Eventually They Will Pay

IN THE NORTHAMPTON COUNTY COURT OF COMMON PLEAS

CIVIL DIVISION-LAW

IN RE: PETITION FOR INITIATIVE TO PREVENT              :

THE SALE AND/OR LEASE OF GRACEDALE                                  : DOCKET NO:

FILED WITH NORTHAMPTON COUNTY ELECTIONS      : 48-CV-2011-755

COMMISSION JANUARY 18, 2011                                             : Election Matter

APPELLANT’S STATEMENT OF MATTERS COMPLAINED OF

 ON APPEAL PURSUANT TO PA RAP 1925(b)

To Honorable Stephen G. Baratta:

            Appellants Gracedale Initiative Petition Committee (GIPC), a/k/a, Coalition of Alzheimer’s Families (COAF), by and through it counsel Lawrence M. Otter, Esquire, file this Statement of Matters Complained of on Appeal pursuant to PA RAP 1925(b), and say:

1. Judge Baratta failed to take into account in his decision and order denying reconsideration the recent precedential decision of our Supreme Court in  In re Farnese, ___ Pa. ____,  17 A.3d 375 (March 29, 2011), in which the Supreme Court clearly laid out the standards for awarding counsel fees and costs in an election matter.
2. Judge Baratta ignored the fact that the petition committee was the prevailing party in this matter. 25 P.S. § 2937; In re Farnese, supra.
3. Judge Baratta ignored serious allegations in this matter concerning the alleged improper conduct of the objectors and the county government in using tax money to prepare a page and line challenge to approximately 300 of the 507 petition pages and over 1000 signatures and hid these facts until exposed by the county controller and the local media. The point we make is that these allegations tend to show the objector’s awareness and acceptance of these irregularities, the evidence would have been relevant to the important question of whether the court and the public had been deceived.
4. Judge Baratta’s conclusion that evidence of illegal activity directly tying O’Hare and Angle to criminal acts by the County Executive  related to the objector’s challenge was irrelevant is an error of law and fact
5. Judge Baratta applied the wrong legal standards in denying the Amended Motion for Reconsideration in an election petition challenge. In re Farnese, supra.
6. Judge Baratta abused his discretion in denying the reconsideration despite the proffer of appellants wherein the GIPC would offer the testimony of elected officials and documents attached to the original motion and Amended Motion for Reconsideration  showing that tax money was used to fund the “private” litigation brought by Messrs. O’Hare, individually and Angle, individually and as a member of County Council and further that County Executive John Stoffa in furtherance of his own political agenda, improperly used a disbarred attorney to bring the election petition challenge against 23,000 signatures collected by GIPC/COAF to place a question on the primary ballot.
7. Judge Baratta erred in denying the reconsideration and abused his discretion in determining that a petition challenge against a ballot question is “not a partisan issue”.
8. Judge Baratta abused his discretion in not reconsidering the assessment of costs against the objectors without identifying any reason specific to this case or, indeed, in these types of cases, why justice would demand shifting costs to them.
9. Judge Baratta  ignored Section 977 of the Pennsylvania Election Code, 25 P.S. § 2937, which conditions the assessment of costs on whether the award would be "just". There is ample justification for an assessment of cost in the context of this particular case.
10. Judge Baratta ignored the objective factors submitted in the motion here which reveal circumstances that would necessarily or obviously require an award of costs. The conduct of the objectors, both in initiating and then pursuing their challenge, indicated bad faith, harassment, misconduct and illegal aid from the county government right out of the Bonusgate playbook in pursing the challenge.
11. Judge Baratta ignored the GIPC/COAf’s proffer  of objectors’ fraud, bad faith, and/or gross misconduct which if proven  may require an award of costs. It is equally self-evident that a party's conduct need not proceed to such an extreme before an award of costs may be dictated by justice. The conduct of the parties and the relative strength of their legal positions are not the only factors relevant to the discretionary assessment of whether to shift costs to the losing party in an election contest.

Respectfully submitted,

                                                                        /s/ Lawrence M. Otter, Esquire

                                                                        __________________________

                                                                        LAWRENCE M. OTTER, ESQUIRE

                                                                        ATTORNEY FOR GIPC/COAF

                                                                        PA ATTORNEY ID  31383

                                                                        PO Box 2131

                                                                        Doylestown, PA 18901

                                                                        267-261-2948

                                                                        215-230-7197 (FAX)

                                                                        EMAIL: larryotter@hotmail.com

IN THE NORTHAMPTON COUNTY COURT OF COMMON PLEAS

CIVIL DIVISION-LAW

IN RE: PETITION FOR INITIATIVE TO PREVENT              :

THE SALE AND/OR LEASE OF GRACEDALE                                  : DOCKET NO:

FILED WITH NORTHAMPTON COUNTY ELECTIONS      : 48-CV-2011-755

COMMISSION JANUARY 18, 2011                                             :Election Matter

CERTIFICATE OF SERVICE

            This is to certify that a copy of the attached APPELLANT’S STATEMENT OF MATTERS COMPLAINED OF  ON APPEAL PURSUANT TO PA RAP 1925(b)  has been served on petitioners of record and the Court  by email and USPS first class mail or as otherwise noted:

BY HAND DELIVERY

Judge Stephen Baratta

Northampton County Court of Common Pleas

669 Washington St.

Easton, PA 18042

 Bernie O’Hare

bohare5948@aol.com

Ron Angle

669 Washington St.

Easton, PA 18042

famerangle@hotmail.com

                                                                       

                                                                        /s/ Lawrence M. Otter, Esquire

DATE 9/22/11                                                            ______________________________

                                                                        LAWRENCE M. OTTER, ESQUIRE