J-A17025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MILAN MARINKOVICH, MEMBER OF THE IN THE SUPERIOR COURT OF
DEMOCRAT PARTY OF WASHINGTON PENNSYLVANIA
COUNTY,
Appellant
v.
GEORGE VITTECK, PAST CHAIRMAN OF
THE DEMOCRAT PARTY OF WASHINGTON
COUNTY, AND RON SICCHITANO,
PRESENT CHAIRMAN OF THE DEMOCRAT
PARTY OF WASHINGTON COUNTY
No. 1772 WDA 2017
Appeal from the Judgment Entered, October 30, 2017,
in the Court of Common Pleas of Washington County,
Civil Division at No(s): 2016-4063.
BEFORE: OTT, J., KUNSELMAN, J., AND MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 25, 2018
Milan Marinkovich, “Member of the Democrat[ic] Party of Washington
County,” has appealed from the court of common pleas judgment granting
preliminary objections to and dismissing his complaint in this matter with
prejudice. This Court has scheduled oral arguments on this appeal for July
17, 2018. However, because we lack appellate jurisdiction, we cancel those
oral arguments and transfer this matter to the Commonwealth Court of
Pennsylvania.
Although no party challenged our jurisdiction, we may always decide if
we have jurisdiction sua sponte. See, e.g., M. London, Inc. v. Fedders
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Corp., 452 A.2d 236, 237 (Pa. Super. 1982). We raise a jurisdictional
question now. “Jurisdiction is purely a question of law; the appellate
standard of review is de novo and the scope of review plenary.”
Commonwealth v. Seiders, 11 A.3d 495, 496–97 (Pa. Super. 2010).
Here, Mr. Marinkovich claims our jurisdiction lies at 42 Pa.C.S.A. §§
341 and 702. See Marinkovich’s Brief at 1 (Statement of Jurisdiction).
42 Pa.C.S.A. § 341 does not exist; therefore, it cannot serve as a basis
of our jurisdiction.
42 Pa.C.S.A. § 702 deals with appeals from interlocutory orders.
Here, the trial court entered a final judgment, dismissing Mr. Marinkovich’s
complaint with prejudice; therefore, this appeal is not from an interlocutory
order. Hence, Mr. Marinkovich’s reliance upon Section 702 is misplaced.
Perhaps Mr. Marinkovich made a typographical error in his Statement
of Jurisdiction, and, rather than 42 Pa.C.S.A. §§ 341 and 702, he intended to
cite to Pennsylvania Rules of Appellate Procedure 341 and 702. If so, that
would not change our analysis, as neither of those Rules confers jurisdiction
upon this Court. Rule 341 defines a final order, while Pa.R.A.P. 702 only
indicates that an appeal from a final order “shall be taken to . . . the
appellate court vested by law with jurisdiction over appeals from such
order.” Indeed, the Comment to Rule 702 notes that “[b]ecause of frequent
legislative modifications, it is not desirable . . . to restate appellate court
jurisdiction in these rules.” Thus, the Rules of Appellate Procedure are not
the correct (or even constitutional) source to cite for determining appellate
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jurisdiction. So, even if Mr. Marinkovich meant to use them in that manner,
he was mistaken.
Instead, 42 Pa.C.S.A. § 742 dictates that “Superior Court shall have
exclusive appellate jurisdiction of all appeals from final orders of the courts
of common pleas except” those “within the exclusive jurisdiction of the
. . . Commonwealth Court.” 42 Pa.C.S.A. § 742 (emphasis added). The
Commonwealth Court of Pennsylvania has “exclusive jurisdiction of appeals
from final orders of the courts of common pleas . . . where is drawn in
question the application, interpretation or enforcement of any . . . statute
relating to elections, campaign financing or other election procedures.”
42 Pa.C.S.A. § 762(a)(4)(i)(C).
This case involves proper application and adherence to the
Democratic Party of Washington County’s Rules and political financing
under those Rules. See Exhibit C of the Amended Complaint. The
Election Code governs the Rules (or “by-laws” as the Complaint refers to
them) of political parties’ county committees. Title 25, section 2837
provides:
There may be in each county a county committee for each
political party within such county, the members of which
shall be elected at the spring primary, or appointed, as the
rules of the respective parties within the county may
provide. 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
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such party. No such rules shall be effective until a certified
copy thereof has been filed in the office of the county
board of elections. The members of all other party
committees, and all other party officers whose election is
required by the party rules, shall also be elected at the
spring primary, in the manner provided by this act.
25 P.S. § 2837.
Of the five Pennsylvania appellate cases interpreting this provision
of our Election Code, four are Commonwealth Court decisions. Those four
cases are In re Freeman, 540 A.2d 606 (Pa. Cmwlth. 1988); Petition of
Smith, 516 A.2d 797 (Pa. Cmwlth. 1986); In re Carabello, 516 A.2d 784
(Pa. Cmwlth. 1984); In re Nomination Petitions of Kielstock, 473 A.2d
713 (Pa. Cmwlth. 1984). The one exception is Commonwealth ex rel.
Koontz v. Dunkle, 50 A.2d 496 (Pa. 1947), a quo warranto action, that
went directly from the common pleas court to the Supreme Court of
Pennsylvania. That case predates the Commonwealth Court’s establishment
in the 1968 Constitution of the Commonwealth of Pennsylvania by 21 years.
More importantly, the only two cases upon which Mr. Marinkovich
relies in the argument section of his brief are not cases from this Court.
He cites to Bentman v. Seventh Ward Democratic Executive
Committee, 218 A.2d 261 (Pa. 1966), which, like Koontz, predates the
Commonwealth Court and went directly from common pleas court to the
Supreme Court of Pennsylvania, and Kielstock.
If we were to assert jurisdiction over this appeal via waiver (see 42
Pa.C.S.A. § 704), we would “disrupt the legislatively ordained division of
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labor between the intermediate appellate courts” and risk the “possibility
of establishing two conflicting lines of authority on” the Election Code,
which is within the purview and expertise of the Commonwealth Court.
Trumbell Corp. v. Boss Construction, Inc., 747 A.2d 395, 399 (Pa.
Super. 2000). In light of the fact that no transfer has yet occurred, we
have not expended judicial resources on deliberating this case, and the
litigants and their attorneys have not yet argued before this Court, we
see no reasonable basis for usurping our sister court’s role of interpreting
Pennsylvania’s Election Code by deciding this appeal.
We conclude that the subject matter of this appeal directly
implicates the Elections Code and the Commonwealth Court’s precedents
applying 25 P.S. § 2837. Thus, the Commonwealth Court has exclusive
jurisdiction over this matter.
Although, Mr. Marinkovich erroneously filed his appeal with us, filing
in the wrong appellate court is not fatal to an appeal. Pennsylvania Rule
of Appellate Procedure 751 empowers us to preserve parties’ appellate
rights by transferring a matter and its record to the proper court. In the
transferee court, “the appeal . . . shall be treated as is originally filed in
transferee court on the date first filed in [this] court.” Pa.R.A.P. 751(a).
Accordingly, it is hereby ORDERED that oral arguments, scheduled
for July 17, 2018, are CANCELLED.
Appeal transferred to the Commonwealth Court of Pennsylvania.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2018
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