J-A05031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
631 NORTH BROAD STREET, LP : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CONGREGATION RODEPH SHALOM : No. 1151 EDA 2017
Appeal from the Order Entered March 1, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): April Term, 2016 No. 02632
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 20, 2018
Appellant, 631 North Broad Street, LP, appeals from the trial court’s
entry of a preliminary injunction order1 in favor of movant Appellee,
Congregation Rodeph Shalom, restraining Appellant from modifying a party
wall while engaged in construction activities on its own property. In response,
Appellee has filed a motion to quash the appeal as moot because the trial
court has since entered a final, permanent injunction based on a merits review
of the same substantive issues raised in the preliminary injunction.2 After
careful review, we grant Appellees’ motion and quash Appellant’s appeal.
____________________________________________
1Preliminary injunctions are interlocutory orders immediately appealable as
of right. See Pa.R.A.P. 311(a)(4).
2 On January 25, 2018, Appellant timely filed a separate notice of appeal to
this Court from the judgment entered on December 28, 2017, following the
entry of the trial court’s order that issued a permanent injunction in favor of
Appellees.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05031-18
The trial court’s Pa.R.A.P. 1925(a) opinion, dated July 10, 2017, and its
memorandum opinion, dated March 1, 2017, provide apt factual and
procedural histories of the case, such that we may rely on them for our present
purposes. Suffice it to say that, in the present appeal, Appellant maintains
the trial court’s preliminary injunction improperly enjoined it “from exercising
its right to utilize its property in its desired, lawful manner and caused [it] to
suffer substantial damages, including hundreds of thousands of dollars in out-
of-pocket costs to specially maintain a wall that provides no value to
[Appellee] and diminishes the value of [Appellant’s] property.” Appellant’s
Answer to Motion to Quash Appeal, at 3. Pa.R.C.P. 1531(b)3 protects victims
of improper preliminary injunctions, Appellant continues, by allowing them to
recover damages from the party who improperly obtained the injunction.
____________________________________________
3 Rule 1531. Special Relief. Injunctions, provides in pertinent part:
(b) Except when the plaintiff is the Commonwealth of
Pennsylvania, a political subdivision of a department, board,
commission, instrumentality or officer of the Commonwealth or of
a political subdivision, a preliminary or special injunction shall be
granted only if
(1) The plaintiff files a bond in an amount fixed and with
security approved by the court, naming the
Commonwealth as oblige, conditioned that if the
injunction is dissolved because improperly granted or
for failure to hold a hearing, the plaintiff shall pay to
any person injured all damages sustained by reason
of granting the injunction and all legally taxable costs
and fees….
Pa.R.C.P. 1531(b)(1).
-2-
J-A05031-18
Unless this Court considers Appellant’s challenge to the trial court’s
preliminary injunction on the merits, Appellant may lose its opportunity under
Rule 1531(b) to recover damages.
Generally, an appeal from the grant of a preliminary injunction becomes
moot when the trial court enters a permanent injunction, because the former
merges into the latter. Grupo Mexicano de Desarrollo, S.A. v. Alliance
Bond Fund, Inc., 527 U.S. 308, 119 S.Ct. 1961 (1999) (“Grupo
Mexicano”); Pa. Energy Vision, LLC v. S. Avis Realty, Inc., 120 A.3d 1008
(Pa. Super. 2015). We dismiss appeals in such circumstances, as explained
in Pa. Energy Vision:
South Avis argues the trial court erred in granting a preliminary
injunction. This issue, however, is now moot because the trial
court issued a final, permanent injunction. The issuance of a
permanent injunction supersedes a preliminary injunction. Den–
Tal–Ez, Inc. v. Siemens Capital Corp., 389 Pa.Super. 219, 566
A.2d 1214, 1217 n. 1 (1989) (en banc). “Where a preliminary
injunction is in force, the issuance of a permanent injunction
terminates the preliminary injunction.” Izenson v. Izenson, 274
Pa.Super. 356, 418 A.2d 445, 446 (1980) (per curiam ) (internal
citation omitted). . . . Here, the trial court rendered a decision on
the merits and issued a permanent injunction. Any issues
regarding the granting of a preliminary injunction cannot now be
considered in this appeal. Den–Tal–Ez, supra; Izenson, supra.
Pa. Energy Vision, 120 A.3d at 1012-13.4
____________________________________________
4 In Grupo Mexicano, the United States Supreme Court explicated further:
In the case of the usual preliminary injunction, the plaintiff seeks
to enjoin, pending the outcome of the litigation, action that he
claims is unlawful. If his lawsuit turns out to be meritorious—if he
is found to be entitled to the permanent injunction that he seeks—
-3-
J-A05031-18
An exception to this general rule may obtain, however, where the appeal
from the preliminary injunction raises a substantive issue that is wholly
independent from the substantive issue resolved in the final, permanent
injunction. See, e.g., Grupo Mexicano; Coll. Watercolor Grp., Inc. v.
William H. Newbauer, Inc., 360 A.2d 200, 207-208 (Pa. 1976). Appellant
appears to argue that its case falls under this exception because the order
granting a permanent injunction in the present case did not address delay
expenses incurred by Appellant flowing from the preliminary injunction. As
we explain below, this argument fails, for Appellant’s delay damages claim is
predicated on its challenge to Appellee’s interest in the party wall, and the
trial court rejected Appellant’s predicate challenge on the merits when issuing
the permanent injunction.
In Coll. Watercolor Grp., Inc., our Supreme Court recognized an
exception to the precept that a permanent injunction nullifies all issues
stemming from a preceding preliminary injunction. Specifically, the appellants
contested a trial court order dissolving a $10,000.00 injunction bond filed by
____________________________________________
even if the preliminary injunction was wrongly issued (because at
that stage of the litigation the plaintiff’s prospects of winning were
not sufficiently clear, or the plaintiff was not suffering irreparable
injury) its issuance would in any event be harmless error. The
final injunction establishes that the defendant should not have
been engaging in the conduct that was enjoined. Hence, it is
reasonable to regard the preliminary injunction as merging into
the final one: If the latter is valid, the former is, if not procedurally
correct, at least harmless.
Id. at 314-15, 119 S.Ct. at 1966.
-4-
J-A05031-18
the appellee when the court granted a preliminary injunction against the
appellants. After the court issued a permanent injunction in favor of appellee,
appellee requested that the injunction bond be dissolved, as a permanent
injunction did not require security. The trial court granted appellee’s petition
for relief.
On appeal, the appellants claimed the trial court erred in dissolving the
preliminary injunction bond because the permanent injunction was narrower
in scope than the preliminary injunction had been. Therefore, it was
conceivable that the appellants could present a meritorious claim for damages
arising from that distinct portion of the preliminary injunction not
contemplated by the permanent injunction. The Court agreed.
Rule 1531(b), requiring a plaintiff requesting a preliminary injunction to
file a bond, is intended to protect persons injured by improperly granted
preliminary injunctions, the Court noted. It continued, “Since the permanent
injunction issued was narrower than the preliminary injunction, the appellants
may be able to prove damages in a proper proceeding. In that event,
appellants are entitled to look to the bond for recovery.” Id. at 208.
Here, Appellant fails to show that the preliminary injunction complained
of was, in some respect, broader than the permanent injunction that followed
it, such that the permanent injunction failed to govern all aspects of the
preliminary injunction. Appellant complains that the preliminary injunction
imposed costly restrictions that unfairly delayed its progress on developing its
own property, but clearly the permanent injunction rejects the notion that the
-5-
J-A05031-18
restrictions were unfairly imposed, as it effectively ratified all substantive
aspects of the preliminary injunction. Indeed, in asserting that the order
issuing a permanent injunction was nothing more than a “rubber stamping”5
of the preliminary injunction, Appellant essentially concedes that the two
injunctions were coextensive. Therefore, the exception in Coll. Watercolor
Grp., Inc. does not apply to the present matter.
Similarly, in Grupo Mexicano, the United States Supreme Court
recognized this exception when it unanimously held that the final injunction
resolving the merits of the respondents’ claim in respondents’ favor did not
render moot the petitioner’s issue on appeal that the preliminary injunction
had been wrongly decided. The reason the general rule of mootness did not
apply, the Court explained, was because petitioners’ substantive challenge to
the preliminary injunction addressed a different matter than the permanent
injunction addressed:
In the present case, however, petitioners’ basis for arguing that
the preliminary injunction was wrongfully issued—which is that
the District Court lacked the power to restrain [petitioners’] use
of assets pending a money judgment—is independent of
respondents’ claim on the merits—which is that petitioners
breached the note instrument by failing to make the August 1997
interest payment. The [final injunction’s] resolution of the merits
is immaterial to the validity of petitioners’ potential claim on the
[preliminary injunction] bond.
____________________________________________
5 Appellant’s Answer at 4. We note, further, that the validity of the permanent
injunction, which Appellant also appears to challenge with its “rubber
stamping” charge, is a matter to be raised in its direct appeal from the
judgment entered on the permanent injunction.
-6-
J-A05031-18
Id. at 317, 119 S.Ct. at 1967.
Grupo Mexicano was exceptional because it involved an atypical
claim—the preliminary injunction was issued not to enjoin unlawful conduct,
but rather to declare unlawful, for the first time, conduct that was until then
permissible. This decision, the Court reasoned, should have been reserved
for a final, permanent injunction.
Therefore, the Court held, if petitioners were correct on their claim, they
should be able to recover for the trial court’s premature and unauthorized
preliminary injunction, even if the final, permanent injunction was valid. This
was so, the Court emphasized, because the final, permanent injunction’s
resolution of the merits was immaterial to the validity of the preliminary
injunction. As such, it would make no sense to say the preliminary injunction
merged into the final one.
In contrast to the facts of Grupo Mexicano, Appellant’s preliminary
injunction implicated the same substantive issues that were addressed in the
trial court’s final, permanent injunction. As noted, the appeal challenges the
propriety of the court’s determination that Appellees possessed sufficient
rights in the party wall to support preliminarily enjoining Appellant from
developing its property as it had planned. Appellant acknowledges that the
trial court’s final, permanent injunction represented an affirmation of
Appellee’s rights in the wall. Essentially, the court concluded in its permanent
injunction that Appellant should not have been developing the property in the
manner that was enjoined preliminarily.
-7-
J-A05031-18
Because the preliminary and final, permanent injunctions involved the
same substantive issues, the instant case does not present an exception to
the general rule that a preliminary injunction merges into the final injunction.
Therefore, we conclude the issues raised in the present appeal are moot and
subject to quashal.
Motion to quash granted. Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/18
-8-
631 North Broad Street v. Congregation Rodeph
Combined Opinion