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06/04/97 PETITION TO CONTEST GENERAL ELECTION FOR

June 4, 1997

IN RE: PETITION TO CONTEST THE GENERAL ELECTION FOR DISTRICT JUSTICE IN JUDICIAL DISTRICT 36-3-03 NUNC PRO TUNC; DELORES A. LAUGHLIN, ESQ., APPELLANT


Appealed From No. 2226 of 1993, et al. Common Pleas Court of the County of Beaver. Judge MANNIX, KUNSELMAN and STEEGE.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable Jim Flaherty, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

BY JUDGE FLAHERTY

FILED: June 4, 1997

Delores A. Laughlin (Laughlin) appeals from an order of the Court of Common Pleas of Beaver County (trial court), dated July 12, 1996, which directed the County Bureau of Elections (Bureau) to certify Joseph Zupsic (Zupsic) for the office of District Justice in Judicial District 36-3-03 (District) pursuant to the Pennsylvania Election Code (Code). *fn1 We affirm.

After the general election on November 2, 1993, the ballot boxes from Beaver County, including twenty-two from the District, were unlocked. The votes were tabulated by automatic scanning machines and then the ballots were placed back into their respective ballot boxes which were relocked. The seal numbers were unrecorded for three days after the election until the Return and Write-In Boards opened the ballot boxes to audit the results and count the write-in votes. The Bureau concluded that Zupsic received 3,783 votes and Laughlin received 3,747 votes making Zupsic the winner in the race for District Justice in the District by a margin of thirty-six (36) votes.

Laughlin filed a petition to open fourteen (14) of the twenty-two (22) ballot boxes from the District. The Recount Board met and recounted the contents of the fourteen (14) ballot boxes by hand. As a result of this hand recount, the Recount Board concluded that Laughlin was the winner by a margin of forty-six (46) votes. During the recount, Zupsic challenged the validity of sixty-two (62) ballots, while Laughlin challenged thirteen (13) other ballots.

Zupsic then filed petitions to open the remaining eight (8) ballot boxes alleging substantial fraud or error in the counting of the votes or in the marking of the ballots. The votes were recounted resulting in Laughlin receiving a total of 3,794 votes and Zupsic receiving a total of 3,748 votes; both candidates received one additional vote over the hand recount. During this second hand recount, Zupsic challenged an additional seven (7) ballots and Laughlin challenged an additional five (5) ballots as a result of the two hand recounts. Laughlin and Zupsic collectively challenged a total of eighty-seven (87) ballots.

The Bureau then conducted a second machine count of the votes which were close to the results of the two hand recounts; Laughlin received 3,792 votes and Zupsic received 3,750 votes. Zupsic then filed a petition to contest the general election nunc pro tunc with the trial court. After hearings on the petition, the trial court ordered that the challenged election be set aside.

In its opinion and order, dated April 8, 1994, the trial court found that "in all probability, a sufficient number of ballots were altered . . . so as to change the outcome of the election." (Court of Common Pleas of Beaver County, April 8, 1994, Slip Opinion at 4-5, Finding No. 11) [hereinafter Slip Op. I ]. On May 5, 1994, the trial court filed its second opinion with findings of fact and explaining why it set aside the election [hereinafter Slip Op. II ]. Laughlin filed an appeal from this order to the Commonwealth Court, and Zupsic filed an appeal from the same order to our Supreme Court. By order dated May 2, 1994, the Supreme Court noted probable jurisdiction, and the Commonwealth Court transferred Laughlin's appeal to the Supreme Court on May 4, 1994.

In the instant case, our Supreme Court reversed the trial court's order to set aside the election and concluded that "there was more than competent evidence to support the trial court's finding of tampering," which rendered those findings binding on appeal. In re Petition to Contest the General Election for District Justice in Judicial District 36-3-03 Nunc Pro Tunc (Election for District Justice), 543 Pa. 216, 232, 670 A.2d 629, 637 (1996). The Court, however, also concluded that the trial court failed to make specific findings as to the degree of tampering or as to which of the ballots were altered. Id. at 227, 670 A.2d at 634. Consequently, the Supreme Court remanded the case to the trial court to make findings regarding the degree of tampering, to identify the ballots that were altered, and to explain its Conclusions.

On remand, the trial court denied Laughlin's request to admit additional evidence and to review ballots that did not belong to the group of eighty-seven (87) ballots which were challenged during the recount. In compliance with the Supreme Court's order to designate which ballots were altered and how those ballots were altered, the trial court made specific supplemental findings concerning the altered ballots. (Court of Common Pleas of Beaver County, July 12, 1996, Slip Opinion at 10-19) [hereinafter Slip Op. III ]. As a result, the trial court concluded that Zupsic received more votes than Laughlin and ordered the Bureau to certify him as District Justice for the District.

Laughlin raises the following issues on appeal: (1) whether the trial court erred by refusing Laughlin's request to consider additional evidence where the trial court was previously unable to determine which ballots were subject to tampering; (2) whether the trial court erroneously gave weight to inconsistent markings on the ballots; (3) whether the trial court stretched the value of inconsistent markings on the ballots; and (4) whether the trial court erroneously analyzed ...


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