April 14, 1952
O'HARA TOWNSHIP ELECTION CASE
Appeal, No. 105, March T., 1952, from order and decree of Court of Common Pleas of Allegheny County, Jan. T., 1952, No. 1954, in re Petition of Twenty Qualified Electors of the Township of O'Hara, to contest the election of John F. Kremer, etc. Appeal quashed.
Harry C. Beschel, for appellant.
John M. Haverty, Jr., with him D. Albert Mazer, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
[ 370 Pa. Page 251]
OPINION BY MR. JUSTICE JONES
This appeal arises out of an election contest for the office of Commissioner of O'Hara Township, Allegheny County, -- a township of the first class.
At the municipal election of November 6, 1951, the nominees for the office of Commissioner for the Third Ward of the Township were Charles Mertens, Republican, and John R. Kremer, Democrat. As a result of the election, the combined vote in the two election districts of the Third Ward of the Township gave Kremer a total of 326 votes and Mertens, 319 votes. Mertens petitioned the Court of Common Pleas for a recount
[ 370 Pa. Page 252]
of the ballots cast in both election districts. At the recount, certain votes for Kremer were rejected (with the acquiescence of the candidates) because of technical defects in the ballot markings. A vote for Mertens on a ballot identified as Exhibit "1", for the purposes of the hearing below, was also rejected for the assigned reason that the marking was not a cross as required by the statute. As a result of the recount Kremer was credited with 322 votes and Mertens with 322 votes. During the recount, a military ballot containing a vote for Kremer was returned to the Bureau of Elections and was counted and computed by the Return Board, thereby giving Kremer 323 votes and Mertens 322 votes. The Return Board certified Kremer as elected by a majority of one and a certificate of election was duly issued to him.
Mertens then instituted the election contest here involved and at the hearing before the court below raised but one question, namely, as to the validity of the vote for him on ballot Exhibit "1". The learned judge of the contest court concluded that the vote for Mertens on Exhibit "1" was valid and accordingly entered a decree adjudging the validity of the vote in question and directing that such vote "be added to the 322 votes credited to Charles Mertens by the Return Board, thus giving Charles Mertens a total of 323 votes, equal to the 323 votes received by John F. Kremer, creating a tie vote for the office of Township Commissioner for the Third Ward of O'Hara Township, Allegheny County, Pennsylvania, as a result of the general election held on November 6, 1951." Kremer thereupon took this appeal.
The decree entered by the court below was interlocutory and, therefore, not appealable. It was the duty of the contest court to determine the winner and not merely a tie. Not until it is ascertained by having
[ 370 Pa. Page 253]
the tie candidates for the office cast lots to see which of them is rightly entitled to the certificate of election can the court below definitively adjudicate accordingly. If Kremer, to whom a certificate of election has already been issued, should win the cast, the question as to the validity of the vote for Mertens on ballot Exhibit "1" would therewith become moot. In such instance, no one would be aggrieved by the court's final decree. If, on the other hand, Mertens should win the cast, Kremer could then appeal from the final decree declaring Mertens entitled to the certificate of election. Kremer's participation in the casting of lots need not preclude him from later complaining of the court's action based on its ruling as to the validity of the vote for Mertens on ballot Exhibit "1". He can either take part in the casting of lots under protest or he can absent himself therefrom altogether in which event someone to represent him should be designated by the person having supervision of the casting of lots.
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