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FITCH APPEAL (NO. 1). (10/10/61)

October 10, 1961

FITCH APPEAL (NO. 1).


Appeal, No. 243, March T., 1961, from order of Court of Common Pleas of Washington County, May T., 1961, No. 580, in re primary election of Somerset Township. Order reversed.

COUNSEL

Paul A. Simmons, with him Tempest and Simmons, for appellant.

Stephen I. Richman, with him Barron P. McCune, and McCune & Greenlee, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Eagen

[ 405 Pa. Page 170]

OPINION BY MR. JUSTICE EAGEN.

This is an appeal from an order of the Court of Common Pleas of Washington County in a proceeding arising out of the primary election of May 16, 1961.

The record presents a maze of confusion almost beyond human comprehension. This is no reflection upon the court below but is due entirely to the procedure followed by legal representatives of the party litigants who, in their zeal to protect their clients' interests, filed pleading upon pleading in an effort to have their client legally declared the winner of the contested nomination.

Separating the wheat from the chaff, a study of the proceedings designated to No. 580 May Term, 1961, in

[ 405 Pa. Page 171]

    the court of common pleas of said county as well as those of the closely related proceedings designated to No. 261 May Term, 1961, discloses the following basic facts: At the primary election involved, Grace H. Fitch, the appellant, and Mary Lustik, the appellee, were candidates, among others, for the Democratic nomination for the office of tax collector of Somerset Township in Washington County. The first computation of the election returns indicated that Grace H. Fitch had received a total of 110 votes and Mary Lustik 109 votes for said office. Upon petition duly filed the court ordered the ballot box used in the election impounded, and appointed a return count board to open the box and to correctly count the entire vote cast for the office involved. In the recount, Mary Lustik gained one additional vote so that the total vote cast for each candidate was then determined to be 110 votes. The court directed that in accordance with the report of the recount board, the county board of elections correct the election returns to show a tie vote total of 110 votes cast for candidates Fitch and Lustik.

In the recount referred to above, the return count board limited its consideration and count to the ballots within the election ballot box. It did not count or consider an absentee ballot which contained a vote for Mary Lustik nor did it consider or count six additional ballots which were not in the ballot box but which were wrapped in the package returned by the township election board officials containing the stubs and unused ballots.

Subsequently, on appeal from an order of the county board of elections, the court of common pleas decided that the board erred in not counting the absentee ballot giving a vote to the candidate Lustik. Further, it concluded that the board correctly excluded from its tabulation the six ballots which were ...


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