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MCKELVEY APPEAL (10/06/71)

decided: October 6, 1971.

MCKELVEY APPEAL


Appeal from order of Court of Common Pleas of Lycoming County, Nos. 71-1521 to 71-1553, inclusive, in re petitions to open Ballot Boxes and recount votes for Mayor of the City of Williamsport on the Democratic Ballot in primary election of 1971.

COUNSEL

Richard H. Roesgen, with him McNerney, Page, Vanderlin & Hall, for appellant.

No oral argument was made nor brief submitted for appellee.

Jones, Eagen, O'Brien, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Eagen

[ 444 Pa. Page 393]

At the primary election on May 18, 1971, one of the contests was that of the Democratic nomination for the office of Mayor of the City of Williamsport, Lycoming County. Paper ballots were used and three candidates were listed on the ballots for this nomination, namely, Richard J. Carey, T. F. Meconi and Francis F. Carducci.

The official results determined by the Lycoming County Board of Elections*fn1 showed that Carey received

[ 444 Pa. Page 3941387]

votes, Meconi received 1384 votes and Carducci received 521 votes.

Timely petitions duly filed in the Court of Common Pleas sought recount, under Section 1701 of the Election Code of June 3, 1937, P. L. 1333, 25 P.S. ยง 3261, of the ballots cast in several districts of the city. No fraud on the part of anyone was asserted, but it was alleged that errors were committed in the computation of the votes in these districts. The prayers of the petitions were granted.

During the recount proceedings that followed, the validity of certain ballots counted in the official tabulation of the election were challenged by counsel representing the interests of both Carey and Meconi. In all, the validity of 87 ballots was involved. The court upheld the challenges to 23 of these ballots and overruled the challenges to the remainder. A new computation then disclosed that Carey received 1388 votes and Meconi received 1388 votes.

Subsequently, after consideration of exceptions filed to its rulings on the validity of certain ballots, the court reversed its rulings sustaining the challenges to two ballots and ruled these ballots were valid. However, since one of these ballots cast a vote for Carey and the other cast a vote for Meconi, the court certified that the vote for the Democratic nomination for the office of Mayor of the City of Williamsport was a tie.

C. J. McKelvey, one of the electors who filed the petitions for recount in the court below in the interest of the Carey candidacy, and Eleanor L. Clayton, one of the electors who filed similar petitions in the interest of the Meconi candidacy, filed petitions in this Court which were joined in by the court below, asking us to assume plenary ...


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