Appeal, No. 239, March T., 1957, from order of Court of Common Pleas of Westmoreland County, Apr. T., 1957, No. 520, in re decision of County Election Board. Order affirmed.
Morris M. Berger, with him Bernard S. Shire and Berger and Berger, for appellant.
D. J. Snyder, Jr., with him Wayne R. Donahue and Kunkel & Trescher, for appellees.
Before Jones, C.j., Bell, Chidsey, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
At the primary election in the City of Monessen, Westmoreland County, on May 21st last, where voting machines were used, there were no candidates for the nomination for Mayor on the Republican ticket. An extensive write-in campaign was conducted by certain citizens with a view to obtaining that nomination. The principal contenders in such manner were Hugo J. Parente and John R. Stieska, both of whom were the named candidates on the Democretic ticket for the nomination for Mayor. Parente won the Democratic nomination, but that has not been contested and is not an issue here.
As a result of the write-ins on Republican ballots, the votes for the two principal contenders for the nomination for Mayor, as counted, computed and returned by the county election board, were as follows:
John R. Stieska, 58; John Stieska, 33; J. Stieska, 13; J. R. Stieska, 1; Stieska, 59; John T. Stieska, 1; John S. Stieska, 1; John Steiska, 2; Steiska, 1; Sleiska, 1; Hugo J. Parente, 70; Hugo Parente, 27; H. Parente, 8; Parente, 38; Parenti, 5; Hugo Parenti, 1. It is apparent that, if the foregoing votes are cumulated, Stieska received 170 and Parente 149.
Stieska duly requested the county election board to cumulate all of the votes cast in the various forms of his name as written in on the voting machines and to declare him the successful nominee for the office of Mayor on the Republican ticket. The board asserted that it was without power so to do by reason of provisions of the Pennsylvania Election Code with respect to write-in votes on voting machines. The board credited the two candidates with only such votes as were written in with their full names. Accordingly, John R. Stieska was shown by the board's certification as having received 58 votes and Hugo J. Parente 70 votes. Stieska appealed the board's action to the Court of Common Pleas which, after a hearing at which testimony was taken, sustained the appeal and ordered that the write-in votes be cumulated, thereby crediting Stieska with 170 votes and Parente with 149 votes. The court further ordered that the county election board certify John R. Stieska as the Republican nominee. To this order, parent filed exceptions which the court en banc dismissed and adopted the opinion and decree of the hearing judge in a final order, from which Parente has appealed.
The decision of the court below is correct. The appellant contends, however, that Section 1405 of the Election Code of June 3, 1937, P.L. 1333, 25 P.S. § 3155, applies exclusively to write-in votes recorded on voting machines and that, under that section, the county election board has no authority but to compute and certify the write-in votes as so directed. Section 1405 provides that "The county board, in computing the votes cast at any primary or election, shall compute and certify votes cast on irregular ballots exactly as such names ...