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
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