Appeal, No. 270, Jan. T., 1955, from order of Court of Common Pleas of Luzerne County, Dec. T., 1953, No. 1478, in re Contest of Election for the Office of Tax Collectoer in the Township of Newport, Luzerne County, Pennsylvania. Order affirmed.
James Lenahan Brown, with him Flood & Brown, for appellant.
Paul R. Selecky, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In this election contest, Kavetski, the losing candidate for tax collector of Newport Township, Luzerne County, in the November, 1953, elections, appeals from the decision of the court below dismissing the petition and declaring respondent Beeunas elected to that office. The contest involves the votes cast in the Sixth Ward of the Township, which embraces all of the buildings and grounds of the Retreat State Hospital.
The original petition alleged that 54 named voters were disqualified because they were non-residents, that one other voted twice, another's name was not on the official "Street List," and another whose name was on the voters' list did not vote, she being away on vacation. It then alleged: "12. That all the other individuals on the voters check list, in addition to those specifically set forth, supra, were not qualified electors maintaining a legal residence within the [ward] ... and, therefore, the votes were false, fraudulent and untrue ..." In addition, it contained an averment "that the conduct of the election, as conducted in the polling
place at the Retreat State Hospital ... was tainted with fraud, corruption, and coercion to such an extent that the entire vote of the Sixth Ward ... should be disallowed ..."
The respondent moved to quash on the grounds that the general allegations of fraud were insufficient to warrant striking the entire vote, and that even if all 57 names were stricken off, the result would be the same. Thereupon the court determined there was sufficient basis for contest, but ordered that the petitioners amend paragraph 12 by stating the minimum number of persons, in addition to those already named, who were disqualified because of non-residence, and "that the number of such individuals when added to those specifically set forth ... are sufficient to change the result of the election."
Amended paragraph 12 reads: "That the following named ... individuals, in addition to those specifically set forth above, ... were not qualified electors maintaining a legal residence within the aforesaid voting district, and, therefore, the votes were false, fraudulent and untrue [there follows the names of 46 voters] ... Further, that when the allegations of this paragraph are coupled with and added to the allegation of the other paragraphs herein, they are sufficient to change the result of the election." (Italics supplied).
After hearing before an examiner appointed by the court, who cast out 22 votes (an insufficient number to change the result), the contentments argued to the court en banc that inasmuch as the Sixth Ward embraced all of the buildings of the Retreat State Hospital, which is owned by the Commonwealth and operated by the Department of Welfare, and that 107 of the persons who voted for respondent were employes of the hospital ...