Appeal, No. 126, March T., 1950, from order of Court of Common Pleas of Allegheny County, Jan. T., 1948, No. 1462, in case of Matthew Siranovich et al. v. John D. Butkovich et al. Order reversed.
David Olbum, with him Sylvan Libson, for appellant.
Samuel J. Margiotti, with him Margiotti & Casey, for appellees.
Before Drew, C.j., Stern, Stearne, Jones and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The Croatian Fraternal Union of America, appellant, a fraternal benefit society incorporated under the laws of the Commonwealth of Pennsylvania, with principal offices at Pittsburgh, appeals from the order of the court below dropping it as a defendant in a quo warrantor proceeding. The court below made absolute a rule to show cause, inter alia, why the corporation should not be dropped as a defendant, holding that it "is not involved to the point that it needs to be a party in the litigation...".
The present action is one phase of litigation involving the right of certain elected officers to hold their respective offices. The matter originated as a bill in equity brought by two members of the Union, not officers, who challenged the validity of the September, 1947 election and sought to prevent newly elected officers from taking over management of the corporation, and to maintain control in the then incumbents until a judicial determination as to who were the proper officers. The corporation and both the old and newly elected officers were made party defendants. An injunction issued November 13, 1947, and was dissolved December 19, 1947, and the matter certified to the law side of the court to be tried as an action in quo warrantor. This certification was affirmed on appeal by this Court on April 22, 1948, in Siranovich v. Butkovich, 359 Pa. 134, 58 A.2d 461, opinion by the late Justice Patterson, and the record remitted for further proceedings.
Pending that appeal to this Court, plaintiffs filed an amended bill making the original bill and amendments thereto their suggestion in quo warrantor, requesting relief against defendants, the newly elected officials and the corporation. They prayer for relief against the corporation was that it be made to answer by what authority it "permits and allows" the individual defendants "to have and use and enjoy the respective offices of the Croatian Fraternal Union of America". The court below, on May 4, 1948, sustained preliminary objections to certain clauses of the complaint, striking them from the record and directing plaintiffs to make more specific certain allegations of paragraph 14.
Five of the old officers and defendants in the original action, on September 12, 1949, filed the instant petition for a rule upon the remaining defendants to show cause (1) why the petitioners should not be
dropped as party defendants and joined as relators or party plaintiffs, (2) why the Croatian Fraternal Union of America, appellant, should not be dropped as a party defendant, and (3) why the Commonwealth of Pennsylvania should not be added as a party. A rule issued and appellant and the newly elected officers, defendants, filed an answer denying material allegations contained in the petition. As regards the status of the corporation as a proper party, the answer averred, inter alia, that: (1) The Union has an interest in avoiding disruption of its affairs consequent upon the ouster of its officers through whose functioning it exists; (2) if the challenged election is declared invalid, a new election would be required under Sections 13 and 14 of the Act of 1840, P.L. 319, 12 PS §§ 2040, 2041, with resultant destructive expenses attendant upon administration of its business by court-appointed trustees pending the holding of a special election; (3) the Union would be prejudiced in a suit presently pending by it against the surety on the injunction bond given by the original plaintiffs in the equity action; and (4) there was no concurrence by or notice to the original plaintiffs as required by Rule 2232(b) of the Pennsylvania Rules of Civil Procedure. The matter was argued before the court en banc ...