In re Absentee Ballots of Zimmerman

400 A.2d 895, 41 Pa. Commw. 575, 1979 Pa. Commw. LEXIS 1427

• Court: Commonwealth Court of Pennsylvania
• Decided: April 10, 1979
• Docket: Appeal, No. 2465 C.D. 1977
• Status: Published

Opinion

Opinion by

Judge Wilkinson, Jr.,

An exceedingly narrow issue is presented in this case, i.e., does the question of eligibility to challenge an absentee ballot before the county board of elections (board) raise an issue of the jurisdiction of the board requiring affirmative proof or is it a matter of standing, requiring an objection to be put in issue? Neither the qualification of the challenger nor the jurisdiction of the board was put in issue at the hearing before the board on the validity of the absentee ballots. This issue was raised for the first time in the Petition for Review filed in the Court of Common Pleas. The Court of Common Pleas ruled, inter alia, that the board had general jurisdiction of the subject matter, the issue of the qualification of the challenger raising only a question of standing, and dismissed the appeal. We affirm.

The able opinion of Judge Keller of tbe Court of Common Pleas setting forth tbe facts, tbe history of tbe case, and tbe disposition of tbe other issues, is reported in 1 Franklin County Legal Journal 205 (1977), making it unnecessary for them to be repeated here.

Tbe decision in Studio Theaters, Inc. v. Washington, 418 Pa. 73, 209 A.2d 802 (1965) is dispositive of this case. There tbe matter in controversy was a challenge to tbe constitutionality of a taxing statute. Justice, later Chief Justice, Benjamin R. Jones, speaking for tbe Court, stated, ‘ ‘ Tbe test of jurisdiction is whether tbe court has power to enter upon tbe inquiry.” Id. at 77, 209 A.2d at 804. There is no doubt that Section 1308(e) of tbe Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, added by Section 11 of the Act of March 6, 1951, P.L. 3, as amended, 25 P.S. §3146.8(e), places the power in tbe board to enter upon the inquiry when an absentee ballot is challenged. Tbe challenger must be either an “attorney, watcher, or candidate.” This, we agree, is a matter of standing. To raise this matter on appeal to tbe Court of Common Pleas, it must first be raised before tbe board. Tbe facts of this case emphasize tbe necessity for this rule. It would appear that tbe challenger in this case was well known to tbe board and to tbe others present as a candidate for election to tbe position of judge of elections. If this was to be put in issue it would seem obvious that it must be raised. Having thus decided, we do not reach tbe question of whether tbe board or the Common Pleas Court could take “judicial notice” that be was a candidate in that election for tbe office of judge of elections of Warren Township. It is worth noting, however, that petitioner in bis Petition for Review filed in tbe Common Pleas Court himself alleges that tbe challenger was Carl E. Carbaugb, judge of elections for Warren Township. He now wants proof, as a jurisdictional matter without the issue being raised, that this is the same Carl E. Carbaugh who was a candidate that day for election to the position of judge of elections of Warren Township!

Accordingly, we will enter the following

Order

And Now, April 10, 1979, the order of the Court of Common Pleas of Franklin County, dated February 24, 1978 dismissing the Petition for Review of the decision of the Franklin County Board of Elections, is affirmed.