Petition to Set Aside Special Election in Thirty-Second Senatorial District

15 Pa. D. & C.2d 271, 1956 Pa. Dist. & Cnty. Dec. LEXIS 8
CourtPennsylvania Court of Common Pleas, Fayette County
DecidedDecember 28, 1956
Docketno. 610
StatusPublished

This text of 15 Pa. D. & C.2d 271 (Petition to Set Aside Special Election in Thirty-Second Senatorial District) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Fayette County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Petition to Set Aside Special Election in Thirty-Second Senatorial District, 15 Pa. D. & C.2d 271, 1956 Pa. Dist. & Cnty. Dec. LEXIS 8 (Pa. Super. Ct. 1956).

Opinions

Bane, J.,

This is a proceeding to contest the validity of an election under the provisions of the Pennsylvania Election Code of June 3, 1937, P. L. 1333, 25 PS §3401-3409, for the office of senator in the General Assembly from the 32nd Senatorial District of Pennsylvania, comprising the County of Fayette, instituted by qualified electors of said district and held to fill a vacancy in said office occasioned by the resignation of the incumbent on December 31, 1955.

The contest petition alleges that Thomas J. Kalman was illegally returned as elected to the office of senator for the unexpired term of the resigned incumbent from that district in that: (a) The presiding officer of the senate of Pennsylvania passed over the next ensuing [273]*273primary of April 24, 1956, and fixed the general election of November 6, 1956, as the date for the holding of a special election to fill said vacancy; in that (b) the said Thomas J. Kalman was selected and nominated by the Democratic State Executive Committee as the Democratic Party candidate in said senatorial district for the special election to be held November 6, 1956, none of the members thereof voting in or being residents of Fayette County; in that (c) the Fayette County Board of Elections printed, delivered and mailed approximately 500 military ballots on or before October 24, 1956, to electors serving in actual military service, which ballots contained blank spaces only under the title “Special Election”, “Senator in General Assembly”, “For the Unexpired Term of Eustace H. Bane”, “(32 District)”, “Vote for One”, which ballots were accompanied by a list of the then duly nominated candidates, viz., Thomas J. Kalman and Edward L. Sittler, Jr., and omitting the name of Anthony Cavalcante; and that (d) the Fayette County Board of Elections directed the preparation and arranging of the voting machines in Fayette County so that each duly nominated candidate for the office of senator in the General Assembly, including that of Anthony Cavalcante, was placed thereon on the party line of their respective nominating parties; all of which was so done and so calculated as to favor the election of Thomas J. Kalman, and to virtually deny to the said Anthony Cavalcante a fair opportunity to a free, equal and uniform election.

The court directed that the petition be filed, fixed a date for hearing, set bond in the sum of $500 and issued a rule upon respondent, Thomas J. Kalman, to answer.

Thereafter, respondent, Thomas J. Kalman, filed a motion to quash the petition and arguments were heard thereon.

[274]*274After careful consideration we have reached the conclusion that the whole petition is so defective in substance that a sufficient cause of action is not stated therein.

It appears from the petition and the exhibits attached thereto that a vacancy occurred in the office of senator in the General Assembly of Pennsylvania, from the 32nd Senatorial District, comprising Fayette County, by reason of the resignation of the incumbent senator, effective midnight, December 31, 1955; in virtue of which Roy E. Furman, president of the senate, issued a writ of election on March 5, 1956, to the Fayette County Board of Elections commanding them to cause a special election to be held to fill said vacancy and fixed November 6,1956, as the date for the holding of said special election, which date corresponds with the date of the general election of 1956; that in fixing the date of the regular general election, as aforesaid, the presiding officer of the senate passed over the date of the next ensuing primary of April 24, 1956.

It further appears that on August 29, 1956, the Democratic State Executive Committee caused the name of one Thomas J. Zalman to be certified as the candidate of the Democratic Party in said 32nd Senatorial District, none of the members of said Democratic State Executive Committee being residents or voting in Fayette County; Edward L. Sittler, Jr., being likewise certified by the Republican State Executive Committee as the Republican candidate for said office.

It also appears that on September 14, 1956, the Secretary of the Commonwealth duly certified to the Fayette County Board of Elections the official list of the names of all candidates duly nominated at the primary of April 24, 1956, and to be voted for at the regular general election of November 6, 1956, and that said list does not contain the name of any candidate for [275]*275the office of senator to be voted for in said special election, to be held on that date.

It likewise appears that on and prior to October 24, 1956, the Fayette County Board of Elections began the delivery or mailing of approximately 500 military ballots to electors in the actual military service from the 32nd Senatorial District, who had requested such ballots, that such ballots contained blank spaces under the title of the senatorial office, in which they might insert the name of the candidate of their choice and that accompanying said ballot was a letter informing the said electors that, as of the date of the mailing of this ballot, Thomas J. Kalman was the Democratic nominee for the office of senator, Edward L. Sittler, Jr., was the Republican nominee for the office of senator and omitting therefrom the name of Anthony Cavalcante.

It further appears that on October 16, 1956, Anthony Cavalcante filed with the Secretary of the Commonwealth nomination papers, in accordance with the laws of the Commonwealth applicable thereto, in virtue of which Anthony Cavalcante was duly nominated as the candidate of the “Non-Partisan Party” for the office of senator in the 32nd Senatorial District.

Further it appears that on October 25, 1956, the Secretary of the Commonwealth of Pennsylvania certified to the Fayette County Board of Elections the official list of names to be printed on the official ballot, to be voted for at the special election, which list included the names of Thomas J. Kalman, as the Democratic nominee, Edward L. Sittler, Jr., as the Republican nominee, and Anthony Cavalcante as the NonPartisan nominee; that the official ballot placed upon the face of each voting machine was so prepared and arranged that all the candidates of each of said parties, including those of Thomas J. Kalman, Edward L. Sittler, Jr., and Anthony Cavalcante, appeared there[276]*276on in the same row or column, following their respective party designations, so that each voter at the election held on November 6, 1956, voting a straight political party ticket, cast a vote not only for all the other duly nominated candidates of that party, but also for the nominee of that party for the office of senator in the General Assembly.

In this connection, it is to be noted that voting machines have been in use in this county in every election district since the primary of 1939, and prior thereto in our cities, boroughs and certain of our townships, as early as 1930.

The election of Tuesday, November 6, 1956, was duly held, and on November 23, 1956, the Payette County Board of Elections certified to the Secretary of the Commonwealth the returns of the votes cast, from which it appears that Thomas J. Kalman received 34,538 votes, Edward L. Sittler, Jr., 26,627 votes and Anthony Cavalcante, 4,058 votes.

The instant action was instituted on November 26, 1956.

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15 Pa. D. & C.2d 271, 1956 Pa. Dist. & Cnty. Dec. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petition-to-set-aside-special-election-in-thirty-second-senatorial-district-pactcomplfayett-1956.