[J-68-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
ARTHUR ALAN WOLK, PHILIP : No. 1 MAP 2018
BROWNDIES, AND CATHERINE :
MARCHAND : Appeal from the Order of the
: Commonwealth Court at No. 1465 CD
Appellees : 2016, dated 4/20/17, reconsideration
: denied 6/19/17, dismissing the appeal
: from the order of the Montgomery Court
: of Common Pleas at No. 2016-01839,
v. : dated 8/29/16 and exited 8/30/16
:
THE SCHOOL DISTRICT OF LOWER :
MERION, :
:
Appellant : ARGUED: September 26, 2018
OPINION
CHIEF JUSTICE SAYLOR DECIDED: December 11, 2018
In this civil matter, the appellant challenges the Commonwealth Court’s decision
to quash its appeal from a county court’s order awarding an injunction. The dispute
centers on whether a post-trial motion was required, or whether the appellant was
entitled to proceed with an interlocutory appeal as of right under Rule of Appellate
Procedure 311(a)(4).
Appellees are residents and taxpayers of Lower Merion Township, Montgomery
County. In February 2016, they filed a multi-count, putative class action complaint
against Appellant, the local school district (“Appellant” or the “District”), which included
asserted grievances about “proliferate spending and tax increases.” First Amended
Complaint in Wolk v. Sch. Dist. of Lower Merion, No. 16-01839 (C.P. Montgomery), at
¶18. In various counts styled under theories of law, Appellees sought money damages
in excess of $55,000,000 and the appointment of a trustee to undertake the
responsibilities of the school board members. See id., Counts I & IV. The amended
complaint also contained a count seeking equitable relief, primarily in the form of court-
supervised modifications of the procedures employed by the District’s administrators.
See id., Count V.
The District lodged preliminary objections to the amended complaint, contending
that: Appellees, as the plaintiffs, had presented non-justiciable, political questions; they
lacked standing; their claims were barred by the Political Subdivisions Tort Claims Act;
they had failed to join indispensable parties; the amended complaint failed to state
claims upon which relief could be granted; the requested relief was unconstitutional; and
there was a failure to exhaust statutory and administrative remedies. Meanwhile,
Appellees filed several motions, including for class certification and to serially amend
the complaint.
While these matters remained pending, Appellees submitted a “Petition for
Injunctive Relief” seeking “immediate relief because without this [c]ourt’s intervention,
the District will raise taxes and the bills for the same will go out July 1, 2016 to some
22,000 taxpayers.” Petition for Injunctive Relief in Wolk, No. 16-01839, at ¶12
(emphasis added). The petition requested for the District to be enjoined from enacting
any tax increase for the 2016-2017 fiscal year.
Significantly, consistent with the prayer for immediate relief, the petition reflected
criteria associated with a preliminary injunction, including an assertion of irreparable
harm to the plaintiffs. See generally Buffalo Twp. v. Jones, 571 Pa. 637, 644, 813 A.2d
659, 663 (2002) (explaining that “unlike a claim for a preliminary injunction, the party
[J-68-2018] - 2
need not establish either irreparable harm or [exigency] and a court ‘may issue a final
injunction if such relief is necessary to prevent a legal wrong for which there is no
adequate redress at law.’” (citation omitted)). Furthermore, the proposed order
accompanying the petition provided for relief “[d]uring the pendency of litigation by
Plaintiffs.” Moreover, Appellees did not -- and obviously could not -- file a certification
and pretrial statement triggering a pretrial conference, as is required by local rules for
trial-ready cases (i.e., those in which the pleadings are closed and discovery is
complete). See Montgomery Cty. L.R. 212.1(d), 212.2(a)(7).1
In its written response, the District made clear -- consistent with the procedural
posture of the case, the request for immediate relief, and the assertion of irreparable
harm -- that it believed that Appellees were seeking a preliminary injunction, and the
District proceeded to address Appellees’ petition on such terms. See, e.g., Defendant’s
Answer to Plaintiffs’ Petition for Injunctive Relief at ¶1. The common pleas court
proceeded to issue a “Notification of Listing for Preliminary Injunction,” setting a “1/2
Day Hearing.” Notification of Listing for Preliminary Injunction in Wolk, No. 16-01839
(emphasis added).
The court then conducted the listed hearing. At the outset, counsel for the
District stated as follows:
Your honor, the one part of the relief being requested in the
petition can’t be granted because it is requesting the school
1 The requirement to file a pretrial statement, as framed in the statewide Rules of Civil
Procedure, concerns jury trials, see Pa.R.C.P. Nos. 212.1, 212.2, but the note attending
the rules explains that the requirement may be extended to non-jury trials by local rule.
See Pa.R.C.P. No. 212.1, Note. Consistent with the above, such extension pertains in
Montgomery County. See Montgomery Cty. L.R. 212.1. The Rules of Civil Procedure
also authorize county courts to align the filing of pretrial statements with the close of
discovery and exchange of expert reports, as is the rule in Montgomery County. See
Pa.R.C.P. No. 212.1, Note; Montgomery Cty. L.R. 212.1(d).
[J-68-2018] - 3
district -- requesting to enjoin the school district from
enacting any tax increase for fiscal year 2016/17. That
actually happened last night at the school board meeting
where the board adopted its final budget for the 2016/17
school year and enacted the tax increase for that budget.
That school board meeting has been advertised since
December of last year as occurring on June 13th. Since
December of last year, the board indicated that its intent was
to adopt the tax increase of four point four percent. That’s
what happened last night. And as a result, the relief that’s
being requested can’t be granted.
N.T., June 14, 2016, at 4.
In reply, Appellees’ attorney criticized the District for proceeding with the tax
increase in spite of the litigation and impending hearing. See id. at 6. Furthermore, he
posited that the court still could enjoin the District from taking any further steps to
implement the tax increase. See id. The presiding judge inquired whether Appellees
were changing their request for relief, and counsel responded in the affirmative. The
District lodged an objection, which the judge overruled, reasoning as follows:
As far as changing the relief requested, to me it is consistent
with the initial relief requested. I don’t think there’s any great
surprise. I think you should be prepared. I think the
presentation and the defense would be the same even if it
was. So we will proceed.
Id. at 8. The hearing proceeded, at which live testimony and documentary evidence
were presented.
The District’s ensuing proposed findings of fact and conclusions of law again
manifested its understanding that the proceeding before the common pleas court was --
as noticed -- a hearing on a request for a preliminary injunction. At this stage, however,
Appellees countered that “[t]he proceeding . . . was an Injunction Hearing, not a
preliminary injunction as mis-characterized by the District.” Plaintiffs’ Response to
Defendant’s Findings of Fact and Conclusions of Law Re: Injunction Hearing in Wolk,
[J-68-2018] - 4
No. 16-01839 (emphasis added). Despite the pendency of multi-faceted preliminary
objections, the docketed notice of a hearing about a preliminary injunction, and the
absence of all local procedural requisites to a trial, Appellees explained that their “intent
was to seek a Permanent Injunction, and the District has made a legal mistake and
failed to object on cognizable grounds.” Id. at 13. According to Appellees, “[t]he
immediacy of the relief requested is established by the Defendant attempting to
circumvent the Court the night before the hearing.” Id.2
The common pleas court awarded relief on Appellees’ petition, enjoining the
District from implementing more than a 2.4 percent increase in taxes in fiscal year 2016-
2017, and requiring revocation of the larger increase that had been adopted. In its
“Decision/Order Sur Petition for Injunction,” the court did not specifically address the
dispute among the parties over whether the hearing concerned preliminary or
permanent injunctive relief.
Nevertheless, the common pleas court couched its ruling in terms consistent with
a permanent injunction, albeit while also recognizing that there had been no undertaking
whatsoever to resolve all issues in the case. See, e.g., Wolk v. Sch. Dist. of Lower
Merion, No. 16-01839, slip op. at 1 (C.P. Montgomery Aug. 29, 2016) (acknowledging
that unresolved “preliminary objections were argued before another Judge” two weeks
previously); id. at 16 (“We . . . decline for the present Plaintiffs’ requested relief of
establishing a constructive trust in favor of taxpayers who have already paid the
unlawful increase in taxes, pending determinations relating to the class-action status of
2 At this stage, Appellees did not recognize that they previously had requested
“immediate relief” in the petition itself, well before the time of the criticized action of the
school board. Petition for Injunctive Relief in Wolk, No. 16-01839, at ¶12. It is readily
apparent that the common pleas court merely permitted Appellees, in light of the
changed circumstances, to substitute one form of immediate relief for another form of
immediate relief, with the unified objective of addressing the challenged tax increase.
[J-68-2018] - 5
this litigation.”). Further, anticipating that the order might be construed as a matter
arising under Rule of Civil Procedure 1531 -- i.e., as imposing a preliminary (or special)
injunction -- the court imposed a bond upon Appellees. See Pa.R.C.P. No. 1531(b).
The District lodged an immediate appeal invoking Rule of Appellate Procedure
311(a)(4), which provides that an interlocutory appeal generally may be taken as of right
from an order “that grants or denies, modifies or refuses to modify, continues or refuses
to continue, or dissolves or refuses to dissolve an injunction[.]” Pa.R.A.P. 311(a)(4)
(emphasis added). Appellees, in turn, moved to quash, citing Rule of Civil Procedure
227.1 and asserting that a post-trial motion was required to preserve the District’s right
to appeal.
Under Rule 227.1, post-trial motions must be filed within ten days after “the filing
of the decision in the case of a trial without jury” (or notice of a nonsuit). Pa.R.C.P. No.
227.1(c)(2) (emphasis added).3 The requirement to file post-trial motions postpones the
finality of a case-ending decision or order that otherwise would qualify as a final order
triggering a right to appeal under the final order rule embodied in Rule of Appellate
Procedure 341(a). See generally Rae v. Pa. Funeral Dirs. Ass’n, 602 Pa. 65, 71, 977
A.2d 1121, 1125 (2009) (discussing the policy underlying the final order rule, including
the reduction of piecemeal appeals by generally deferring any appellate-court
intervention until a case’s conclusion); Thomas A. Robinson Family Ltd. P’ship v. Bioni,
178 A.3d 839, 844 (Pa. Super. 2017) (explaining that “it is the judgment [entered after
the resolution of post-trial motions] that will constitute the appealable ‘final order’ in the
3 As discussed below, Rule of Civil Procedure 1038(b) prescribes, for non-jury cases,
that “[t]he decision . . . shall dispose of all claims for relief.” Pa.R.C.P. No. 1038(b)
(emphasis added). Neither Appellees’ arguments in the Commonwealth Court nor the
intermediate court’s treatment have accounted for Rule 1038(b), which bears material
relevance in our discussion below, given that the action commenced by Appellees was
(and remains) at the preliminary objections stage.
[J-68-2018] - 6
case”). Appellees took the position that the District had received a “Notice for Trial,”
Appellees’ Motion to Quash Appeal in Wolk v. Sch. Dist. of Lower Merion, No. 1465 CD
2016 (Pa. Cmwlth.), at ¶7,4 that a trial had been conducted, and that a “decision” had
been rendered within the contemplation of Rule 227.1, thus implicating the requirement
to file a timely post-trial motion before an appeal could be taken. See Thomas A.
Robinson Family Ltd. P’ship, 178 A.3d at 844 n.4 (explaining that the filing of a post-trial
motion in a civil case preserves issues for appellate review).
The Commonwealth Court credited Appellees’ argument and dismissed the
District’s appeal. According to the panel, pursuant to City of Phila. v. New Life
Evangelistic Church, 114 A.3d 472 (Pa. Cmwlth. 2015), “post-trial motions must be filed
within ten days following the trial court’s ordering of a permanent injunction or the issues
raised on appeal are waived.” Wolk v. Sch. Dist. of L. Merion, No. 1465 C.D. 2016, slip
op. at 9, 2017 WL 1418445, at *4 (Pa. Cmwlth. Apr. 20, 2017) (citing id. at 478-79). The
panel explained that, in the New Life Evangelistic Church case, the intermediate court
examined an injunction hearing to determine whether the proceeding bore trial-like
attributes. Given that the aggrieved litigant was afforded the opportunity to submit
evidence and cross-examine opposing witnesses, the New Life Evangelistic Church
court had concluded that a trial was held for purposes of Rule of Civil Procedure 227.1
and that a post-trial motion was required, following the award of a permanent injunction,
as a prerequisite to any appeal. See New Life Evangelistic Church, 114 A.3d at 478.
The Wolk panel found that the same circumstances pertained in this case.
Significantly, the panel afforded no analysis of the concept of “the decision” under Civil
4In point of fact, as previously related, the record reflects that the District received a
notice of the listing of a hearing on a request for a preliminary injunction.
[J-68-2018] - 7
Procedural Rules 227.1(c)(2) and 1038(b), see supra note 3, or to the effect of Rule of
Appellate Procedure 311(a)(4).5
The District filed a petition for allowance of appeal. While this petition was
pending, Appellees attempted, in the common pleas court, to withdraw the law-based
counts from their amended complaint. The county court, however, found such an effort,
undertaken during the pendency of an appeal proceeding, to be highly irregular and
beyond its power to permit. See Order of April 2, 2018, in Wolk, No. 16-01839, at 1 n.1
(“Altering the complaint could affect the assessment of the rulings on review, and this
Court has no jurisdiction to alter the record that is currently under review.”).
We allowed the District’s appeal to address the problematic nature of the
Commonwealth Court’s decisions in this case and in New Life Evangelistic Church.
5 To the degree that the proceedings before the county court might be regarded as a
preliminary-injunction hearing, and not a trial, the Commonwealth Court offered the
fallback position that “[a] trial court may enter an order for a permanent injunction where
appropriate based upon the testimony, evidence, and arguments presented at a hearing
for a preliminary injunction.” Wolk, No. 1465 C.D. 2016, slip op. at 8 n.8 (citing Watts v.
Manheim Twp. Sch. Dist., 84 A.3d 378, 381 (Pa. Cmwlth. 2014)) (emphasis in original).
The panel, however, did not provide any insight into its conception of the range of
circumstances in which such a course of action might be “appropriate,” gauged against
the circumstances of the present case. Significantly, moreover, other decisions of the
intermediate court hold that dispensation with a final-injunction hearing is appropriate
only when premised upon agreement among the litigants. See, e.g., Lindeman v.
Borough of Meyersdale, 131 A.3d 145, 151 (Pa. Cmwlth. 2015) (“[I]t is inappropriate for
a court to treat a hearing for a preliminary injunction as a final hearing and as a basis for
a preliminary injunction, unless the parties stipulate to the contrary.” (citation omitted)).
Notably, as well, in the relied-upon decision in Watts -- although the common pleas
court had indeed entered a permanent injunction based upon the record of a preliminary
injunction -- there is no discussion of whether or not the parties agreed to this approach,
and no issue was put before the appellate court concerning the propriety of doing so. A
reviewing court obviously should not rely upon a bare procedural history from a prior
decision as supportive authority for a controlling legal principle.
[J-68-2018] - 8
Presently, the District highlights the patent irregularities attending an ostensible
“trial” on a permanent injunction conducted: on a petition seeking unspecified injunctive
relief; when the court had noticed a hearing concerning a preliminary injunction; and
while a twelve-count amended complaint, preliminary objections, and various motions
remained pending before the common pleas court. The District similarly questions how
any sort of “final” decision could be rendered in view of the decidedly non-final posture
of the case.
The District emphasizes that, under Rule of Civil Procedure 1038(b), “the
decision” that follows an actual non-jury trial must “dispose of all claims for relief.”
Pa.R.C.P. No. 1038(b) (emphasis added). Thus, the District contends, “the decision”
cannot generically mean any decision in a case; rather, it is only the decision that
channels the litigation directly to the final judgment ending the entire case (via a unitary
post-trial motion procedure and subsequent entry of a judgment, see Thomas A.
Robinson Family Ltd. P’Ship, 178 A.3d at 844). The District observes that the rule
defining “the decision” as the ruling “dispos[ing] of all claims for relief,” Pa.R.C.P. No.
1038(b), expressly dovetails with the requirement of resolution of all claims and all
parties embedded in the definition of a final order under the Rules of Appellate
Procedure. See Pa.R.A.P. 341(b).6
Given that Rule 227.1’s requirement for the filing of post-trial motions is keyed to
entry of “[t]he decision” in the case of a trial without a jury, Pa.R.C.P. No. 227.1(c)(2) --
and in the absence of a procedurally proper trial noticed as such in the first instance -- it
remains the District’s position that the requirement to file post-trial motions under Rule
6 Implicit in the District’s arguments is the perspective that the concepts of a “trial” and
“the decision” are interrelated, such that a trial is the evidentiary proceeding or
proceedings that address the substantive claims for relief and are the subject of “the
decision” in the case ultimately disposing of all claims for relief.
[J-68-2018] - 9
of Civil Procedure 227.1 was never implicated in this case. Instead, the District
maintains that it possessed the right to file an immediate, interlocutory appeal per the
clear and unequivocal prescription of Rule of Appellate Procedure 311(a)(4), under
which an order is generally appealable as of right when it is interlocutory and grants an
injunction. See Pa.R.A.P. 311(a)(4).
The District also pointedly criticizes the Commonwealth Court’s reliance on the
New Life Evangelistic Church case and the concomitant focus on whether a hearing
“bears the hallmarks of a trial by requiring or admitting, or . . . offering a party the
opportunity to present additional evidence.” New Life Evangelistic Church, 114 A.3d at
478 (emphasis deleted). According to the District, acceptance of such an approach
would:
wreak havoc on the orderly prosecution of civil cases. Until
now, Pa.R.C.P. No. 227.1 has been thought to come into
play only at the end of a case (i.e., “post-trial”), in order to
give the trial court a chance to survey the now-completed
case, correct any errors, and, it is hoped, “avert the need for
appellate review.” Bd. of Supervisors of Willistown Twp. v.
Main Line Gardens, Inc., 155 A.3d 39, 44 (Pa. 2017). The
Commonwealth Court panel, however, would require post-
trial motions at what could be many different occasions
during a single case, and it evidently gave no thought to
whether a ruling on each of these various post-trial motions
could give rise to a final order from which an appeal could be
taken.
Brief for Appellant at 27 n.7.7
To the extent the Court would find that a trial was conducted and a material
“decision” rendered, the District highlights that Rule 311(a)(4) nonetheless authorizes
7 The District’s concern, in these regards, are echoed by its amici, the American Civil
Liberties Union of Pennsylvania, the Pennsylvania School Boards Association, and the
Pennsylvania Defense Institute.
[J-68-2018] - 10
an interlocutory appeal as of right for injunction orders that alter the status quo and are
immediately effective. See Pa.R.A.P. 311(a)(4)(ii). The District explains that Rule
311(a)(4)(ii) initially sets forth an exception to the general rule of immediate
appealability pertaining to injunction orders that are entered “[a]fter a trial but before
entry of the final order.” Pa.R.A.P. 311(a)(4)(ii). The rule then limits the effect of the
exception as follows:
Such order is immediately appealable, however, if the order
enjoins conduct previously permitted or mandated or permits
or mandates conduct not previously mandated or permitted,
and is effective before entry of the final order.
Id. (emphasis added). See generally Thomas A. Robinson Family Ltd. P’ship, 178 A.3d
at 847 (indicating that the “clear purpose [of Rule 311(a)(4)(ii)] is to permit an immediate
appeal if an immediately-effective permanent injunction makes such a change to the
status quo that the aggrieved party needs quick appellate recourse without incurring
delays from post-trial proceedings in the trial court”).
Appellees, for their part, maintain that the common pleas court conducted a
proper trial on a request for a permanent injunction and subsequently issued a final
order.8 They offer several reasons why the many matters remaining to be decided by
8 Appellees repeatedly refer to the court’s “Decision/Order” as a “final order.” See, e.g.,
Brief for Appellees at 3 (“The Decision/Order of Judge Smyth is a final order, such that
the Appellant cannot take an immediate appeal.”). Their position, as stated, is
confounding, since final orders are themselves appealable as of right under Rule of
Appellate Procedure 341(a). See Pa.R.A.P. 341(a) (prescribing, as a general rule, that
“an appeal may be taken as of right from any final order of a government unit or trial
court”). Once again, as the Superior Court has explained, “it is the judgment resulting
from [a Rule 227.1 motion] that will constitute the appealable ‘final order’ in” a case to
which Rule 227.1 applies. Thomas A. Robinson Family Ltd. P’ship, 178 A.3d at 844. In
other words, one cannot both contend that the “Decision/Order” in this case is a final
order for appealability purposes and also one triggering the requirement to file a post-
trial motion.
[J-68-2018] - 11
the county court -- including foundational preliminary objections -- should be deemed
irrelevant. Initially, Appellees indicate:
Under Pennsylvania law, there are not justiciable issues
between the parties until the Preliminary Objections are
decided. Thus, when Judge Smyth issued his
Decision/Order, the only issues between the parties were
those in the Petition for Injunctive Relief.
* * *
Since Appellant filed Preliminary Objections to every Count
in the Amended Complaint, and the Preliminary Objections
have yet to be decided, at the time of filing this separate
proceeding for an injunction, and even now, there is no
legally cognizable legal claim left to decide between the
parties.
Brief for Appellees at 24 (emphasis added). Contrary to the express ruling of the county
court, Appellees also take the position that they had successfully withdrawn the non-
equity counts from the amended complaint. See Brief for Appellees at 29-30 (“[T]here
are no preliminary objections that could remain, since Appellee withdrew the non-equity
counts[.]”).
The notion that their petition for an injunction should be viewed separate and
apart from all other docketed submissions in the same case -- including the amended
complaint and preliminary objections -- runs throughout Appellees brief. See, e.g., Brief
for Appellees at 28 (“The Amended Complaint does not even contemplate this Equity
injunction proceeding, which is a separate proceeding, and this separate Equity
action.”).9 Appellees also fault the District for failing to clarify the nature of the
9 Additionally, Appellees cite T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721
(1977), for the proposition that “if a litigant is dismissed on the equity side, but still has
legal remedies on a legal counterclaim, that dismissal is appealable.” Brief for
Appellees at 28 (citing id. at 338-39, 372 A.2d at 725). That decision, however,
(continued…)
[J-68-2018] - 12
proceeding. See, e.g., Brief for Appellees at 35 (“The failure of the Appellant to ask for
an additional trial date, to call additional witnesses or offer additional documents is, by
its own conduct, an acquiescence in the proceeding being one for a permanent
mandatory injunction.”).
In reply to the District’s argument concerning Rule of Appellate Procedure
311(a)(4)(ii), Appellees take the position that the county court did not issue an
immediately effective order, because “the mandatory injunction issued was to be acted
upon by the School Directors at their next regularly scheduled meeting.” Brief for
Appellees at 19. In other passages of their brief, however, Appellees explicitly
recognize the immediacy. See, e.g., id. at 4 (“There was nothing left for Judge Smyth to
do since the illegal taxes were immediately refundable to the taxpayers without more.”
(emphasis added)).10
This case obviously manifests a great deal of procedural disorder. For example,
it is difficult to apprehend that a judicial officer would undertake to issue a final and
permanent injunction while a challenge to the standing of the proponent to seek judicial
review remained pending. Accord Pa.R.C.P. No. 1028(c)(2) ("The court shall determine
(…continued)
predated the procedurally-related merger of law and equity in Pennsylvania, see
generally Bd. of Supervisors of Williston Twp. v. Main Line Gardens, Inc., 638 Pa. 323,
331-32, 155 A.3d 39, 44 (2017), and is not presently relevant to the issues presented
here.
10There are several other such inconsistencies in Appellees’ brief. For example, they
assert that the proceedings they initiated were controlled by Rule of Civil Procedure
1531, see Brief for Appellees at 33 -- governing preliminary (or special) injunctions --
while otherwise vigorously maintaining that they consistently have pursued only a final
and permanent injunction.
[J-68-2018] - 13
promptly all preliminary objections").11 We also reject, out of hand, Appellees’
contentions that a complaint and preliminary objections have some sort of cross-
cancelling effect relative to finality considerations, and that a petition for an injunction
filed in a pending civil action constitutes a legal or equitable proceeding separate and
distinct from the case in which the petition has been filed. See Brief for Appellees at 24.
And certainly the common pleas court was correct in refusing to cognize Appellees’
attempt to produce a post hoc requirement to file a post-trial motion via the later
withdrawal of the many undisposed claims advanced in the amended complaint.
Despite the many irregularities, it is clear that the District’s appeal was proper,
since Rule of Appellate Procedure 311 specifically authorizes an immediate
interlocutory appeal as of right from an order granting an injunction. See Pa.R.A.P.
311(a)(4). As previously noted, in certain instances the rule permits trial courts to
postpone the accrual of the right to appeal injunctions that alter the status quo until a
later stage by making an injunction effective only after the entry of a final judgment.
See id. at 311(a)(4)(ii). But where, as here, there has been no such postponement, an
appeal as of right lies.12
We also reject Appellees’ contention that the injunction issued by the county
court was not immediately effective on account of the District only being required to take
11 Although the court of common pleas seemed equivocal concerning the nature of the
injunction that it imposed, we reiterate that the injunction was expressed in ostensibly
final terms.
12 Appellees do not dispute the general proposition that, “[i]f an order falls under
Pa.R.A.P. 311, an immediate appeal may be taken as of right simply by filing a notice of
appeal.” Pa.R.A.P. 311, Note; accord Nevyas v. Morgan, 921 A.2d 8, 13 (Pa. Super.
2007) (explaining that “it is improper to file a motion for post-trial relief when appealing
pursuant to Rule 311”).
[J-68-2018] - 14
action at its next meeting. See Brief for Appellees at 19. This argument is tenuous at
best concerning the mandatory component of the injunction, since the “Decision/Order”
was immediately effective on its own terms. Accordingly, the District was
instantaneously under the obligation to do all that was necessary to lay the necessary
foundation for a school board meeting withdrawing the adopted tax increase. And,
presumably, the meeting might have occurred before any post-trial motion might have
been resolved in any event. Moreover, Appellees’ argument does not speak at all to the
immediately-effective prohibitory dynamic of the injunction, which prevented the District
from proceeding to implement the full tax increase. And, again, passages from
Appellees’ own brief recognize immediate effects of the injunction. See, e.g., Brief for
Appellees at 4 (“There was nothing left for Judge Smyth to do since the illegal taxes
were immediately refundable to the taxpayers without more.” (emphasis added)).
In response to the rationale of the Commonwealth Court, premised on the New
Life Evangelistic Church decision, we believe that better clarity can be achieved, relative
to non-jury matters, by focusing, in the first instance, on the stage of the proceedings
rather than whether a trial-like proceeding may have been conducted.13 In this regard, it
is essential, as concerns a non-jury trial, that “the decision” has been issued. Pa.R.C.P.
No. 227.1(c)(2) (requiring the filing of post-trial motions within ten days after “the filing of
13 This Court has previously recognized the difficulty in distinguishing between the
features of non-specialized hearings and non-jury trials. See Appeal of Borough of
Churchill, 525 Pa. 80, 88, 575 A.2d 550, 554 (1990) (“[W]e are not convinced that there
is much of a difference between a hearing and a trial[;] [e]vidence is presented in both
proceedings and questions of law are determined.”). Indeed, the concept of a hearing,
as a generic term, can be read to subsume trials. See BLACK’S LAW DICTIONARY 836
(10th ed. 2014) (defining “hearing” as “[a] judicial session . . . held for the purpose of
deciding issues of fact or of law, sometimes with witnesses testifying,” and noting that
the term has been used in equity practice as a synonym for trial).
[J-68-2018] - 15
the decision in the case of a trial without a jury” (emphasis added)). Where “the
decision” in the case has not yet issued, Rule 227.1 is not implicated. And, as the
District stresses, “the decision” in a non-jury case is the decision that disposes of all
claims for relief. See Pa.R.C.P. No. 1038(b).14
The relevant framework of the Rules of Civil Procedure is readily applied to
routine cases. More complex cases nonetheless pose some challenges in the rules’
application, such as where claims are tried and/or considered in a divided fashion prior
to any judgment. The Court has no intention, however, to require serial post-trial
motions in such cases, and Rule 1038(b) serves to prevent just such a result in the non-
jury setting. And both litigants and the courts can aid in clarifying matters by expressly
14 The New Life Evangelistic Church panel derived its focus on the “hallmarks of trial”
from this Court’s decision in Newman Development Group of Pottstown, LLC v.
Genuardi’s Family Markets, Inc., 617 Pa. 265, 52 A.3d 1233 (2012). Genuardi’s,
however, concerned a discrete “gray area,” which the Court recognized is not
addressed by the plain language of Rule 227.1 -- namely, proceedings on remand after
vacation by an appellate court of an otherwise final order. See id. at 287-89, 52 A.3d at
1247-48.
In this scenario, the Court emphasized that “the civil trial rules apply again, and in full
force,” and implicit in Genuardi’s is the notion that a second round of post-trial motions
would be required following a new trial conducted in remand proceedings. Id. at 287, 52
A.3d at 1246-47. The Court simply determined that no such event had occurred, since
the county court, on remand, relied on the preexisting record in entering a new final
judgment. See id. at 294-95, 52 A.3d at 1251.
For present purposes, the most salient point is that the common pleas court, on remand
in Genuardi’s, concluded the entire second round of proceedings and entered a new
judgment, disposing of all remaining claims. See id. at 273, 52 A.3d at 1238.
Accordingly, the segment of Rule 1038(b) requiring disposition of “all claims for relief”
was satisfied, and the focus of the decision on appeal rested on whether any trial had
occurred on remand at all. By contrast, our present analysis centers on the fact that
there was no attempt whatsoever by the county court, in this case, to dispose of all
claims for relief, and accordingly, “[t]he decision” had and has yet to be rendered.
Pa.R.C.P. No. 1038(b).
[J-68-2018] - 16
and candidly gauging their actions according to the rules’ prescriptions. In this regard,
to the degree that contested factual matters relevant to the determination of substantive
claims must be adjudicated, there should ordinarily be a trial denominated and noticed
as such.15
We do recognize, however, that circumstances will arise in which the need for an
actual trial is obviated after a hearing or hearings that may have been initially designed
to address exigencies. In such instances, when a common pleas court enters an order
or opinion in a non-jury case that disposes of the last remaining claims, it should specify
that the hearing(s) are then deemed to serve as the trial, explain that the present order
incorporates the aspects of prior determinations that are material to the outcome, and
clarify that post-trial motions are accordingly due.16 Where there remain ambiguities
15 Parenthetically, a case may also be submitted on stipulated facts, implicating
treatment under Rule of Civil Procedure 1038.1, under which “[t]he practice and
procedure as far as practicable shall be in accordance with the rules governing a trial
without a jury.” Pa.R.C.P. No. 1038.1.
16 When a permanent injunction is issued on “petition” -- as opposed to being grounded
on a complaint that has proceeded through the ordinary progression prescribed by the
Civil Procedural Rules -- the court and all parties must recognize that the proceedings
have departed from the ordinary contemplation of those rules. Accordingly, special care
is required to achieve reconciliation with other aspects of the rules.
Indeed, an explanatory approach would have been very beneficial in the New Life
Evangelistic Church case, since there was a much greater overlap -- in that case as
compared to the present one -- between the filing of the petitions for injunctive relief and
the form of relief requested in the complaint. Thus, it is unclear from the decisions of
the intermediate and county courts whether a case-ending order was intended in
conjunction with the award of a permanent injunction upon the petition filed in that case.
Accordingly, it would appear that the aggrieved litigant may have been understandably
uncertain as to the effect of the court’s determination in terms of whether or not “the
decision” disposing of all claims had been rendered in the case. Pa.R.C.P. No. 1038(b).
In any event, we also caution that the New Life Evangelistic Church panel afforded no
consideration to Rule of Appellate Procedure 311(a)(4)(ii)’s authorization of an appeal
(continued…)
[J-68-2018] - 17
that are not addressed by such an opinion or order, the Civil Procedural Rules
themselves, or “clear decisional law,” the rules are not to be applied to the detriment of
the litigants’ substantive rights and entitlements, including the right to appeal.
Genuardi’s, 617 Pa. at 288, 52 A.3d at 1247 (“To warrant the heavy consequence of
waiver, in a rules schemata designed to ‘secure the just, speedy and inexpensive
determination’ of disputes, the applicability of [Rule 227.1] should be apparent upon its
face or, failing that, in clear decisional law construing the Rule.” (quoting Pa.R.C.P. No.
126)).
As previously explained, however, the present case is not so difficult. Here, the
common pleas court simply did not dispose of all claims for relief in its “Decision/Order”;
therefore, “the decision” of the case was not rendered for purposes of Rule 227.1, and
no post-trial motions were implicated under that rule. Rather, as discussed, the District
enjoyed the right to lodge an interlocutory appeal as of right under Rule of Appellate
Procedure 311(a)(4).17
The above analysis addresses two of the three questions presented in the order
allowing the present appeal. See Wolk v. Sch. Dist. of Lower Merion, ___ Pa. ___, 178
A.3d 1289 (Pa. 2018) (per curiam). The final issue concerns whether a court can
(…continued)
as of right from an immediately-effective, status-quo-altering injunction. See Pa.R.A.P.
311(a)(4)(ii). In this regard, to the extent that a county court wishes to litigate post-trial
motions before an as-of-right appeal may be lodged to challenge such an injunction, the
court also must postpone the effectiveness of its order until after such motions are
resolved and a final order is entered. See id. To the extent that New Life Evangelistic
Church suggests to the contrary, the decision is hereby disapproved.
17As the Superior Court has aptly related, one “clear purpose [of Rule 311(a)(4)(ii)] is to
permit an immediate appeal if an immediately-effective permanent injunction makes
such a change to the status quo that the aggrieved party needs quick appellate
recourse without incurring delays from post-trial proceedings in the trial court.” Thomas
A. Robinson Family Ltd. P’ship, 178 A.3d at 847.
[J-68-2018] - 18
convert a preliminary injunction hearing into a permanent injunction hearing without the
consent of the parties. See id. We are not, at this juncture, prepared to say that a court
may never do so in the absence of a stipulation, given that there may be scenarios in
which a proponent of an injunction would fail to proffer any additional material evidence
to be considered by the court, upon an appropriate request for such a proffer. We
believe, however, that the scenarios in which an additional hearing could be obviated, in
the absence of agreement, should be infrequent. And certainly, without such
consensus, proper circumstances cannot arise merely from the sort of disorderliness
manifested in the present case.
The order of the Commonwealth Court is reversed, and the matter is remanded
for consideration of the merits of the District’s interlocutory appeal filed as of right.
Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join this opinion.
[J-68-2018] - 19
Wolk, A. v. Lower Merion SD, Aplt.
Combined Opinion