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RUSSELL v. OSSER ET AL. (01/30/70)

decided: January 30, 1970.

RUSSELL
v.
OSSER ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1968, No. 1852, in case of Edward E. Russell et al. v. Maurice S. Osser et al.

COUNSEL

Levy Anderson, First Deputy City Solicitor, with him Edward G. Bauer, Jr., City Solicitor, for appellants.

Edward R. Becker, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell and Mr. Justice Roberts would affirm the decision of the court en banc.

Author: Cohen

[ 437 Pa. Page 46]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County dismissing exceptions to an order in mandamus, entered on October

[ 437 Pa. Page 4726]

, 1968, insofar as it directed action to be taken with respect to future elections.

Appellees, as citizens, taxpayers and registered electors, filed a complaint in mandamus against the City Commissioners of the City of Philadelphia acting as the County Board of Elections and the supervisor of the Philadelphia voting machine warehouse and its custodian of voting machines. The complaint alleged that appellees on October 8 and 25, 1968 had inspected a number of the voting machines that were to be used in the November 5, 1968 election and that (a) the protective counter numbers were greater than those recorded at a previous inspection, (b) on four machines the doors had been bent or pried, (c) on eight machines the seals had been broken, and, (d) on the machines assigned to the 59th Ward the original seals had been removed and new ones substituted. Appellees alleged that there had been fraud in connection with the preparation of the machines and prayed for summary judgment ordering appellants to permit inspection of all machines and to correct any irregularities.

On Sunday, October 27, 1968 Judge Griffiths held a hearing at the voting machine warehouse after which he entered summary judgment (1) directing the City Commissioners to correct all incorrect permanent counter number certificates; (2) seal all machines on which seals were missing; (3) block out all spaces not actually in use in any election held after March 1, 1969; (4) to secure tamper proof seals for all voting machines with each seal to be individually identified by serial number for use in any election after March 1, 1969; (5) to supply a security guard for each floor of the voting machine warehouse storing voting machines for 24 hour duty with foot patrol every 30 minutes over the entire area until the machines were all removed to voting districts and during the period of impoundment upon return to the warehouse; the order to

[ 437 Pa. Page 48]

    apply to the general election of November 5, 1968, and to future elections from the time the machines are sealed.

Appellants filed an answer to the complaint in which they admitted some of the factual allegations but denied that there had been any fraud or tampering with the preparation of the machines. On December 4, 1968 by stipulation between the parties it was agreed that the October 27 hearing should be considered as a final hearing on the merits of the complaint and that the decree entered that day should be deemed a decree as on final hearing on the merits and that either party might file exceptions. Appellants filed exceptions to paragraphs 3, 4 ...


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