Opinion by
At the general election of November 2, 1971, Edward J. Norwood, Jr., and Francis J. Buckley, Jr., were the nominees of the Democratic Party, and Bose Churray and Jack Passante were the nominees of the Bepublican Party for the office of councilman of the Second Ward in the Borough of Canonsburg, Washington County, with two to be elected. Candidate Nor-wood was elected decisively, but an extremely close contest developed between Buckley and Passante for the second seat. This litigation resulted.
There are three voting precincts in the Second Ward of Canonsburg Borough and paper ballots were used in all in the 1971 election.
Alleging error was committed in the computation of the votes cast in the Second Precinct, three electors acting in Buckley’s interest filed a timely petition in the Court of Common Pleas requesting a recount of the ballots cast in this precinct. Three electors acting in Passante’s interest filed a similar petition seeking a recount of the ballots cast in the Third Precinct. The court granted both petitions and appointed two separate boards, each consisting of three individuals, to recount the ballots in each of the precincts in which the correctness of the computation of the vote was challenged, and directed that notice of the time and place be given to all parties concerned.
Buckley filed exceptions to the recount board’s computation of the vote in the Third Precinct. Passante filed exceptions to the recount board’s computation of the vote in the Second Precinct. All of these exceptions dealt with the validity of certain ballots to which challenges had been entered. Passante also requested the court to order a second recount of the ballots cast in the Second Precinct alleging the recount board for this precinct had inadvertently failed to count certain ballots cast in his favor due to confusion created during the recount proceedings by delaying and distracting actions on the part of one of its clerks. The recount board filed an answer to this request by Passante categorically denying that all of the votes were not counted and detailing the work and effort performed by the board to assure a correct computation of the vote. After argument before a court en banc, the court denied the request for a second recount of the vote in the Second Precinct and ruled on the exceptions filed by both candidates. Petitions for reargument were denied and both Buckley and Passante then filed appeals in this Court. Since the appeals are from orders entered by the court below in recount proceedings initiated by petitions filed, as authorized by Article XVII, §1701 of the Election Code of 1937, Act of 1937, June 3, P. L. 1333, 25 P.S. §3261, our scope of review is broad in nature. See McKelvey Appeal,
Passante initially maintains that the court below-erred in summarily denying his request for a second recount of the ballots in the Second Precinct.
Section 1701, subsection (f) of the Act of 1937, supra, 25 P.S. §3261 (f) provides: “Ballot boxes may be opened under the provisions of this section at any time within four months after the date of the general, municipal, special or primary election at which the ballots therein shall have been cast.” In Greenwood Township Election Case,
Passante next and finally questions the correctness of the lower court’s ruling on the validity of two ballots cast in the Second Precinct. In one instance, Passage’s challenge to a ballot marked in favor of Buckley was overruled, and in the second instance Buckley’s challenge to a ballot marked in favor of Passante was sustained.
The first ballot involved was properly marked in pencil with an X in the small box opposite Buckley’s name, but adjacent to this box and partly within the
As to the second ballot involved in this particular appeal, we agree the lower court erred in voiding this vote for Passante.
The ballot is properly marked in pencil as a vote for Passante and his running mate, Churray, but there also appears a single very light semicircular line made with ink in the box opposite Buckley’s name. There are also some small scratch marks made with ink on the ballot above the candidates’ names running for the councilmanic seats. Why the lower court voided this particular vote cast for Passante does not appear in the record, but Buckley argues the vote was properly voided for either of two reasons, i.e., the voter by placing the ink mark behind Buckley’s name was attempting to vote for three candidates for council, or for more persons than there were to be voted for, and/or the voter marked his ballot with two separate writing instruments contrary to the provisions of Section 1223, as amended, of the 1937 Election Code, supra, 25 P.S. 3063 (Supp. 1971). This position is founded on a faulty premise, namely, that the voter placed the ink marks on the ballot. Everything indicates the contrary. The voter
Buckley’s Appeal
This appeal is untimely and will be quashed.
The appeal was filed on January 21, 1972, from an order entered in the court below on December 15, 1971.
The record is remanded to the court below with directions to correct the election returns consonant with this opinion.
Notes
Whether the counting of this vote for Passante will change the result of the election in question cannot be ascertained either from the briefs or record filed in this Court.
A time limit of thirty days has been established for appeals of this nature. See, Act of July 31, 1970, P. L. 673, Art. V, §502, 17 P.S. §211.502.