March 18, 1957
NEWPORT TOWNSHIP ELECTION CONTEST.
Appeal, No. 19, Feb. T., 1957, from decision of Court of Common Pleas of Luzerne County, Dec. T., 1953, No. 1478, in re contest of election for the office of tax collector in the township of Newport, Luzerne County. Case certified to Supreme Court.
James Lenahan Brown, for appellant.
Paul R. Selecky, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 183 Pa. Super. Page 118]
OPINION BY WRIGHT, J.
At the November 1953 election, Louis Kavetski and Anthony Beeunas were opposing candidates for the office of tax collector of Newport Township in Luzerne County. Following an election contest, which involved the votes cast in the sixth ward of said township embracing the buildings and grounds of Retreat State Hospital, the Court of Common Pleas declared Beeunas elected. In dismissing the contest the said court specifically held that "the Complaint was not without probable cause", and therefore directed that the costs be paid by the municipalities involved under the provisions of the Pennsylvania Election Code.*fn1 Kavetski appealed to the Supreme Court, and the case was disposed of on March 15, 1956, in an opinion by Mr. Justice ARNOLD which concluded as follows: "Order affirmed; costs to be paid as ordered by the court below in its supplemental order thereto". See Newport Township Election Contest, 384 Pa. 474, 121 A.2d 141.
On March 23, 1956, a petition of the municipalities for reconsideration and clarification of the order as to costs was filed in the Supreme Court requesting that the costs of the paper books of Beeunas be imposed upon Kavetski. To this petition Kavetski filed an answer. On April 30, 1956, the Supreme Court entered the following order: "Petition denied. Per Curiam". On the same day the record was remitted to the Prothonotary of Luzerne County.
[ 183 Pa. Super. Page 119]
On May 7, 1956, the court below granted Beeunas a rule to show cause why the costs of the appeal in the Supreme Court should not be imposed upon Kavetski, to which an answer was filed. Following argument upon petition and answer, the court en banc, by decision dated November 1, 1956, imposed the costs of Beeunas in amount of $279.66 upon Kavetski. On November 7, 1956, a petition was filed by Kavetski in the Supreme Court asking said Court to review the order even though the amount involved was less than $5,000.00, to which petition an answer was filed by Beeunas. On November 15, 1956, the Supreme Court made the following order: "Petition denied. Per Curiam". This appeal was then taken to the Superior Court from the decision of the court below.
It is readily apparent that the question presented involves an interpretation of the Supreme Court's order of March 15, 1956. Four of the members of this Court, including the writer of the present opinion, feel that the proper interpretation of said order is that it intended to dispose of all costs, including appeal costs. It is our view, therefore, that the decision of the lower court should be reversed and the rule discharged. Three members of this Court feel to the contrary that the decision of the court below was correct, and should be affirmed. All of the members of this Court, however, are of the opinion that the question presented should be decided by the Supreme Court, since it involves an interpretation of its own order.
Because of the importance of the question presented, this case is certified to the Supreme Court for consideration and decision under Section 10 of the Act of June 24, 1895, P.L. 212, 17 PS 197.