Appeals from orders of Court of Common Pleas of Lackawanna County, Nos. 294 and 315, Nov. T., 1971, in re Computation and Canvassing of Returns from the General Election to be held November 2, 1971, in re Impounding of District Register, Voters' Certificates, List of Voters, Absentee and Emergency Absentee Ballots and their Attendant Documents, Military Ballots and Applications for same and Sealed Returns in the General Election held in the County of Lackawanna on November 2, 1971.
Paul A. McGlone, with him Joseph Marzzacco and Michael W. Simon, for appellants.
Paul H. Price and C. H. Wells, IV, with them James G. McDonough, II, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones, Mr. Justice Eagen, Mr. Justice Nix and Mr. Justice Manderino concur in the result. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts joins in this dissenting opinion.
These appeals, consolidated for argument, are from various rulings of the Court of Common Pleas of Lackawanna County arising out of the election for county commissioners held on November 2, 1971.
Before reaching the merits of the controversy, we must resolve a question as to the scope of our review. Appellant contends that our review is on broad certiorari, while appellee argues that our review is limited to narrow certiorari, and, therefore, must concern itself only with questions of jurisdiction, the regularity of the proceedings, excess in the exercise of power and constitutional issues. The question arises because the original appeals from the Lackawanna County Return Board's conclusions were filed in the Court of Common Pleas pursuant to § 1407 of the Election Code, Act of June 3, 1937, P. L. 1333, art. XIV, § 1407, 25 P.S. § 3157. That section states that: "No appeal shall be allowed or granted from any order or decree of the court of common pleas made in pursuance of this section."
Prior to the adoption of the new Pennsylvania Constitution in 1968 and the passage of the Act of December 2, 1968, P. L. , No. 351, §§ 1-2, 12 P.S. §§ 1111.1-1111.2 and the Appellate Court Jurisdiction Act of July 31, 1970, P. L. 673, art. I, §§ 101 et seq., 17 P.S. §§ 211.101 et seq., our review would indeed have been limited to narrow certiorari. That result, however, no longer obtains, since art. V, § 9 of the new Constitution provides that: ". . . there shall . . . be a right of appeal from a court of record . . . to an appellate court, the selection of such court to be as provided by law. . . ." The question posed was determined by us in favor of review on broad certiorari in Millersville Annexation Case, 447 Pa. 310, 290 A.2d 102 (1972), and that case is controlling in the instant situation.
Appellant poses a series of questions concerning the computation and canvassing of the returns from the November 2, 1971, General Election and the several rulings of the Court of Common Pleas on his challenges to the conclusions reached by the County Election Return Board.
(1) That inadequate notice was given to voters who were, therefore, not afforded reasonable opportunity to defend the validity of their ballots against challenges thereto;
(2) That where the reason for the challenge is not marked on the absentee ballot envelope, the ...