# Madigan Appeal

> Supreme Court of Pennsylvania · May 9, 1969 · 434 Pa. 361

URL: https://www.frixlaw.com/law-library/cases/9750955

## Case

- **Full name:** Madigan Appeal
- **Court:** Supreme Court of Pennsylvania
- **Decided:** May 9, 1969
- **Citations:** 434 Pa. 361; 253 A.2d 271; 1969 Pa. LEXIS 461
- **Precedential status:** Published
- **Opinion:** Dissent by Boberts
- **Judges:** Boberts, Bell, Jones, Cohen, Eagen, O'Brien, Roberts, Pomeroy
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9750955

## Opinion text

Dissenting Opinion by
Me. Justice Boberts:
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, specifically 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 petition, 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 place. Improper voiding in unexamined boxes if done in the same proportion as in the examined boxes would have made appellant the winner. I *369 do not believe that appellant’s failure to explicitly make this point in his original petition rendered that petition “nothing, so an amendment to nothing is also nothing” as the court below cavalierly concluded. Bather, in my view the amended petition was making essentially the same claim as that of the original petition, except that the amended petition contained an additional legal conclusion.
I also do not believe that the amended petition required verification. Pa. R. C. P. 206 requires verification of “allegations of fact which do not appear of record.” Any facts alleged in the amended petition that were not in the (verified) original petition were statements of errors found in the recount proceeding, which was “of record.” Appellant’s claim that he would have been the winner if unexamined boxes disclosed the same proportion of errors as the examined boxes is merely a conclusion for which verification is unnecessary.
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 has 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 for 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9750955. Public record. Not legal advice.