Appeal, No. 111, Jan. T., 1953, from order of Court of Common Pleas of Luzerne County, Dec. T., 1952, No. 1049, in re Appeal and Petition, The Opening and Computation of Votes on Voting Machines etc., in Luzerne County. Order affirmed.
James Lenahan Brown, with him Joseph V. Kasper, for appellant.
R. Lawrence Coughlin, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
The appellant, Daniel J. Flood, was the Democratic nominee for Congress in the Eleventh Pennsylvania District (consisting of Luzerne County) at the general election on November 4, 1952. His Republican opponent was Edward J. Bonin. The official canvass and computation of the returns, which was made on November 7th, disclosed that Bonin had a lead over Flood of 834 votes. The final official computation, which was not completed until November 14th due to the necessity of including the returned soldier ballots, showed Bonin had won by a plurality of 601 votes.
On November 12, 1952, Flood filed with the Court of Common Pleas of Luzerne County his petition, addressed to the court and sworn to by him, seeking to appeal from the failure of the Board of Elections of
the County to act affirmatively upon a motion by the minority (Democratic) member at a meeting of the Board on November 10th that the voting machines in the 411 election precincts of the Congressional District be opened and the vote for congressman retabulated. The court fixed a hearing on the petition for November 18th. In the meantime (November 14th), Flood sought leave to amend his appeal petition, which was allowed in due course, the amendment being as follows: "The petitioner, Daniel J. Flood, hereby appeals from the computation of the vote as made by the County Board of Elections on November 7, 1952, and appeals from the refusal of the County Board of Elections to canvass the congressional vote of Luzerne County, and assigns the following reasons in support of his appeal and requests that all the voting machines used in Luzerne County be opened and tabulated.... 11. That the refusal of the County Board of Elections to order a canvass of the congressional vote of Luzerne County was arbitrary, capricious and bias [sic] in view of the precedents heretofore established."
At the hearing on November 18, 1952, the County Board of Elections moved to quash the appeal for want of jurisdiction. The matter was heard by the court en banc, one member (LEWIS, J.) being absent; and on November 19th, the court, acting by VALENTINE, P.J., filed an opinion with an accompanying order sustaining the Board's motion and quashing the appeal. The next day (November 20th), Bonin's election was certified to the Secretary of the Commonwealth. Flood took this appeal from the action of the court below on November 21st; and, three days later (November 24th), upon petition of the appellant, we entered an order making the appeal a supersedeas in order to preserve the status quo of the voting machines of the district pendente lite.
Section 1407 of the Election Code of June 3, 1937, P.L. 1333, 25 PS § 3157, which confers upon any aggrieved person a right of appeal to the court of common pleas from any order or decision of a county board of elections regarding, inter alia, a recount or a recanvass of the returns of an election (the jurisdiction sought to be invoked by the appellant) provides in subsection (b) that "No appeal shall be allowed or granted from any order or decree of the court of common pleas made in pursuance of this section." In view of this positive prohibition of an appeal, the instant matter is before us as on certiorari; and our review is accordingly limited "to a consideration of the jurisdiction of the court below ...