Izenson v. Izenson

274 Pa. Superior Ct. 356 (1980) 418 A.2d 445

Benjamin IZENSON, Appellee,
v.
Irwin IZENSON and Specialty Luggage Co., Inc., Appellants.

Superior Court of Pennsylvania.

Argued June 18, 1979. Filed January 11, 1980.

Judith L. Maute, Pittsburgh, for appellants.

William J. Murray, Pittsburgh, for appellee.

Before HESTER, HOFFMAN, and CATANIA, JJ.^[*]

PER CURIAM:

Appellants contend that the lower court erred in issuing a preliminary injunction and a permanent injunction. We cannot reach the merits, however, because appellants failed to appeal the lower court's order granting a permanent injunction. For the reasons which follow, we must dismiss this appeal.

On January 29, 1979, appellee filed a complaint in equity against appellants, seeking a preliminary injunction. On April 17, 1979, following hearings, the lower court granted a preliminary injunction enjoining appellants from wrongfully interfering with appellee's rights as an officer, director, and shareholder of the appellant corporation; ordering appellant Irwin Izenson to transfer 75 shares of the corporation's stock to appellee; vacating a special meeting of the corporation's directors and stockholders; ordering that appellants provide appellee access to the corporation's place of business; and requiring appellee to post bond in the amount of $10,000.00. On April 20, 1979, appellants filed this appeal. On April 27, 1979, pursuant to the parties' prior stipulation, the lower court granted a permanent injunction, incorporating all the terms of the preliminary injunction with the exception of the bond requirement. Appellants have not appealed the order granting the permanent injunction.

Where a preliminary injunction is in force, the issuance of a permanent injunction terminates the preliminary injunction. See 43A C.J.S. Injunctions § 243 b, at 537 (1978). Thus, we cannot reach appellant's contention that the preliminary injunction was improperly issued because that injunction is no longer in effect.^[1] In addition, the issue of whether the lower court erred in granting the permanent injunction is not before us because appellants have not appealed that order. See Pa.R.A.P. 903; Duggan v. Environmental Hearing Board, 13 Pa.Cmwlth. 339, 342, 321 A.2d 392, 393 (1974). Accordingly, we must dismiss this appeal.

Appeal dismissed.

NOTES

[*] President Judge FRANCIS J. CATANIA of the Court of Common Pleas of Delaware County, Pennsylvania, is sitting by designation.

[1] In their brief, appellants question the propriety of the lower court's issuance of a permanent injunction after notice of appeal from the order granting a preliminary injunction had been filed. Rule 1701(a) of the Pennsylvania Rules of Appellate Procedure provides: "Except as otherwise prescribed by these rules, after an appeal is taken . ., the lower court . . . may no longer proceed further in the matter." Pa.R.A.P. 311(e) provides: "Rule 1701(a) . . . shall not be applicable to a matter in which an interlocutory order is appealed under [Pa.R.A.P. 311(a)(4) (appeal from injunctions)]." Accordingly, the lower court did not err in proceeding after the notice of appeal was filed.