Appeal from order of Court of Common Pleas of Luzerne County, Jan. T., 1972, No. 241, in re Petition for appeal from certain decisions of the Luzerne County Return Board and sustained by Luzerne County Court of Common Pleas re recount of vote for school director of Wyoming Area in November 2, 1971 election.
Anthony B. Panaway, with him Carmen John Maffei, for appellant.
J. Earl Langan, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts joins in this dissenting opinion.
This is an appeal from the Luzerne County Court of Common Pleas affirming decision of the Luzerne County Return Board in the Wyoming Area School Director Contest. The parties herein are two of six aspirants for the three seats that were to be filled in the general election held on November 2, 1971.
A stipulation of counsel provided:
"1. It is hereby agreed and stipulated by and between Anthony B. Panaway and Carmen John Maffei, counsel for appellant, and J. Earl Langan, counsel for appellee, that there are 16 absentee ballots marked in either red or green ink, which have been counted in the votes for school director of Wyoming Area in the November 2, 1971 election, which resulted in the election of Casimir Kizis.
"2. It is further agreed and stipulated that the only question for this Honorable Court to resolve is the legality of the marking and counting of the aforesaid ballots in the election.
"3. It is further agreed and stipulated that counsel for appellant will withdraw and does hereby withdraw any other objections they have to the decision of the Luzerne County Court of Common Pleas in the aforesaid election matter." By virtue of the small plurality the resolution of this issue will decide the
election for the third seat which is in contest. This Court assumed plenary jurisdiction under the Appellate Court Jurisdiction Act of 1970, July 31, P. L. 673, Art. II, § 205, 17 P.S. § 211.205, to assist in the determination of the dispute.*fn1
The pertinent provision of the Election Code provides as follows: "[a] No ballot which is so marked as to be capable of identification shall be counted. Any ballot that is marked in blue, black or blue-black ink, in fountain pen or ballpoint pen, or black ...