In Re Petition for Agenda Initiative

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority holds that the trial court properly concluded that the affidavits submitted by Sean W. Moran (Moran) to rehabilitate thirty-*212three printed names on the Agenda Initiative Petition (Petition) were insufficient under In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327 (2001). In reaching its conclusion, the trial court believed that the affidavits did not state that the affiant’s printed name was intended to be the affiant’s signature. (Majority op. at 209-210.) I disagree.

Briefly, I would conclude that the trial court improperly admitted the affidavits, which constitute uncorroborated hearsay, and improperly rejected them based on the inadequacy of their content.1 I would hold that the statements made in the affidavits were sufficient to rehabilitate the printed names on the Petition because each affidavit affirmed that the affiant personally “signed”2 the Petition and that the printed name on a particular line of the Petition was to serve as the affiant’s “signature.”3 (See R.R. at 233a.) However, because the affidavits are hearsay,4 I also would hold that the affidavits were insufficient to rehabilitate the printed names absent corroborating evidence. Inasmuch as the trial court refused to consider whether the signatures on the voter registration cards corroborated the signatures on the affidavits, which, if believed, were sufficient to cure the defect, I would remand this case to the trial court for further proceedings.

As a preliminary matter, I point out that copies of the affidavits appear in the reproduced record, but the affidavits themselves are not part of the certified record. Ordinarily, this court will not consider documents as evidence if they are absent from the certified record.5 However, because the trial court clearly “moved” the “exhibits” into evidence,6 it appears that the affidavits’ omission from the certified record was inadvertent. Because there is no motion before this court to strike any portion of the reproduced record, I conclude that it is proper for this court to consider the affidavits.

Moran’s argument is that the trial court erred in concluding that thirty-three affidavits he submitted from voters who printed their names on the Petition were insufficient to rehabilitate the voters’ signatures.

Where an elector has printed his or her name instead of signing it in the cursive manner as signed on the voter registration *213card, the defect is curable by amendment.7 In re Nomination Petition of Cooper, 163 Pa.Cmwlth. 430, 643 A.2d 717 (1994). To cure the defect, there must be “substantial proof that the person intended her printed name to be her signature.”8 Nomination Petition of Flaherty, 564 Pa. at 681, 770 A.2d at 333. The affidavits state:

1. I have reviewed my Voter Registration Card, a copy of which is attached hereto as Exhibit A. I am the individual registered thereon.
2. I have reviewed the Agenda Initiative Petition, a copy of which is attached hereto as Exhibit B. I recognize and affirm the signature at line number [ ] of the Agenda Initiative Petition attached hereto as being my own, having personally signed the Agenda Initiative Petition as a registered voter of Allegheny County on the date indicated.

(See R.R. at 233a) (emphasis added). Certainly, this statement, which affirms that the printed name on the Petition is made by the affiant’s hand, indicates that the affiant intended her printed name, or mark, to be her signature.9 Thus, I believe the affidavits express the proper intent under Nomination Petition of Flaherty.

However, an ex parte affidavit made out of court ordinarily is not admissible to prove the facts stated in the affidavit, particularly when the affiant is alive and available to testify. See 8 Standard Pennsylvania Practice § 53:31 (1999). Indeed, affidavits are hearsay and, as such, they cannot support a finding of fact without corroborating evidence. See In re Nomination Petition of Delle Donne, 779 A.2d 1 (Pa.Cmwlth.), aff'd, 565 Pa. 561, 777 A.2d 412 (2001); Dale v. Philadelphia Board of Pensions and Retirement, 702 A.2d 1160 (Pa.Cmwlth.1997), appeal denied, 556 Pa. 696, 727 A.2d 1123 (1998); see also Walker v. Unemployment Compensation Board of Review, 27 Pa.Cmwlth. 522, 367 A.2d 366 (1976).

*214Here, the trial court refused to consider whether the signatures on the voter registration cards corroborated the signatures on the affidavits. This is because the trial court erroneously believed that the content of the affidavits was insufficient under Nomination Petition of Flaherty. Accordingly, I would remand this case to determine whether the signatures on the voter registration cards corroborate the signatures on the affidavits.10

Judge PELLEGRINI joins in this dissent.

. Although the affidavits constituted uncorroborated hearsay, the trial court admitted the affidavits as competent evidence. Then, instead of considering corroborating evidence, the trial court rejected the affidavits based on their content because the trial court erroneously believed that, under Nomination Petition of Flaherty, a printed name cannot be a qualified elector's signature unless the printed name appears on the voter registration card as the signature. (See R.R. at 150a-53a.)

. Section 908 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2868, states that a qualified elector shall “sign” the petition. I note that the word “sign” means to "make any mark....” Black's Law Dictionary 1381 (6 th ed.1990).

. “A signature may be written by hand [or] printed.... And whatever mark, symbol, or device one may choose to employ as representative of himself is sufficient.” Black’s Law Dictionary 1381-82 (6th ed.1990).

. Thus, affidavits, by themselves, do not constitute substantial proof of the truth asserted therein.

. This court’s scope of review is limited to examination of the record to determine whether the trial court committed errors of law or whether the trial court's findings are supported by adequate evidence. In re Petition to Contest Primary Election of May 19, 1998, 721 A.2d 1156 (Pa.Cmwlth.1998).

. I question the propriety of the trial court sua sponte "moving” Moran’s exhibits into evidence. (See R.R. at 219a.)

. Likewise, the use of nicknames is amendable by the presentation of evidence confirming the identity of the electors. In re Nomination Petition of Cooper, 163 Pa.Cmwlth. 430, 643 A.2d 717 (1994).

. A person's signature is his or her mark for identification purposes; on its face, a signature sets one person apart from all other people. This is because a person’s signature has certain identifiable characteristics which are distinguishable from those made by other people, even those purporting to pass themselves off as that person. The reason for requiring a signature in an election matter is not to disenfranchise an eligible voter but, rather, to prevent fraud. To the degree we say that a printed signature can never be adequate to identify a voter, we defeat that proposition.

The reason we frown on printed "signatures” is because they may be fraudulently duplicated by tracing and because they require some other evidence to corroborate that they are made by the hand of the qualified elector before they can be considered valid. Thus, if we permitted printed signatures, which as a general rule are not self-authenticating, it would invite fraud and overburden the courts to prove otherwise. But that is not to say that merely printing one’s name should defeat a person’s eligibility to exercise a right pertinent to the right to vote. If an eligible elector comes before a court and states that he or she printed her name on a petition, the court should recognize that person's identity as an eligible voter.

.I note that an elector who is unable to sign an absentee ballot due to illness or physical disability is permitted to make a mark in lieu of a signature, provided that an adult witness attests to the validity of the mark. Section 1306 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, added by section 11 of the Act of March 6, 1951, P.L. 3, as amended, 25 P.S. § 3146.6(a); Dipietrae v. City of Philadelphia, 666 A.2d 1132 (Pa.Cmwlth.1995), aff'd, 543 Pa. 591, 673 A.2d 905 (1996); McLaughlin Appeal, 45 Pa. D. & C.2d 333 (1968). A healthy and able-bodied elector should be no less enfranchised.

. If the thirty-three affidavits rehabilitate the printed names, then the Petition will have the requisite 500 signatures.