J-A15038-17

2017 PA Super 273

THOMAS T. JONES, JR., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

BOARD OF DIRECTORS OF VALOR 

CREDIT UNION, SEAN JELEN, KARA 

BADYRKA - CHAIRPERSON, JOE 

NEMSHICK - VICE-CHAIRPERSON, 

GEORGE SWEDA - TREASURER, 

THOMAS CASALE - DIRECTOR, DAVID 

VALVANO - DIRECTOR, AND JESSICA 

HICKS, SECRETARY

:

:

:

:

:

:

:

: No. 1648 MDA 2016

Appeal from the Order entered September 15, 2016

in the Court of Common Pleas of Lackawanna County,

Civil Division, No(s): 2015-5854

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.: FILED AUGUST 21, 2017

Thomas T. Jones, Jr. (“Jones”), an individual member of Valor Credit 

Union (“the Credit Union”),1appeals from the Order granting the Preliminary 

Objections filed by the Board of Directors of the Credit Union (hereinafter the 

“Board”), and dismissing Jones’s Complaint. We affirm.

The trial court set forth the relevant factual and procedural history 

underlying this appeal as follows:

This case initiated [on] October 2, 2015, at which time [Jones] 

filed a Motion for Allowance of Discovery in Aid of Pleading. He 

essentially alleged that[,] according to a press release by the 

 

1

Importantly to this appeal, the Credit Union is a federal credit union. 

Accordingly, it is subject to the federal regulations set forth in the Federal 

Credit Union Act (“FCUA”), 12 U.S.C.A. § 1751 et seq. The FCUA is 

administered by the National Credit Union Administration (“NCUA”).
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Federal Bureau of Investigation (“FBI”), [the] former president of 

the Board ..., Sean Jelen [(“Jelen”)], had been engaged in 

improper financial activity []in his capacity as president of the 

[B]oard during the tenure of the other named [B]oard members. 

[Jones], however, could not ascertain the nature and extent of 

the improper financial activity without the aid of certain 

documents requested. Specifically, [Jones] requested books and 

records for inspection, but was denied access by the [B]oard’s 

counsel in [a] letter dated September 17, 2015. [Jones] 

concurrently filed a Request for Production of documents seeking: 

1) books and records of [the] Credit Union detailing any and all 

expenditures made by [] Jelen since January 2012; 2) audits and 

recommendations made since January 2012; 3) documents 

memorializing any Board activity regarding [] Jelen from the date 

of his hiring to present; 4) [the] Credit Union’s Best Practices 

regarding corporate disbursements and the use of funds by 

officers and directors; and 5) Errors and Omissions policies of 

coverage for the [B]oard. By Order dated November 13, 2015, 

th[e trial c]ourt denied [Jones’s] Motion.

On March 21, 2016, [Jones] filed his Complaint against the 

Board []. He allege[d] improper financial activity on the part of ... 

Jelen .... He further assert[ed] that the [B]oard is liable for [its] 

failure to fulfill fiduciary obligations in connection with Jelen’s 

inappropriate conduct. He contend[ed] that the Board’s action 

and/or inaction has resulted in [the Credit Union] suffering 

irreparable harm due to the diversion of its assets.

 * * *

[Jones] alleged that he is and has been a member of [the] Credit 

Union since 2005, ... and that his suit “is a derivative action on 

behalf of the Depository and Loan members of [the Credit Union] 

arising from the mismanagement, nonfeasance, misfeasance, and 

potential criminal activities of the [] Board [] and ... Jelen[.]” ([] 

Complaint, [3/21/16, ¶] 12). [Jones] essentially alleges that 

[the] Credit Union and its members collectively have suffered 

injury as a result of [the Board’s] actions and/or inaction.

[The Board] filed Preliminary Objections to [the] Complaint 

on April 8, 2016. Among the several objections raised, [the 

Board] contend[s] that [Jones] lacks standing or capacity to sue 

pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(5) 

[(regarding preliminary objections for lack of capacity to sue)]. ([] 
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Preliminary Objections, [4/8/16, ¶] 17). [The Board] aver[s] that 

“[Jones] does not allege that any money was removed from his 

account(s) or that he has suffered any direct financial harm to his 

interest.” ([Id. ¶] 18). Moreover, [the Board] posits that[,] as a 

member of a federal credit union, [Jones] is a depositor in a 

financial institution, not a shareholder in a corporation capable of 

bringing a derivative action on behalf of a corporation.

Trial Court Memorandum and Order, 9/15/16, at 1-3.

In June 2016, Jones filed an Answer to the Preliminary Objections and a 

brief in opposition thereto. The trial court conducted a hearing on the matter 

on June 24, 2016. Following a procedural history that is not relevant to this 

appeal, on September 15, 2016, the trial court granted the Board’s 

Preliminary Objections and dismissed Jones’s Complaint. In so ruling, the 

court stated in its Memorandum and Order, in relevant part, as follows:

In his Complaint, [Jones] does not allege any injury suffered 

personally. As such, it is clear that [] Jones, individually, lacks 

standing to bring suit against [the Board]. However, [Jones], a 

member of [the] Credit Union, unambiguously seeks to bring suit 

on behalf of [the] Credit Union, alleging that it has suffered 

irreparable harm as a result of [Jelen’s] actions and [the] 

Board[’s] inaction. He styles his cause of action as a derivative 

suit[,] as a corporation’s shareholder would file an action on 

behalf of a respective corporate entity.

Th[e trial c]ourt is unaware of any statutory or common law 

authority that would confer standing upon [Jones] to sue on 

behalf of [the] Credit Union, and [Jones] fails to present any. 

This [c]ourt recognizes that[,] as a [f]ederal [c]redit [u]nion, [the 

Credit Union] is subject to the federal regulations set forth within 

the [FCUA], which does not provide any basis for a member to 

have standing or capacity to bring a derivative action[, as Jones], 

who does not and cannot allege injury, now attempts. As such, 

[Jones’s] Complaint must be dismissed.

Id. at 4.
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Jones timely filed a Notice of Appeal and a court-ordered Pa.R.A.P. 

1925(b) Concise Statement of errors complained of on appeal. The trial court 

thereafter issued a Pa.R.A.P. 1925(a) Order in lieu of Opinion, relying on the 

above-mentioned rationale advanced in its Memorandum and Order.

Jones now presents the following issue for our review: “Did the Court 

of Common Pleas err in dismissing [Jones’s] Complaint and holding that [he] 

did not have standing to bring suit?” Brief for Appellant at 4.

Our standard of review in an appeal from an order sustaining 

preliminary objections is as follows:

In reviewing a trial court’s grant of preliminary objections, the 

standard of review is de novo and the scope of review is plenary. 

The salient facts are derived solely from the complaint and 

pursuant to that standard of review, the court accepts all wellpleaded material facts in the complaint, and all inferences 

reasonably deduced therefrom must be accepted as true.

Morrison Informatics, Inc. v. Members 1st Fed. Credit Union, 97 A.3d 

1233, 1237 (Pa. Super. 2014) (citation omitted).

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine the 

averments in the complaint, together with the documents and 

exhibits attached thereto, in order to evaluate the sufficiency of 

the facts averred. The impetus of our inquiry is to determine the 

legal sufficiency of the complaint and whether the pleading would 

permit recovery if ultimately proven. This Court will reverse the 

trial court’s decision regarding preliminary objections only where 

there has been an error of law or abuse of discretion. When 

sustaining the trial court’s ruling will result in the denial of claim 

or a dismissal of suit, preliminary objections will be sustained only 

where the case is free and clear of doubt. 
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Hill v. Slippery Rock Univ., 138 A.3d 673, 677 (Pa. Super. 2016) (citation 

omitted).

The Pennsylvania Supreme Court has stated as follows concerning 

standing:

Prior to judicial resolution of a dispute, an individual must[,] as a 

threshold matter[,] show that he has standing to bring the action. 

The traditional concept of standing focuses on the idea that a 

person who is not adversely impacted by the matter he seeks to 

challenge does not have standing to proceed with the court 

system’s dispute resolution process. ... Stated another way, a 

controversy is worthy of judicial review only if the individual 

initiating the legal action has been “aggrieved.” This principle is 

based upon the practical reason that unless one has a legally 

sufficient interest in a matter, that is, is “aggrieved,” the courts 

cannot be assured that there is a legitimate controversy. With 

respect to this requirement of being aggrieved, an individual can 

demonstrate that he is aggrieved if he can establish that he has a 

substantial, direct, and immediate interest in the outcome of the 

litigation in order to be deemed to have standing. ... The 

keystone to standing in these terms is that the person must be 

negatively impacted in some real and direct fashion. If the 

individual is not adversely affected in any way by the matter he 

seeks to challenge, he is not “aggrieved” thereby[,] and has no 

standing to obtain a judicial resolution of his challenge.

Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 659-60 

(Pa. 2005) (internal citations, quotation marks, brackets and paragraph 

breaks omitted).

Jones argues that the trial court committed legal error in determining 

that he, a member of the Credit Union, lacked standing to bring a derivative
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suit,2on behalf of the Credit Union, against the Board.3 Brief for Appellant at 

11. Jones initially points out that (1) Pennsylvania specifically recognizes the 

right of a corporate shareholder to bring a derivative action on behalf of the 

corporation, see Pa.R.C.P. 1506 (governing derivative actions); and (2) the 

Pennsylvania Credit Union Code4(“the Code”) recognizes the capacity of a 

credit union “[t]o maintain and defend judicial proceedings in its corporate 

name.” 17 Pa.C.S.A. § 501(a)(2); see also Brief for Appellant at 10, 12. 

According to Jones, “the relationship between a credit union and its 

member/depositor is similar[,] if not identical[,] to that between a 

shareholder and a corporation.” Id. at 13; see also id. (citing Pa. Bankers 

Ass’n v. Pa. Dep’t of Banking, 893 A.2d 864, 871 (Pa. Cmwlth. 2006)

(stating that “[u]nlike banks, which are for-profit corporations owned by 

stockholders, credit unions are owned by depositors. Technically, a depositor 

does not deposit funds into a credit union[,] but purchases shares in the 

corporation.”) (internal citations omitted), rev’d on other grounds, 956 

A.2d 956 (Pa. 2008)). 

 

2 As was the situation before the trial court, Jones makes no claim on appeal 

that any of his accounts at the Credit Union were harmed or diminished as a 

result of the Board’s actions/omissions. See, e.g., Brief for Appellant at 10 

(stating that “[Jones] seeks no damages for himself.”). Accordingly, as he 

has not been personally aggrieved, he lacks standing to sue the Board in his 

individual capacity. See Pittsburgh Palisades Park, supra. 

3

Jones maintains that this issue is one of first impression in Pennsylvania. 

Brief for Appellant at 12.

4 See 17 Pa.C.S.A. §§ 101-1504.
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Jones further directs our attention to a proposed rule change issued by

the NCUA concerning national federal credit union bylaws (hereinafter “the 

NCUA Rule Change”). The NCUA Rule Change states, in relevant part, that 

“NCUA’s long standing view is [that] the bylaws, among other effects, 

function as a contract between a credit union and its members. While NCUA 

provides guidance and interpretations of the bylaws, generally[,] state 

corporate law ... determines disputes regarding the enforcement of bylaw 

provisions.” Brief for Appellant at 14 (quoting 70 Fed. Reg. 40930 (July 15, 

2005)) (emphasis added by Jones). According to Jones, the NCUA Rule 

Change lends additional support to a determination that credit union 

members should have standing in state court to bring a derivative action on 

behalf of a federal credit union. Brief for Appellant at 14. 

After reviewing the relevant law, we conclude that the trial court 

properly determined that Jones lacks standing to bring a derivative action on 

behalf of the federal Credit Union. The trial court is correct in stating that the 

FCUA does not expressly confer standing upon a member of a federal credit 

union to bring a derivative action on behalf of a credit union.5 See Trial Court 

Memorandum and Order, supra. 

We next address whether the Code authorizes Jones to bring a 

derivative action on behalf of the Credit Union. Section 715(a) of the Code 

 

5 Moreover, the NCUA Rule Change is not precedential authority for this 

Court. In any event, it is irrelevant to this case, as it concerns enforceability 

of credit union bylaws, not standing to bring a derivative action.
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governs “[a]ctions by members to enforce a secondary right,” and provides as 

follows:

In any action brought to enforce a secondary right on the part of 

one or more members against any officer or director or former 

officer or director of a credit union because the corporation 

refuses to enforce rights which may properly be asserted by it, 

the plaintiff or plaintiffs must aver[,] and it must be made to 

appear that[,] the plaintiff or each plaintiff was a member of the 

corporation at the time of the transaction of which he complains 

or that his membership devolved upon him by operation of law 

from a person who was a member at that time.

17 Pa.C.S.A. § 715(a).6 Even if Jones had invoked this provision, it 

nevertheless does not provide him standing to sustain his derivative action. 

Because the Credit Union is a federal credit union, the provisions of the 

Code, including section 715(a), are inapplicable to this case.

Moreover, we determine that Jones’s reliance upon Pa.R.C.P. 1506 is 

unavailing. Rule 1506 requires proof that the plaintiff sought to secure 

enforcement of rights by the defendant and that the defendant refused or 

failed to respond. See Pa.R.C.P. 1506(a)(2); see also Cuker v. 

Mikalauskas, 692 A.2d 1042, 1048-49 (Pa. 1997); Fitzpatrick v. Shay, 461 

A.2d 243, 246 (Pa. Super. 1983). There is no allegation that Jones made any 

effort to comply with this provision, and at oral argument, he conceded that 

he made no such effort. 

Based on the foregoing, we conclude that the trial court properly 

granted the Board’s Preliminary Objections and dismissed Jones’s Complaint, 

 

6 Notably, Jones did not cite to this provision in his appellate brief or in the 

trial court.
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as he lacked standing to bring a derivative action on behalf of the federal 

Credit Union.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2017