Appeals, Nos. 229 and 249, Jan. T., 1958, from order of Court of Common Pleas of Bradford County, Dec. T., 1957, No. 296, in the matter of the recount of ballots of Albany Township et al. Record remanded.
David Olbum, with him Robert J. Landy, for James W. Cullen.
Saul L. Rubin, with him Maurice L. Epstein, and J. Roy Lilley for Andrew S. Moscrip.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
The separate appellants, James W. Cullen and Andrew S. Moscrip, were respectively the Democratic and Republican nominees for the office of Judge of the Court of Common Pleas of the 42nd Judicial District (Bradford County) at the municipal election of November 5, 1957. The result of the contest was so close, relatively, as to raise a substantial question concerning which of the two had actually received a plurality of the valid votes cast for the office.
These appeals are from an order of the court below based upon an adjudication in recount proceedings with respect to the validity of certain ballots or the votes indicated thereon. No question of fraud or intentional
error on the part of anyone is in any way involved. It is conceded all round that the ballots as they existed upon the opening of the boxes were in the same condition in which they had been when deposited by the electors. While, as will later appear, we do not deem the record to be in such shape as to admit of our now pronouncing definitively with respect to the merits of these appeals, there is a motion by Moscrip to quash Cullen's appeal which must be treated with before we come to the merits; and that requires at least a brief historical recital of the ligation.
Because of errors apparent on the fact of the returns, the county board of elections, sitting as the return board, opened and recounted the ballots in the boxes of 11 of the county's 71 election districts. The county board's completed calculation credited Andrew S. Moscrip, Republican, with 7520 votes, and James W. Cullen, Democratic, with 7472 votes.
By petitions duly filed in the court of common pleas, Cullen sought recount under Section 1701 of the Election Code of June 3, 1937, P.L. 1333, 25 PS § 3261, of the ballots in the boxes of 59 of the election districts of the county. The court, HON. CHARLES G. WEBB, President Judge of the Fourth Judicial District, specially presiding, granted the prayer of the petitions and appointed two members of the board to assist him with the recount. By stipulation of the interested parties, the assistants on the recount board where permitted to count and compute all of the unquestioned ballots in the absence of the judge, laying aside for the court's later consideration and adjudication such ballots as were challenged by either ...