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decided: July 1, 1974.


Appeals from order of Court of Common Pleas of Beaver County, Nos. 1892 to 1995, inclusive, and 1997 to 2012, inclusive, of 1973, in re recount of ballots cast in the general election held on November 6, 1973.


Clarence D. Neish, for appellant at Nos. 89 and 113, and appellee at No. 114.

John J. Petrush, with him Morgan H. Sohn and Gretchen Sohn Reed, for appellee at Nos. 89 and 113, and appellant at No. 114.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Dissenting Opinion by Mr. Chief Justice Jones and Mr. Justice Roberts.

Author: Nix

[ 457 Pa. Page 280]

On November 6, 1973, the voters of Beaver County were called upon to elect two individuals for the position of Judge of the Court of Common Pleas for that County. Three candidates aspired for these two seats.

[ 457 Pa. Page 281]

H. Beryl Klein, Esq. (now the Honorable H. Beryl Klein) had received the nomination of both political parties in the Spring Primary; Robert C. Reed, Esq. and Joseph S. Walko, Esq. were the nominees of the Republican and Democratic parties respectively for the second seat to be filled. After the general election returns had been computed and canvassed by the County Board of Elections, the total vote for each candidate was as follows: Klein: 41,753; Walko, 30,569; and Reed: 30,355. Within five days after the completion of the computation and canvassing of all of the returns of the County by the County Board, petitions were filed on behalf of candidates Walko and Reed requesting that a total of 112 election district ballot boxes be opened and recounted pursuant to the Act of June 3, 1937, P. L. 1333, §§ 1701 and 1703, 25 P.S. §§ 3261 and 3263. The Court thereupon appointed three Recount Boards of five members each to recount the votes in the districts requested. The returns of the Recount Boards listed the votes for the candidates as follows: Klein: 41,501; Reed: 30,598; and Walko: 30,591. Both Reed and Walko challenged the ruling of the Recount Boards.

After a voluntary disqualification by the judges of Beaver County this Court specially assigned the Honorable F. Joseph Thomas "to determine the validity of challenges made before the Recount Boards and to rule thereon".*fn1 These appeals are from the Order of the court below ruling upon the contentions of both Reed and Walko which have been consolidated for the purposes of argument and disposition by this Court.

[ 457 Pa. Page 282]

Candidate Walko's Request to Reopen the Ballot Boxes in the Remaining 34 Election Districts

The court below ruled that because of Walko's failure to comply with the pertinent provisions of the Act he was not entitled to this request. We agree.

Section 1701*fn2 and Section 1703*fn3 permit the recanvassing of the votes in an election district where there

[ 457 Pa. Page 283]

    has been a petition filed which has been signed and verified by three qualified electors of the election district involved accompanied by a cash deposit or bond and the petition is presented within five days from the completion of the computation and canvassing of all returns of the county by the County Board of Elections. In this instance, the Petition to Open the remaining 34 election district ballot boxes was signed and verified only by the candidate, it was not accompanied by the required security and was not filed until 29 days (December 31, 1973) after the County Board had certified its returns (December 3, 1973).

Candidate Walko admits non-compliance with the provisions of §§ 1701 and 1703 and argues that he was entitled to this remedy pursuant to the Act of June 3, 1937, P. L. 1333, art. XIV, § 1407, 25 P.S. § 3157. This section provides in pertinent part: "(a) Any person aggrieved by any order or decision of any county board regarding the computation or canvassing of the returns of any primary or election, or regarding any recount or recanvass thereof under sections 1701, 1702 and 1703 of this act, may appeal therefrom within two days after such order or decision shall have been made, whether then reduced to writing or not, to the court of common pleas of the proper county, setting forth why he feels that an injustice has been done, and praying for such order as will give him relief. . . ." The only conceivable basis for the Petition filed on December 31, 1973, to be timely under the two-day statutory limit prescribed under § 1407 would be that this Petition was in response

[ 457 Pa. Page 284]

    to the Recount Boards'*fn4 returns which were completed and filed on December 28, 1973.*fn5

We cannot, however, accept that even assuming that Walko was successful in establishing that he was aggrieved by the decision of the Recount Boards as to the recanvass of the ballots cast in the 112 election districts this grievance could be rectified by permitting a belated recount of additional election districts not included in the first recanvass. Clearly, this at best is an ingenious attempt to extend the time to request a recount of the remaining election boxes within the County which we will not permit.

Candidate Walko, in the alternative, argues that even if the appeal is deemed to have been untimely filed, he should nevertheless be permitted to proceed by way of an appeal nunc pro tunc. In urging this position, he relies heavily upon this Court's decision in Koch Election Contest Case, 351 Pa. 544, 41 A.2d 657 (1945). We believe this reliance to be misplaced. In Koch, the posted return had shown that the candidate who received the majority of the votes cast had been duly elected. Thereafter, the County Board of Elections negligently computed the returns and returned a majority of the votes for the opposing candidate and, although recognizing their error, failed to correct it. There it was clear that the Board had lulled Koch into a false sense of security and this Court properly observed: ". . . the only appropriate remedy by which the negligence of the election board could be corrected was

[ 457 Pa. Page 285]

    by an appeal nunc pro tunc for a recount under Section 1407, 25 P.S. section 3157." Koch, supra at 550, 41 A.2d at 660. In this case, even though the original returns may have led Walko to believe that he was a winner, it has not been shown that it was a result of a deliberate intention to mislead or of negligence on the part of the County Board. Further, both parties realized their precarious position and did in fact request and were granted the right to open those boxes that they requested to be opened. Had Walko so chose, he could, at that time, have expanded his request to include the 34 ...

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