Cole, K. v. Zwergel, J. ( 2023 )

J-A06037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KELLY L. COLE, AN INDIVIDUAL, : IN THE SUPERIOR COURT OF
AND BILL COLE'S PUB, INC., A : PENNSYLVANIA
PENNSYLVANIA CORPORATION :
:
:
v. :
:
:
JEFFERY M. ZWERGEL, AN : No. 646 WDA 2022
INDIVIDUAL, CYNTHIA F. ZWERGEL, :
AN INDIVIDUAL, THE VINYL :
ANSWERS, INC., A PENNSYLVANIA :
CORPORATION, AND TRUE REAL :
ESTATE HOLDINGS, LLC, A :
PENNSYLVANIA CORPORATION :
:
Appellants :
Appeal From the Order Entered May 3, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-21-003692
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: March 16, 2023
Jeffery M. Zwergel, Cynthia F. Zwergel, The Vinyl Answers, Inc., and
True Real Estate Holdings, LLC (the Zwergels) appeal from the order entered
in the Court of Common Pleas of Allegheny County (trial court) reinstating the
previously issued order granting the motion for special and/or preliminary
injunction filed by Kelly L. Cole and Bill Cole’s Pub, Inc. (Cole). This case
returns to us from remand in which we vacated the initial order because it
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* Retired Senior Judge assigned to the Superior Court.
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enjoined the Zwergels without first requiring Cole to post a bond in
contravention of Pennsylvania Rule of Civil Procedure 1531.1 We vacate the
May 2022 order and remand for further proceedings.2
I.
We previously set forth the relevant factual and procedural history of
this case as follows:
Cole and the Zwergels are owners of adjacent commercial
properties, operating a pub and a vinyl fabrication business,
respectively. In 1962, the 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
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1 Pa.R.C.P. 1531(b)(1) (requiring plaintiff seeking preliminary injunction to
post bond set by trial court) (discussed in detail infra).
2This interlocutory order is immediately appealable as of right pursuant to
Pa.R.A.P. 311(a)(4).
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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.
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.
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. . .
(Cole v. Zwergel, 273 A.3d 1047, at *1-2 (Pa. Super. 2022)) (unpublished
memorandum) (some record citations and quotation marks omitted).
We vacated the May 6, 2021 preliminary injunction and the June 4, 2021
order augmenting it because the trial court enjoined the Zwergels without
requiring Cole to post a bond and remanded for further proceedings in full
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compliance with Rule 1531. (See id. at *6). In doing so, we emphasized that
the bond requirement is mandatory and that its purpose is to protect the
defendant in the event the preliminary injunction was improperly granted,
causing damages. (See id. at *5).
On remand, the trial court held a hearing on April 21, 2022, for the
purpose of setting a bond for reissuance of the preliminary injunction. The
court heard testimony from both parties and took the matter under
advisement pending their submission of briefs. On May 3, 2022, the trial court
entered its order reinstating the May 2021 preliminary injection and requiring
Cole to post a $15,000 bond within 14 days. Cole did not file a bond in
accordance with the order. This timely appeal followed.3
II.
On appeal, the Zwergels challenge the trial court’s issuance of the
preliminary injunction on multiple bases, including that Cole is unlikely to
prevail on the merits. (See Zwergels’ Brief, at 3).4 However, we must first
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3 The trial court did not order the Zwergels to file a Rule 1925(b) statement.
It issued a brief opinion referring this Court to its previously entered orders
and opinion to aid our disposition of this matter. See Pa.R.A.P. 1925(a)-(b).
4
[O]ur review of the grant . . . of a preliminary injunction is limited
to determining whether there were any apparently reasonable
grounds for the action of the trial court. We will interfere with the
trial court’s decisions regarding a preliminary injunction only if
there exist no grounds in the record to support the decree, or the
rule of law relied upon was palpably erroneous or misapplied. It
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address the effect of Cole’s failure to post the required bond on our disposition
of this appeal. Cole maintains that because she “was unable to post the
required bond . . . the requested preliminary injunction did not go into effect
. . . [and] this appeal must be dismissed[.]” (Cole’s Brief, at 5, 10; see id.
at 13).
We begin by observing that “a preliminary injunction 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.”
Anchel, supra at 351 (citation omitted; emphasis added). “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.” Id. (citation omitted). Rule 1531 governs the procedural
steps that must be taken to secure a preliminary injunction, and it requires
the plaintiff to file a bond with the prothonotary. The Rule provides in relevant
part:
(a) A court shall issue a preliminary or special injunction 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
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must be stressed that our review of a decision regarding a
preliminary injunction does not reach the merits of the
controversy.
Anchel v. Shea, 762 A.2d 346, 351 (Pa. Super. 2000), appeal denied, 782
A.2d 541 (Pa. 2001) (citation omitted).
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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
(i) 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[.]
Pa.R.C.P. 1531(a), (b)(1) (emphasis added).
Compliance with the bond requirement “is mandatory and an appellate
court must invalidate a preliminary injunction if a bond is not filed by the
plaintiff.” Walter v. Stacy, 837 A.2d 1205, 1208 (Pa. Super. 2003)
(emphasis original; citation omitted). This bond posted by a plaintiff serves
as a safeguarding measure and “exists for the specific purpose of protecting
a defendant by supplying a fund to pay damages if this relief is granted
erroneously.” Goodies Olde Fashion Fudge Co. v. Kuiros, 597 A.2d 141,
144 (Pa. Super. 1991) (citation omitted). There is no similar bond
requirement to obtain a final injunction, and the absence of a preliminary
injunction does not foreclose an order for a permanent injunction. See Soja
v. Factoryville Sportsmen’s Club, 522 A.2d 1129, 1131 (1987). This is
because the “right to preliminary relief is based on the imminence of
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irreparable harm,” while entry of a final injunction is appropriate under a
comparatively lesser standard, where “such relief is necessary to prevent a
legal wrong for which there is no adequate redress at law.” Id. (citation
omitted).
Our decision in Goodies, supra is instructive. In that case, the plaintiff
was unable to post a bond because of financial difficulties. This Court vacated
the preliminary injunction and explained as to the bond requirement:
If Goodies is without the wherewithal to post the bond, they are
unlikely to possess sufficient resources for any damages awarded
if defendants comply with the order and the injunction is later
determined to have been issued in error. It is precisely this
situation which the Rules mean to prevent by requiring the posting
of a bond. Thus, we find that Goodies has not posted the bond
according to the trial court’s order and vacate the order at issue.
Goodies, supra at 144.
In the instant case, Cole concedes her inability to file the bond set by
the trial court after a hearing and that the preliminary injunction is, therefore,
invalid. We agree and conclude that in light of the extraordinary remedy Cole
is seeking in the form of preliminary interim relief, we cannot ignore the
mandatory bond posting requirement of Rule 1531 or its purpose of protecting
the Zwergels in the event they sustain damages. Accordingly, we vacate the
trial court’s order and remand for further proceedings.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2023
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