In Re: Recount of Ballots

325 A.2d 303, 457 Pa. 279, 1974 Pa. LEXIS 840
CourtSupreme Court of Pennsylvania
DecidedJuly 1, 1974
DocketAppeals, 89, 113 and 114
StatusPublished
Cited by34 cases

This text of 325 A.2d 303 (In Re: Recount of Ballots) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re: Recount of Ballots, 325 A.2d 303, 457 Pa. 279, 1974 Pa. LEXIS 840 (Pa. 1974).

Opinions

Opinion by

Mr. Justice Nix,

On November 6, 1973, the voters of Beaver County were called upon to elect two individuals for the position of Judge of the Court of Common Pleas for that County. Three candidates aspired for these two seats. [281]*281H. Beryl Klein, Esq. (now the Honorable H. Beryl Klein) had received the nomination of both political parties in the Spring Primary; Robert C. Reed, Esq. and Joseph S. Walko, Esq. were the nominees of the Republican and Democratic parties respectively for the second seat to be filled. After the general election returns had been computed and canvassed by the County Board of Elections, the total vote for each candidate was as follows: Klein: 41,753; Walko, 30,569; and Reed: 30,355. Within five days after the completion of the computation and canvassing of all of the returns of the County by the County Board, petitions were filed on behalf of candidates Walko and Reed requesting that a total of 112 election district ballot boxes be opened and recounted pursuant to the Act of June 3, 1937, P. L. 1333, §§1701 and 1703, 25 P.S. §§3261 and 3263. The Court thereupon appointed three Recount Boards of five members each to recount the votes in the districts requested. The returns of the Recount Boards listed the votes for the candidates as follows: Klein: 41,501; Reed: 30,598; and Walko: 30,591. Both Reed and Walko challenged the ruling of the Recount Boards.

After a voluntary disqualification by the judges of Beaver County this Court specially assigned the Honorable F. Joseph Thomas “to determine the validity of challenges made before the Recount Boards and to rule thereon”.1 These appeals are from the Order of the court below ruling upon the contentions of both Reed and Walko which have been consolidated for the purposes of argument and disposition by this Court.

[282]*282Candidate Walko’s Request to Reopen tbe Ballot Boxes in tbe Remaining 34 Election Districts

Tbe court below ruled that because of Walko’s failure to comply with tbe pertinent provisions of tbe Act be was not entitled to this request. We agree.

Section 17012 and Section 17033 permit tbe recanvassing of tbe votes in an election district where there [283]*283has been a petition filed which has been signed and verified by three qualified electors of the election district involved accompanied by a cash deposit or bond and the petition is presented within five days from the completion of the computation and canvassing of all returns of the county by the County Board of Elections. In this instance, the Petition to Open the remaining 34 election district ballot boxes was signed and verified only by the candidate, it was not accompanied by the required security and was not filed until 29 days (December 31, 1973) after the County Board had certified its returns (December 3, 1973).

Candidate Walko admits non-compliance with the provisions of §§1701 and 1703 and argues that he was entitled to this remedy pursuant to the Act of June 3, 1937, P. L. 1333, art. XIV, §1407, 25 P.S. §3157. This section provides in pertinent part: “(a) Any person aggrieved by any order or decision of any county board regarding the computation or canvassing of the returns of any primary or election, or regarding any recount or recanvass thereof under sections 1701, 1702 and 1703 of this act, may appeal therefrom within two days after such order or decision shall have been made, whether then reduced to writing or not, to the court of common pleas of the proper county, setting forth why he feels that an injustice has been done, and praying for such order as will give him relief. ..The only conceivable basis for the Petition filed on December 31, 1973, to be timely under the two-day statutory limit prescribed under §1407 would be that this Petition was in response [284]*284to the Recount Boards’4 returns which were completed and filed on December 28, 1973.5

We cannot, however, accept that even assuming that Walko was successful in establishing that h.e was aggrieved by the decision of the Recount Boards as to the recanvass of the ballots cast in the 112 election districts this grievance could be rectified by permitting a belated recount of additional election districts not included in the first recanvass. Clearly, this at best is an ingenious attempt to extend the time to request a recount of the remaining election boxes within the County which we will not permit.

Candidate Walko, in the alternative, argues that even if the appeal is deemed to have been untimely filed, he should nevertheless be permitted to proceed by way of an appeal nunc pro tunc. In urging this position, he relies heavily upon this Court’s decision in Koch Election Contest Case, 351 Pa. 544, 41 A.2d 657 (1945). We believe this reliance to be misplaced. In Koch, the posted return had shown that the candidate who received the majority of the votes cast had been duly elected. Thereafter, the County Board of Elections negligently computed the returns and returned a majority of the votes for the opposing candidate and, although recognizing their error, failed to correct it. There it was clear that the Board had lulled Koch, into a false sense of security and this Court properly observed : “. . . the only appropriate remedy by which, the negligence of the election board could be corrected was [285]*285by an appeal nunc pro tunc for a recount under Section 1407, 25 P.S. section 3157.” Koch, supra at 550, 41 A.2d at 660. In this case, even though the original returns may have led Walko to believe that he was a winner, it has not been shown that it was a result of a deliberate intention to mislead or of negligence on the part of the County Board. Further, both parties realized their precarious position and did in fact request and were granted the right to open those boxes that they requested to be opened. Had Walko so chose, he could, at that time, have expanded his request to include the 34 districts now involved. He elected not to do so and cannot now offer his disappointment with the result of the recanvass as a basis to modify his original request.

Compliance with statutorily imposed time limitations is especially important in election cases. This point was made clear in Turtzo v. Boyer, 370 Pa. 526, 531, 88 A.2d 884, 886 (1952) when this Court said: “It is because the lawmakers of the State were aware of the inertia inherent in an unestimated percentage of the population, and the great harm which can be visited upon others because of that inertia, that it categorically established time limits for the various procedures required in the operation of the Pennsylvania Election Code. Unless time limits were set within which to challenge the results of elections, government would permanently sit on a shaky foundation, and the citizenry would never be certain of the identity of the officeholder chosen to direct and operate the complex activities of the State, County and Municipality. Civilization must protect itself from the sluggard, as well as from the evil-doer. The lazy railroad watchman, who fails to lower a safety gate in time, can inflict as much harm on innocent passengers as the bandit who holds up the train.”

[286]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Stein v. Cortés
223 F. Supp. 3d 423 (E.D. Pennsylvania, 2016)
In re Canvass of Absentee Ballots of November 4, 2003 General Election
839 A.2d 451 (Commonwealth Court of Pennsylvania, 2003)
Pierce v. Allegheny County Board of Elections
324 F. Supp. 2d 684 (W.D. Pennsylvania, 2003)
City of Seat Pleasant v. Jones
774 A.2d 1167 (Court of Appeals of Maryland, 2001)
Temple University Health System v. Pennsylvania Labor Relations Board
734 A.2d 448 (Commonwealth Court of Pennsylvania, 1999)
Baranyai v. Andrezjwski
626 A.2d 146 (Supreme Court of Pennsylvania, 1993)
Partido Nuevo Progresista (P.N.P.) v. Rodríguez Estrada
123 P.R. Dec. 1 (Supreme Court of Puerto Rico, 1988)
White v. District of Columbia Board of Elections & Ethics
537 A.2d 1133 (District of Columbia Court of Appeals, 1988)
Lamb v. Hammond
518 A.2d 1057 (Court of Appeals of Maryland, 1987)
In Re Jones
476 A.2d 1287 (Supreme Court of Pennsylvania, 1984)
COM., STATE ETHICS COM'N v. Baldwin
445 A.2d 1208 (Supreme Court of Pennsylvania, 1982)
Commonwealth, State Ethics Commission v. Baldwin
445 A.2d 1208 (Supreme Court of Pennsylvania, 1982)
In re Contest of 1979 General Election for the Office of District Attorney
414 A.2d 310 (Supreme Court of Pennsylvania, 1980)
In re Election of Warren County District Magistrate
13 Pa. D. & C.3d 287 (Warren County Court of Common Pleas, 1980)
Barbieri v. THORNBURGH
400 A.2d 653 (Commonwealth Court of Pennsylvania, 1979)
Reed v. Sloan
381 A.2d 421 (Supreme Court of Pennsylvania, 1977)
In Re Nomination Petition of Gallagher
359 A.2d 791 (Supreme Court of Pennsylvania, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
325 A.2d 303, 457 Pa. 279, 1974 Pa. LEXIS 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-recount-of-ballots-pa-1974.