Madigan Appeal
Supreme Court of Pennsylvania
May 9, 1969
434 Pa. 361 | 253 A.2d 252
The majority recognizes that the institution оf this proceeding by petition and rule is improper but proceeds to an adjudication because the parties treated this action as one in equity. I would not permit the parties to create their own jurisdiction and would vacate the order of the lowеr court and dismiss the petition, and require the institution of a proper action.
I dissent.
Mr. Chief Justice BELL joins in this dissenting opinion.
Madigan Appeal.
Caram J. Abood, for appellant.
W. Louis Coppersmith, with him Margolis & Coppersmith, for appellee.
OPINION BY MR. JUSTICE EAGEN, May 9, 1969:
In the General Election of November 5, 1968, Richard J. Green was the Republican candidate and W. Louis Coppersmith the Democratic candidate for the
On November 8 and 9, 1968, the Board of Electiоns of Cambria County, sua sponte, ordered that the ballot boxes in seven voting election districts in Cambria County be reopened and that the ballots cast for the Office of Senator in those districts be recounted.
Subsequently, as a result of petitions timely filed1 in the Courts of Common Pleas of Cambria and Westmoreland Counties, those courts ordered that the ballot boxes be reopened in 64 additional election voting districts of Cambria County and 16 such districts in Westmoreland County, and that the ballots cast in those districts for the Office of Senator be recounted under the supervision of the court.
After the reсounts were completed and the total vote cast for the Office of Senator was again computed, the result established that Green had received 45,242 votes and Coppersmith had received 45,296 votes or that Coppersmith had won by a plurality of 54 votes.
On Nоvember 25, 1968, a petition signed by 20 qualified electors from the Senatorial District was filed in the Court of Common Pleas of Cambria County contesting the election of Coppersmith.2 As of this date, the recounts, related before, and a final computation
Original Petition
Article XVII, § 1756 of the Election Code,
While it is true that the provisions set forth above are to be construed liberally and a petition for contest is not to be declared legally insufficient merely because it fails to include or to detail the evidence supporting the allegation of illegality in the election, still it is absolutely essential that such a petition “aver plainly and distinctly such facts which if sustained by proof would require the court to set aside the result.”
The controlling averments as stated in the petition are these: “5. That the said election and return thereof are false, fraudulent, and untrue for the following reasons: (1) The County Bоard of Elections illegally rejected a number of absentee ballots cast and did not count same among the other absentee votes. (2) That in the recounting or recanvassing of the Ballot Boxes upon petition of electors from sixty-four precincts the Court of Common Pleas of Cambria County erred in voiding a large number of Ballots marked with an (x) wherein the lines or the line of the (x) mark, even though the lines intersected in the box where the (x) originated.”
An examination of the record of the multiple proceedings in the court below discloses that both of the above allegations of irregularity in the canvassing of the vote were raised before the court below during the recount proceedings. No appeal was entered from the court‘s rulings on those matters. For this reason alone, these questions could not be reasserted properly in the proposed election contest. Gollmar‘s Election Case, 316 Pa. 560, 175 A. 510 (1934).
The second allegation of irregularity asserted in the petition concerned the court‘s ruling on the validity of certain ballots. The ruling was made during the recount proceedings ordered by the court of the ballots in the 64 election districts in Cambria County. The court ruled, over Green‘s objection, that these ballots (three in number) were improperly marked3 by the electors, and hence, should not be counted. The court, however, subsequently сhanged its ruling and directed that these ballots were valid and should be counted.
The petition‘s other allegation of irregularity in the canvass of the election returns asserted that the Board of Elections of Cambria County improperly rejected a total of seven absentee ballots. As was noted before, the correctness of the Board‘s rejection of these seven ballots was subsequently raised before the court below during the recount proceedings and its ruling in regard thereto was not appealed. Additionally, evеn if all of these ballots were counted in favor of Green and added to the total vote he received, it would not change the result of the election.
Petition To Amend
As was noted before, a petition for an election contest “may be amended with leave of cоurt, so as to include additional specifications of complaint.” (
Moreover, the court found other substantial reasons why leavе to amend should be refused. The petition seeking leave to amend was not verified nor was it signed by the twenty electors who attempted to initiate the election contest. These defects may not be brushed aside as mere “legal technicalities.” Both the Rules оf Civil Procedure of the Supreme Court and the Rules of Civil Procedure of the Court of Common Pleas of Cambria County require that such petitions be verified.4
Even if the Petition to Amend were not fatally defective in the above respects, still we could not say that the lower сourt was wrong in concluding that the petition, on its merits, failed to set forth a legitimate basis for an election contest. The petitioners, of course, seek to have a recount of all the ballot boxes in the 35th Senatorial District which have not previously been rеcounted. They point to errors found in the boxes recounted during the court-supervised recount, and speculate that a pervasive recount of all such previously un-
Order affirmed.
DISSENTING OPINION BY MR. JUSTICE ROBERTS:
In my view, the refusal of the court below to allow appellant‘s petition to amend was an abuse of discretion, and accordingly I dissent.
Article XVII, § 1756 of the Election Code, quoted in the majority opinion, spеcifically provides that a petition for election contest may be amended “so as to include additional specifications of complaint.” The court below decided however that the original petition was so beyond repair that no amendment could be allowed. With this position I cannot agree. The original petition stated, inter alia, that certain ballots had been improperly voided. The court below found, however, that even with these ballots counted, appellant would lose. The amended рetition, besides setting out various errors that had been found during the recount proceedings, alleged that the improper voiding of ballots in the boxes examined required that other boxes be examined to see if equivalent improper ballot-voiding had taken plaсe. Improper voiding in unexamined boxes if done in the same proportion as in the examined boxes would have made appellant the winner. I
I also do not believe that the amended petition required verification.
Finally I cannot agree with the majority‘s conclusion that because appellant is merely “speculating” that proportionate errors occurred in previously unrecounted boxes, appellant thus hаs not stated grounds to contest the election. Of course appellant cannot prove the alleged errors unless he is granted a recount of these boxes; carried to its logical conclusion, the majority‘s reasoning would characterize any request fоr a recount as based on speculation until the recount proved the petitioner‘s claim!
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 holder of this seat will remain under a cloud of nonentitlement.
Mr. Chief Justice BELL joins in this dissent.