          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.”).


                                                 2
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).


                                                   3
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…)
                                                 4
               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).


                                                 5
         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
