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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KELLY L. COLE, AN INDIVIDUAL, AND : IN THE SUPERIOR COURT OF
BILL COLE'S PUB INC., A PENNSYLVANIA : PENNSYLVANIA
CORPORATION :
:
:
v. :
:
:
JEFFREY M. ZWERGEL, AN INDIVIDUAL, :
CYNTHIA F. ZWERGEL, AN INDIVIDUAL, :
THE VINYL ANSWER, INC., A :
PENNSYLVANIA CORPORATION, AND TRU :
REAL ESTATE HOLDINGS, LLC, A :
PENNSYLVANIA CORPORATION :
:
Appellants : No. 689 WDA 2021
Appeal from the Order Entered May 6, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD21-003692
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J. : FILED: FEBRUARY 11, 2022
Jeffrey M. Zwergel, Cynthia F. Zwergel, The Vinyl Answer, Inc., and Tru
Real Estate Holdings, LLC (collectively “the Zwergels”) appeal from the order
that granted the Motion for Special and/or Preliminary Injunction filed by Kelly
L. Cole and Bill Cole’s Pub, Inc. (“Cole”) pending a final hearing on the motion.
We vacate the order and remand for further proceedings.
Cole and the Zwergels are owners of adjacent commercial properties,
operating a pub and a vinyl fabrication business, respectively. In 1962, the
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* Retired Senior Judge assigned to the Superior Court.
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parties’ predecessors in interest had recorded an agreement to allow
customers of both businesses to use a parking lot between the establishments.
Unaware of the existence of this 1962 agreement, the Zwergels in 2018
approached Cole with a license agreement, requiring her to pay for the
continued use of their portion of the lot. When Cole discovered the prior
agreement and her apparent right to use the lot free of charge, she stopped
making the monthly payments. The Zwergels then took steps to erect a fence
to close off that portion of the lot owned by them. Cole responded by filing a
complaint seeking, inter alia, declaratory and injunctive relief. Cole also filed
an emergency motion for a preliminary injunction to maintain her customers’
access to the parking during the pendency of the action.
The trial court scheduled a status conference and then a hearing on the
motion. On May 6, 2021, following the initial hearing, the court signed what
appears to be the proposed order drafted by Cole, which stated as follows:
AND NOW, this 6th day of May 2021, upon consideration of
the Plaintiff’s emergency motion for special and/or preliminary
injunction, it is hereby ORDERED that the motion is GRANTED.
Plaintiffs have demonstrated a reasonable probability of success
on the merits against Defendants. Plaintiffs’ have also
demonstrated that they would suffer immediate and irreparable
harm in the absence of an injunction, that an injunction would not
cause greater harm to Defendants and that an injunction would
be in the public interest.
Pending a final resolution of this action on the merits, it is
hereby ORDERED that Defendants will not construct or install a
fence or any other barrier on that portion of the property used to
access Plaintiff’s property.
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Order, 5/6/21. The court further added additional hand-written provisions to
the order, including the following: “A final hearing to be held at the request
of the parties.” Id.
On May 18, 2021, the Zwergels filed a motion for reconsideration and
clarification, in which they, inter alia, requested “a final hearing on [Cole’s]
Motion for Preliminary Injunction” in accordance with the provision of the
May 6 order. Motion for Reconsideration and Clarification, 5/18/21, at 7. On
May 21, 2021, Cole filed a motion for sanctions, claiming that the Zwergels
violated the May 6 order by blocking the area of the pertinent parking lot with
large trucks instead of a fence, something they had never done in the past.
By order of June 4, 2021, the court prohibited the Zwergels from parking more
than one truck at a time in that area, deferred sanctions to the final hearing
on the matter, scheduled a final hearing to take place on July 9, 2021, and
indicated that the trial court would conduct a site visit on July 8, 2021, to be
arranged by the parties. See Order, 6/4/21.
The Zwergels immediately filed a notice of appeal to this Court from the
May 6, 2021 order. The trial court directed the Zwergels to file a statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the
Zwergels timely complied. The trial court issued a Pa.R.A.P. 1925(a) opinion
in which he, inter alia, posited that the Zwergels’ appeal is premature. As the
appealability of an order impacts this Court’s jurisdiction, we examine that
issue before delving into the substance of this appeal. See, e.g., Kulp v.
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Hrivnak, 765 A.2d 796, 798 (Pa.Super. 2000) (“Since we lack jurisdiction
over an unappealable order it is incumbent on us to determine, sua sponte
when necessary, whether the appeal is taken from an appealable order.”).
As a general rule, appeals are to be taken from final orders that dispose
of all claims and all parties. See Pa.R.A.P. 341. However, there are many
exceptions, including those interlocutory appeals as of right enumerated in
Pa.R.A.P. 311. Relevant to the instant appeal, Rule 311 indicates that an
immediate appeal 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 unless the order was entered:
(i) Pursuant [certain provisions of the Divorce Code];
or
(ii) After a trial but before entry of the final order.
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.
Pa.R.A.P. 311(a)(4).
The Zwergels contend that the May 6, 2021 order was immediately
appealable pursuant to the initial provision of the Rule. See Zwergels’ brief
at 1. The trial court and Cole disagree. See Trial Court Opinion, 7/12/21, at
11; Cole’s brief at 15. Cole argues that the “ruling was temporary in nature,”
a mere “temporary measure put into place to govern the use of the
neighboring properties until that time when the court could hold a final hearing
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on Cole’s Emergency Motion.” Cole’s brief at 15-16. Cole at the same time
suggests that the interim order entered before the conclusion of the
preliminary injunction proceedings was one entered “after a trial but before
entry of the final order,” placing it within the exception established by
subsection (ii). Id. at 16. Cole maintains that the order merely preserved
the status quo rather than enjoining conduct previously permitted, rendering
inapplicable the exception to the subsection (ii) exception. Id. at 16-17.
We agree with the Zwergels that the order from which they appealed
was immediately appealable pursuant to Rule 311(a)(4). While at first blush
it does appear that the Zwergels may have acted prematurely in appealing
while additional proceedings on the preliminary injunction request were
pending, upon further examination, we are convinced that the May 6, 2021
order is one contemplated by Rule 311(a)(4) for interlocutory appeal.
A preliminary injunction’s purpose “is to preserve the status quo as it
exists or previously existed before the acts complained of, thereby preventing
irreparable injury or gross injustice.” City of Allentown v. Lehigh Cty.
Auth., 222 A.3d 1152, 1156 (Pa.Super. 2019) (cleaned up). The status quo
is the factual, not the legal, state of affairs between the parties. It “is the last
actual, peaceable and lawful noncontested status which preceded the pending
controversy.” Porter v. Chevron Appalachia, LLC, 204 A.3d 411, 417
(Pa.Super. 2019). A preliminary injunction functions to preserve this pre-
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dispute environment, not to announce a finding that the existing arrangement
reflects the actual rights of the parties.1
Preliminary injunctive relief “is an extraordinary, interim remedy that
should not be issued unless the moving party’s right to relief is clear and the
wrong to be remedied is manifest.” Ambrogi v. Reber, 932 A.2d 969, 974
(Pa.Super. 2007). “Parties must obey a preliminary injunction, even if invalid,
if the order is entered by a court with jurisdiction over the subject matter of
the order and the parties thereto unless the order is vacated or reversed.”
Rouse Philadelphia Inc. v. Ad Hoc ‘78, 417 A.2d 1248, 1257 (Pa.Super.
1979). Failure to obey an injunction subjects the violator to punishment for
contempt. Brightbill v. Rigo, Inc., 418 A.2d 424, 430 (Pa.Super. 1980).
Accordingly, Rule 311(a)(4) was “originally designed to permit immediate
appeals from preliminary injunctions” pending a final resolution of the case.
Thomas A. Robinson Family Ltd. P'ship v. Bioni, 178 A.3d 839, 845
(Pa.Super. 2017).
The entry of preliminary injunctions is governed by Pa.R.C.P. 1531,
which, relevant to this appeal, provides as follows:
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1 While not necessarily reflected by the prevailing factual status quo, an early
assessment of the legal rights of the parties is pertinent to the decision
whether to issue a preliminary injunction, as the trial court must conclude that
the moving party is likely to ultimately prevail on the merits. See, e.g.,
Matenkoski v. Greer, 213 A.3d 1018, 1025 (Pa.Super. 2019). Given our
resolution of this appeal, however, we do not address this aspect of the trial
court’s ruling.
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(a) A court shall issue a preliminary or special injunction[2] only
after written notice and hearing unless it appears to the
satisfaction of the court that immediate and irreparable injury will
be sustained before notice can be given or a hearing held, in which
case the court may issue a preliminary or special injunction
without a hearing or without notice. In determining whether a
preliminary or special injunction should be granted and whether
notice or a hearing should be required, the court may act on the
basis of the averments of the pleadings or petition and may
consider affidavits of parties or third persons or any other proof
which the court may require.
(b) Except when the plaintiff is the Commonwealth of
Pennsylvania, a political subdivision or 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 obligee, 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, or
(2) the plaintiff deposits with the prothonotary legal tender
of the United States in an amount fixed by the court to be
held by the prothonotary upon the same condition as
provided for the injunction bond.
(c) Any party may move at any time to dissolve an injunction.
(d) An injunction granted without notice to the defendant shall be
deemed dissolved unless a hearing on the continuance of the
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2 Pennsylvania law no longer recognize a distinction between a preliminary
injunction and a special injunction. See 5 Goodrich Amram 2d § 1531(a):1,
Amram commentary (“Because of the many similarities between preliminary
and special injunctions, the two types tend to merge into one and the words
are used interchangeably. Although the former equity rules made minor
distinctions between them, the Pennsylvania Rules of Civil Procedure treat
them exactly alike.”).
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injunction is held within five days after the granting of the
injunction or within such other time as the parties may agree or
as the court upon cause shown shall direct.
(e) After a preliminary hearing, the court shall make an order
dissolving, continuing or modifying the injunction.
Pa.R.C.P. 1531 (Notes omitted).
The May 6, 2021 order from which the Zwergel’s appealed was not an
ex parte emergency injunction which contemplated a full hearing at a later
date pursuant to Rule 1531(d). Rather, the order was entered following notice
and a hearing, and plainly granted Cole’s request for a preliminary injunction.
In so doing, the court became involved in a dispute that had until then
remained private. Pursuant to the plain language of Rule 311(a)(4), they
therefore have an immediate right to have these court-imposed constraints
on their use of their property reviewed by this Court.
The fact that the order was only a “temporary measure” to preserve the
status quo pendente lite changes nothing. Cole’s brief at 15-16. Preliminary
injunctions are by definition temporary and limited to preserving the status
quo pending resolution of the case. See, e.g., Weeks v. Dep't of Human
Servs., 255 A.3d 660, 666 (Pa.Cmwlth. 2021) (“A preliminary injunction
maintains the status quo until the merits of the controversy can be fully heard
and determined[.]” (cleaned up)). Nothing in the law of Pennsylvania
recognizes a “temporary” or “interim” injunction that precedes or is distinct
from a “preliminary” injunction. It is beyond peradventure that the
restrictions placed upon the Zwergels amounted to a preliminary injunction
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insofar as it barred their free use of the property. See City of Reading v.
Firetree, Ltd., 984 A.2d 16, 21–22 (Pa.Cmwlth. 2009) (rejecting trial court’s
contention that its “preliminary temporary prohibitive injunction” entered prior
to completion of hearings on preliminary injunction was unappealable because
the status-quo-maintaining restriction it imposed “[u]nquestionably . . . was
tantamount to a preliminary injunction”).3
Further, the point of subsection (ii) of Rule 311(a)(4) is to address the
situation, absent in the case sub judice, where a permanent injunction is
issued following a full trial of all claims in a case. To prevent Rule 311(a)(4)
from being used “as a backdoor means of bypassing the post-trial motion and
final judgment requirements applicable to most appeals,” such orders are not
ordinarily immediately appealable. Thomas A. Robinson Family Ltd.
P'ship, supra at 846. However, if the permanent injunction creates new
court-ordered obligations to act or refrain from acting, then the permanent
injunction may be appealed prior to the resolution of post-trial motions and
the entry of judgment. This exception-to-the-exception’s “clear purpose 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
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3 We reiterate that, at this stage, the relevant status quo is the factual, not
the legal, state of affairs between the parties. That status quo was that the
Zwergels did not obstruct the lot with trucks or a storage area, and Cole’s
customers could park there. Whether those circumstances were required by
the 1962 agreement or some other contract or legal theory is not pertinent to
the Rule 311(a)(4) analysis.
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appellate recourse without incurring delays from post-trial proceedings in the
trial court.” Id. at 847.
Hence, the function of Rule 311(a)(4)(ii) is to prohibit interlocutory
appeals from immediately-effective permanent injunctions that do not newly
impose court-ordered obligations on the parties. In other words, there is no
interlocutory appeal from permanent injunctions that do not change the
existing compulsions ordered by the court, but merely continue to enjoin or
mandate what the court already enjoined or mandated with a preliminary
injunction. In those circumstances, appellate review of the propriety of the
restraints had previously been available. However, if the permanent
injunction creates new court-ordered mandates or prohibitions to which
appellate review was not previously available, the newly-burdened party need
not wait for a final order to obtain that review.
In any event, the injunction issued in the case sub judice was not
entered “[a]fter a trial but before entry of the final order” that would
memorialize the final judgment in the case. Pa.R.A.P. 311(a)(4)(ii) (emphasis
added). Rather, it was issued in the middle of preliminary injunction
proceedings, with a trial yet to be scheduled and the entry of final judgment
beyond the horizon.4 Thus, subsection (ii) has no bearing. Moreover, we have
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4 On the matter of the pendency of a final resolution of this case, we are
perplexed by the trial court’s apparent belief that that this appeal served to
halt the proceedings in the trial court. See Trial Court Opinion, at 11 (“Despite
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already established that the order enjoined conduct that theretofore had not
been enjoined. Consequently, even if the initial hearing were to be considered
a “trial” for purposes of the rule, the order here meets the exception to the
exception and is immediately appealable as of right.
Having determined that we have jurisdiction to adjudicate this appeal,
we turn to the claims of error raised by the Zwergels:
A. The harm complained of by [Cole] is adequately
compensated by damages.
B. [Cole is] unlikely to prevail on the merits of [her] claims.
1. The license agreement, which was the sole basis
for [Cole’s] ability to use [the Zwergels’]
property, was properly terminated effective
April 1, 2021.
2. [Cole] badly mischaracterize[s] the applicability
of the 1962 agreement to the disputed parking
area.
3. It is clear from the record that the prior owners
of the parcels in question did not intend an
easement over the disputed parking area.
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[the trial court’s] finding that this matter is premature of appellate review,
this writer authors the following opinion in an effort to expedite a final
judgment on this matter at the [t]rial [c]ourt level.”). Pa.R.A.P. 311(h) plainly
states that Pa.R.A.P. 1701(a), which provides the general rule that trial courts
may not proceed further with a matter after an appeal is taken, is inapplicable
when the appeal is taken from an interlocutory order pursuant to Rule
311(a)(4). By failing “to proceed with the evidentiary hearing and issue [an
order] pending this appeal,” the Zwergels have been enjoined from using their
property and continue to be enjoined nearly one year later although the
preliminary injunction proceedings have yet to conclude. City of Reading v.
Firetree, Ltd., 984 A.2d 16, 21 (Pa.Cmwlth. 2009). “What, in effect,
happened is precisely what Rule 1701[ and 311(h) were] designed to avoid.”
Id.
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C. Granting the motion would inflict greater harm on [the
Zwergels] than the benefit conferred o[n Cole].
D. The trial court abused its discretion by entering the
preliminary injunction set forth in its order without setting a
bond or requiring that [Cole] post a bond as is required
pursuant to Pa.R.C.P. 1531(b).
Zwergels’ brief at 4 (cleaned up).
Our standard of review of a preliminary injunction is “highly deferential.”
Duquesne Light Co. v. Longue Vue Club, 63 A.3d 270, 275 (Pa.Super.
2013). In assessing a trial court’s ruling on a request for a preliminary
injunction, “we do not inquire into the merits of the controversy, but only
examine the record to determine if there were any apparently reasonable
grounds for the action of the court below.” City of Allentown v. Lehigh Cty.
Auth., 222 A.3d 1152, 1156 (Pa.Super. 2019) (cleaned up). “Only if it is plain
that no grounds exist to support the decree or that the rule of law relied upon
was palpably erroneous or misapplied will we interfere with the decision of the
trial court.” Id. (cleaned up).
As we find it determinative, we address the Zwergels’ last issue first. As
quoted supra, Rule 1531(b) provides that a preliminary injunction shall be
granted only if the plaintiff (1) files a bond “in an amount fixed and with
security approved by the court,” or (2) “deposits with the prothonotary legal
tender of the United States in an amount fixed by the court. . . .” Pa.R.C.P.
1531(b). “The purpose of an injunction bond . . . is to protect [the party] in
the event that the preliminary injunction was improperly granted and damages
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were sustained thereby.” Parkinson v. Lowe, 760 A.2d 65, 68 (Pa.Super.
2000).
It is well-established that the bond “requirement is mandatory and an
appellate court must invalidate a preliminary injunction if a bond is not filed
by the plaintiff.” Soja v. Factoryville Sportsmen's Club, 522 A.2d 1129,
1131 (Pa.Super. 1987) (emphases added). See also Rosenzweig v. Factor,
327 A.2d 36, 38 (Pa. 1974) (“The decree was also defective and subject to
being vacated for the further reason that it issued without the requisite bond
being filed by appellee pursuant to Pa.R.C.P. 1531(b).”). Indeed, “[e]ven if
the trial court’s order was otherwise proper, its failure to require the posting
of a bond mandates our reversal of its decision.” Walter v. Stacy, 837 A.2d
1205, 1208 (Pa.Super. 2003) (cleaned up).
Cole attempts to avoid the ramifications of the order’s failure to comply
with Rule 1531(b) by arguing (1) that the Zwergels waived the issue pursuant
to Pa.R.A.P. 302(a) by not objecting prior to the entry of the May 6, 2021
order, and (2) that the bond requirement was not triggered yet because this
was merely a “temporary and preliminary ruling,” rather than one issued after
“a final hearing on a preliminary injunction.” Cole’s brief at 28-29.
We are unpersuaded. First, we have already detailed our reasons for
rejecting the notion that the May 6, 2021 injunction was something other than
a preliminary injunction. Second, the Zwergels obviously had no opportunity,
let alone obligation, to object to the order’s lack of a bond requirement before
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it knew that an order would be entered without a bond requirement. Promptly
after the trial court entered the offending order, the Zwergels filed a motion
for reconsideration and clarification, in which the first issue raised was the
court’s failure to set a bond amount. See Motion for Reconsideration and
Clarification, 5/18/21, at 1-3. The trial court thereafter proceeded to impose
more specific restrictions than those included in the May 6, 2021 order and
schedule further proceedings, but neglected to correct the bond omission.5
See Order, 6/4/21. Accordingly, we discern no basis to deem the issue
waived.
Therefore, because the trial court enjoined the Zwergels without first
requiring Cole to post a bond, the injunction cannot stand. We thus vacate
the May 6, 2021 order, as well as the June 4, 2021 order which augmented it,
and remand for the trial court to reschedule its July 9, 2021 hearing and
resolve Cole’s preliminary injunction request in full compliance with Pa.R.C.P.
1531.
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5 We further observe that the Zwergels again raised the failure to set a bond
amount as their primary claim or error in their Pa.R.A.P. 1925(b) statement,
but the trial court still did not correct the error. Cf. Downs v. Smythe, 701
A.2d 591, 594 (Pa.Super. 1997) (concluding that the trial court, upon realizing
that the initial injunction was invalid due to lack of a bond, “was correct in re-
issuing the preliminary injunction [after] it ordered appellees to post
bond[.]”). Indeed, the trial court, although acknowledging in its opinion that
the Zwergels complained of the lack of a bond, failed to address the claim of
error in its Rule 1925(a) opinion.
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Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2022
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