In re General Election for District Justice 670 A.2d 629 543 Pa. 216, 670 A.2d 629 (Cite as: 543 Pa. 216, 670 A.2d 629) November 22, 1993. However, where a petitioner does not learn of a problem with the election until the filing period has expired and his ignorance is not due to any "fault or dereliction" on his part, this Court has allowed the petitioner to seek **636 relief nunc pro tunc. See e.g., Field Election Contest Case, 375 Pa. 276, 99 A.2d 867 (1953) (petitioner unaware that election officials misspelled his name on return sheet transmitted to county board); Koch Election Contest Case, 351 Pa. 544, 41 A.2d 657 (1945) (petitioner unaware that election officials erred in transferring voting results from tally sheet to return sheets). Here, absolutely no evidence has been presented to show that Zupsic had any reason to suspect a problem with the election until Laughlin filed her Petitions to Open Ballot Boxes and Recount Votes on December 1, 1993, well past the deadline in section 3456. Therefore, Zupsic's Petition to Contest is not barred by the expiration of the twenty-day period. [3] Laughlin next contends that, even if Zupsic was not required to file his Petition to Contest by November 22, he still should have filed within twenty days of December 9, 1993, the date on which the recount Laughlin requested was completed. According to Laughlin, since Zupsic was present for this recount and it revealed significant changes from the machine tabulation on election night, Zupsic should have been well aware of a problem with the election results no later than the 9th. Thus, it was inexcusable for him to wait another month before filing his petition. [4] While we find some merit in Laughlin's position, [FN8] we cannot conclude from the record that it was inexcusable for Zupsic to wait until January 10, 1994, to file his Petition to Contest. Rather than imposing a new twenty-day limit on the petitioner, this Court has evaluated the timing of nunc pro *231 tunc petitions by considering whether the petitioner is guilty of laches. See, e.g., Field, 375 Pa. at 278, 99 A.2d at 867 (petitioner should have been allowed to proceed nunc pro tunc because he was not guilty of laches). For laches to apply, there must be a lack of due diligence in pursuing a cause of action and resulting prejudice to the other party. Brodt v. Brown, 404 Pa. 391, 172 A.2d 152 (1961). FN8. We note that while Zupsic claimed in his Petition to Contest that he was unaware of any fraud until he learned of the results of the second ma- Page 8 chine count on January 5, 1994, he admits in his Brief that his Petitions to Recount filed on December 17, 1993, alleged "substantial fraud or error in computing the votes or in marking the ballots not manifest on the general return." Here, while at least some evidence indicates that Zupsic had reason to suspect fraud well before January 5, 1994, the record does not indicate that Laughlin was prejudiced by any delay. Between December 9 and January 10, Zupsic filed his own petitions for a recount, and the Board of Elections completed a second machine count. Therefore, Laughlin had no reason to believe that the election was settled in her favor. [5] A petitioner generally cannot delay contesting an election while recounts are being completed. See Horsham Township Election Case, 356 Pa. 60, 51 A.2d 692 (1947). However, we are hesitant to deny a petitioner the right to contest an election where an initial problem with the election is raised by his opponent after the time to contest has expired. Here, although Zupsic arguably had reason to file his Petition to Contest earlier than January 10, no evidence exists to indicate that Laughlin was prejudiced by any delay. Therefore, the Petition to Contest is not barred by the fact that it was not filed until January 10. [6] Finally, Laughlin argues that, regardless of when Zupsic's Petition to Contest was filed, he still was not entitled to proceed nunc pro tunc because the evidence did not establish that any supposed tampering was the product of the Election Board or the court. In support of her position, Laughlin cites Orsatti, which determined that a petitioner should not be allowed to proceed nunc pro tunc "absent fraud or a breakdown in the court's operation due to a default of its officers." 143 Pa.Commw. at 15, 598 A.2d at 1342; see also In re General Election for Township Supervisor, 152 Pa.Commw. 590, 620 A.2d 565 (1993) (indicating that allegation of error by Election Board would also be sufficient). *232 We agree with the court of common pleas that Zupsic's Petition to Contest sufficiently alleged a breakdown in the operation of the Beaver County Board of Elections. While Zupsic did not specifically state that the Board of Elections was derelict in its duties, **637 he did specifically allege © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 249