Maurice P. Breene, hereinafter called petitioner, has presented a petition setting forth that at the last primary election M. P. Breene received for the office of district attorney 36 votes on the Democratic ticket; Maurice Breene received 241 votes; M. Breene received 21 votes, and Maurice P. Breene received 380 votes, or a total vote of 678. Gerald McGill received on the same ticket 626 votes. It is admitted of record that the petitioner, M. Breene, Maurice Breene, and M. P. Breene are one and the same person.
The petition was drawn and presented pursuant to the provisions of section 1406 of the Pennsylvania Election Code of June 3, 1937 (no. 320). The above citation reads as follows:
“Section 1406. Petition to Establish Identity by Candidate Nominated under Different Names; Cumulation Prohibited. — Any person who has been nominated at a primary election by more than one party for the same office under different names may, at any time hot later than five (5) days after the certification by the county board of the votes cast at a primary election, present a petition to the court of common pleas of the proper county, praying for an order declaring such petitioner by his true name to be the person who was thus nominated by more than one party under different names.”
Petitioner prays that Maurice P. Breene be declared the person nominated on the Democratic tieket for the office of district attorney and that the county board of elections be directed to so certify the returns. A careful reading of the statute in question convinces us that the provision cited is not applicable to the situation here presented. It is to be noted that the relief sought can only be obtained by a “person who has been nominated”. Petitioner asks us to assume that Maurice P. Breene has been *350nominated and then to declare him so nominated. The plain provision of the statute is to determine the identity of the nominee and not the fact of nomination.
And now, October 16,1937, for the reasons above given, the rule heretofore issued is discharged and the prayer of the petition refused.