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CULLEN APPEAL. (12/11/58)

December 11, 1958

CULLEN APPEAL.


Appeals, Nos. 229 and 249, Jan. T., 1958, from order of Court of Common Pleas of Bradford County, Dec. T., 1957, No. 296, in matter of recount of ballots of Albany Township and fifty-eight other boxes in Bradford County. Order reversed; reargument refused January 12, 1959.

COUNSEL

David Olbum, with him Robert J. Landy, for candidate, Cullen.

John Y. Scott and Saul L. Rrbin, with them Maurice L. Epstein, and J. Roy Lillery, for candidate, Moscrip.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Jones

[ 394 Pa. Page 257]

OPINION BY MR. CHIEF JUSTICE JONES.

When this matter first came before us on the separate appeals of James W. Cullen and Andrew S. Moscrip, 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 1957 Municipal Election, there was only the adjudication of the hearing judge, Honorable CHARLES G. WEBB, of the 4th Judicial District, specially

[ 394 Pa. Page 258]

    presiding, in a timely instituted recount proceeding.

According to the adjudication, Moscrip was credited with having received 7,471 votes and Cullen 7,469 for a difference of two votes in Moscrip's favor. Both contestants filed exceptions to the court's rulings for a combined total of forty-four. After argument, the hearing judge sustained five of Cullen's exceptions and seven of Moscrip's for a net gain for Moscrip of two votes. The return, as thus established by the corrected adjudication of the hearing judge, showed Moscrip to have received 7,470 votes and Cullen 7,466 for a plurality of four votes for Moscrip. The matter then came on for our review on the above mentioned cross appeals of Cullen and Moscrip (see 392 Pa. 602, 141 A.2d 389).

After argument by counsel for the respective appellants and appellees on the forty-four contested rulings of the hearing judge, we remanded the record for a review thereof by a court en banc composed of the hearing judge and two additional common pleas court judges whom we specially assigned for the service, namely, Hon. MICHAEL J. EAGEN of the 45th Judicial District and Hon. ABRAHAM H. LIPEZ of the 25th Judicial District.

Thereafter, the court en banc, having sat for the purposes of its constitution, entered a final order, joined in by Judges WEBB and LIPEZ (Judge EAGEN dissenting) which amended the adjudication of the hearing judge so as to show "the total vote for the entire county" as 7,469 for Moscrip and 7,468 for Cullen, or a plurality of one vote for Moscrip. The record, as augmented by the three separate opinions of the judges composing the court en banc and the above mentioned final order, was returned to this ...


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