In re: Recount Berks Co. Gen Elec Nov. 8 2022- 68 & (concurring and dissenting statement)

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IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT 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 : : No. 68 MAL 2023 IN RE: RECOUNT OF BERKS COUNTY GENERAL ELECTION OF NOVEMBER 8, 2022 No. 69 MAL 2023 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RUSCOMBMANOR TOWNSHIP : : : : : : : : : : : : : : : : : : : : : : : : : : : Petition for Allowance of Appeal from the Unpublished Memorandum Opinion and Order of the Commonwealth Court at No. 1426 CD 2022 entered on January 31, 2023, affirming the Order of the Berks County Court of Common Pleas at No. 22-15660 (Lillis, J.), entered on December 6, 2022 Petition for Allowance of Appeal from the Unpublished Memorandum Opinion and Order of the Commonwealth Court at No. 1427 CD 2022 entered on January 31, 2023, affirming the Lower Court Order of the Berks County Court of Common Pleas at No. 22-15661 (Lillis, J.), entered on December 6, 2022 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 : IN RE: PETITION TO OPEN BALLOT BOX PURSUANT TO 25 P.S. §3261(A) AND FOR A CORRECT ACCOUNT OF THE GENERAL ELECTION FOR THE GOVERNOR AND LIEUTENANT GOVERNOR OF PENNSYLVANIA, UNITED STATES SENATOR FOR PENNSYLVANIA, UNITED STATES REPRESENTATIVE FOR THE 6TH : : : : : : : : : No. 80 MAL 2023 Petition for Allowance of Appeal from the Unpublished Memorandum Opinion and Order of the Commonwealth Court at No. 1489 CD 2022 entered on February 10, 2023, vacating and remanding the Lower Court Order of the [68-69 MAL 2023; 80-85 MAL 2023] - 2 DISTRICT OF PENNSYLVANIA STATE REPRESENTATIVE FOR THE 157TH LEGISLATIVE DISTRICT PETITION OF: CHESTER COUNTY BOARD OF ELECTIONS IN RE: PETITION TO OPEN BALLOT BOX PURSUANT TO 25 P.S. §3261(A) AND FOR A CORRECT ACCOUNT OF THE GENERAL ELECTION FOR THE GOVERNOR AND LIEUTENANT GOVERNOR OF PENNSYLVANIA PETITION OF: CHESTER COUNTY BOARD OF ELECTIONS IN RE: PETITION TO OPEN BALLOT BOX PURSUANT TO 25 P.S. §3261(A) AND FOR A CORRECT ACCOUNT OF THE GENERAL ELECTION FOR THE GOVERNOR AND LIEUTENANT GOVERNOR OF PENNSYLVANIA PETITION OF: CHESTER COUNTY BOARD OF ELECTIONS IN RE: PETITION TO OPEN BALLOT BOX PURSUANT TO 25 P.S. §3261(A) AND FOR A CORRECT ACCOUNT OF THE GENERAL ELECTION FOR THE GOVERNOR AND LIEUTENANT GOVERNOR OF PENNSYLVANIA : : : : : : Chester County Court of Common Pleas at No. No. 2022-09182-EL (Sommer, J.), entered on December 9, 2022 : : : : : : : : : : : : : : No. 81 MAL 2023 : : : : : : : : : : : : : : No. 82 MAL 2023 : : : : : : No. 83 MAL 2023 Petition for Allowance of Appeal from the Unpublished Memorandum Opinion and Order of the Commonwealth Court at No. 1490 CD 2022 entered on February 10, 2023, vacating and remanding the Lower Court Order of the Chester County Court of Common Pleas at No. No. 2022-09186-EL (Sommer, J.), entered on December 9, 2022 Petition for Allowance of Appeal from the Unpublished Memorandum Opinion and Order of the Commonwealth Court at No. 1491 CD 2022 entered on February 10, 2023, vacating and remanding the Lower Court Order of the Chester County Court of Common Pleas at No. 2022-09188-EL (Sommer, J.), entered on December 9, 2022 Petition for Allowance of Appeal from the Unpublished Memorandum Opinion and Order of the Commonwealth Court at No. [68-69 MAL 2023; 80-85 MAL 2023] - 3 PETITION OF: CHESTER COUNTY BOARD OF ELECTIONS IN RE: PETITION TO OPEN BALLOT BOX PURSUANT TO 25 P.S. §3261(A) AND FOR A CORRECT ACCOUNT OF THE GENERAL ELECTION FOR THE GOVERNOR AND LIEUTENANT GOVERNOR OF PENNSYLVANIA PETITION OF: CHESTER COUNTY BOARD OF ELECTIONS IN RE: PETITION TO OPEN BALLOT BOX PURSUANT TO 25 P.S. §3261(A) AND FOR A CORRECT ACCOUNT OF THE GENERAL ELECTION FOR THE GOVERNOR AND LIEUTENANT GOVERNOR OF PENNSYLVANIA PETITION OF: CHESTER COUNTY BOARD OF ELECTIONS : : : : : : : : 1492 CD 2022 entered on February 10, 2023, vacating and remanding the Lower Court Order of the Chester County Court of Common Pleas at No. 2022-09189-EL (Sommer, J.), entered on December 9, 2022 : : : : : : : : : : : : : : No. 84 MAL 2023 : : : : : : : : : : : : : : No. 85 MAL 2023 Petition for Allowance of Appeal from the Unpublished Memorandum Opinion and Order of the Commonwealth Court at No. 1493 CD 2022 entered on February 10, 2023, vacating and remanding the Lower Court Order of the Chester County Court of Common Pleas at No. 2022-09190-EL (Sommer, J.), entered on December 9, 2022 Petition for Allowance of Appeal from the Unpublished Memorandum Opinion and Order of the Commonwealth Court at No. 1494 CD 2022 entered on February 10, 2023, vacating and remanding the Lower Court Order of the Chester County Court of Common Pleas at No. 2022-09193-EL (Sommer, J.), entered on December 9, 2022 [68-69 MAL 2023; 80-85 MAL 2023] - 4 CONCURRING AND DISSENTING STATEMENT JUSTICE MUNDY FILED: May 12, 2023 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. [68-69 MAL 2023; 80-85 MAL 2023] - 5

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