would likely result in a different decision on the issue of an award of attorney fees and costs to GIPC, the winner in the election challenge matter at the heart of this case. This case should be remanded to the Commonwealth Court for remand to the Court of Common Pleas of Northampton County, Pennsylvania, with instructions to the Court of Common Pleas to consider whether upon motion of Petitioners, the petition for attorney fees and costs should be opened on the basis of after-discovered evidence, See Brannagan v. Great Atlantic & Pacific Tea Co., 352 Pa. 18, 41 A.2d 869, 870 (1945), and if so, whether upon motion of Petitioners, additional evidence should be received. Id.. Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995); Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994); Quest Land Development Group, LLC. V. Zoning Hearing Board of Lower Heidleberg Township, 594 Pa. 2, 934 A.2d 686 (2007). The Commonwealth Courts determination that one may not appeal the trail courts denial of reconsideration of a final order is at odds with the plain meaning of PA RAP 341 and the decisions of this Court . See Brannagan v. Great Atlantic & Pacific Tea Co., 352 Pa. 18, 41 A.2d 869, 870 (1945); Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995);
Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994); Quest Land Development Group, LLC. V. Zoning Hearing Board of Lower Heidleberg Township, 594 Pa. 2, 934 A.2d 686 (2007).
VI.
CONCLUSION Appellant and Petitioners herein respectfully request that its Petition for Allowance of Appeal be granted for all of the above stated reasons.
Respectfully submitted,
__________________________ LAWRENCE M. OTTER, ESQUIRE ATTORNEY FOR APPELLANTS PA ATTORNEY ID 31383 PO Box 2131 Doylestown, PA 18901 267-261-2948 215-230-7197 (FAX) EMAIL: larryotter@hotmail.com
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IN THE SUPREME COURT OF PENNSYLVANIA IN RE: PETITITON FOR INITIATIVE TO PREVENT THE SALE AND/OR LEASE OF GRACEDALE FILED WITH NORTHAMPTON COUNTY ELECTIONS COMMISSION JANUARY 18, 2011 : : DOCKET NO: : :Election Matter
CERTIFICATE OF SERVICE This is to certify that a copy of the attached Notice of Appeal has been served on petitioners of record and the Court by email and USPS first class mail or as otherwise noted: Commonwealth Court 601 Commonwealth Ave. Harrisburg, PA Bernie OHare
bohare5948@aol.com
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9:58 A.M.
Commonwealth Docket Sheet Docket Number: 1715 CD 2011 Page 1 of 4 March 15, 2012
CAPTION
In Re: Petition for Initiative to Prevent the Sale and/or Lease of Gracedale Filed with Northampton County Elections Commission January 18, 2011
Appeal of: Gracedale Initiative Petition Committee, a/k/a Coalition of Alzheimer's Families
CASE INFORMATION
Initiating Document: Case Status: Case Processing Status: Journal Number: Case Category:
Completed
Case Type(s):
Election
RELATED CASES
Docket No / Reason 269 CD 2011 Same Record Below 273 CD 2011 Same Record Below
COUNSEL INFORMATION Appellant Gracedale Initiative Petition Committee Pro Se: No IFP Status: Attorney: Otter, Lawrence M. Address: P.O. Box 2131 Doylestown, PA 18901 Phone No: (215) 230-5330 Appellant Coalition of Alzheimer's Families Pro Se: No IFP Status: Attorney: Otter, Lawrence M. Address: P.O. Box 2131 Doylestown, PA 18901 Phone No: (215) 230-5330
Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets.
9:58 A.M.
Commonwealth Docket Sheet Docket Number: 1715 CD 2011 Page 2 of 4 March 15, 2012
COUNSEL INFORMATION Appellee O'Hare, Bernie Pro Se: Yes IFP Status: Pro Se: O'Hare, Bernie Address: 68 South Main Street Nazareth, PA 18064 Phone No: Appellee Northampton County Election Board Pro Se: No IFP Status: Attorney: Spadoni, Christopher T. Address: Northampton Co. Election Board 669 Washington Street Easton, PA 18042 Phone No: Appellee Angle, Ron Pro Se: Yes IFP Status: Pro Se: Angle, Ron Address: 669 Washington Street Easton, PA 18042 Phone No:
Fax No:
Fax No:
Fax No:
FEE INFORMATION
Fee Dt 09/08/2011
Receipt No 2011-CMW-H-002029
Court Below: County: Order Appealed From: Documents Received: Order Type: OTN(s): Lower Ct Docket No(s): Lower Ct Judge(s):
Northampton County Court of Common Pleas Northampton Division: August 30, 2011 Judicial District: September 14, 2011 Notice of Appeal Filed: Order 48-CV-2011-755 Election Matter Baratta, Stephen G. Judge
ORIGINAL RECORD CONTENT
BRIEFING SCHEDULE Appellant Gracedale Initiative Petition Committee Brief Appellee Angle, Ron Brief
Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets.
9:58 A.M.
Commonwealth Docket Sheet Docket Number: 1715 CD 2011 Page 3 of 4 March 15, 2012
BRIEFING SCHEDULE Appellant Gracedale Initiative Petition Committee Brief Appellee Angle, Ron Brief
Filed Date
September 8, 2011
Docket Entry / Filer Notice of Appeal Filed Gracedale Initiative Petition Committee Coalition of Alzheimer's Families
Representing
Exit Date
October 6, 2011
Certificate of Service Filed Otter, Lawrence M. Otter, Lawrence M. Notice of Docketing Appeal Exited Commonwealth Court Filing Office
Gracedale Initiative Petition Committee Appellant Coalition of Alzheimer's Families Appellant 10/07/2011
October 7, 2011
Docketing Statement Filed Otter, Lawrence M. Otter, Lawrence M. Trial Court Record Received Northampton County Court of Common Pleas
Appellant's Reproduced Record Filed Otter, Lawrence M. Gracedale Initiative Petition Committee Appellant No Brief to be Filed by Appellee Appellee
Northampton County Election Board Document Name: per letter dated 12/7/2011
December 28, 2011
Appellee's Brief Filed O'Hare, Bernie Angle, Ron Submitted on Brief Per Curiam
9:58 A.M.
Commonwealth Docket Sheet Docket Number: 1715 CD 2011 Page 4 of 4 March 15, 2012
DOCKET ENTRY
Filed Date
March 8, 2012
Representing
Participant Type
Document Name: Memorandum Opinion (6 pages) Comment: The Gracedal Initiative Petition Committee's appeal from the order of the Court of Common Pleas of Northampton County is QUAHSED.
SESSION INFORMATION
The Honorable Dan Pellegrini The Honorable Patricia A. McCullough The Honorable Anne E. Covey
DISPOSITION INFORMATION
Final Disposition: Related Journal No: Category: Disposition: Disposition Comment: Dispositional Filing: Filed Date:
Yes Disposed Before Decision Quashed Judgment Date: Disposition Author: Disposition Date: Pellegrini, Dan March 8, 2012
The Gracedal Initiative Petition Committee's appeal from the order of the Court of Common Pleas of Northampton County is QUAHSED. Memorandum Opinion Filing Author: Pellegrini, Dan 3/8/2012 12:00:00AM
Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets.