(dissenting).
I dissent. On this record, I would reach the merits of this appeal.
Although the court on July 10 denied petitioner relief on that part of his petition which requested a recount of all ballot boxes, it retained jurisdiction over the remainder of the petition until July 21, when it granted partial relief. The limited recount ordered at that time revealed a substantial difference in vote counts and raised serious questions concerning the result of the election return.
The majority creates an undue hardship on the litigant and casts a cloud over this entire election. As the court en banc noted,* a single member of the return board followed highly questionable procedures and a significant conflict in vote counts had already been discovered. Because of these “unusual circumstances,” petitioner should not be required to appeal the dismissal of part of his petition until the court made a final determination on the issue raised. As I stated in Madigan Appeal, 434 Pa. *161361, 369, 253 A.2d 271, 275-76 (1969) (dissenting opinion):
“I do not believe that this election should be decided on procedural technicalities that are of questionable validity. Appellant should at least be given the opportunity to show that he was actually the winner. Whether he will ultimately prevail is another question, but unless this conflict is fully aired, the [apparent winner] will remain under a cloud of nonentitlement.”
See majority opinion, ante at 262, n. 3.