J.A19039/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


DEMOCRATIC PARTY OF WASHINGTON              :     IN THE SUPERIOR COURT OF
COUNTY,                                     :          PENNSYLVANIA
                                            :
                          Appellee          :
                                            :
                    v.                      :
                                            :
MILAN MARINKOVICH,                          :
                                            :
                          Appellant         :     No. 1789 WDA 2013


                      Appeal from the Order April 28, 2011
              In the Court of Common Pleas of Washington County
                        Civil Division No(s).: 2008-1227

BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 10, 2014

        Appellant, Milan Marinkovich, appeals from the order entered in the

Washington County Court of Common Pleas in this replevin action directing

him to return or reproduce certain financial documents to Appellee,

Democratic Party of Washington County, and scheduling a hearing.        We

quash the appeal.

        The trial court summarized the facts and procedural posture of this

case as follows:

               The history of the case is as follows: This case was
           before this Court on [Appellee’s] Complain[t] in Replevin
           filed against [Appellant who] had been the Chairman of the

*
    Former Justice specially assigned to the Superior Court.
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       Democratic Party for approximately six (6) years through
       January of 2008.       Effective January of 2008, a new
       Chairman was elected to lead the Democratic Committee
       and subsequently on February 21, 2008, [Appellee]
       instituted a replevin action seeking return of the business
       property and financial records of [Appellee] which were in
       [Appellant’s] possession . . . .

          On February 26, 2008, at [Appellee’s] request, the
       Court ordered the Prothonotary of Washington County to
       issue a Writ of Seizure against [Appellant] for the seizure
       and return of the following property of [Appellee]: “books
       of account, all financial records, checkbooks, cancelled
       checks, bank statements, and any and all other
       documentation regarding any voluntary contributions that
       were received or collect on behalf of” [Appellee.] After
       service of the Writ of Seizure, on February 29, 2008,
       [Appellee] recovered two Dell computers . . . [Appellee’s]
       checkbook and extra checks, blank deposit tickets and
       stamp, and one PNC bank statement for the period of
       January 1, 2008 through January 31, 2008. Thereafter,
       pursuant to Pa.R.C.P. 1075.2, this Court scheduled a
       hearing for April 23, 2008.

          At the hearing, brief testimony was heard from
       [Appellant], who claimed that he had no other financial
       records or property of [Appellee] in his possession[. He]
       further testified that it was his practice to destroy all bank
       records and cancelled checks after reconciling [Appellee’s]
       checkbook, thus attempting to explain why the only record
       available to be returned was the most recent bank
       statement of [Appellee’s] checking account. . . .

          No further docket entries appear in the record until April
       30, 2010, when, at the request of counsel for both parties,
       the Court entered an Order scheduling a status conference
       on this case for September 10, 2010. . . . [O]n April 25,
       2011, [docketed April 28, 2011], this Court Ordered
       [Appellant] to return, or to reproduce at his own expense,
       all bank statements, cancelled checks, deposit and
       withdrawal documentation, and related documentation for
       the period of time of his tenure as Chairman and/or
       Treasurer of [Appellee within sixty days].



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Trial Ct. Op., 6/10/12, at 1-3 (emphasis added). The April 28th order also

provided, “A hearing on this matter is hereby scheduled for the 21st of July,

2011, at 2:00 p.m., at which time the Court shall review [Appellant’s]

compliance with this Order, review the Audit prepared on behalf of

[Appellee],   and   assess   any    special   damages   claimed   on   behalf   of

[Appellee].” Order, 5/28/11.

      This timely appeal followed.1      Appellant filed a timely court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial

court filed a responsive opinion.


1
  We note Appellant initially filed his appeal in the Commonwealth Court of
Pennsylvania. On May 22, 2012, the Commonwealth Court found that it did
not have jurisdiction over the appeal in this replevin action and transferred
the case to this Court. Democratic Party of Washington County v.
Marinkovich, 821 C.D. 2011 (unpublished memorandum at 3) (Commw. Ct.
May 22, 2012). The Court opined:

            [Appellant]  and    [Appellee]  contend     that  [the
         Commonwealth] Court has jurisdiction over this matter
         pursuant to Section 762(a)(4)(C) of the Judicial Code, 42
         Pa.C.S. § 762(a)(4)(C). We disagree.

                                    *    *    *

            Section 742 of the Judicial Code states in pertinent part
         that “the Commonwealth Court shall have exclusive
         jurisdiction of appeals from final orders of the courts of
         common pleas in [any case] . . . where is drawn in
         question the application, interpretation or enforcement of
         any . . . statute relating to elections, campaign financing or
         other election procedures.” However, the action here is
         in replevin between private parties; it is not an
         election case.




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        Appellant raises the following issues for our review:

           I. Did the lower court err in going beyond matters properly
           before the Court and inequitably ordering Appellant to
           produce documents of which he had no control?

           II. Did the lower court err by finding Appellant had violated
           the Election Code without any request for such a finding or
           any evidence that there was any, theft, fraud, or
           impropriety?

Appellant’s Brief at 14, 17.2

        As a prefatory matter, we consider whether the order appealed from is

an interlocutory order.     Instantly, Appellant has appealed from an order

requiring him to produce various documents and setting another hearing

date.    A final order is defined in part as “any order that . . . disposes of all

claims and of all parties.” Pa.R.A.P. 341(b)(1).      The instant order is not a

final order because it did not dispose of all claims and it anticipated further

proceedings. See id.

        We next consider whether the order is an interlocutory order

appealable as a matter of right pursuant to Pa.R.A.P. 311. In Jerry Davis,

Inc. v. Nufab Corp., 677 A.2d 1256 (Pa. Super. 1996), a contractor filed a

replevin action against the lessee of a building, seeking to recover electrical



Id. at 2 (emphasis added).
2
  We note that Appellant’s Statement of the Questions Involved does not
comply with Pa.R.A.P. 2116. We have gleaned the questions raised on
appeal from the argument section of Appellant’s brief where they are stated
concisely. Given our resolution of the instant appeal, noncompliance with
Rule 2116 is of no moment.



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wiring and equipment which he had installed in the building. Id. at 1257.

The trial court denied the motion for writ of seizure.      Id.   This Court

addressed the issue of whether the interlocutory replevin order was

appealable as a matter of right pursuant to Rule 311:

           Orders      involving      attachments,     receiverships,
        custodianships or other similar matters affecting the
        possession or control of property, are among the classes of
        interlocutory orders which are appealable as of right. Rule
        311(a)(2), supra.           Interlocutory orders involving
        injunctions are likewise appealable as of right.        Rule
        311(a)(4),     supra.         Attachments,   custodianships,
        receiverships and injunctions have technical and peculiar
        meanings when applied in the legal context; these terms
        refer to a particular type of action or remedy. Replevin is
        likewise a distinct form of legal action and relief.
        “Replevin” is not a term which can be equated or used
        interchangeably        with     attachment,     receivership,
        custodianship or injunction. Our conclusion is supported
        by the fact that the Supreme Court has enacted specific
        rules governing the practice and procedure applicable to
        each of these types of action or relief.          See, e.g.,
        Pa.R.C.P., Rules 1071–1088 (replevin), Rule 1531
        (injunctions), Rule 1533 (receivers), Rules 3101–3149
        (garnishment/attachment), 42 Pa.C.S.A.

           The Supreme Court’s adoption of specific rules evinces
        its awareness of the distinctions between these
        proceedings and its desire to treat them differently. The
        Supreme Court has accordingly decided that interlocutory
        orders      relating   to    attachments,     receiverships,
        custodianships and other similar matters affecting
        property, as well as injunctions, are all appealable as of
        right. However, interlocutory replevin orders of the
        type at issue here were not specifically addressed in
        either Rule 311(a)(2) or (a)(4). The Court’s failure to
        specifically include such orders therein thus suggests that
        these orders were not intended to be appealable as
        of right.




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             The Court’s omission appears to have been deliberate
         rather than an inadvertent oversight. Prior to the adoption
         of the procedural rules, the appellate courts quashed
         interlocutory appeals of replevin orders unless special
         circumstances justifying immediate appellate review were
         present.    See, e.g.,     Northern Financial Corp. v.
         Watkins, [ ] 202 A.2d 9, 9 (1964) (quashing appeal from
         interlocutory order issuing writ of replevin); Lynn v. Lynn,
         [ ] 100 A. 975, 976 (1917) (allowing appeal from
         interlocutory order denying plaintiff's request for
         impoundment of chattels sought to be replevied where the
         property consisted of valuable antiques and the actual
         pecuniary value of the property would not fully
         compensate the plaintiff in the event the defendant
         disposed of the goods); Singer v. Pintzuk, 53 Pa. Super.
         43, 45–46 (1913) (quashing appeal from interlocutory
         order refusing to strike off replevin defendant’s
         counterbond, where no substantial right of the plaintiff was
         violated and resolution of the issues could be redressed on
         the final determination of the case). Had a change in the
         law been intended, mention of this fact would have
         appeared in either the rule itself or in the commentary
         thereto. Neither the rule, the comments nor the notes
         thereto reference this subject.       The absence of such
         discussion gives rise to the conclusion that interlocutory
         replevin orders do not fall within the existing exceptions
         set forth in Rules 311(a)(2) and (a)(4) and that such
         orders were not intended to be appealable as of right.
         We accordingly do not believe that the Supreme
         Court intended interlocutory orders denying or
         granting the issuance of a writ of seizure in a
         replevin action to be appealable as of right under
         Rule 311(a)(2) or (a)(4). To hold otherwise would
         result in a significant expansion of the limited class of
         orders for which an interlocutory appeal as of right
         currently exists. . . .

Id. at 1259 (emphases added).

      This Court then considered whether the order was appealable as of

right as a collateral order pursuant to Pa.R.A.P. 313:




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        A collateral order is defined as one which: (1) is separable
        from and collateral to the main cause of action; (2)
        involves a right that is too important to be denied review;
        and (3) presents a question such that if review is
        postponed until final judgment, the claim will be
        irreparably lost. Rule 313(b). None of these requirements
        has been met in this case.

           The relief sought, i.e., recovery of possession of the
        property, cannot be deemed collateral to or separable
        from the main cause of action. The fundamental
        purpose of a replevin action is to regain possession
        of the property.

Id. at 1260. Accordingly, this Court in Nufab Corp. quashed the appeal.

Id.

      Analogously, in the case sub judice, the order to return or reproduce

documents in this replevin action does not fall within the classes of

interlocutory orders for which there exists an appeal as of right. Therefore,

we are constrained to quash the appeal.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/2014




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