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IN THE COURT OF COMMON PLEAS

OF DAUPHIN COUNTY
IN RE: NOMINATION PETITION OF
ALAN KENNEDY-SHAFFER
CANDIDATE FOR THE
DEMOCRATIC NOMINATION FOR
HARRISBURG CITY COUNCIL
FOR A FOUR YEAR TERM
OBJECTION OF JAN PROSSEDA

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NO. 2015-CV-2037-EL

MEMORANDA PETITION TO SET ASIDE NOMINATION PETITION AND


OBJECTIONS TO NOMINATION PETITION

1. STATEMENT OF THE CASE


On March 3, 2015 and March 10, 2015, Alan Kennedy-Schaffer (hereinafter KennedySchaffer) filed a Nomination Petition to have his own name certified for nomination at the 2015
Democratic Primary Election as a candidate for Council for the City of Harrisburg. The
Nomination Petition consisted of twelve (12) sheets and accompanying documentation. The
required Affidavit of Circulator for sheets 1-5 and 7-12 are notarized On March 1, 2015, March 7,
2015 and March 9, 2015 by Alan Kennedy-Shaffer, the Candidate himself, identified as a notary
public. The Candidate is a commissioned Notary in the Commonwealth of Pennsylvania, from
September 23, 2008 to September 23, 2012 and November 27, 2012 to the present. All of these
sheets also include a Candidates Affidavit subsequently signed and notarized on March 2, 2015
by Christopher A. Gow, a commissioned Cumberland County notary and Metro Bank sales
representative, or on March 9, 2015 by Mary E. Smith, a commissioned mobile notary in Dauphin
County, who apparently charges for her services. The Respondent publically announced his
intention to seek the office as a member of Harrisburg City County. He also caused petitions to be

circulated for this position. The position sought provides or a salary of approximately
$20,000.00. The circulators of the pages included Stanley H. Gruen, a business partner of the
Respondent, Destini Hodges, his running mate and his partner in a community advocacy group,
Camille Erice, and Jaime Johnson. The required oath is:
Before me, the undersigned authority in and for said State and County, personally
appeared the undersigned, who, being duly sworn according to law, did depose
and say that he or she is a qualified elector duly registered and enrolled as a
member of the political party referred to in this petition, that his or her residence
is as set forth below; that the signed to the forgoing petition signed the same with
full knowledge of the contents thereof; that their respective residences are
correctly stated therein; that they all reside in the said political district; that each
signed on the date set opposite his or her name; and that, to the best of the
deponents knowledge and belief, the signers are qualified, registered and enrolled
electors of the designated party of the aforesaid political district . . .
The Respondent is not a first time candidate, is a licensed attorney and notary and is a
sophisticated party presumed to know the law. He has indicated that he is only prohibited from
notarizing his own signature, which is contrary to his training, current Pennsylvania law, the
newly enacted statute and regulations and military guidelines. Further, in addition to this more
generalized notice, prior to notarizing his own petitions the Respondent had specifically inquired
with the Dauphin County Elections and Voter Registration Office about the propriety of
notarizing his own petitions and was cautioned against such conduct.
2. STATEMENT OF ARGUMENT
The current Pennsylvania Notary Public Law provides that [n]o notary public may act as
such in any transaction in which he is a party directly or pecuniarily interested. 57 P.S. 165
(2014); See also, Revised Uniform Law on Notarial Act, Act of Oct. 9, 2013, P.L. 609, No. 73,
2013 Act 73, 304(b)(1) ([a] notarial officer may not perform a notarial act with respect to a
record in which the notarial officer or the notarial officers spouse has a direct or pecuniary
interest.) (effective 180 days after notice to be published in the Pennsylvania Bulletin); Draft

Regulation to Implement RULONA, 167.43, available at http://www.insurance.pa.gov/portal/


server.pt/community/laws/12628 (last visited March 16, 2015) ([a] direct or pecuniary interest
includes an interest in the transaction or record which results, directly or indirectly, in actual or
potential gain or advantage for the notary, financial or otherwise); Army Regulation 27-55, 3-3
(a)(6) (military notaries may not (7) Perform a notorial act or take an acknowledgement when
the notary is a party to, or directly or pecuniarily interested in the transaction).
Both the current state statute and the more stringent, but not yet applicable, amended statute
and regulations make clear that it is improper for a notary attest to a transaction in which he or she
has an interest. The Pennsylvania Commonwealth Court has already addressed the exact question
of a candidate attesting to a circulator affidavit on his own petitions in the Berg case. In re
Nominating Petition of Philip J. Berg, 971 A.2d 486 (Pa. Commw. 2009). In Berg, the court
distinguished several prior cases, where someone other than the candidate was the notary. The
Court then stated the obvious that [a] candidate has a direct interest in his own candidacy, for
which the notarization of the circulators affidavits on the Nomination Petition is a necessity and
in notarizing circulator affidavits on his own petition he would be advancing his own interest. Id.
at 450; Contra, In re Nomination Petition of John P. Kersten, 575 A.2d 542 (Pa 1990) (where a
non-candidate circulator notarized on affidavit and then alleged god faith because she did not
have a financial interest in the outcome of the election). The court then distinguished several
cases involving mere errors and technicalities from actions that amounted to an omission or
complete absence of fundamental measures leading to a complete nullity, presumably do to an
absence of a core statutory measure to prevent fraud and to preserve the integrity of the election
process. Id. at 451-452; In re Nomination Petition of Tony Payton, Jr., 945 A.2d 162 (Pa. Commw
2008) (absence of notary affidavit left nothing to amend); In re Nomination Petition of Keith M.

Cianfrani, 359 A.2d 383 (Pa. 1976) (when affidavit was taken the sworn facts were not true and
such a defect could not be cured by subsequent conduct also equating false affidavit s and a
failure to execute); In re Bunk, 548 A.2d 1287 (Pa. Commw. 1988) (notarized petition that also
circulated was deemed improper). The court noted the notary and no authority to complete the
affidavit and pointed out this was not a technical error because the pages lacked any legal
affidavit and as such was a nullity. Id. at 452. The court noted there was no good faith or due
diligence in such circumstances and foreclosed such argument stating it would be difficult to
conclude that [such a notary/candidate] acted with due diligence because, then [such a
notary/candidate] took the oath of office as a notary public, he [is] legally charged with knowing
the requirements of acting as notary public under the Notary Public Law. Id.
Notarization of circulator affidavits are essential to the Election Code and seek to avoid
numerous improprieties sought to be regulated by the legislature. It creates consequences for the
unscrupulous person that may might pull names from a phonebook, that would use deception in
securing signatures, that might circulate early, that might hold petitions for subsequent elections
or that would allow fictitious names to be used (the Nader case notes several fictional characters
who signed petitions including Mickey Mouse and Fred Flinstone). The requirement also
insures there is adequate support for a candidate and avoids voluminous Russian style ballots with
a myriad of marginal candidates. It has been stated that Election Code requirements "relating to
the form of nominating petitions and the accompanying affidavits are not mere technicalities but
are necessary measures to prevent fraud and to preserve the integrity of the election process. The
requirements of sworn affidavits are to insure the legitimacy of information crucial to the election
process." In re Petition of Cianfrani, 359 A.2d 383 (Pa. 1976). It has been further stated that the
policy of the liberal reading of the Election Code cannot be distorted to emasculate those

requirements necessary to assure the probity of the process. In re Nomination Petition of Ford,
994 A.2d 9 (Pa. Commw. 2010). Permitting this most obvious error would completely deprive the
legislature of the effect of the statutory language and would render this legislative requirement
itself a nullity. No deterrent effect can remain when even the most egregious violation of the
statute is permitted. Such a precedent would also potentially apply in other contexts and erode the
purpose of the office of notary public in Pennsylvania, i.e. to have neutral and detached officer to
serve as trustworthy public witnesses. Further, this is a candidate and trained lawyer/notary not a
layman or unsophisticated marginal figure in the campaign. Permitting such purposefully
indifferent conduct in spite of an obvious legislative prohibition would undermine the confidence
of the voters in the elector process the perception would have to be that if a politician can
notarize their own petitions for a new job, even the voters signatures are not necessary anymore;
it would create the perception that there are no rules in the political process and anything goes.

RESPECTFULLY SUBMITTED,
BRENNAN LAW OFFICES

Dated: March 27, 2015

_____________________________
Timothy Brennan
ID# 91798
Brennan Law Offices
2030 Tilghman Street, Suite 203
Allentown PA 18104
(610) 841-4020

IN THE COURT OF COMMON PLEAS


OF DAUPHIN COUNTY
IN RE: NOMINATION PETITION OF
ALAN KENNEDY-SHAFFER
CANDIDATE FOR THE
DEMOCRATIC NOMINATION FOR
HARRISBURG CITY COUNCIL
FOR A FOUR YEAR TERM
OBJECTION OF JAN PROSSEDA

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NO. 2015-CV-2037-EL

CERTIFICATE OF SERVICE
I, Timothy P. Brennan, hereby certify I have caused a true and correct copy of foregoing
to be served by upon the following person(s) by personal service as dated below:

Alan Kennedy-Schaffer, Esq.


252 Verbeke Street
Harrisburg, PA 17102
Dauphin County Elections & Voter Registration Bureau
2 South 2nd Street
Harrisburg, PA 17101
RESPECTFULLY SUBMITTED,
BRENNAN LAW OFFICES

Dated: March 27, 2015

_____________________________
Timothy Brennan
ID# 91798
Brennan Law Offices
2030 Tilghman Street, Suite 203
Allentown PA 18104
(610) 841-4020