IN THE COMMONWEALTH COURT OF PENNSYLVANIA

TIMOTHY R. BONNER, P.
MICHAEL JONES, DAVID H. Docket No. ___ M.D. 2022
ZIMMERMAN, BARRY J.
JOZWIAK, KATHY L. RAPP, PETITION FOR REVIEW IN THE
DAVID MALONEY, BARBARA NATURE OF AN ACTION FOR A
GLEIM, ROBERT BROOKS, DECLARATORY JUDGMENT
AARON J. BERNSTINE, TIMOTHY
F. TWARDZIK, DAWN W. KEEFER, Filed on behalf of Petitioners,
DAN MOUL, FRANCIS X. RYAN, Timothy R. Bonner, P. Michael Jones,
and DONALD “BUD” COOK, David H. Zimmerman, Barry J.
Jozwiak, Kathy L. Rapp, David
Petitioners, Maloney, Barbara Gleim, Robert
v. Brooks, Aaron Bernstine, Timothy F.
Twardzik, Dawn W. Keefer, Dan
LEIGH M. CHAPMAN, in her official Moul, Francis X. Ryan, and Donald
capacity as Acting Secretary of the “Bud” Cook
Commonwealth of Pennsylvania, and
COMMONWEALTH OF Counsel of Record for Petitioners:
PENNSYLVANIA, DEPARTMENT
OF STATE, Gregory H. Teufel
Pa. Id. No. 73062
Respondents. Robert Cowburn
Pa. Id. No. 328198
OGC Law, LLC
1575 McFarland Road, Suite 201
Pittsburgh, PA 15216
412-253-4622
412-253-4623 (facsimile)
[email protected]
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

TIMOTHY R. BONNER, P. MICHAEL

JONES, DAVID H. ZIMMERMAN,
BARRY J. JOZWIAK, KATHY L. RAPP, Docket No. ___ M.D. 2022
DAVID MALONEY, BARBARA GLEIM,
ROBERT BROOKS, AARON J.
BERNSTINE, TIMOTHY F. TWARDZIK,
DAWN KEEFER, DAN MOUL,
FRANCIS X. RYAN, and DONALD
“BUD” COOK,

Petitioners,
v.

LEIGH M. CHAPMAN, in her

official capacity as Acting Secretary of the
Commonwealth of Pennsylvania, and COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF STATE,

Respondents.

NOTICE TO DEFEND

YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20) days
after this petition and notice are served, by entering a written appearance personally
or by attorney and filing in writing with the court your defenses or objections to the
claims set forth against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the court without
further notice for any money claimed in the petition or for any claim or relief
requested by the petitioner. You may lose money or property or other rights
important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU

DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW. TIDS OFFICE CAN
PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE
ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT
MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED
FEE OR NO FEE.

MidPenn Legal Services

213-A North Front Street
Harrisburg, Pennsylvania 17101
(717) 232-0581

and

Dauphin County Lawyer Referral Service

Dauphin County Bar Association
213 North Front Street
Harrisburg, Pennsylvania 17101
(717) 232-7536
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

TIMOTHY R. BONNER, P. MICHAEL

JONES, DAVID H. ZIMMERMAN,
BARRY J. JOZWIAK, KATHY L. RAPP, Docket No. ___ M.D. 2021
DAVID MALONEY, BARBARA GLEIM,
ROBERT BROOKS, AARON J.
BERNSTINE, TIMOTHY F. TWARDZIK,
DAWN KEEFER, DAN MOUL,
FRANCIS X. RYAN, and DONALD
“BUD” COOK,

Petitioners,
v.

LEIGH M. CHAPMAN, in her

official capacity as Acting Secretary of the
Commonwealth of Pennsylvania, and COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF STATE,

Respondents.

PETITION FOR REVIEW IN THE NATURE OF AN ACTION FOR

A DECLARATORY JUDGMENT

Petitioners Timothy R. Bonner, P. Michael Jones, David H. Zimmerman,

Barry J. Jozwiak, Kathy L. Rapp, David Maloney, Barbara Gleim, Robert Brooks,

Aaron J. Bernstine, Timothy F. Twardzik, Dawn W. Keefer, Dan Moul, Francis X.

Ryan, and Donald “Bud” Cook hereby file the following Petition for Review

against Respondents, Leigh M. Chapman, in her official capacity as Acting

Secretary of the Commonwealth of Pennsylvania, and the Commonwealth of

Pennsylvania, Department of State, in support thereof avers as follows:

 Introduction

1. This is an action seeking a declaration that, pursuant to Section 11 of

Act 77 (Laws of the General Assembly of the Commonwealth of Pennsylvania,

Act of October 31, 2019, P.L. 552, No. 77 (“Act 77”), because provisions of

Sections 6 and 8 of Act 77 and/or their application to a person or circumstance has

been held invalid by a court of competent jurisdiction, the remaining provisions

and applications of Act 77 are now void.

2. Specifically, Sections 6 of Act 77 at Section 1306(a) (25 Pa.Stat. §

3146.6(a)) and Section 8 of Act 77 at Section 1306-D(a) (25 Pa.Stat. § 3150.16(a)),

both provide in relevant part that “The elector shall then fill out, date and sign the

declaration printed on such envelope.” (underlining added, hereafter the “dating

provisions”).

3. Section 11 of Act 77 (“the nonseverability provision”) provides as

follows:

Sections 1, 2, 3, 3.2, 4, 5, 5.1, 6, 7, 8, 9 and 12 of this act are

nonseverable. If any provision of this act or its application to any
person or circumstance is held invalid, the remaining provisions or
applications of this act are void.
4. In Migliori v. Cohen, 36 F.4th 153, 2022 U.S. App. LEXIS 14655, *3

(3rd Cir. 2022), the court held that the Materiality Provision of the Civil Rights Act,

52 U.S.C. § 10101, prohibited the application of the dating provisions of 25

2
Pa.Stat. §§ 3146.6(a) and 3150.16(a) and directed the District Court to enter an

order that the undated ballots in that case be counted.

5. The Migliori decision invalidated the provisions of Section 6 and

Section 8 of Act 77 of 2019, which require absentee and mail-in voters to date their

secrecy envelopes.

6. The Migliori decision invalidated the application of provisions of

Section 6 and Section 8 of Act 77 of 2019, the requirements that absentee and

mail-in voters date their secrecy envelopes, to “any person” voting by absentee or

mail-in ballot who does not date his or her secrecy envelope prior to returning his

or her ballot.

7. The Migliori decision invalidated the application of provisions of

Section 6 and Section 8 of Act 77 of 2019, the requirements that absentee and

mail-in voters date their secrecy envelopes, to “circumstances” where absentee or

mail-in ballots are sent without a date on the secrecy envelope.

8. Accordingly, the remaining provisions of Act 77 are now void

pursuant to the nonseverability provision and this Court should now declare Act 77

void.

3
 Parties

9. Petitioner Timothy R. Bonner (hereinafter “Bonner”) is an adult

individual who is a qualified registered elector residing in Mercer County and a

member of the Pennsylvania House of Representatives (“the House”) serving

Mercer County (Part) and Butler County (Part).

10. Petitioner P. Michael Jones (hereinafter “Jones”) is an adult individual

who is a qualified registered elector residing in York County and a member of the

House serving Lancaster County.

11. Petitioner David H. Zimmerman (hereinafter “Zimmerman”) is an

adult individual who is a qualified registered elector residing in Lancaster County

and a member of the House serving Lancaster County (Part).

12. Petitioner the Barry J. Jozwiak (hereinafter “Jozwiak”) is an adult

individual who is a qualified registered elector residing in Berks County and a

member of the House serving Berks County (Part).

13. Petitioner Kathy L. Rapp (hereinafter “Rapp”) is an adult individual

who is a qualified registered elector residing in Warren County and a member of

the House serving Warren County, Crawford County (Part), and Forest County

(Part).

4
 14. Petitioner David Maloney (hereinafter “Maloney”) is an adult

individual who is a qualified registered elector residing in Berks County and a

member of the House serving Berks County (Part).

15. Petitioner Barbara Gleim (hereinafter “Gleim”) is an adult individual

who is a qualified registered elector residing in Cumberland County and a member

of the House serving Cumberland County (Part).

16. Petitioner Robert Brooks (hereinafter “Brooks”) is an adult individual

who is a qualified registered elector residing in Westmoreland County and a

member of the House serving Westmoreland County (Part) and Allegheny County

(Part).

17. Petitioner Aaron J. Bernstine (hereinafter “Bernstine”) is an adult

individual who is a qualified registered elector residing in Beaver County and a

member of the House serving Beaver County (Part), Butler County (Part) and

Lawrence County (Part).

18. Petitioner Timothy F. Twardzik (hereinafter “Twardzik”) is an adult

individual who is a qualified registered elector residing in Schuylkill County and a

member of the House serving Schuylkill County (Part).

19. Petitioner Dawn W. Keefer (hereinafter “Keefer”) is an adult

individual who is a qualified registered elector residing in York County and a

member of the House serving York County (Part) and Cumberland County (Part).

5
 20. Petitioner Dan Moul (hereinafter “Moul”) is an adult individual who

is a qualified registered elector residing in Adams County and a member of the

House serving Adams County (Part).

21. Petitioner Francis X. Ryan (hereinafter “Ryan”) is an adult individual

who is a qualified registered elector residing in Lebanon County and a member of

the House serving Lebanon County (Part).

22. Petitioner Donald “Bud” Cook (hereinafter “Cook”) is an adult

individual who is a qualified registered elector residing in Washington County and

a member of the House serving Fayette County (Part) and Washington County

(Part).

23. The Petitioners do not bring this action in their official capacities as

House members, but rather in their personal capacities. Each of the Representatives

constitutes both a “candidate” and a “qualified elector” as those terms are defined

in Election Code Section 102(a) and (t), 25 P.S. § 2602(a) & (t). The

Representatives brings this suit in their capacities as past and likely future 1

candidates for office and as private citizens and registered Pennsylvania voters.

24. Respondents are Leigh M. Chapman, in her official capacity as Acting

Secretary of the Commonwealth of Pennsylvania (“Acting Secretary Chapman”)

and the Commonwealth of Pennsylvania, Department of State.

1
Ryan is not seeking reelection once his term expires in November.

6
 Jurisdiction

25. This Court has original jurisdiction over this action pursuant to 42

Pa.Cons.Stat. § 761(a)(1) (“Against the Commonwealth government, including any

officer thereof, acting in his official capacity”).

26. The Declaratory Judgment Acts grants this Court “power to declare

rights, status, and other legal relations whether or not further relief is or could be

claimed. The declaration may be either affirmative or negative in form and effect,

and such declarations shall have the force and effect of a final judgment or decree.”

42 Pa.Cons.Stat. § 7532.

COUNT I
Declaratory Judgment

27. Petitioners hereby incorporate by reference each of the preceding

paragraphs as if fully set forth herein.

28. Because provisions of Section 6 and Section 8 of Act 77 and/or their

application to a person or circumstance has been held invalid by a court of

competent jurisdiction, the remaining provisions and applications of Act 77 and all

amendments thereto, such as Act No. 12 of 2020, are now void pursuant to the

nonseverability provision and Act 77 must be struck down in its entirety.

29. Subsequent to the decision in Migliori, Acting Secretary Chapman, in

her role as Secretary of the Commonwealth and acting under color of state law, has

continued to implement the provisions of the Pennsylvania Election Code that were
7
enacted pursuant to Act 77 and has further urged this Court to follow the Third

Circuit’s interpretation of federal law in Migliori (see Chapman v. Berks County

Board of Elections, No. 355 MD 2022, MEMORANDUM IN SUPPORT OF

PETITIONERS’ EMERGENCY APPLICATION FOR PEREMPTORY

JUDGMENT AND SUMMARY RELIEF).

30. On May 24, 2022, six days after the Migliori decision, Acting

Secretary Chapman, in her role as Secretary of the Commonwealth and acting

under color of state law, issued election guidance to county board of elections

directing them to count “ballots with an undated return envelope … for the May

17, 2022, Primary.” See GUIDANCE CONCERNING EXAMINATION OF

ABSENTEE AND MAIL-IN BALLOT RETURN ENVELOPES,

https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/2022-

05-24-Guidance-Segregated-Undated-Ballots.pdf.

31. The Pennsylvania Department of State has, accordingly, taken the

official position that absentee and mail voters do not need to follow the express

envelope dating requirements of Section 6 and Section 8 of Act 77, rendering that

provision effectively invalid.

32. Though a petition for writ of certiorari has been filed in the Migliori

case in the United States Supreme Court (see

www.supremecourt.gov/DocketPDF/22/22-

8
30/229591/20220707140738344_Ritter%20Petition.pdf), the United States

Supreme Court denied an application for a stay (see Ritter v. Migliori, 2022 U.S.

LEXIS 2668 *; __ S.Ct. __; 2022 WL 1743146) and has not yet either granted or

denied a writ of certiorari in that case.

PRAYER FOR RELIEF

WHEREFORE, Petitioners respectfully request that this Honorable Court

enter a declaratory judgment declaring that the provisions of the Pennsylvania

Election Code enacted pursuant to Act 77 and all amendments thereto, such as Act

No. 12 of 2020 are void and providing such other and further legal and equitable

relief as this Court deems just and proper.

Respectfully submitted,

____________________________________
Gregory H. Teufel
Robert Cowburn
Attorney for Petitioners

9
July 20, 2022
 VERIFICATION

P. Michael Jones, the undersigned individual, deposes and says that the

averments in the foregoing Petition for Review are true and correct to the best of

his knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022

July 20, 2022
 VERIFICATION

David H. Zimmerman, the undersigned individual, deposes and says that the

averments in the foregoing Petition for Review are true and correct to the best of

his knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022

David H. Zimmerman
 VERIFICATION

Kathy L. Rapp, the undersigned individual, deposes and says that the

averments in the foregoing Petition for Review are true and correct to the best of

his knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022 ____________________________________

Kathy L. Rapp
 VERIFICATION

David Maloney, the undersigned individual, deposes and says that the

averments in the foregoing Petition for Review are true and correct to the best of

his knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022

David Maloney
 VERIFICATION

Barbara Gleim, the undersigned individual, deposes and says that the

averments in the foregoing Petition for Review are true and correct to the best of

his knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022

 VERIFICATION

Robert Brooks, the undersigned individual, deposes and says that the

averments in the foregoing Petition for Review are true and correct to the best of

his knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022

Robert Brooks
 VERIFICATION

Timothy F. Twardzik, the undersigned individual, deposes and says that the

averments in the foregoing Petition for Review are true and correct to the best of

his knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022

 VERIFICATION

Dawn W. Keefer, the undersigned individual, deposes and says that the

averments in the foregoing Petition for Review are true and correct to the best of

his knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022

 VERIFICATION

Aaron J. Bernstine, the undersigned individual, deposes and says that the

averments in the foregoing Petition for Review are true and correct to the best of

his knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022 ____________________________________

Aaron J. Bernstine
July 20, 2022
 VERIFICATION

Dan Moul, the undersigned individual, deposes and says that the averments

in the foregoing Petition for Review are true and correct to the best of his

knowledge, information, and belief; and further that these averments are made

subject to the penalties of 18 Pa.Cons.Stat. §4904, relating to unsworn falsification

to authorities.

Date: July 20, 2022

July 20, 2022
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

TIMOTHY R. BONNER, P. MICHAEL

JONES, DAVID H. ZIMMERMAN,
BARRY J. JOZWIAK, KATHY L. RAPP, Docket No. ___ M.D. 2022
DAVID MALONEY, BARBARA GLEIM,
ROBERT BROOKS, AARON J.
BERNSTINE, TIMOTHY F. TWARDZIK,
DAWN KEEFER, DAN MOUL,
FRANCIS X. RYAN, and DONALD
“BUD” COOK,

Petitioners,
v.

LEIGH M. CHAPMAN, in her

official capacity as Acting Secretary of the
Commonwealth of Pennsylvania, and COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF STATE,

Respondents.

NOTICE TO PARTICIPATE

TO: Josh Shapiro, Esq.

Attorney General
Office of the Attorney General
1600 Strawberry Square
Harrisburg, PA 17120
 If you intend to participate in this proceeding in the Commonwealth Court of

Pennsylvania, you must serve and file a notice of or application for intervention

under Pa.R.A.P. 1531 within thirty days.

Date: July 20, 2022 ____________________________________

Gregory H. Teufel
Attorney for Petitioners
 CERTIFICATE OF COMPLIANCE

I certify that this filing complies with the provisions of the Case Records

Public Access Policy of the Unified Judicial System of Pennsylvania that require

filing confidential information and documents differently than non-confidential

information and documents.

Date: July 20, 2022 ______________________________

Gregory H. Teufel, Esq.