McCabe v. Lehrer

439 A.2d 1147, 497 Pa. 218

Opinions

OPINION OF THE COURT

PER CURIAM:

This matter is a challenge to the validity of the Democratic Primary Election for the Office of Judge of the Court of Common Pleas of Philadelphia held on May 19, 1981. At voting machines placed in 24 out of 66 of the City’s voting wards, the name of Thomas J. McCormack, one of thirty candidates for one of eleven Democratic nominations, was inadvertently transposed with the name of Peter Paul Olszewski, a candidate for the Superior Court. Corrective measures were taken early during the course of the voting. McCormack finished twentieth in the field of thirty, more than 16,000 votes behind the last of the eleven successful candidates.

On July 31, 1981, after an evidentiary hearing before a specially-convened three-judge panel, a majority (President Judge Beckert of Bucks County and President Judge Lowe of Montgomery County) declared the election invalid. President Judge Catania of Delaware County dissented on the ground that because there existed only a remote mathematical possibility that McCormack could have been elected without the error, there was insufficient basis for disturbing the election. This Court assumed plenary jurisdiction and heard oral argument on September 16, 1981.

After a careful examination of the returns from the challenged and the unchallenged wards, we are convinced that the inadvertent voting machine error did not affect the result of the primary within the meaning of section 1772 of the Election Code, Act of June 3, 1937, P.L. 1333, 25 P.S. § 3472, and that the returns reflect the will of the electorate.

Accordingly, the order of the Court of Common Pleas of Philadelphia, entered July 31, 1981, is reversed.

LARSEN, J., filed a dissenting opinion. NIX, J., did not participate in the decision of this case.