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decided: November 15, 1966.


Appeals from orders of Court of Common Pleas of Schuylkill County, May T., 1965, Nos. 829 and 858, in re Paul L. Wagner challenge to absentee electors' votes with respect to general election held November 3, 1964.


Robert E. Woodside, with him H. G. Stutzman, Robert M. Zimmerman, Alvin E. Maurer, Jr., and Woodside & Woodside, for appellant.

Jerome J. Shestack, with him Ira P. Tiger, Samuel D. Slade, Ralph M. Bashore, Isadore E. Krasno, and Schnader, Harrison, Segal & Lewis, for appellee.

Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Concurring and Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Jones.

Author: Eagen

[ 423 Pa. Page 506]

In the General Election held on November 3, 1964, Paul L. Wagner and Albert Nagle were candidates for the office of State Senator from the then 29th Senatorial District in Pennsylvania, comprising Schuylkill and Lebanon Counties.

A computation of the returns of the votes registered at the regularly constituted polling places disclosed that Nagle lead in a close contest by a plurality of several hundred votes. Attention of those involved then focused on ballots cast by absentee electors under the Absentee Election Act of August 13, 1963, P.L. 707, 25 P.S. § 3146.1 et seq. (Supp. 1965).

When the Board of Elections (Board) convened for the purpose of canvassing and computing absentee ballots, both candidates or their representatives immediately entered challenges to a substantial number of the ballots cast in Schuylkill County before the envelopes containing those ballots were opened.

The challenges fell into two general categories: (1) Challenges on the ground that the forms which had been filled out by the electors demonstrated on the

[ 423 Pa. Page 507]

    face of each a failure to comply with the statutory absentee voting provisions; (2) Challenges on the ground that the individual electors were not personally qualified.

After a hearing the Board filed its decision overruling the challenges in some instances and sustaining them in others. Both candidates then appealed to the Court of Common Pleas of Schuylkill County questioning the correctness of the Board's decision as to the validity of many challenges.

Subsequently, the court filed its opinion and orders sustaining the decision of the Board in part and reversing it in part. Wagner then filed the present appeals.*fn1

None of the absentee ballots to which challenges were entered have been opened or computed because of the restriction imposed by § 24 of the Amending Act of August 13, 1963, supra, 25 P.S. § 3146.8(e) (Supp. 1965), which requires that "Pending the final determination of all appeals, the board shall suspend any action in canvassing and computing all challenged ballots. . . ." In the meantime, the district has been without representation in the Senate of Pennsylvania.

It is our considered conclusion that the scope of our review is in the nature of narrow certiorari and, we are, therefore, limited to a determination of whether the court below had jurisdiction; whether its proceedings were regular; whether or not it exceeded its powers; and, finally, whether or not there was a violation of constitutional rights. Since it is not claimed that any of these errors occurred below and the record clearly manifests that such is the case, this is dispositive of the present appeals, and the lower court's orders will be affirmed.

[ 423 Pa. Page 508]

The distinction between the two types of certiorari has often been spelled out by this Court. If the statute controlling the proceedings fails to provide for an appeal or is silent thereto, a writ of certiorari to inspect the record is in the broadest sense, and the merits of the issue may be judicially reviewed: Cullen Appeal, 392 Pa. 602, 141 A.2d 389 (1958), and Kaufman Const. Co. v. Holcomb, 357 Pa. 514, 55 A.2d 534 (1947). On the other hand, if the statute particularly states that no appeal shall be permitted or that the lower court's action is final, appellate review is narrow in scope and limited, as noted before, to the question of jurisdiction, regularity of the proceedings, abuse of power and violation of constitutional rights: Flood Appeal, 372 Pa. 486, 94 A.2d 565 (1953), and Rimer's Contested Election. Geary's App'l, 316 Pa. 342, 175 A. 544 (1934).

Prior to the year 1957, the Pennsylvania Constitution permitted absentee voting only by individuals engaged in actual military service (Art. 8, § 6 of the Pennsylvania Constitution (1874)), and by bedridden or hospitalized veterans (Art. 8, § 18 added to the Pennsylvania Constitution (1949)). In 1957, the Pennsylvania Constitution was further amended by the addition of Art. 8, § 19, which permitted civilian absentee voting where unavoidable absence or physical disability justified the privilege. In 1960, the legislature implemented this constitutional authorization by passing the Act of January 8, 1960, P.L. 2135, 25 P.S. § 3149.1-3149.9 (Supp. 1960), entitled "An Act amending the Act of June 3, 1937," i.e., the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2601.

In the canvassing and computation of the results of the elections immediately following 1960, challenges were exercised and entered to the validity of certain

[ 423 Pa. Page 509]

    absentee ballots cast and litigation ...

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