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APRIL 10 (10/29/84)

decided: October 29, 1984.

IN RE: APRIL 10, 1984 ELECTION OF EAST WHITELAND TOWNSHIP, CHESTER COUNTY, PENNSYLVANIA, ELECTION DISTRICT SIXTH PRECINCT. ALEXANDER W. CLARK, JR. ET AL., APPELLANTS


Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: April 10, 1984 Election of East Whiteland Township, Chester County, Pennsylvania, Election District Sixth Precinct, No. 84-02985.

COUNSEL

Carole J. Wildoner, with her, Jeffrey P. Lewis, for appellants.

John Wm. Schreck, with him, Joseph E. Brion and John Halstead, for appellee, Florence D. Hunt.

Judges Doyle, Colins and Blatt, sitting as a panel of three. Opinion by Judge Doyle. Judge Palladino did not participate in this decision.

Author: Doyle

[ 85 Pa. Commw. Page 595]

Appellants*fn1 appeal from the order of the Chester County Court of Common Pleas which denied their Petition for Recount under Section 1701 of the Pennsylvania Election Code (Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. ยง 3261.

The matter before us concerns the primary election held in East Whiteland Township, Chester County on April 10, 1984, in which there was a tie vote for the position of Republican female committee member for the sixth precinct. The two contestants, Helen Clark and Florence Hunt, settled the tie with a coin toss in which Hunt prevailed. It was established, however, that the Chester County Board of Elections (Board) had not counted*fn2 the absentee ballots which were received

[ 85 Pa. Commw. Page 596]

    after Friday, April 6, 1984, pursuant to Section 1308(a) of the Code,*fn3 which states in pertinent part:

No absentee ballot shall be counted which is received in the office of the county board of election later than five o'clock P.M. on the Friday immediately preceding the primary or November election.

Under this Section, the absentee ballot of Appellant Alexander W. Clark, Jr., which was mailed on Wednesday, April 4, but not received by the Board until Monday, April 9, was not counted toward the committee member's race.

Appellants petitioned the Court of Common Pleas, requesting a recount to include Appellant Clark's absentee ballot, together with two other absentee ballots which were received by the Board after the Friday, April 6 deadline, but before the date of the election. Appellants' petition was denied by the trial court's opinion and order of June 8, 1984, and this appeal followed.

Before this Court Appellants argue that the trial court erred in interpreting the term "shall" appearing in Section 1308(a) of the Code as mandatory rather than directory. While the word "shall" may be interpreted as either mandatory or directory, it will usually be considered as mandatory, unless it refers to the time within which a public official must act. Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965); Delaware County v. Department of Public Welfare, 34 Pa. Commonwealth Ct. 165, 383 A.2d 240 (1978); Kowell Motor Vehicle Registration Case, 209 Pa. Superior Ct. ...


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