Olshansky v. Montgomery County Election Board

ROBERTS, Justice,

dissenting.

At the November, 1979 general election, the initial count of votes for candidates running for the office of tax collector of Whitpain Township, Montgomery County, gave appellant Maria Olshansky 1483 votes, and respondent Charles Cannon *371 1480. One week after the first vote, at a “complete and final recanvas,” an “unsealed master envelope” from one of the Township’s voting districts was opened and “found” to contain five yet-uncounted absentee ballots. Four absentee votes were for Cannon, one was for Olshansky, thus tying the vote at 1484 for each candidate. The next day, after the “complete and final recanvas,” another “mystery ballot” was found in a previously-opened, “official absentee ballot” envelope. This absentee ballot reflected a vote for Cannon, making him the winner over Olshansky by one vote.

Olshansky and other named registered voters of Whitpain Township then filed a petition to contest the election. Two days after the petition was filed, a $1,000 bond was filed naming Olshansky as principal and the United States Fidelity and Guaranty Company as surety. The bond both identified the parties involved and fully covered conditions of Olshansky’s obligations. Attorneys for both Olshansky and the corporate surety signed the petition.

The court of common pleas, however, never reached the merits. Instead, on the preliminary objections of Cannon and other respondents, the court of common pleas dismissed the petition on the ground that the bond did not strictly comply with section 1759 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, 25 P.S. § 3459 (1963).

Today, relying on the same out-dated cases of this Court upon which the court of common pleas relied, which admit to make the bond requirement turn not on the “sufficiency of the security” but rather on whether there is “literal compliance with the terms of the Act of Assembly,” Mayo’s Appeal, 315 Pa. 269, 273 , 172 A. 848, 850 (1934), the plurality affirms the court of common pleas’ dismissal. I must dissent. The plurality’s steadfast adherence to archaic cases overlooks both more recent, more sensible cases of this Court, as well as express legislative directions not to limit the bond requirement.

This Court’s unanimous decision in Birmingham Township Election Case, 393 Pa. 396 , 143 A.2d 18 (1958), makes it obvious that the old cases upon which the plurality relies are *372 no longer to be followed in a contest such as this. As this Court stated in Birmingham,

“An election contest is a method to insure the honesty and validity of elections. While the statutory requirements must be followed, mere technicalities should never thwart the inherent and basic purpose of a proceeding to test the validity of an election.”

393 Pa. at 401 , 143 A.2d at 20 . See also 1 Pa.C.S. §§ 1928(b) and (c); Miller Election Case, 351 Pa. 469 , 41 A.2d 661 (1945). In my view, Birmingham properly interred this Court’s earlier overly-technical demand that each provision of the Election Code’s bond requirement be strictly followed. In harmony with the principle embodied in Birmingham, I would hold here that the bond of $1,000 filed by Olshansky as principal and by a corporate surety, properly signed, fully identifying the parties, and correctly conditioning the petitioner’s obligations, meets the bond requirement of the Election Code.

Apart from Birmingham, relevant provisions of our Legislature’s Statutory Construction Act compel the conclusion that here a proper bond was filed. First in 1937 and again in 1970, our Legislature made it very clear that the bond requirements of specific acts may be satisfied by alternate means. Under 1 Pa.C.S. § 1906,

“A statute requiring a bond or undertaking with sureties to be given by any person shall be construed to permit in lieu thereof a bond of indemnity or surety bond for the amount of such bond or undertaking, given by any indemnity or surety company authorized to do business in this Commonwealth, and approved by the proper authority.”

See Act of May 28, 1937, P.L. 1019, § 36, formerly 46 P.S. § 536 (1969) (containing virtually identical language). It must be obvious that the bond filed here amply satisfies this alternative means of compliance.

The plurality’s reliance on a “well-known rule of statutory construction,” 1 Pa.C.S. § 1933, to support its contrary conclusion cannot go unmentioned. Concluding that the alternative bond provision of 1 Pa.C.S. § 1906 and the *373 bonding provision of the Election Code are in “conflict” (a conclusion I do not share), the plurality “resolves” this “conflict” by stating that under the language of 1 Pa.C.S. § 1933 “ 'the special provisions shall prevail and shall be construed as an exception to the general provision, . ..’ ” At 554. The plurality fails, however, to quote additional language of section 1933. Beginning where the plurality ends its quotation, section 1933 goes on to provide:

“unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.”

If the plurality sincerely believes the relevant statutes hopelessly are in conflict, it must at least address this remaining portion of 1 Pa.C.S. § 1933, for, as appellants point out, 1 Pa.C.S. § 1906 is the later enactment. Surely it cannot fail to address appellant’s argument merely by completely ignoring the relevant statutory language.

I dissent, would reverse the order of the court of common pleas, and would remand for proceedings on the merits consistent with this opinion.

NIX, J., joins this dissenting opinion.