These are appeals from two orders of the Court of Common Pleas of Washington County which dismissed both a Petition for Allowance of an Election Contest Nunc Pro Tunc, and a Petition to Open a Ballot Box and for a Recount. This Court ordered the appeals to be consolidated by an order entered April 15, 1992.
On Monday, December 2, 1991, the County Board of Elections made the final certification of the returns. At the appointed hour on Tuesday, December 3, 1991, both candidates appeared at the Bureau and drew lots; Rutan won the draw.
On February 27, 1992, certain Electors
The sole issue for our review is whether the trial court was correct in dismissing the Electors' petitions for lack of jurisdiction because they were untimely filed.
Initially, the Electors contend that their petition to establish an election contest should have been granted nunc pro tunc because the Board certified the returns without complying with the Code's requirement that at least five days must elapse between the completion of the computation of the votes and the final certification under Section 1404(f) of the Code, 25 P.S. § 3154(f), which provides in pertinent part:
Here, the completion of the computation of the votes occurred on November 25, 1991, and the final certification of the votes was made on December 2, 1991. Thus, seven days elapsed between the completion of the computation of the votes and the final certification, and Electors' claim that the Bureau improperly certified the returns is without merit.
The analysis of the common pleas court's dismissal of the election contest petition must begin by determining how
Section 1751 of the Code, 25 P.S. § 3431. Electors' petition was signed by only six electors. The common pleas court was, therefore, correct in holding that it lacked jurisdiction to consider the petition.
Regarding the timeliness issue, this court has held that, "[t]he timeliness of an appeal goes to the jurisdiction of the Court and may not be extended absent fraud or a breakdown in the court's operation due to a default of its officers." Appeal of Orsatti, 143 Pa.Commw. 12, 15, 598 A.2d 1341, 1342 (1991) (citations omitted). In Orsatti, we held that forged ballot signatures did not constitute a fraud or breakdown in the court's operation. Electors here do not allege any breakdown in the operation of the common pleas court, but rather allege a breakdown in the Board's operation. However, even that allegation as we have seen, is without substance. There is therefore no basis for nunc pro tunc relief on the facts alleged in this case.
Electors cite Koch Election Contest Case, 351 Pa. 544, 41 A.2d 657 (1945), for the proposition that their petition for an election contest nunc pro tunc should be granted because of alleged errors in the computation of votes. Koch is inapposite. In Koch, the election board officials themselves made a transcription error, discovered it and then failed to comply with their statutory duty to open the ballot box for a recount and publicly announce the final results pursuant to Section 1404 of
We next address Electors' Petition to Open Ballot Box and Recount Votes. At this juncture a brief overview of the Election Code would be helpful. Article XIV of the Code, Section 1404, regulates the procedure for counting the votes and correcting the returns. 25 P.S. § 3154. The term "return" when used in the Code, generally refers to a sheet showing the total individual votes cast for all candidates at that polling place or district. Five days after the completion of the count of the returns from all the districts, the Board must certify the final count unless a petition to recount or to recanvass has been filed. Section 1404 of the Code, 25 P.S. § 3154(f).
A recount is the opening of a ballot box and the recount of the votes if the voting was done by paper ballots. A recanvass is the opening of a voting machine in order to check the counters inside the machine which record the number of votes cast if the voting was done by voting machines. If such a petition has been filed, the Board may not make the final certification until after the court has ruled on the petition. 25 P.S. § 3263(a)(2).
Article XVII of the Code governs the recount proceedings if the appropriate petition for recount or for recanvass has been properly filed. Section 1701 provides for the opening of ballot
Section 1703 was amended in 1982 to require that a petition to open a ballot box or to recanvass a voting machine must be filed no later than five days after the completion of the count. 25 P.S. § 3263(a)(1). If error or fraud is discovered the court must allow the parties another five days to file petitions to open other ballot boxes or recanvass machines before it makes final certification. 25 P.S. § 3263(a)(2).
If additional petitions to recount or to recanvass are filed under this five-day provision, the court may allow, upon petition, additional boxes to be opened or machines to be recanvassed. These additional ballot boxes must be opened within four months after the election. 25 P.S. § 3261(f). If voting machines were used, the additional machines must be recanvassed within twenty days of the election. 25 P.S. § 3262(c). In both cases the action must be taken before the court makes final certification. 25 P.S. § 3263(a)(2). Final certification of the returns, however, precludes the filing of further recount or recanvass petitions.
The Electors would have us find that, based on Section 1701(f) of the Election Code, an initial petition to open and recount may be filed within four months of the election.
The Electors' interpretation of the four-month provision would render the five-day time limit for filing the initial petition to open a ballot box and for a recount completely superfluous. Such a reading of the statute contradicts the Rules of Statutory Construction which direct our Court to give effect to all provisions of a statute. Statutory Construction Act of 1972, 1 Pa. C.S. § 1921.
The statute clearly requires that a petition to open a ballot box and for a recount, standing alone, must be filed no later than five days after the completion of the computation of the returns. Chase Appeal, 389 Pa. 538, 133 A.2d 824 (1957). Of course, had a previous recount petition been filed and the court found fraud or error, the Electors would have had five days after the court's ruling in which to file this petition, assuming the petition was still within the four-month limit. However, there was no previous petition filed or five-day extension granted.
The only other way the Electors could have petitioned to have the box opened later than five days from the completion of the computation of the returns, would be if the Electors had properly instituted an election contest. Our Supreme Court explained the function of the four-month provision in the scenario of an election contest in Horsham Township Election Case, 356 Pa. 60, 51 A.2d 692 (1947). The Supreme Court stated:
Id. at 62, 51 A.2d at 693. As previously discussed, the Electors failed to properly institute an election contest. Without an election contest, this Court would be without authority to order a correction of the returns.
Based on the foregoing discussion, the orders of the Court of Common Pleas Of Washington County, No. 92-1134 and No. 92-1133, dismissing the Electors' Petition for Election Contest Nunc Pro Tunc and Petition to Open Ballot Box and Recount Votes are affirmed.
NOW, January 13, 1993, the orders of the Court of Common Pleas of Washington County in the above-captioned matters are hereby affirmed.
25 P.S. § 3168. The third Wednesday after the election of November 5, 1991, (a Tuesday), would have been November 20, 1991. In this case, final certification of the returns was made on December 2, 1991, authoritatively determining a tie vote. The lots were drawn at 12:00 noon the following day, December 3, 1991, so that substantial compliance with the Code was provided.
25 P.S. § 3261(f).
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 3263(a)(1), added by Section 5 of the Act of May 5, 1982, P.L. 374 (emphasis added).
Id. 389 Pa. at 545, 133 A.2d at 827 (citation omitted).