41 A.2d 657 | Pa. | 1945
The question is whether the candidate receiving a majority of the votes cast at an election should be allowed to appealnunc pro tunc from an erroneous computation by the county board of elections.
Appellant Koch and appellee Rehrig were opposing candidates in the general election of November 2, 1943, for the office of school director of the Borough of Lehighton. Koch received a majority of the votes. This fact was correctly indicated by return sheets posted outside the polling place in the second ward and by return and tally return sheets within the ballot box. However, a single tally sheet was improperly marked. Its total was accurate, but the tally strokes incorrectly registered a sufficient number of votes for Rehrig, apparently resulting in his election. This was clearly a clerical error. The computation board discovered the discrepancy, but failed to correct it. It likewise neglected to have the ballot box opened and the vote recounted as required. As a consequence, on November 12, 1943, the board officially returned a majority of the votes for Rehrig, and on November 20, 1943, a certificate of election was issued to him. The county board failed to publicly announce by posting at its office the final result of the election.
Appellant Koch first learned of his "defeat" on November 29, 1943; on December 6, 1943, he filed a petition to open the ballot box under Section 1701 of the Election Code of 1937, P. L. 1333,
The relevant time limitations provided by the Election Code of 1937, supra, are as follows: (1) a petition for a recount must be filed within five days after the completion of the computation of the votes (Section 1404[f],
In reaching this conclusion, the court apparently disregarded appellant's explanation of his delay. Appellant's position is that the negligent acts of the election board amount to fraud. He contends that the general returns posted outside the polling places showed his election; that the election board failed to publicly announce *547 the result of the election and thus prevented him from receiving notice of the discrepancy in time to correct it. Under these circumstances, appellant argues that the delay was satisfactorily explained and the appeal should have been allowed nunc pro tunc.
Section 1225 of the Election Code,
There is no doubt that the board negligently computed the returns. It is required by Section 1404 (d), (1), of the Election Code,
Furthermore, the county board failed to publicly announce by posting at its office the final result of the election on November 20, 1943, as expressly required by *548
Section 302 (1) of the Election Code,
The learned court below, in its opinion, failed to discuss these uncontroverted violations of the Election Code by the board. It decided that, under the circumstances, appellant was guilty of laches. The opinion states that his failure ". . . to check upon the returns made by the Computing Board in time to take an appeal as by statute provided . . . [was not] a basis from which fraud or breakdown in the operations of the Computing Board or its officers, whereby this petitioner has been injured, is to be presumed. . . ."
On the contrary, it would seem that under the circumstances of the case, appellant should not be considered guilty of laches. There is no doubt that the court below had power to allow an appeal nunc pro tunc: see Commonwealth v. Reiser,
Appeals from justices of the peace have often been allowednunc pro tunc when the delay was caused by *549
the negligence of the justice: see collection of cases in footnote to Nixon v. Nixon, supra, pages 260, 261. The only election case we have been able to find involving an extension of a statutory time limitation is Carbondale's Election,
When appellant first learned of the action of the election board on November 29, 1943, the only appropriate remedy then available under the Election Code was that set out in Section 1701,
Upon correctly proceeding under Section 1701, the negligence of the board was ascertained at the hearing on December 14, 1943. Appellant was then confronted with the problem of rectifying the mistake so discovered. The section applicable to the correction of false computations found under Section 1701 is Section 1703,
It is true that those seeking an allowance of an appealnunc pro tunc in an election matter must be held to a stricter rule than those in a controversy between individuals, but it is also important that a majority of the voters should not have a representative forced upon them who is not of their choosing. Appellant had the right to depend on the election board correctly performing its duties. Under the very exceptional and unusual circumstances here presented, it cannot be said that he was guilty of laches.
The decree dismissing the rule is reversed. The certificate of election issued to appellee is hereby suspended and the appeal allowed nunc pro tunc. Costs to be paid by the Borough of Lehighton. *551