Appeal, No. 109, Jan. T., 1954, from order of Court of Common Pleas of Schuylkill County, Jan. T., 1954, No. 207, in re Petition to Open Ballot Box of Oneida District, East Union Township. Order reversed.
William J. Cudding, for appellant.
John P. McCord, with him H. Franklin Kehler and Watkins & Walesky, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
This appeal is from a final order entered by the Court of Common Pleas of Schuylkill County in a controversy over the County Election Board's computation and canvass of the votes cast at the municipal election on November 3, 1953, for the office of supervisor of East Union Township, for which office William Calovine and Arthur Jones were the contesting nominees. The material facts are not in dispute and, as summarized by the hearing judge, were stipulated of record by counsel for all parties in interest. In order that the duly elected supervisors of the township might be able to organize for the conduct of the township's business (one of the qualified supervisors being incapacitated by illness), we entered an order on the appeal, after oral argument thereof and a study of the
briefs of counsel, reversing the order entered below and adjudging Jones entitled to the certificate of election, nothing that an opinion would be filed later whereof this is in fulfillment.
As required by Section 1404 (a) of the Election Code of 1937, P.L. 1333, 25 PS § 3154 (a), the Board of Elections of Schuylkill County on November 6th publicly commenced its canvass and computation of the returns of the votes cast in the county at the November 3rd election and completed its work on November 13th. The Board thereupon tabulated the figures for the entire county and signed, announced and attested the same as directed by Section 1404 (a). The Board also announced that November 18, 1953, was the last day for appealing to the Court of Common Pleas from the action of the Board of Elections for fraud or error in its canvass and computation. East Union Township comprises three election districts, namely, Oneida, Brandonville and Sheppton. On November 18, 1953, electors from the Brandonville and the Sheppton election districts petitioned the Court of Common Pleas of the county for a recount of the votes cast in those districts for the office of township supervisor. Such recount was ordered by the court and was made on November 23, 1953, in the presence, inter alia, of Calovine and Jones. The recount resulted in a change in the vote in the two named districts for a net gain to Jones. After corrections had accordingly been made in the returns for the Brandonville and Sheppton districts, the tabulation for the three election districts of the township, as then computed, showed Jones to be the winner over Calovine by a vote of 322 to 314. At the time of the recount of the ballots in the boxes of the Brandonville and Sheppton districts, a recount of the votes cast in the Oneida district was also made upon order of court duly entered at which recount
Calovine and Jones were likewise present. But, that recount was expressly limited by the prayer of the petition and the court's order to a recanvass of the votes cast for the office of tax collector.
On November 27, 1953, which was nine days after the time for appealing to the Court of Common Pleas from the action of the County Board of Elections had expired, counsel for Calovine served notice on counsel for Jones that he would petition the County Board of Commissioners (i.e., Board of Elections) on November 30, 1953, for a recount of the votes in the Oneida election district for the office of supervisor, which he accordingly did. On the same day (i.e., November 30th) the County Commissioners, purporting to act in their capacity as the County Board of Elections, directed that a recount be made, as prayed for, by a computation board then engaged in making recounts of the votes cast for certain offices in a number of election districts under orders of court duly applied for and obtained. Upon the recount of the votes in the Oneida district, as ordered by the County Board of Elections on November 30th, the aggregate result for all three election districts of the township showed Calovine to have received 326 votes and Jones ...