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MCCRACKEN APPEAL (05/29/52)

May 29, 1952

MCCRACKEN APPEAL


Appeal, No. 127, March T., 1952, from order of Court of Common Pleas of Allegheny County, Jan. T., 1952, No. 2954, in re Appeal of Thomas H. McCracken, from decision of County Board of Elections, etc. Judgment affirmed.

COUNSEL

Thomas E. Whitten, with him Charles I. Ziegler, for appellant.

Harry "A." Kramer, with him Van der Voort, Royston, Robb & Leonard, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 370 Pa. Page 563]

OPINION BY MR. JUSTICE MUSMANNO

At the general election held on November 6, 1951, Thomas H. McCracken qualified as candidate for the office of treasurer in the Township of Springdale, Allegheny County, on the Republican and Democratic tickets, he having won both nominations at the primaries in July of that year. Joseph Kratochvil, Jr., who was defeated for the Democratic nomination for that office in July, entered the November contest on stickers and received 313 votes. At the same election McCracken received 313 votes, plus one soldier vote, or a total of 314 votes.

On one ballot (not of those just mentioned) a voter had written in with pencil the name "Joseph Kratochvil". Candidate Joseph Kratochvil, Jr., on November 28, 1951, petitioned Judges Walter Smart and John Drew of the Court of Common Pleas of Allegheny County, sitting as the County Board of Elections, to cumulate votes in his favor so that the one vote cast for Joseph Kratochvil, without the Jr., would be added to the votes cast for Joseph Kratochvil, Jr. It was asserted in behalf of the petitioner that on the disputed ballot the name Kratochvil went to the edge of the space provided for the write-in vote, thus urging the inference that the Jr. part of his name was omitted only because of the lack of space within which to write it.

[ 370 Pa. Page 564]

The Elections Return Board, acting on this petition ordered a hearing and witnesses were heard. On December 21, 1951, the Return Board decided from the evidence brought before it that Joseph Kratochvil and Joseph Kratochvil, Jr., were one and the same person and accordingly ordered that the write-in vote for Joseph Kratochvil be cumulated in favor of Joseph Kratochvil, Jr., thus increasing his vote to 314 votes, being the same total number acquired by his opponent Thomas H. McCracken. On the same day, lots were cast because of the tie vote, and Joseph Kratochvil, Jr., won the toss. The County Board of Elections declared him the successful candidate and issued a certificate of election to him.

Thomas H. McCracken then appealed to the Court of Common Pleas of Allegheny County and the court en banc (made up of three judges other than the two who sat on the Return Board) affirmed the decision of the Return Board.

Mr. McCracken now appeals to this Court, contending the illegality of his opponent's election. We are satisfied from an examination of the record that the names Joseph Kratochvil and Joseph Kratochvil, Jr., appearing on the ballots in the election for treasurer of Springdale Township, November 6, 1951, identify one and the same individual. We are further satisfied that the opinion written by the distinguished Judge SARA SOFFEL for the court below correctly states the law applicable to the facts in the case.

One of the duties of the County Board of Election, as spelled out in Section 302 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, is to: "... receive from district election officers the returns of all primaries and elections, to canvass and compute the same, and to certify the ...


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