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WILKES-BARRE ELECTION CONTEST. (07/08/60)

July 8, 1960

WILKES-BARRE ELECTION CONTEST.


Appeals, Nos. 258 and 259, Jan. T., 1960, from orders of Court of Common Pleas of Luzerne County, Dec. T., 1959, Nos. 1772 and 1773, in re contests for election for offices of city treasurer and school director from the seventh legislative district of Luzerne County. Orders affirmed.

COUNSEL

James Lenahan Brown, for appellants.

Mitchell Jenkins, with him Marshall H. Morgan, and Nelson A. Bryan, for appellees.

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

Author: Bok

[ 400 Pa. Page 509]

OPINION BY MR. JUSTICE BOK.

This case involves petitions to contest an election, under the Election Code, Act of June 3, 1937, P.L. 1333, Art. XVII, §§ 1711 and 1751; 25 PS §§ 3291 and 3431.

The election in question was for certain municipal offices, specifically those of city treasurer and school director in Wilkes-Barre, Luzerne County. Out of about 25,000 votes cast, candidate Goeckel emerged with a plurality of 111 votes over appellant Noonan for city treasurer, and candidate Valenti had a plurality of 53 votes over appellant Cooney for school director.

The successful candidates filed motions to quash the petitions, which alleged the illegal assistance of voters and prayed that the election of Goeckel and Valenti be set aside in favor of appellants. The court below, with President Judge APONICK dissenting, granted the motions and quashed the petitions. Noonan and Cooney, with one of the signatory petitioners, have appealed.

The petitions aver illegal assistance to 165 voters in twelve election districts of the city. Of these, five voters were alleged not to have been qualified voters in the district where they voted: these will be disregarded because they are in different case from the remaining 160, as will appear, and because they are too few to change the election even if their votes were rejected. The petitions ask us to disallow the vote in six election districts and to reject the 160 votes, either of which would tip the scales of election in favor of appellants.

The petition consists of 111 paragraphs. These fall into a pattern of allegation covering, with one exception, the twelve election districts involved. A sample follows: "100. That in accordance with a settled course of conduct, the aforesaid individual did on November

[ 400 Pa. Page 5103]

, 1959, at the polling places in the 16th Ward - 1st District of Wilkes-Barre City assist the number of voters hereinafter set forth in the casting of their vote, which assistance by him was rendered in a manner contrary to the provisions of the Election Laws providing for 'Assistance in Voting,' to wit: Rocco Grant - upwards of 5 voters.

"101. That hereinafter set forth is a list of 5 electors of Wilkes-Barre City who were voted by means of assistance contrary to the provisions of the Election Laws providing for 'Assistance in Voting'." (List follows)

The one exceptional district was covered by this allegation: "51. That voters were assisted, but no list of assisted voters was kept or returned, contrary to the provisions of the election laws."

At the end of the petition there are several general allegations, the only one of which presently germane is 102, which reads: "That all of the aforesaid illegal, false, fraudulent, and untrue votes set forth in each of the districts aforesaid accrued to the benefit of Frank A. Goeckel and were cast for Frank A. Goeckel."

It should be obvious that the petition falls far short of legal requirements. The candidates-elect were entitled to know what charges they faced, but all that the petition vouchsafes them is the general allegation that 160 voters were illegally assisted. There is no mention of how or in what particular the Election Code was violated. The petition is as vulnerable as a complaint would be if it said only that "the aforesaid contract was illegally violated" or that "the aforesaid automobile was negligently driven."

We said in Newport Township Election Contest, 384 Pa. 474 (1956), 121 A.2d 141: "A complaint of an undue and illegal election or a false return must be

[ 400 Pa. Page 511]

    stated with clearness and precision and the petitioners held to due diligence to ascertain and specify the facts which, if sustained by proof, would require the court to set aside the result of the election. See also Pennsylvania Election Code of 1937, P.L. 1333, 25 PS 3456."

Section 1756 of the Code, referred to in the Newport case, requires: "The petition shall concisely set forth the cause of complaint, showing wherein it is claimed ...


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