dissenting:
In this appeal we are asked to review a preliminary injunction which enjoined George M. Laughlin, t/a Best Auto Tag Service, from “dissipating” the “value of the Trust Funds as detailed in the terms and provisions of the Trust Agreement” with American Express Travel Related Services Company, Inc. (AMEX). The defendant, by the same preliminary order, was also directed to state an account and “immediately surrender and return to Plaintiff all Trust Funds or assets impressed with a trust in Defendant’s possession, custody or control.... ” A majority of this Court affirms the preliminary order entered by the trial court. In my judgment, however, the preliminary order decided too much, was too broad in its scope and, indeed, constituted an abuse of discretion. The court could properly do nothing more than maintain the status quo until the rights of the parties could be fully litigated.
In May, 1989, AMEX and Laughlin entered into a written agreement by the terms of which Laughlin was to sell money orders for AMEX. The proceeds of these sales, according to the terms of the agreement, were to be deemed trust funds. Laughlin was to act in a fiduciary capacity, and the proceeds from sales of money orders were to be kept separate and apart from other funds held by Laughlin. Specifically, the parties’ agreement provided as follows:
1. Trust Relationship. Amex appoints Agent as its agent authorized to sell American Express Money Orders issued by Amex (“Money Orders”) in accordance "with the provisions stated herein. Upon execution of this Agreement and pursuant to its terms, Agent shall be a trustee and act in a fiduciary capacity with respect to any Money Orders in Agent’s possession and Proceeds, as defined in subsection 2(d) hereof. Agent shall account for the Money Orders and Proceeds separate and apart from all other funds and monies of Agent and shall not commingle the Money Orders and Proceeds with these other funds and monies. In the event Agent does commingle Money Orders and/or Proceeds with any other funds and/or monies, such other funds and monies shall be deemed to be impressed with a trust *630with respect thereto. It is expressly understood that Agent does not, by operation of this Agreement, acquire any right, title or interest of any kind in the Money Orders, the Proceeds or the Amex Fee as defined in subsection 3(b) hereof, (emphasis added)
These proceeds were to be remitted to AMEX in accordance with procedures established by other paragraphs of the agreement.
In November, 1991, AMEX became aware that Laughlin was not following the reporting procedures required by the agreement. Therefore, an AMEX representative was dispatched to conduct an audit of Laughlin’s books and records. As a result of this audit, it was determined that Laughlin had failed to remit almost one hundred ninety-three thousand ($193,000) dollars which were due AMEX.
On or about January 13, 1992, AMEX commenced an action in equity against Laughlin and requested the trial court to issue a preliminary injunction. When its request was heard by the court on February 11, 1992, AMEX called two witnesses. Jerry Horton, the AMEX employee who had conducted the audit of Laughlin’s records, testified that his audit had revealed a shortfall of funds paid to AMEX for money orders sold by Laughlin of approximately one hundred ninety-three thousand ($193,000) dollars. Ginger Waterbury, the manager of the AMEX collection unit, described the AMEX money order system and recited a telephone conversation with Laughlin following the audit in which he had confirmed a failure to submit all funds and had promised to remit monies due. This was further confirmed by a letter to AMEX signed by Laughlin. The hearing concluded before Waterbury could be cross-examined. The court subsequently entered the order from which the present appeal has been taken. Appellant argues that the AMEX claim is for the payment of money damages for which AMEX has an adequate remedy at law. He also contends that the trial court’s order, entered after only a preliminary hearing, has the effect of preventing his continuing to do business.
*631An action for breach of trust is an equitable proceeding, even if money damages are the only remedy sought. Philadelphia v. Penn Plastering Corp., 434 Pa. 122, 253 A.2d 247 (1969); Ramsey v. Ramsey, 351 Pa. 413, 41 A.2d 559 (1945); Commonwealth by Kane v. Hilton, 24 Pa.Commw. 285, 355 A.2d 841 (1976). “In the exercise of its jurisdiction over trustees and its power to require compliance with, and the performance of the duties and obligations of, a trust, equity will, in a proper case ... decree an injunction for certain purposes, such as to restrain an unauthorized sale or diversion of the trust property. Furthermore, a temporary injunction will lie to freeze the res of an alleged constructive trust upon a showing that the res is in probable danger of dissipation and that there is a reasonable likelihood of success on the merits with respect to the constructive trust claim.” 76 Am.Jur.2d, Trusts § 669.
The purpose of a preliminary injunction is to preserve the status quo as it exists or previously existed before the acts complained of, thereby preventing irreparable injury or gross injustice. Slott v. Plastic Fabricators, Inc., 402 Pa. 433, 167 A.2d 306 (1961). A preliminary injunction should issue only where there is urgent necessity to avoid injury which cannot be compensated for by damages. Independent State Store Union v. Pa. Liquor Control Bd., 495 Pa. 145, 432 A.2d 1375 (1981). The court which is to exercise discretion in the matter of issuance of an injunction is the trial court and not the appellate court and the action of the trial court may be reviewed on appeal only in the case of a clear abuse of discretion but not otherwise. Rick v. Cramp, 357 Pa. 83, 53 A.2d 84 (1947).
Maritrans v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 259, 602 A.2d 1277, 1286 (1992).
The evidence in this case was that the money owed to AMEX by Laughlin had not been kept separate and apart from other assets of Laughlin and, in fact, had been commingled with the general funds by which Laughlin conducted business. The moneys owed AMEX, therefore, no longer constituted a separate trust res. The parties’ agreement *632provided, if AMEX funds were commingled, that a trust should be impressed on any funds or assets with which the original trust funds had been commingled. In this case, that was all funds needed by Laughlin to conduct his business. Thus, when the trial court entered a preliminary order enjoining Laughlin from “dissipating, transferring, alienating, concealing, substantially impairing the value of the Trust Funds as detailed in the terms and provisions of the Trust Agreement,” and directing the immediate surrender of all assets impressed with a trust, it not only rendered a final decision, but it effectively prevented Laughlin from using its funds and assets to engage in future business. In my judgment, this was an abuse of discretion. If a specific trust res were no longer in existence, Laughlin was indebted to AMEX for the shortfall, but the trial court could not enter a preliminary order impressing a trust on all assets of the defendant and preventing his continuing to do business. Moreover, it could not decide the case finally without allowing the defendant to offer a defense.
It was also premature, in my judgment, for the trial court to order appellant preliminarily to render an accounting. The trial court had held only a preliminary hearing; it had not heard from the defense. Indeed, it is questionable whether the defendant had a full opportunity to cross-examine AMEX’s second witness. In any event, AMEX had already conducted an audit of appellant’s books and records. Therefore, it is not at all clear to me what additional information appellant can be expected to provide.
The record discloses unequivocally that Laughlin is indebted to AMEX for misappropriated funds. Unless Laughlin can show a defense to the claim by AMEX, the trial court will be required to fashion an order requiring repayment. At the present time, however, only a preliminary hearing has been held; the defense has not had an opportunity to be heard. For the trial court to enter an order deciding the merits of the case and granting AMEX full relief after only a preliminary hearing was, in my judgment, improper. I would reverse and remand for further proceedings.