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PETITION FRANK JONES JR. (10/16/75)

SUPREME COURT OF PENNSYLVANIA


decided: October 16, 1975.

IN RE PETITION OF FRANK JONES JR., DEMOCRAT CANDIDATE FOR WASHINGTON COUNTY TREASURER, APPELLANT

COUNSEL

Salvatore Panepinto, D. Keith Melenyzer, Charleroi, for appellant.

Gustave Diamond, Cooper, Schwartz, Diamond & Reich, Pittsburgh, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., files a dissenting Opinion. Manderino, J., dissents for the reason that this appeal was filed within 30 days of the trial court's Order of August 4, 1975 and thus should not be quashed. Jones, C. J., took no part in the consideration or decision of this case.

Author: Nix

[ 464 Pa. Page 154]

OPINION OF THE COURT

The present controversy arises from a contested election in the May 20, 1975, Primary between two of five candidates seeking the Democratic nomination for the office of County Treasurer. The original vote indicated that Mr. Yoney, appellee, received a plurality of 158 votes over his nearest rival, Mr. Jones, appellant. This appeal results from the refusal of the Court of Common Pleas of Washington County to grant appellant's request that all of the ballot boxes in the county be impounded, opened and recanvassed.*fn1

Before we can consider the merits of this appeal, we must address the questions raised by the Motion to Quash the appeal as untimely filed. To understand this issue, it is first necessary to set forth chronologically the events that preceded the filing of the instant appeal. As has been stated, the election was held on May 20, 1975. On June 6, 1975, the County Board provisionally certified the returns for the Democratic nominee for the office of County Treasurer, indicating that Mr. Yoney had a plurality of 158 votes over Mr. Jones, his nearest opponent. On June 4, 1975, two days before this certification, petitions were filed on behalf of Mr. Jones requesting the opening of 16 ballot boxes and the recounting of the ballots therein. Recount Boards were appointed and their reports of the recount of the 16 ballot boxes were

[ 464 Pa. Page 155]

    filed on June 25, 1975.*fn2 Subsequently, on June 30, 1975, counsel on behalf of Mr. Jones, filed a petition to open all of the ballot boxes within the county which had not been previously opened and in the alternative requested that 28 boxes, specifically referred to in their petition, be opened. Yoney responded by filing preliminary objections. On July 10, 1975, the court en banc entered a per curiam Opinion and Order sustaining the preliminary objections as to the request to open all of the remaining boxes throughout the county, but because of certain "special circumstances"*fn3 did consider the request pertaining

[ 464 Pa. Page 156]

    to the 28 boxes. On August 1, 1975, appellant filed a second petition requesting that all of the remaining ballot boxes be opened. This petition was denied by an Order entered on August 4, 1975. It is purportedly the Order of August 4, 1975, from which appellant has filed this appeal (September 3, 1975).

The basis for the Motion to Quash is that a Final Order on the request to open all remaining boxes was entered by the court en banc on July 10, 1975, and therefore the instant appeal was, in fact, filed 55 days after that Order had been entered. Thus, the pivotal question in this dispute is when did the court enter a Final Order denying appellant's request that the remaining ballot boxes within the county be reopened and recounted.

The Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, art. I, § 101 et seq., as amended, 25 P.S. § 2601 et seq., reflects a clear intention of the Legislature to expeditiously dispose of objections and to provide for prompt certification of the vote. The integrity of the election process requires immediate resolution of disputes that prevent certification. This is particularly true in Primary Elections where the results must be finalized

[ 464 Pa. Page 157]

    in sufficient time to enable the election machinery to be readied for the General Election. Recognizing these considerations, this Court has held that compliance with the statutorily imposed time limits is especially important in this area. In re Recount of Ballots Cast in General Election, 457 Pa. 279, 325 A.2d 303 (1974); Turtzo v. Boyer, 370 Pa. 526, 88 A.2d 884 (1952).*fn4

In the instant case, the first petition requesting the recanvass of the 16 votes under the provisions of section 1701 of the Election Code, supra, 25 P.S. § 3261, was concededly in accordance with the statutory requirements. No objection has been raised with reference to that request. In response to the petition filed on June 30, 1975, Mr. Yoney filed preliminary objections asserting, inter alia, that the request was untimely. The court en banc determined that the petition was filed pursuant to section 1407(a) of the Election Code, supra, 25 P.S. § 3157(a), and determined that appellant had failed to comply with the time provisions provided for within that section. While it is true the Order of July 10th did postpone a final decision with reference to the opening of the 28 boxes*fn5 specifically referred to within the petition, it

[ 464 Pa. Page 158]

    is nevertheless clear, in our judgment, that the Order provided a final determination as to the request to open all remaining boxes. The order of July 10th provided:

"AND NOW, this 10th day of July, 1975, the preliminary objections are dismissed insofar as they apply to the averments of paragraph 2 of the petition, as amended. The preliminary objections to that part of the petition which calls for the opening of all of the boxes throughout the county are sustained. Since we are here considering preliminary objections, we must, perforce, take the allegations regarding the alterations of the sealed general return sheets in the 28 districts as true. However, we will afford to Mr. Yoney until Monday, July 14th, 4:30 p.m., an opportunity to file such answer to the averments of paragraph 2 of the petition, as amended, as he deems appropriate. If no answer is filed by that time, we will order the opening of the 28 boxes at the expense of the county and appoint recount boards for such purpose." (Emphasis added).

The italicized portion of this Order leaves no doubt that the court was making a final determination as to the dismissal of the request to open all remaining boxes throughout the county. This intention was further clearly announced in the per curiam Opinion which accompanied that Order.

"With regard to the request in the petition that we open all of the ballot boxes for all of the districts in the county, we find absolutely no authority for our doing so under the circumstances."

Appellant seized upon the language of the Order of August 4, 1975, to suggest that final resolution of the issue had been postponed until that time.*fn6 We believe

[ 464 Pa. Page 159]

    that it is clear that the court, in its August 4th Order was merely restating and reaffirming the decision that it had reached on July 10th and that the appellant cannot be permitted to use the Order of August 4th as a vehicle to extend the 30-day period for appeal.*fn7 We therefore conclude that any objections to the court en banc's holding that the petition of June 30th was filed pursuant to section 1407(a) or the consideration of any special circumstances that may have justified filing out of time, see Koch Election Contest Case, 351 Pa. 544, 41 A.2d 657 (1945) (where we recognize the power of the Court of Common Pleas to extend statutory time limits where the delay has been satisfactorily explained), should have been presented in a timely appeal from the Order of July 10th.*fn8 This not having been done, we have no recourse but to grant the Motion to Quash and dismiss the appeal.

It is so ordered.

[ 464 Pa. Page 160]

ROBERTS, Justice (dissenting).

I dissent. On this record, I would reach the merits of this appeal.

Although the court on July 10 denied petitioner relief on that part of his petition which requested a recount of all ballot boxes, it retained jurisdiction over the remainder of the petition until July 21, when it granted partial relief. The limited recount ordered at that time revealed a substantial difference in vote counts and raised serious questions concerning the result of the election return.

The majority creates an undue hardship on the litigant and casts a cloud over this entire election. As the court en banc noted,*fn* a single member of the return board followed highly questionable procedures and a significant conflict in vote counts had already been discovered. Because of these "unusual circumstances," petitioner should not be required to appeal the dismissal of part of his petition until the court made a final determination on the issue raised. As I stated in Madigan Appeal, 434 Pa. 361, 369,

[ 464 Pa. Page 161253]

A.2d 271, 275-76 (1969) (dissenting opinion):

"I do not believe that this election should be decided on procedural technicalities that are of questionable validity. Appellant should at least be given the opportunity to show that he was actually the winner. Whether he will ultimately prevail is another question, but unless this conflict is fully aired, the [apparent winner] will remain under a cloud of nonentitlement."


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