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BIRMINGHAM TOWNSHIP ELECTION CONTEST CASE. (06/30/58)

June 30, 1958

BIRMINGHAM TOWNSHIP ELECTION CONTEST CASE.


Appeal, No. 197, Jan, T., 1958, from order of Court of Common Pleas of Chester County, Miscellaneous No. 11446, in the matter of the election of school directors in Birmingham Township. Order reversed.

COUNSEL

Dallett Hemphill, with him Samuel Lichtenfeld, for appellants.

Robert S. Gawthrop, with him Gawthrop & Greenwood, for appellee.

Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 393 Pa. Page 397]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This appeal challenges the validity of an order of the Court of Common Pleas of Chester County dismissing an election contest proceeding.

At a municipal election held on November 5, 1957 in Birmingham Township, Chester County, there were three candidates for school director, two to be elected: Frederick J. Wolter, a Democrat, and Robert Earl Barnett and Phoebe S. Wylie, both Republicans. The official count of the County Board of Election and a recount conducted under supervision of the court both indicated that Robert Earl Barnett and Phoebe S. Wylie had received the highest number of votes for the office of school director.

[ 393 Pa. Page 398]

On behalf of Frederick J. Wolter a petition for an election contest under the Election Code*fn1 was filed wherein it was alleged that the local election board had counted certain ballots which should have been declared void and, if such ballots had not been so counted, Wolter would have received the second highest number of votes and would have been elected in place of Phoebe S. Wylie. Upon presentation of this petition the court below issued a rule directing that Robert Earl Barnett and Phoebe S. Wylie answer the contest petition and, further, directed that a bond be filed by the petitioners. In accordance with this court order, a bond signed by five of the petitioners with a sufficient surety was filed. One "Dorothy Wolter" signed the petition, the petition affidavit and the bond.

The answer to the contest petition denied an averment that the petitioners were "registered electors of Birmingham Township, Chester County, Pennsylvania, who voted at the Municipal Election held in said Township on Tuesday, November 5, 1957"; therefore, the petitioners called the Chief Registrar of the Registration Office to prove this averment.*fn2

The official records indicated that one "Dorothy A. Wolter" was a registered elector of Birmingham Township and that she had voted at the municipal election therein. There was no record of the registration or ...


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