Appeal, No. 158, Jan. T., 1963, from order of Court of Common Pleas of Berks County, Nov. T., 1962, Nos. 57 to 96, inclusive, and 106, in re petition to open ballot boxes and have ballots counted in certain precincts or various wards in the City of Reading in the special election held on September 25, 1962. Order reversed.
Irving R. Segal, with him Robert L. Kendall, Jr., Robert F. Shapiro, Adam B. Krafczek, Russell J. LaMarca, and Schnader, Harrison, Segal & Lewis, for Reading Defense Committee, appellant.
Paul N. Schaeffer and Darlington Hoopes, for Berks County Citizens Association, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
On September 25, 1962, a special referendum election pursuant to the Optional Third Class City Charter Law (Act of July 15, 1957, P.L. 901, 53 P.S. § 41101 et seq.) was held in the City of Reading, Pennsylvania, to determine whether or not a Council-Manager Plan of government should be adopted in that city. Paper ballots were used to submit the question to the electorate and more than 28,000 votes were cast. The final result, as indicated by the open returns, gave a plurality of 99 votes against the adoption of the plan.
Subsequently, petitions were filed with the Court of Common Pleas of Berks County to recount the ballots contained in forty-one election boxes. During the recount proceedings, challenges were recorded by parties in interest to the validity of a total of 431 ballots. The challenges all concerned the manner in which the ballots involved were marked by the voter in casting
his or her vote on the question. No fraud was involved. The rulings of the court with respect to the validity of a certain number of these ballots resulted in a plurality of 26 votes in favor of the adoption of the plan.
This appeal challenges the legal correctness of the lower court's ruling declaring that certain ballots were void and should not be counted in the final tabulation of the vote.
Each ballot contained the following question: "Shall the Council-Manager Plan of the Optional Third Class City Charter Law, providing for seven (7) Councilmen to be elected at large, be adopted by the City of Reading"?
Opposite the above question were two double blocks or squares, one above the other. The upper left square contained the printed word "YES" and the lower left square contained the printed word "NO." Immediately adjacent to these squares were blank squares wherein the voter could indicate his or her vote. On each ballot specific instructions were printed to guide the voter in casting the ballot. These included the following: "Use either a cross (X) or a check ([*] ) mark." The instructions did not specifically indicate where the cross (X) or check ([*] ) mark should be placed on the ballot.
It is our considered conclusion that the court below erred in ruling certain specific ballots invalid. These may be classified into two categories: 1. Those wherein the voter inserted a cross (X) or a check ([*] ) mark in the proper voting square but in addition thereto added the word "YES" or "NO" in writing in the same square; 2. Those wherein the voter inserted a cross (X) or a check ([*] ) mark in the proper voting square and in addition ...