The Resolution of Election Disputes: Legal Principles that Control Election Challenges 290 A.2d 69 447 Pa. 304, 290 A.2d 69 (Cite as: 447 Pa. 304, 290 A.2d 69) alleges such a mistake, but rather that the court may order a second recount if it is convinced such a mistake occurred. Here the lower court was apparently satisfied that the computation made by the board in the first recount was correct and the record does not evidence any meritorious reason why this conclusion should not be affirmed. 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, Passante'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. [4] The first ballot involved was properly marked the pencil with an X in the small box opposite Buckley's name, but adjacent to this box and partly within the *309 outerlines of the large square or box on the ballot containing the names of all of the councilmanic candidates appears a smudge which is barely visible to the naked eye. Passante argues this smudge is the result of an erasure which voids the vote for Buckley under Section (a) of the Election Code of 1937, supra, 25 P.S. s 3063 (Supp.1971) which provides in part that '(a)ny erasure or mutilation in the vote in any office block shall render void the vote for any candidates in said block, but shall not invalidate the votes cast on the remainder of the ballot, if otherwise properly marked.' The lower court correctly overruled the challenge to this ballot if for no other reason that it is not reasonably certain the smudge was caused by an erasure. As to the second ballot, involved in this particular appeal, we agree the lower court erred in voiding this vote for Passante. [5] 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 **72 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 288 Page 3 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. 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 *310 who cast this ballot voted for a total of eleven candidates. In each instance, an X Marked in pencil was properly placed in the box opposite the candidates' names. To conclude the voter then used an ink pen to make the extraneous marks is too speculative, especially since the marks themselves indicate they were made with an old fashioned ink writing pen, rather than with some modern writing instrument. This particular vote should be counted for Passante and the court below erred in ruling otherwise.[FN1] FN1. 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. BUCKLEY'S APPEAL [6] 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.[FN2] The petition for reargument absent an order staying the proceedings did not have the effect of tolling the time for filing an appeal. Cf. Merrick Estate, 432 Pa. 450, 247 A.2d 786 (1968). FN2. A time limit of thirty days has been established for appeals of this nature. See, Act of July 31, 1970, P.L. ---, No. 223, Art. V, s 502, 17 P.S. s 211.502. The record is remanded to the court below with directions to correct the election returns consonant with this opinion. 447 Pa. 304, 290 A.2d 69 END OF DOCUMENT © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.