Democratic Party v. Marinkovich, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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