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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTINE SCOTT, DEBORAH IN THE SUPERIOR COURT OF
DEPHILLIPO; CAROL M. BLEDSOE, PENNSYLVANIA
CATHERINE VERNON, WILLIAM
ONSLAGER, LARRY CHANG,
JULIA SCHWARTZ, JULIA BLOCK, LISA
TANNER, CHEIN HONG FUNG,
WEN CHING FUNG
Appellees
v.
DANIEL M. BERGER AND BOOTHWYN
PARTNERS, LLP AND
BGP REALTY AND WILLOWBROOK
APARTMENTS AND
BERGER REAL ESTATE CLIENT SERVICES
CORPORATION AND
BERGER REAL ESTATE SALES AND
BERGER RENTAL COMMUNITIES
AND PA MANAGEMENT & MAINTENANCE
CORP AND ZACK MOORE
Appellants No. 1153 EDA 2016
Appeal from the Order Entered April 11, 2016
In the Court of Common Pleas of Delaware County
Civil Division at No(s): March Term 2016-002456
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 21, 2016
Daniel M. Berger, Boothwyn Partners, LLP, BGP Realty, Willowbrook
Apartments, Berger Real Estate Client Services Corporation, Berger Real Estate
Sales, Berger Rental Communities, PA Management and Maintenance
Corporation, and Zack Moore (together, “Berger”) appeal from the April 11,
2016 order of the Court of Common Pleas of Delaware County granting in part
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the motion for special emergency relief and preliminary injunction filed by
Christine Scott, Deborah DePhillipo, Catherine Vernon, William Onslager, Larry
Chang, Julia Schwartz, Lisa Tanner, Chein Hong Fung, and Wen Ching Fung
(together, “Minority Owners”). We vacate and remand.
Minority Owners own condominium units in a building located at 3360
Chichester Avenue in Upper Chichester, Pennsylvania (“Condominium”). On
February 8, 2016, with an eye toward selling the building and distributing the
proceeds, more than 80 percent of the unit owners voted to terminate the
Condominium by agreement pursuant to section 3220 of the Pennsylvania
Uniform Condominium Act (“UCA”), 68 Pa.C.S. § 3220. Thereafter, the
Willowbrook Condominium Owners Association (“Association”), controlled by
Berger, obtained an independent appraisal of the property, which set the fair
market value at $18.5 million. An auction sale of the Condominium was
scheduled for April 13, 2016.
On March 16, 2016, Minority Owners filed a complaint against Berger and
a motion for special emergency relief and preliminary injunction (“Motion”). 1
Their principal complaint was that Berger had not distributed the entire
appraisal to all unit owners, which Minority Owners claimed was required by
section 3220(f) of the UCA. In their Motion, Minority Owners requested a stay
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1
In their Complaint, Minority Owners averred that they did not file suit
against the Association because they believed that Berger would “use the legal
costs to defend this matter as an excuse to simply increase their
condo[minium] fees again.” Compl. ¶ 116.
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of the April 13, 2016 auction. Berger responded to the Motion on April 8,
2016.
On April 11, 2016, after an evidentiary hearing, the trial court granted
the Motion in part. The trial court ordered that the auction “be stayed until at
least thirty (30) days after [Berger] distribute[s] the full decision of the
appraiser to all unit owners.” Trial Ct. Order, 4/11/16, at 1. Berger timely
appealed to this Court.2
On appeal, Berger asserts that the trial court erred in failing to require
Minority Owners to post a bond before issuing the preliminary injunction as
required by Pennsylvania Rule of Civil Procedure 1531(b)(1). We agree.
Rule 1531(b)(1) states that “a preliminary injunction . . . shall be
granted only if . . . the plaintiff files a bond in an amount fixed and with
security approved by the court.” Pa.R.C.P. 1531(b)(1) (emphasis added). Our
Court has explained 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); see Goodies Olde Fashion Fudge Co. v. Kuiros, 597
A.2d 141, 143 (Pa.Super. 1991). A preliminary injunction issued without the
filing of a bond is a nullity. Mamula v. United Steelworkers of Am., 185
A.2d 595, 597 (Pa. 1962); see also Surco Prods., Inc. v. Kieszek, 80 A.2d
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2
See Pa.R.A.P. 311(a)(4) (permitting interlocutory appeal as of right
from order granting injunction).
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842, 845 (Pa. 1951) (holding that “[trial] court was utterly without power” to
issue injunction without bond). Moreover, “even if the trial court’s [injunction]
order was otherwise proper, its failure to require the posting of a bond . . .
mandate[s] our reversal of its decision.” Soja, 522 A.2d at 1131; see also
Surco, 80 A.2d at 845 (stating that trial court’s failure to require bond “cannot
be corrected or cured after an appeal has been made”). Therefore, we must
vacate the trial court’s order.
In its opinion, the trial court acknowledges that it erroneously failed to
require a bond but asks this Court to remand so that it may re-issue the
injunction with a bond requirement. Trial Ct. Op., 6/13/16, at 4-5 (citing
Walter v. Stacy, 837 A.2d 1205 (Pa.Super. 2003)). In Walter, the trial court
did not require the plaintiff in a wrongful death action to post a bond before
issuing a preliminary injunction due to the plaintiff’s indigence. 837 A.2d at
1208. On appeal, we held that the failure to require a bond rendered the
injunction a nullity and required vacation of the injunction order. Id.
However, we then considered whether the injunction was otherwise proper,
noting that the trial court’s “error may be cured by the re-issuance of the
preliminary injunction if the order includes the requirement of a bond.” Id. at
1208-10. Because we determined that the injunction was otherwise proper,
we remanded for the imposition of an appropriate bond. Id. at 1210.
Walter suggests that in some cases, the facts and equities may justify a
remand for re-issuance of the preliminary injunction with a bond requirement.
Nonetheless, the Walter Court held, consistent with the precedent discussed
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above, that the trial court lacked jurisdiction to enter an injunction without a
bond “despite the fact that the trial court’s order was ‘otherwise proper.’” Id.
(quoting Soja, 522 A.2d at 1131).
Here, given the facts of this case and the limited nature of the
preliminary injunction, circumstances may have changed since the trial court
granted injunctive relief in a way that would render re-issuance of the
injunction inappropriate.3 For this reason, we deny the trial court’s request for
a remand solely to re-issue its injunction order with a bond requirement.4
Order vacated. Case remanded. Jurisdiction relinquished.
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3
Minority Owners have not filed a brief with this court. Their failure to
contest the claims raised on appeal could indicate a change in the ownership
status, or legal position, of some of the named plaintiffs.
4
Berger also asserts that the trial court’s injunction was improper
because the Association is an indispensable party that has not been joined as a
defendant. Specifically, Berger claims that although the trial court enjoined
Berger from proceeding with the auction sale, the Association is the only entity
that can legally sell the Condominium. Berger’s Br. at 11-12; see 68 Pa.C.S.
§ 3220(c) (stating that after condominium is terminated, “title to [the] real
estate . . . vests in the association as trustee” for all unit owners and the
association “has all powers necessary and appropriate to effect the sale” of
condominium). Because we conclude that the injunction is a nullity, we need
not address this claim. On remand, however, both the parties and the trial
court should be prepared to address this issue if Minority Owners continue to
seek an injunction.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2016
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