Appeal, No. 224, jan. T., 1964, from order of Court of Common Pleas of Northumberland County, Dec. T., 1963, No. 597, in case of George F. Perles v. County Return Board of Northumberland County. Order affirmed.
Myron M. Moskowitz, for appellant.
Preston L. Davis, for intervening appellee.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE JONES
The inception of this controversy was the municipal election held on November 5, 1963, in Northumberland County. "Among other officers to have been elected at that election was the entire board of county commissioners, and, consequently, the two judges of the court of common pleas of the county acted as the return board to compute and canvass the votes: Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, § 1403, as amended (25 P.S. § 3153) (hereinafter referred to as the Election Code).
"There were four candidates for the three offices of county commissioner and prior to the computation and canvassing of the ballots of absentee electors it appeared that Oscar E. Kehler (D) had received 19,626 votes; W. Fred Kohler, Jr. (R) 19,480 votes; George F. Perles [Perles] (D) 19,060 votes; and Fred E. Hoffman [Hoffman] (R) 18,729 votes. The ballots of absentee electors received by the county board of elections (and not then counted) totaled 765."*fn1
146 of the absentee ballots were rejected by the board of elections as bearing postmarks later than election day: See Election Code §§ 1305-B and 1307-B, 25
P.S. §§ 3149.5 and 3149.7. As the remaining ballots were removed from their outer envelopes, counsel for Perles began to challenge,*fn2 ultimately challenging 485 of the remaining 619 votes. These challenges were overruled. "After all of the ballots of absentee electors had been thus canvassed (and with the apparent agreement of all parties including the interested candidates, their attorneys and watchers, the tabulators, the county chairmen of the two major political parties, and the two common pleas judges sitting as a return board) the still-sealed inner envelopes containing the overruled, challenged ballots were commingled with the envelopes containing unchallenged ballots and at that point they were all opened and the ballots therein counted."*fn3 (Emphasis supplied). Perles received votes on 96 of the absentee ballots and Hoffman on 505. When these ballots were tabulated with the other ballots cast, the final result was a victory for Hoffman by 78 votes.
The counting of the absentee ballots was concluded on November 17, 1963, and the votes were tallied on November 18 and 19. On November 22, 1963, the board signed the official books which confirmed the results of the canvass and computation of the absentee ballots. On November 22, 1963, Perles filed an appeal, and Hoffman moved to dismiss the appeal as having been untimely filed. On December 3, 1963, the two law judges of Northumberland County disqualified themselves from hearing the appeal because they had previously acted as the return board in the election. This Court then appointed Judge R. DIXON HERMAN of the 12th Judicial District to specially preside in the matter. Argument was held on ...