IN THE COMMONWEALTH COURT OF PENNSYLVANIA, In Re: Nomination Petition of Kenneth Walker Jr. As Democratic Candidate for State Representative for the 181° Legislative District Petition of: Arthur Green No, 164 M.D. 2018 and Frances Folk : Heard: March 23, 2018 OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COVEY FILED: April 5, 2018 Kenneth Walker Jr. (Candidate) filed a nomination petition seeking to appear on the May 15, 2018 primary election ballot as a Democratic Candidate for State Representative for the 181* Legislative District (Nomination Petition). Arthur Green and Frances Folk (collectively, Objectors) filed a Petition to Set Aside Nomination Petition (Objection Petition) as defective based upon Candidate’s residency. Background Section 977 of the Pennsylvania Election Code (Election Code)! provides, in pertinent part; “All nomination petitions .,. shall be deemed to be valid, unless... a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition . . . be set aside.” 25 P.S. § 2937. Section 907 of the Election Code requires that nomination petitions be completed “in [the] form prescribed by the Secretary of the Commonwealth[.]” 25 P.S. § 2867. Section 910 of the Election Code states that “[e]ach candidate for any [s]tate . . . office . .. shall file with his nomination petition his affidavit stating--(a) his residence, with street and " Act of June 3, 1937, P.L. 1333, as amended, 25 P.S, § 2937.number, if any, and his post-office address[]” 25 P.S. § 2870 (emphasis added), Residence is a particularly crucial piece of information because Article II, Section 5 of the Pennsylvania Constitution requires that state representatives “shall have been .. . inhabitants of their respective districts one year next before their election (unless absent on the public business of the United States or of this State), and shall reside in their respective districts during their terms of service.” Pa. Const. art. II, § 5 (emphasis added). On or before March 6, 2018, Candidate filed his Nomination Petition with the Department of State. Attached to the Nomination Petition was Candidate’s affidavit, wherein, Candidate declared: I do swear (or affirm) that my residence, my election district and the title of the office for which I desire to be a candidate are as specified above, that I am eligible for said office, that I will not knowingly violate any election law ot any law regulating and limiting nomination and election expenses, and prohibiting corrupt practices in connection therewith; that I am aware of the provisions of Section 1626 of the {Election Code, 25 P.S. § 3246,"] requiring pre- election and post-election reporting of campaign contributions and expenditures; that... my name has not been presented as a candidate by nomination petitions of any other party for the same office; that if I am a candidate for any office of a political party | am a registered and enrolled member of such party; . . . that I am not a candidate for an office which I already hold, the term of which is not set to expire on the same year as the office subject to this affidavit. I swear (or affirm) to the above part(s) as required by the law(s) applicable to the office I am seeking. ? Added by Section 2 of the Act of October 4, 1978, P.L. 893. 2Obj. Petition Ex. A at 1 (emphasis added). Candidate’s affidavit listed his residence as “2337 N, Cleveland Street, Philadelphia, PA” (2337 North Cleveland Street) and his voting district as “181% Legislative District.” Obj. Petition Ex. A at 1. Objectors’ claim in their Objection Petition that Candidate’s name should be stricken from the ballot because “Candidate’s true residence is 2101 South College Ave, Philadelphia, PA 19121 [(or Girard College)], which is outside the 181% Legislative District.” Obj. Petition 16, On March 14, 2018, this Court entered a Scheduling and Case Management Order setting a hearing for March 21, 2018 on the Objection Petition, This Court continued the hearing due to inclement weather. The hearing in this matter convened on March 23, 2018 at approximately 1:30 p.m. Candidate and Objectors were represented by counsel. In reviewing the evidence and rendering a determination in an election case, the well-established precedent set forth below is controlling. ‘The Courts have long held that the Election Code must be construed liberally ‘so as not to deprive an individual of his right to run for office, or the voters of their right to elect a candidate of their choice.’ Nomination Petition of Ross, .. . 190 A.2d 719, 720 ([Pa.] 1963); accord In re Nomination Petition of Flaherty, .. . 770 A.2d 327, 331 (fPa.] 2001). Furthermore, ‘the purpose of the Election Code is to protect, not defeat, a citizen's vote.’ Dayhoff v. Weaver, 808 A.2d 1002, 1006 (Pa. Cmwith, 2002). ‘Thus, nomination petitions are presumed to be valid, and it is the objector[s"] heavy burden to prove that a candidate’s nomination petition is invalid. Jn re Nomination Petition of Shimkus, 946 A.2d 139, 141 (Pa, Cmwlth, 2008) (Cohn Jubelirer, J., single judge op.). In ve Nomination Petitions of Scott, 138 A.3d 687, 691 (Pa. Cmwth. 2016). However, the provisions of the [] Election Code 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 in the [] Election Code are to insure the legitimacy of information 3crucial to this process, Thus, the policy of liberal reading of this statute cannot be distorted to emasculate those requirements necessary to assure the probity of the election process, In re Nomination Petitions of Melntyre, 778 A.2d 746, 751 (Pa. Cmwlth,) (citations omitted), aff'd, 770 A.2d 326 (Pa. 2001), Moreover, “a false affidavit must be [a]t Teast equated with the failure to execute the affidavit, ... [T]he fact remains that when [an] affidavit [is] taken the facts sworn to [must be] true. [If they are not, sJuch a defect cannot be cured by subsequent conduct and the petition [is] therefore void and invalid.” In re Nomination Petition of Cianfrani, 359 A.2d 383, 384 (Pa. 1976) Accordingly, if Objectors prove that Candidate’s residency statement is intentionally false, Candidate’s Nomination Petition is invalid. See In re Nomination Petition of Hanssens, 821 A.2d 1247 (Pa, Cmwlth. 2003), as amended May 20, 2003. Herein, Objectors have the burden of proving that Candidate does not reside at 2337 North Cleveland Street. See In re Nomination Petition of Driscoll, 847 A.2d 44 (Pa, 2004). The rules for determining residence are enumerated in Section 704 of the Election Code, See 25 P.S. § 2814. Specifically, Section 704(d) of the Election Code pronounces: The place where the family of a married man or woman resides shalll be considered and held to be his or her place of residence, except where the husband and wife have actually separated and live apart, in which case the place where he or she has resided for two months or more shall be considered and held to be his or her place of residence. 25 PS, § 2814(d) (emphasis added). * Our Supreme Court later qualified Cianfrani, stating: “[Blefore an affidavit may be declared void and invalid because it contains false information, there must be evidence that the candidate knowingly falsified the affidavit with an intent to deceive the electorate.” In re Nomination Petition of Driscoll, 847 A.2d 44, 51 (Pa, 2004).In re Stabile, 36 A.2d 451, 452 (Pa. 1944) (bold emphasis added), Our Supreme Court explained: The courts have never accepted the contention sometimes made that a man’s legal residence is wherever he says it is or where he says he intends it to be. An individual’s legal residence is a question of fact which the state has a paramount interest in determining. A voter can vote only where his legal residence is; he can hold public office only if he resides in the political division his office serves. In Com, ex rel. Foriney v. Bobrofskie, . . . 196 A. 489, 491 [(Pa, 1938)], this court held that a man’s legal residence was where he and his wife and children ‘resided as a family unit’, though the man himself in that case (as does the man in this case) ‘spends part of his time in each place, and probably sleeps at the home which most suits his convenience at a particular time.’ We said: ‘It is clear that appellant wished to make his family home in the ninth ward yet retain a legal residence in the seventh ward. But the actuality of a man’s residence is often better determined by his conduct than by his words,’ In Fry's Election Case, ... 10 AmRep. 698 [(Pa. 1872)], [the Pennsylvania Supreme Clourt quoted with approval from Story’s Conflict of Laws, sec. 41, as follows: ‘By the term ‘domicilfe]’ in its ordinary acceptation, is meant the place where a person lives or has his home. In a strict legal sense that is properly the domicil[e] of a person where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.’ Justice Agnew added: ‘The term residence [as used in the Constitution] means the place where the elector makes his permanent or true home, his principal place of business, and his family residence, if he have one’ (italics supplied).Stabile, 36 A.2d at 453 (bold emphasis added); see also In re Prendergast, 673 A.2d 324 (Pa. 1996); City of Phila. v. City of Phila. Civil Serv. Comm'n (John Kline) (Pa. Cmwith. No. 442 C.D. 2008, filed May 15, 2009),.* Hearing A party alleging defects in a nominating petition has the burden of proving those defects. Thus, the burden of proving that [Candidate] is not domiciled at [2337 North Cleveland Street] rests on the Objectors, In this regard, [S]ection 704(d) of the Election Code provides: [J The place where the family of a married man or woman resides shall be considered and held to be his or her place of residence, except where the husband and wife have actually separated and live apart, in which case the place where he or she has resided for two months or more shall be considered and held to be his or her place of residence. 25 P.S. § 2814(d) ({italic] emphasis added). Once the Objectors have established that [Candidate’s] family resides at [2101 South College Avenue], the burden shifts to [Candidate] to show that he and his wife have actually separated and live apart and that he has acquired a new domicile, Hanssens, 821 A.2d at 1251 (citations and footnotes omitted) (bold and italics emphasis added). “[TJhe trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.” Commonwealth v. Harper, 403 A.2d 536, 539 (Pa. 1979); see also Commonwealth v. Spontarelli, 791 A.2d 1254 (Pa, Cmwith. 2002). “It is within the “This Court’s unreported memorandum opinions may be cited “for [their] persuasive value, but not as a binding precedent.” Seetion 414(a) of the Commonwealth Court’s Intemal Operating Procedures, 210 Pa, Code § 69.414(a).purview of the fact finder to draw all reasonable inferences from the evidence presented at trial.” Ellis v. City of Pittsburgh, 703 A.2d 593, 594 (Pa. Cmwith. 1997). Objectors’ Evidence Kevin Richardson Objectors presented Statewide Uniform Registry of Electors (SURE) System Operator Kevin Richardson (Richardson). Richardson explained that the SURE system is a database which contains complete voter registration information, including changes in registration for all registered voters in the Commonwealth. Richardson testified that, according to the SURE system, Candidate has been registered to vote at “2337 North Cleveland Street, Philadelphia, PA 19132” since “2012.” Notes of Testimony, March 23, 2018 (N.T.) at 10. Richardson further stated that the SURE system revealed Candidate had moved from “2101 South College Avenue to the address on North Cleveland Street.” N.T at 11. Richardson continued: “[Candidate] changed to 2337 North Cleveland Street from 2333 North Cleveland on January 31, 2014.”$ Richardson expounded that the request “came in through the Department of Transportation. ... So... , as best [as Richardson] know(s], [Candidate] changed his driver’s license and that updated his living address[.]” N.T. at 12. Richardson next looked up Candidate’s wife Kimeesha Reed-Walker’s (Wife) voter registration on the SURE system. He testified that according to the SURE system, Candidate’s Wife has been registered to vote at “2101 South College Avenue, Philadelphia, PA 19121” “since 2003.” N.T. at 13-14, This Court finds Richardson credible. 5 Richardson was initially “reviewing to see if [Candidate's] voting precinct had changed{.]” however, when asked “to look through all the changes and make sure that his address had not changed within the precinet from 2011 forward{,]” he discovered this change. NT. at 11 ‘Thereafter, Richardson confirmed: “It’s been 2337 North Cleveland Street since that time.” N.T. at 12. 7Candidate Objectors next presented Candidate to testify. Initially, Candidate acknowledged that he was served a subpoena to produce documents at the hearing.® See N.T. at 16-17; see also Obj. Ex. I (O-1) (subpoena to produce “[a]ny credit card bills, utility bills, phone bills, magazines and periodicals, or other papers you have received in the mail reflecting your address[;)” “[alny car titles or vehicle registrations, driver’s license, or other forms of [identification] reflecting your address(;]” “any residential leases in your household[;]” “[a]ny [Intemal Revenue Service (IRS)] W-2 or 1099 forms received for calendar year 2017[;]” “[aJny tax filings prepared for calendar year 2017[;]” and “[a]ny documents relating to the Cleveland Community Center”), Candidate related that he does not subscribe to any magazines and he does not own a car. He declared that he pays federal, state and local taxes, but he did not bring his 2017 IRS W-2 or 1099 forms. He also stated that he prepared his 2017 tax return, but did not bring that either. Candidate claimed that he did not bring it because he gave everything to his accountant and the accountant has not yet retumed it to him. See N.T, at 24, He further noted that he did not ask the accountant for his IRS W-2 to comply with the Court order because he “couldn’t get in contact with him,” N.T. at 25. Candidate explained that the Cleveland Community Center is a non-profit organization that he started in 2011, but it is no longer active. He testified that he registered the Cleveland Community Center at 2101 South College Avenue because he was living there at the time, but he closed it “in around 2015, °16.” N.T. at 27. However, Candidate also related that he does not think he filed any documentation officially closing it down. §A subpoena is an order of the court commanding a person to attend and testify at a particular time and place. It may also require the person to produce documents or things which are under the possession, custody or contro! of that person.” Pa.R.C.P. No, 234.1, 8Candidate volunteered: “For the record, me and my wife is [sic] separated s0, you know, that her business is her business, you know.” N.T. at 23, He testified that they have been separated “[sJince about 2015. But, you know, we still communicate.” N.’ at 27. He expounded: Q. [Objectors’ Counsel] Okay. But you've been basically living separate lives since then? A. [Candidate] I mean, we still, you know, go to church together, you know, working on some things, you know. Q, Do you still travel together? A. Yeah. Absolutely, yes, Q. Do you still spend holidays together? A, Absolutely, you know, we have a son together. Yes. Q. Okay. Good. Because one of things that I had seen on Facebook when I was preparing for this case was a picture of the two of you spending Thanksgiving together last year? A. Yes. Q. And I had also seen pictures of you from September of last year on Facebook, I guess, you had done a family trip to Kalahari in the Poconos? A.Yes. Q. You did the zip line? A. Yeah, it was for my son and his birthday, we celebrated. Yes. Q. Was your wife at your campaign announcement? A. She came late. Q. Okay. But she was there? A, Yes. Q. Okay. And you were still legally married? 9A. Yes. Q. Okay. Have you done anything to proceed towards a divorce? A.No. We need to decide. Q Okay. Q. So you said you have a son with Kimeesha? A. Yes. Q. Okay. And where does he live? A. At 2101 South College Avenue. N.T. at 28-29, Relative to when and why Candidate moved from College Avenue to Cleveland Street, he explained: Q. [Objectors’ Counsel] Okay. Can you explain the -- you say you moved to North Cleveland Street, [ think you said 2011, 2012? A. [Candidate] Yes. Q. Why did you move? A. It was just time for me to go from Girard College. I was staying on the campus, as-well. My wife is a residential counselor, and I was a residential adviser{ there so it was kind of like we had to stay on campus. I had political aspirations, and it just wasn’t conducive for me and running for office as well. Q. Because you wanted to run in a different district than the ‘one in which Girard College was? A, Well, it wasn’t my residence at the time. And it seemed - - it appeared to be my residence because it was required of me to stay on campus, for me being a residential adviser. Q, So I want to make sure I understand this. So even when you were residing there -- 10A. Yes, Q. ++ and for how many years was this? A. I was residing there from 2000 to about 2012 ~ ‘14, about 12, about 2012, so about 12 years or something like that. Q Okay. So for about 12 years, until 2012 you were living? A. Yes, Q. But you said it didn’t feel like your residence or ...? I want to understand what you’re saying, sir. A.No. You know, I was staying there for my job, but, you know, I was going to my home and things of that nature. And when T was running for office that, you know, it appeared that I was living in another district. Q You say you were going to your home. What address are you referring to for that? A, 23 -- at that time, it was 2333 and then I moved to 2337. Q. Yeah. I mean, one of things that we saw. I guess you own a number of properties on that block? A. Yeah, I did. I did. Yes. Q. Okay. Which ones do you own now? A, 2337 and 2343. Q. Okay. A. Yes. Q. And you no longer own 2333? A.No, Q. When did you sell that? A, [want to say ~ I’m not sure, I want to estimate probably “14 or ‘15, something like that. Q. Okay, And why did you move from the one to the other? 11A, Iwas having some financial problems, you know. N.T, at 29-32 (emphasis added), During further questioning concerning his Wife, Candidate explicated: Q. [Objectors’ Counsel] At this point do you and your wife still fle joint tax returns? A. [Candidate] We have. Q. And are you planning on filing joint tax returns for last year as well? A. Most likely, yes. Q. How often do you stay at -- on Girard College with her? A. Not at all. Q. You do not spend the night there? A.No. Q. Okay. Other than Thanksgiving, what other holidays do you spend together? A. We try to spend as many holidays as possible. Q. Easter and Christmas? A. Yeah, We go to church together. Q. Okay. Do you have any mail that still gets delivered to you to 2101 South Collfelge? A, That I know of, no. Q. Okay. So when you do see your wife, it’s never here’s a packet of stuff that arrived? A. No. Q Okay, I guess I’m curious, since you claim to be separated and have been for a number of years, why are you still filing joint tax returns?A. Just, you know, we did it for our son, to, you know, get more money, you know. Q, Well, explain what you mean by that, [A.] We just, you know, I-didn’t think there was anything wrong with it, you know. We still have a son together and ‘we, you know, try to provide as much as we can. Q. Okay. Do you have any kind of agreement in place with your wife as to the separation in terms of paying expenses or providing support or anything of that nature? ‘A, What do you mean? Q, Like, when your son has -- needs stuff for schoo! or things like that, do you have an agreement as to who pays for it? A. Well, we try to, you know, try [to] split things right in half, And if I can handle it, I handle it; if she can handle [it], she handles it. NLT. at 33-36. Finally, regarding his residential history, Candidate described: Q. [Objectors’ Counsel] I just want to make sure I heard you correctly, What year did you stop working for Girard College? A. [Candidate] Back in 2015. Q. You said that your job required you to live on campus, correct? A. Yes. Q. Why did you change your voter registration in 2012, then, if you were required to live on campus through 2015? A, Like I said before, that wasn’t my residence, It was required for me, as my job. So it was my aspirations to run for office where my residency was at. 13Q. How are you defining your residence? You were still living on the Girard College campus in 2012? A.In 2001? Qn 2012? A. In 2012? Iwas staying on campus, yes. Q. And in 2013, you were living on campus? A. Yes. Q And during 2013 you were registered to vote someplace else? A. Yes. Q. And in 2014, you were living on campus? A. 2014? Q Yes. A. Iwas staying on campus, but I wasn’t living on campus. Q. What's the difference? A. Because my residency was changing, I was just doing my job, but... Q. And you said your job required you to live there? A.No, Stay there, Stay there overnight. Q. How many nights a week did you have to stay there? A. About four days out of the week. Q. Okay. A. Yes. Q And the same was true in 2015? A. In 2015? Yes.Q. You were spending approximately four ~ at least four nights a week on campus? A. Yes, during the school year, yes. Q, And at that time, did you have a — were you same apartment as your wife? A, At that time, yes, Q. And that was the case in 2013 and ‘14, and ‘15? A. Yes. Q. How many bedrooms did it have? A. Two. Q. And was one for you and your wife and the other was for your son? A. Yes, Q. Okay. So in 2015, you both left Girard College and were separated both during that year? A. No. My wife still remained at Girard College. Q. No, I understand that, But I’m saying, you left your employment at Girard College in 2015? A. Yes. Q. And — A. So I no longer could stay on campus. Q. Okay. Even as the spouse of a Girard College employee? ‘A. I could have, but me and my wife was having some difficulties. N.T. at 41-44 (emphasis added).Importantly, Candidate declared: Q. [Objectors’ Counsel] Do you hold your -- do you and your -- well, not even your wife. Do you hold yourself out to others as being married? A. [still wear my ring and such, you know. I’m wearing it now, you know. I miss my family, you know, just, you know, trying to work some things out. Q. Okay. Do you refer to yourself as married in your campaign materials? A. Absolutely, yes. N.T. at 47 (bold and underline emphasis added). This Court finds Candidate’s testimony in stark contradiction to the SURE. system’s undisputed voter registration information and internally inconsistent. Accordingly, this Court finds Candidate not credible. In making its credibility determination, this Court considered the many inconsistencies in Candidate’s testimony. At the outset, although Candidate volunteered that he was separated from his Wife, see N.T. at 23, he repeatedly contradicted that statement. Candidate testified that he and his Wife attend church together, spend holidays together and vacation together. See N.T. at 28-29, Wife's Facebook posts depict Candidate and Wife as a happy couple with a happy family. See Ex, O-3, 0-4. Further, Candidate still wears his wedding ring, see N.T. at 47, his campaign literature reflects that he is married, see N.T. at 47, and his Wife attended his campaign announcement. See N.T. at 28-29. Moreover, although Candidate claims he and his Wife are separated, they continue to file joint tax retums, see N.T. at 33, there is no pending divorce action, see N.T. at 29, and no support or custody agreement. See N.T. at 35-36. With respect to his residence, Candidate had trouble keeping track of where and when he lived versus when and where he stayed during certain periods. Specifically, he first testified that he moved to North Cleveland Street in 2011/2012 16because he “had political aspirations, and it just wasn’t conducive for [him] and running for office as well.” N.T at 29-30, Candidate stated that he lived at Girard College for about 12 years, until 2012 because he was required to do so for his employment. However, Candidate related that he worked at Girard College until 2015, Importantly, Candidate maintained that he ended his Girard College employment and separated from his Wife in 2015. Notwithstanding that at another point during Candidate’s testimony, he related that from 2012 to 2015, Candidate and his Wife had different residences because of Candidate's political aspirations. According to the SURE system, Wife has been registered to vote at 2101 South College Avenue (Girard College) since 2003, and Candidate has been registered to vote at either 2333 North Cleveland Street or 2337 North Cleveland Street since 2012, notwithstanding that Candidate and Wife did not separate until 2015 and Candidate worked at Girard College until 2015. Based on such testimony, this Court questions where exactly Candidate lived between 2012 and 2015, i¢., with his Wife and son at his required employment residence, or on Cleveland Street where he desired to reside to fulfill his political aspirations. ‘This Court finds Candidate’s statement incredulous that he and his Wife separated in 2015 for the reasons cited above, as well as based on Candidate’s testimony that he had a residence different from his Wife and son since 2011/2012, Moreover, Candidate also stated that while his residence from 2011/2012 through 2015 was on Cleveland Street for political purposes, he also lived with his Wife and son at Girard College during this same time period.Tan Poush Lastly, Objectors presented Ian Poush (Poush) who testified that he is a private investigator hired by the Malcolm for PA political action committee (PAC)’ to research Candidate’s residence and verify whether Candidate lived at Girard College or 2337 North Cleveland Street. See N.T. at 49, With respect to steps Poush took to ascertain Candidate’s residence, he related, in relevant part: Poush] Yes. I reviewed [Candidate’s] candidacy ion for his running for election in 2012, where he lists his address as 2333 North Cleveland Street. During that election time, it did appear, via other public records, including the tax lien,"! that he lived at 2101 South College Avenue. And there appeared to be a pattern there, Q, [Objector’s Counsel] What do you mean by that? A, It appeared that he always lived at... 2101 South College Avenue, on the campus of Girard College but was listing other addresses so that he could run for election in those district[s]. Q. And you were in the courtroom when [Candidate] testified before that in 2012, he was, in fact, still employed by and living on the Girard College campus? A. Yes. 7 The Malcolm for PA PAC supports Candidate’s opposing candidate Maleolm Kenyatta. See N.T. at 71. * Objectors presented a copy ofa tax lien showing Candidate as a debior, reflecting a 2101 South College Avenue address (Ex. 0-2), °* This Court takes judicial notice that the Pennsylvania Department of State's website indicates that in 2012, Candidate ran to be the Democratic Candidate for State Representative for the 197" Distriet. See https://www.pavoterservices.pa.gov/ ElectionInfo/Candidatelnfo.aspx?ID=9008, In 2014 and 2016, Candidate ran to be the Democratic Candidate for State Representative in the 181° District. ‘See _https://www.pavoterservices.pa.gov/ElectionInfo/BasicSearch.aspx?PID=AS; hitps://www.campaignfinanecontine.pa. gov/pages/CF ReportScarchResults.aspx. 18Q. But that his political aspirations led him to want to list the Cleveland Street as another address? A. Yes. Q. Are there any other steps that you took to ascertain his residence? A. Ireviewed certain utility bills from 2337 North Cleveland Street. One of which was an electric utility bill. And I was in the courtroom when [Candidate] testified that he had been there since 2015, and I noticed that the eleetric bill . . . agcount was opened in March of 2016. N.T. at 58-60 (emphasis added). This Court finds Poush credible.'” Candidate's Motion to Dismiss Candidate made a Motion for Dismissal (Motion) at the close of Objectors’ case arguing only: “[T]here is no merit to what was presented before this Court, to decide that [Candidate] does not live in the difstrict.}” NT. at 76, ‘The Court now rules on that Motion, Objectors maintain that Candidate does not live in the district based on Section 704(d) of the Election Code which provides: The place where the family of a married man or woman resides shall be considered and held to be his or her place of residence, except where the husband and wife have actually separated and live apart, in which case the place where he or she has resided for two months or more shall be considered and held to be his or her place of residence. 25 P.S. § 2814(d). Because Objectors presented undisputed evidence showing that Candidate’s Wife and son reside at Girard College, which is located outside the 181° © Objectors’ exhibits O-1 (Subpoena to produce documents), O-2 (Tax Liens), 0-3 (Facebook printout of Thanksgiving), and O-4 (Facebook printout of vacation) were admitted into evidence without objection later in the proceeding, See N.T. at 105, 19Legislative District, this Court holds that Objectors have presented sufficient evidence in their case-in-chief to deny Candidate’s Motion. Candidate’s Evidence Candidate Candidate testified for the purpose of identifying exhibits he desired to offer into evidence. Candidate first identified his expired driver’s license and his current driver’s license (collectively, R-1) which reflect a 2337 North Cleveland Street address. The current driver’s license was issued March 21, 2017 and expires September 20, 2019," and the expired driver’s license was issued January 31, 2014 and expired September 6, 2015.!7 See N.T at 86. Candidate's voter registration card was marked as R-2 and Objectors’ Counsel stipulated that Candidate is registered to vote at 2337 North Cleveland Street." See N.T. at 87. Candidate identified his “block captain card” (R-3) which shows a 2337 North Cleveland Street address.' NT. at 88, Candidate identified his cell phone bill (R-4) which lists a 2337 North Cleveland Street address and reveals a due date of “Mar 31” but does not include a year anywhere on the billing statement. Ex. R-4. Candidate identified his water account statement (R-5) which specifies a 2337 North Cleveland Street address and provides Candidate’s water account transactions from January 10, 2017 to March 6, 2018. See Ex. R-5. Candidate identified his January 17, 2018 water bill (R-6) which reflects a 2337 North Cleveland "Evident on the face of Candidate’s driver's license is that it is a duplicate driver’s license, hence the two-year time period between its issuance and expiration, as opposed to the usual four-year time period, See R-L. ? Candidate's driver’s license specifies that it is a second duplicate, hence the one-year span between its issuance and expiration, as opposed to the usual four-year time period. '3 Candidate’s voter registration card reflects that it is “[vJalid [tJen [d]ays after: 2/9/2018 or upon receipt by the voter[.]” R-2, “The block captain card is issued by “Philadelphia More Beautiful Committee” and reflects a date a “2016”, R-3, 20Street address. See R-6. Candidate identified his 2016 real estate tax receipt (R-7) with a 2337 North Cleveland Street address, See N.T. at 91-92, Candidate identified his PECO Account Activity Statement (R-8) which shows a 2337 North Cleveland Street address and transactions from January 3, 2017 to March 9, 2018. SeeN.T. at 92. Candidate identified his gas bill (R-9) which specifies a 2337 North Cleveland Street address and lists his gas usage"® and charges from April 13, 2016 to March 15, 2018. See N.T, at 93, Finally, Candidate identified five photos (R-10) of the interior of 2337 North Cleveland Street to which he testified he took the day before the hearing. Specifically, Candidate’s son’s bedroom (R-10(a)); Candidate’s bedroom (R-10(b)); a different view of Candidate’s bedroom (R-10(c)); the living room (R-10(d)) which includes three photos, one of which is a family photo of Candidate and his Wife and son; see N.T. at 103; Bx. R-10(d); and Candidate’s open refrigerator (R-10(e)). Candidate reiterated that 2337 North Cleveland Street is his present residence and has been “[sJince 2015.” N.T. at 96. However, Candidate testified on cross-examination: [Q.] [Objectors’ Counsel] I see here that your] expired driver's license was issued on January 31, 2014? A, [Candidate] Yes. Q. You had previously testified that during 2014 and 2015 you were still living on the Girard College campus? A. No, Q.-- not Cleveland Street, Can you explain why you had a driver’s license that reflected a different address other than your actual residence? A. Well, during that time we definitely was still going through some stuff. And I was trying to, you know, make some moves to, you know, move forward. 'S Candidate’s gas bill reveals 0 usage from May 13, 2017 to August 11, 2017. See R-9. 21Q. But you had testified before, you were still living at Girard College —- A. Yes. Q A. Yes. in 2014? N.T. at 97-98 (emphasis added). This Court finds Candidate’s testimony not credible. In making its credibility determination, this Court considered Candidate’s expired driver's license (R-1), Candidate’s testimony during Objectors’ case-in-chief, as well as his testimony during Candidate’s case-in-chief, Candidate first testified: Q. [Objector’s counsel] How are you defining your residence? You were still living on the Girard College campus in 2012? A. [Candidate] In 20012 Q. In 2012? ‘A. In 2012? Twas staying on campus, yes. Q. And in 2013, you were living on campus? A. Yes. Q And during 2013 you were registered to vote someplace else? A. Yes. Q. And in 2014, you were living on campus? A. 2014? Q. Yes. N.T. at 41-42 (emphasis added), 22Q. And at that time, did you have a — were you living in the same apartment as your wife? A. At that time, yes. Q. And that was the case in 2013 and ‘14, and ‘15? A. Yes. Q, How many bedrooms did it have? A. Two. Q. And was one for you and your wife and the other was for your son? A, Yes. N.T. at 43 (emphasis added), After Candidate testified during his case-in-chief that his expired driver’s license designated a 2337 North Cleveland Street address (from January 31, 2014 to September 6, 2015), Objectors’ Counsel further inquired: [Q.] [Objectors’ Counsel] I see bere that you[r] expired driver’s license was issued on January 31, 2014? ‘A. [Candidate] Yes. Q You had previously testified that during 2014 and 2015 you were still living on the Girard College campus? A.No. Q. -- not Cleveland Street. Can you explain why you had a driver’s license that reflected a different address other than your actual residence? A. Well, during that time we definitely was still going through some stuff, And Iwas trying to, you know, make some moves to, you know, move forward. Q. But you had testified before, you were still living at Girard College - A. Yes, Q. ~- in 2014? 23A. Yes. N.T, at 97-98 (bold and underline emphasis added). This Court concludes that Candidate’s testimony concerning where he resided is not credulous. Candidate’s exhibits were admitted into evidence without objection. See N.T. at 105-106. Legal Analysis of Objectors’ Case In the instant case, Candidate swore in his affidavit that he resides at 2337 North Cleveland Street. Objectors maintain that Candidate resides elsewhere. Objectors, relying on Section 704(4) of the Election Code which states the rule for determining residence, contend that Candidate resides with his family outside the 181° legislative district, specifically, at 2101 South College Avenue. If this Court finds that Objectors have met their burden of proving that Candidate’s family resides at 2101 South College Avenue, the burden shifts to Candidate to show that he and his Wife have actually separated and live apart and that he has acquired a new domicile. See Hanssens, Here, Objectors presented Richardson’s testimony that [Wife is registered to vote at 2101 South College Avenue and has been since 2003, which Candidate does not dispute, See N.T. at 13-14. Objectors also presented Candidate’s testimony that his son lives at 2101 South College Avenue. See N.T. at 29. In addition, Candidate testified that his Wife still works at Girard College and is still required to live there. See N.T. at 44, Moreover, it is undisputed that Candidate lived at 2101 South College Avenue with his Wife and son at least until 2011-2012. See NT. at 11 (Richardson’s testimony), 26-27 (Candidate’s testimony). Because there is no dispute that Candidate’s family — his Wife and son ~ have lived at Girard College during the year preceding the 2018 primary election, the Election Code prescribes that the place 24where a married man’s family resides is his place of residence. See 25 P.S. § 2814(d) Accordingly, this Court holds that Objectors met their burden of proving that Candidate resides at 2101 South College Avenue. Thus, Objectors presented prima facie evidence that Candidate does not live at 2337 North Cleveland Street. Because this Court concludes that Objectors have met their burden of showing that Candidate is not domiciled at 2337 North Cleveland Street, but rather 2101 South College Avenue, the burden shifts to Candidate to rebut this evidence. See Hanssens. Accordingly, we review Candidate’s evidence to determine whether he proved “he and his [Wife have actually separated and live apart and that he has acquired a new domicile.” Jd. at 1251 Legal Analysis and Determination of Candidate’s Case Candidate introduced nine exhibits, ranging in date from 2016 to March 15, 2018, addressed to 2337 North Cleveland Street. However, “merely [using] an address [does] not create a residence for purposes of election law.” In re Nomination Petition of Shimkus, 946 A.2d 139, 150 (Pa. Cmwlth. 2008) (Cohn Jubelirer, J., single judge op.). Moreover, whether Candidate has another address is irrelevant to prove he is actually separated from his Wife, These statements are especially true here, where Candidate testified that he moved from Girard College because he “had political aspirations, and it just wasn’t conducive for [him] and running for office as well.” N.T. at 29. Candidate also introduced photographs of the inside of 2337 North Cleveland Street, see R-10, for the purpose of showing he resided there, Again, the fact that he has pictures of an unmade bed and food in the refrigerator does not establish that he and his Wife are actually separated. Indeed, the family photo of Candidate, and his Wife and son displayed on the mantel shown in exhibit R-10(d) shows otherwise. 25Candidate’s own testimony completely contradicts his assertion that he and his Wife are separated. Candidate testified that he attends church, and spends holidays and vacations with his Wife, see N.T. at 28-29, he still wears his wedding ting, see N.T. at 47, his campaign literature reflects that he is married, see N.TT. at 47, and his Wife attended his campaign announcement. See N.T. at 28-29. Moreover, although purportedly separated from his Wife, they continue to file joint tax returns, see N.T. at 33, no divorce is pending, see N.T. at 29, and there is no support or custody agreement, See N.T. at 35-36, Candidate appeared cavalier about the fact that he and his Wife still represent outwardly that they are married and show no typical indicators of being separated, Candidate wants the Court to believe that he separated from his Wife in 2015, yet he testified during Objectors’ case that he moved from Girard College and lived separately from his Wife in 2012 “for political aspirations.” N.T. at 30. Specifically, he related that “when [he] was running for office . .. it appeared that he was living in another district.” N.T. at 31, But he was living at “2333 [North Cleveland Street]” “at that time.” Id. In addition, when attempting to explain the address on his expired driver’s license, Candidate stated that he and Wife separated in 2014, although he had previously testified on at least three occasions that he and his Wife separated in 2015. With respect to the documentary evidence Candidate presented, although he produced documentation purporting to show he used the address 2337 North Cleveland Street from 2014 through 2018, none of the evidence shows he was separated from his Wife during this period, Indeed, the documents Objectors subpoenaed but Candidate did not furnish, ix his current W2 and/or tax returns, and/or any current leases in his household, could have shed some light on this issue as Candidate testified that he and his Wife were filing jointly this year, Moreover, the fact that Candidate 26and his Wife have no documented agreements with respect to custody and/or support for their son, let alone a separation agreement or pending divorce filings to present, also weighs heavily against a finding that Candidate and his Wife are in fact separated. Although Candidate maintains he is separated from his Wife, he did not present one witness to testify on his behalf, nor any documentary evidence to support his claim. Because Candidate did not present any credible evidence to show that he is in fact separated from his Wife, this Court concludes that Candidate has not met his burden of proving that he and his Wife have “actually separated.” Hanssens, 821 A.2d at 1251. Under the circumstances, this Court holds that Candidate intentionally falsified his Candidate's affidavit as to his residence. Because Objectors have proven that Candidate’s affidavit is intentionally false, Candidate’s Nomination Petition is invalid. See Hanssens, Accordingly, the Objection Petition is granted, and Candidate’s name shall be removed from the May (a ANNE E. COVEY, Jud 15, 2018 primary election ballot. 27IN THE COMMONWEALTH COURT OF PENNSYLVANIA. In Re: Nomination Petition of Kenneth Walker Jr. As Democratic Candidate for State Representative for the 181% Legislative District Petition of: Arthur Green and Frances Folk No. 164 M.D. 2018 ORDER AND NOW, this 5" day of April, 2018, it is hereby ORDERED: 1, The petition to set aside Kenneth Walker Jr.’s nomination petition is hereby GRANTED. 2. The Secretary of the Commonwealth is directed to REMOVE the name of Kenneth Walker Jr., Candidate for State Representative in the 181st Legislative District, from the May 15, 2018 primary election ballot. 3. To the extent that any ballots are returned with votes for Kenneth Walker Jr., the local Board of Elections is not to count any votes for this individual. 4, Bach party shall bear his/their own costs. 5. The Chief Clerk shall notify the parties hereto and their counsel of this Order and also certify a copy hereof to the Secretary of the Commonwealth, ANNE E. COVEY, Jud: Certified from the Record APR - 5 2018 ‘and Order Exh