Opinion
No. 68 MAL 2023 No. 69 MAL 2023
05-12-2023
IN RE: RECOUNT OF BERKS COUNTY GENERAL ELECTION OF NOVEMBER 8, 2022 Limited To: Exeter Township Precinct No. 6 Robesonia Borough Ruscombmanor Township No. 1 Petition of: Berks County Republican Committee In re: Recount of Berks County General Election of November 8, 2022 Limited To: Bern Township Precinct No. 1 Bethel Township, Centre Township Precinct No. 1, Cumru Township Precinct No. 2, Earl Township Precinct No. 2, Exeter Township Precinct No. 3, Exeter Township Precinct No. 8, Greenwich Township Precinct No. 1, Hamburg Borough Precinct No. 2, Kutztown Borough Ward No. 1, Kutztown Borough Ward No. 2, Leesport Borough, Lower Heidelberg Precinct No. 1, Lower Heidelberg Precinct No. 2, Lower Heidelberg Precinct No. 3, Maidencreek Township Precinct No. 3, Maxatawny Township Precinct No. 3, Mohnton Borough, North Heidelberg Township, Perry Township, City of Reading Precinct No. 16-5, Rockland Township Precinct No. 2, Ruscombmanor Township Precinct No. 2, Spring Township Precinct No. 7, Tilden Township, Washington Township Precinct No. 2, Wyomissing Borough Precinct No. 2 Petition of: Berks County Republican Committee, Heather M. Bouchard, Linda J. Brancadora, Samuel F. Brancadora, Ronald E. Bush, Jr., Caroline L. Cable, Robert S. Cable, Mary Beth Clarke, Heidi Fiedler, Gwyneth P. Fowler, Scott D. Fowler, Kyra Genell, Kimberly A. Gesicki-Giambrone, David Golowski, Dennis E. Greth, Sally Ann Greth, Michele Hamlin, Randall J. Hamlin, Edward C. Kehs, Kim Louise Kehs, Nancy M. Leatherman, Debora M. Letz, Donna Lea Merritt, Garret A. Miller, William Henry Moody, Jr., William J.P. Mulgrew, III, Bobbi Ortiz, Terry Ortiz, Marie G. Perry, Bret Sarge, Derek Sarge, Lucas Charles Sarge, Jeri K. Sievert, Ralph Sievert, Marlene A. Skoloda, Victoria B. Solberg, Ericka M. Thomas-Ernst, Dwight D. Wegman, Shawnee M. Wilson, Steve Wilson, John A. Wojcik, Frederick W. Zentgraf, Sr., Ruth Zentgraf
ORDER
PER CURIAM AND NOW , this 12th day of May, 2023, the Petition for Allowance of Appeal is GRANTED . The order of the Commonwealth Court is AFFIRMED . With regard to the interpretation of Sections 1701 and 1703 of the Election Code, 25 P.S. §§ 3261, 3263, the order of the Commonwealth Court is affirmed on the basis of the court's opinion, In re: Recount of Berks County General Election of November 8, 2022 , 1426 & 1427 C.D. 2022, ––– A.3d ––––, 2023 WL 3510455 (Pa. Cmwlth. Jan. 31, 2023) (Wallace, J.). See Commonwealth v. Tilghman , 543 Pa. 578, 673 A.2d 898, 904 (1996) (discussing the precedential value of a per curiam order affirming on the basis of a lower court's opinion).
Petitioners’ "Application to Supplement Petition due to Subsequent Split of Authority in Commonwealth Court" is DISMISSED AS MOOT .
The "Application of Respondent Berks County Board of Elections to Supplement Response in Opposition to Petition for Allowance of Appeal" is DISMISSED AS MOOT .
Justice Mundy files a concurring and dissenting statement.
Justice Brobson files a concurring and dissenting statement in which Justice Mundy joins.
CONCURRING AND DISSENTING STATEMENT
JUSTICE MUNDY
Although I agree that we should grant allocatur in these matters, I dissent to disposing them in per curiam orders affirming the nonprecedential opinion of Judge Wallace and vacating the order of Judge Fizzano Cannon. In these cases, this Court was presented with petitions for allowance of appeal primarily regarding two nonprecedential single-judge decisions of the Commonwealth Court, which differed on the interpretation of the requirements of Sections 1701 and 1703 of the Election Code, 25 P.S. §§ 3261, 3263, to obtain a recount based on general averments of error or fraud. No prior decision of our Court has addressed this issue.
When confronted with petitions for allowance of appeal concerning a holding of an intermediate appellate court that conflicts with another intermediate appellate court opinion or presenting a question of first impression for this Court, our standard procedure is to grant discretionary review. See Pa.R.A.P. 1114(b)(1) and (3). I see no reason to forgo that procedure here. Instead, following our standard procedure would enable the Court to receive developed briefing, hear oral argument, and issue a precedential decision resolving the issue. It is particularly appropriate in these cases as we are confronted with two reasonable, albeit differing, single-judge opinions concerning the proper interpretation of Sections 1701 and 1703. Accordingly, I dissent to resolving these cases through per curiam orders adopting a nonprecedential single-judge opinion of the Commonwealth Court instead of following our traditional procedure of granting discretionary review, receiving briefs, hearing oral argument, and issuing an opinion.
CONCURRING AND DISSENTING STATEMENT
JUSTICE BROBSON
The Petition for Allowance of Appeal in this matter raises an important issue worthy of this Court's consideration, namely the proper construction and application of Sections 1701 and 1703 of the Election Code, 25 P.S. §§ 3261, 3263, relating to the initiation of a recount upon the petition of qualified electors. I thus agree with the majority's decision to grant the Petition for Allowance of Appeal. I, however, respectfully disagree with the majority's decision to dispose of the merits summarily through a per curiam order affirmance on the basis of the Commonwealth Court's unpublished, single-judge Memorandum Opinion. As I would have given the parties the opportunity to brief fully and argue their respective positions before this Court, I dissent from the majority's summary disposition.
Justice Mundy joins this concurring and dissenting statement.