M. Marinkovich v. G. Vitteck

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Milan Marinkovich, member : of the Democrat Party of : Washington County, : : Appellant : : v. : No. 1079 C.D. 2018 : Submitted: October 26, 2018 George Vitteck, Past Chairman of the : Democrat Party of Washington : County, and Ron Sicchitano, Present : Chairman of the Democrat Party of : Washington County :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: March 27, 2019

Milan Marinkovich (Marinkovich) appeals the order of the Washington County Common Pleas Court (trial court) sustaining the preliminary objections (POs) of George Vitteck (Vitteck) and Ron Sicchitano (Sicchitano) and dismissing Marinkovich’s Amended Complaint with prejudice. We affirm. On August 15, 2016, Marinkovich filed an Amended Complaint in which he alleged that he is a member of the Democrat Party of Washington County (Party)1 and was filing this matter on his behalf and that of other Party members.

1 Although named as the “Democrat Party” in the Amended Complaint and “Democrat Committee Members” in Exhibit A, the other exhibits appended to the Amended Complaint (Footnote continued on next page…)

Reproduced Record (R.R.) at 6a. The Amended Complaint also alleged that Vitteck, the past Party Chairman, has in his possession the following property owned by the Party: (1) two computers, monitors, printers, and keypads; (2) checkbook registers; (3) monthly statements for Party bank accounts; (4) cancelled checks; (5) deposit slips and receipts for purchases through the use of an ATM card used while he was Chairman; (6) minutes of meetings held while he was Chairman; and (7) a credit card used while he was Chairman. Id. at 7a. The Amended Complaint claimed that Vitteck and Sicchitano, the present Party Chairman, had expended monies and refused to submit to an examination or audit of “the books, ledgers, and credit cards” in their possession,2 and had expended funds and incurred debt in excess of $500.00, in violation of the Party’s by-laws. See R.R. at 6a-15a. Accordingly, Marinkovich asked the trial

(continued…)

indicate that the “Democratic Party” of Washington County is the actual political party involved in the instant matter. See Reproduced Record (R.R.) at 24a, 26a-29a, 32a, 36a.

2 Marinkovich cites Rule III, Section 8(c) of the Rules of the Democratic Party of the Commonwealth of Pennsylvania requiring the State Committee Chair to appoint “[a] CPA firm to audit the financial transactions of the previous term,” and not a similar provision in the Party’s by-laws. See R.R. at 32a; Section 804 of the Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §2834 (“Each political party shall be directed by a State committee, to be chosen in such a manner and for such a term of office as party rules may provide. . . . The State committee of each political party may make such rules for government of the party in the State, not inconsistent with law, as it may deem expedient; and may also revoke, alter or renew, in any manner not inconsistent with law, any present or future rules of such political party.”). Moreover, the Amended Complaint does not allege that the Party has imposed such an audit requirement upon the County Chairman in its by-laws. See Section 807 of the Election Code, 25 P.S. §2837 (“The county committee of each party may make such rules for the government of the party in the county, not inconsistent with law or with the State rules of the party, as it may deem expedient, and may also revoke, alter or renew in any manner not inconsistent with law or with such State rules, any present or future county rules of such party.”).

court to compel Vitteck to return all requested Party property3 and improperly spent funds to the Party, and to compel Sicchitano to comply with the Party by- laws and conduct an audit. See id. at 11a, 15a. The Party, Vitteck, and Sicchitano filed the instant POs alleging, inter alia, that Marinkovich does not have standing to file and prosecute the instant action. R.R. at 41a, 42a, 54a-55a. Specifically, the POs asserted that Marinkovich does not have standing because he is not a Party officer and that only its current

3 As this Court has stated:

The action of replevin is founded upon the wrongful taking and detention of property and seeks to recover property in the possession of another. The value is recovered in lieu of the property only in case a delivery of the specific property cannot be obtained. Replevin is a possessory action in which the issues are plaintiff’s title and right of possession. The primary relief sought is the return of the property itself, the damages being merely incidental.

Valley Gypsum Co. v. Pennsylvania State Police, 581 A.2d 707, 710 (Pa. Cmwlth. 1990) (citation omitted). Further, as the Supreme Court has explained:

Replevin is an action undertaken to regain possession of goods and chattels and to recover damages for their caption and detention, by the illegal act of the defendant. In order to maintain replevin, the plaintiff must have a general or special property right in the thing taken or detained. The common law view was that replevin lay only for goods wrongfully distrained, which, of course, presupposed a prior possession by plaintiff. The modern rule is, however, that one may maintain replevin if he has the right of possession irrespective of whether or not he has ever had actual possession. In order to sustain replevin, it is incumbent on the plaintiff to show not only that he has title, but that he has also the right of immediate possession.

International Electronics Co. v. N.S.T. Metal Products Co., Inc., 88 A.2d 40, 42-43 (Pa. 1952) (citation omitted).

Chairman or Executive Committee members have the authority or capacity to file and prosecute the instant action on the Party’s behalf or seek an audit and the return of the Party’s funds and property. Id. In granting the POs, the trial court stated:

[Marinkovich] filed the complaint as a member of the [Party]. He did not aver that he held any office within that organization, or that he was an elected committeeman, although the Court notes that in Exhibit A of the Amended Complaint, [he] signed a petition as a “Washington County Democrat Committee Member.” Simply being a member of an organization does not give the member standing to sue the officers of that organization for violating a by-law policy. No allegation was made that [Marinkovich] was aggrieved in a substantial way; rather the allegations conclude that [he] may be affected in a general way, but not more or no less than any other member of the organization. Marinkovich had no special or direct interest in the outcome, other than as a member of the [P]arty wanting the organization to adhere to the governing by-laws. Considering all of his facts as true, [Marinkovich] did not establish that he had a substantial, direct and immediate interest in the outcome of the litigation. R.R. at 78a-79a. Accordingly, the trial court sustained the POs and dismissed Marinkovich’s Amended Complaint with prejudice and he filed this appeal.4

4 The instant appeal was filed in the Pennsylvania Superior Court. However, the Superior Court cancelled argument and transferred the matter to this Court on the basis that it lacked appellate jurisdiction under Section 742 of the Judicial Code, 42 Pa. C.S. §742, and that this Court possessed jurisdiction under Section 762(a)(4)(i)(C) of the Judicial Code, 42 Pa. C.S. §762(a)(4)(i)(C). Marinkovich v. Vitteck (Pa. Super., No. 1772 WDA 2017, filed June 25, 2018), slip op. at 3-5. However, the Superior Court subsequently exercised jurisdiction over, considered the merits of, and disposed of an appeal of a trial court order in a replevin action filed by the Party against Marinkovich seeking the return of Party property. See Democratic Party of Washington County v. Marinkovich (Pa. Super., No. 282 WDA 2017, filed October 10, 2018). Nevertheless, it appears that this Court has been conferred appellate jurisdiction over this case pursuant to Section 762(a)(5)(ii) of the Judicial Code, which states that this “Court shall have (Footnote continued on next page…)

However, after reviewing the record, Marinkovich’s brief, and the law,5 we conclude that the appellate issues have been ably resolved in the thorough and well-reasoned opinion of Judge Katherine B. Emery, and affirm on the basis of her opinion in the matter of Marinkovich v. Vitteck (C.P. Wash., No. 2016-4063, filed March 7, 2018).

MICHAEL H. WOJCIK, Judge Judge Covey concurs in the result only. (continued…)

exclusive jurisdiction of appeals from final orders of the courts of common pleas in . . . [a]ll actions or proceedings otherwise involving the corporate affairs of any corporation not-for-profit subject to Title 15 or the affairs of the members, security holders, directors, officers, or employees or agents thereof.” 42 Pa. C.S. §762(a)(5)(ii). See also Comment to Section 9112 of the Pennsylvania Uniform Unincorporated Nonprofit Association Law, 15 Pa. C.S. §9112 cmt. (“This chapter applies to all nonprofit associations, whether they be classified as religious, public benefit or mutual benefit or whether they are classified as tax exempt. Therefore, the chapter covers unincorporated philanthropic, educational, scientific, social and literary clubs, unions, trade associations, political organizations, such as political parties . . . .”).

5 Our review of the trial court’s order sustaining preliminary objections and dismissing the Amended Complaint is limited to a determination of whether the court abused its discretion or committed an error of law. Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017). Preliminary objections should be sustained only in cases when, based on the facts pleaded, it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Id. “In Pennsylvania, a party seeking judicial resolution of a controversy must establish as a threshold matter that he [or she] has standing to maintain the action. . . . Threshold issues of standing are questions of law; thus, our standard of review is de novo and our scope of review is plenary.” Gordon v. Philadelphia County Democratic Executive Committee, 80 A.3d 464, 470 (Pa. Super. 2013) (citation omitted).

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Milan Marinkovich, member : of the Democrat Party of : Washington County, : : Appellant : : v. : No. 1079 C.D. 2018 : George Vitteck, Past Chairman of the : Democrat Party of Washington : County, and Ron Sicchitano, Present : Chairman of the Democrat Party of : Washington County :

ORDER

AND NOW, this 27th day of March, 2019, the order of the Washington County Court of Common Pleas dated October 30, 2017, is AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge