J-S19033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PA ENERGY VISION LLC D/B/A                 :   IN THE SUPERIOR COURT OF
    HENRY STREET                               :        PENNSYLVANIA
                                               :
                                               :
               v.                              :
                                               :
                                               :
    SOUTH AVIS REALTY, INC.                    :
                                               :   No. 1105 MDA 2016
                      Appellant                :

                   Appeal from the Order Entered June 6, 2016
                 In the Court of Common Pleas of Clinton County
                         Civil Division at No(s): 1364-12


BEFORE:      GANTMAN, P.J., BENDER, P.J.E. and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED MAY 12, 2017

        This matter returns to us after remand and relinquishment of

jurisdiction in PA Energy Vision, LLC v. South Avis Realty, Inc., 120

A.3d 1008 (Pa.Super. 2015) (“PA Energy I”). Specifically, Appellant, South

Avis Realty, Inc. (“South Avis”), appeals from the post-remand Order of

June 6, 2016, denying its oral motion that Appellee, PA Energy Vision LLC

D/B/A Henry Street (“Henry Street”), reimburse it the $14,470.00 it paid

pursuant to a preliminary injunction requiring each party to pay half the

costs associated with restoring a railroad crossing. Relying on this Court’s

holding in PA Energy I that a subsequent permanent injunction terminated,



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S19033-17



and thereby nullified, the preliminary injunction, the lower court found that

no further issues could arise from the preliminary injunction. We affirm.1

       Our decision in PA Energy I provides an apt summary of the

underlying procedural and factual history such that we do not include a full

recitation of the facts herein. Suffice it to say that South Avis owns a former

Conrail railroad line constituting a 30-foot-wide right-of-way passing through

a 26-acre parcel of land owned by Henry Street.          In 2012, South Avis

removed and replaced 115 feet of damaged railroad line to promote safe

train travel. Also removed in the process was a railroad crossing providing

access to Henry Street’s property and which Henry Street’s predecessor in

interest regularly used to move heavy equipment across the tracks.

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1
  On December 7, 2016, Henry Street filed a motion to quash the instant
appeal based upon either the alleged failure of South Avis to preserve its
issue for appeal with a formal petition for reimbursement to the lower court,
or the mootness of the issue raised. See generally Motion to Quash Appeal,
12/7/16. We reject the first proposed basis, as we find South Avis properly
raised, argued, and therefore preserved its issue during the post-remand
hearing in the court below. See N.T. 6/6/16. Thus, we decline Henry
Street’s invitation to conclude that South Avis failed to petition the court for
relief.

        We also disagree that dismissal for mootness is necessary, for
although PA Energy I previously held that the nullification of the
preliminary injunction in question rendered moot an issue raised in that
appeal, South Avis raised a new issue on remand positing that the
nullification did not prevent recovery of damages under Pa.R.C.P. 1531(b).
Furthermore, the trial court’s order effectively put South Avis out of court in
a case where neither the court nor the parties perceived any other
outstanding issues. We, therefore, refuse to quash on this basis, as well,
and address South Avis’ issue, infra.



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Eventually,     a   dispute   arose   between     the    parties    regarding   whether

restoration of the crossing was required and, if so, who should pay.

      On November 16, 2012, Henry Street sought a preliminary injunction

seeking      restoration   and     maintenance     of    the    railroad   crossing   to

accommodate its legal right of use. After a hearing, the trial court entered

an “interim order” directing South Avis to restore the crossing and each

party to pay 50% of the restoration costs.               South Avis installed a new

crossing costing $28,940.

      Following a full hearing on the merits, the lower court ruled that the

deed conveyed from Conrail to South Avis created a right in Henry Street to

use the crossing.      Accordingly, the court permanently enjoined South Avis

from interfering with Henry Street’s use, but it also ordered Henry Street to

pay all restoration costs as the sole use beneficiary. After the denial of the

parties’ respective post-trial motions, South Avis appealed to this Court.

      In PA Energy I, this Court reversed the lower court’s judgment

permanently enjoining South Avis from interfering with Henry Street’s use of

the railroad crossing, as we discerned no legal entitlement in Henry Street to

use the crossing. Having thereby invalidated the permanent injunction, we

deemed moot Henry Street’s cross-appeal assailing the second part to the

permanent injunction directing Henry Street to pay all restoration costs.

      We also declared moot South Avis’ challenge to the preliminary

injunction     granting    Henry    Street   relief,    but    on   different   grounds.

Specifically, we concluded that the lower court’s issuance of a subsequent

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permanent injunction terminated the preliminary injunction as a matter of

law, rendering it a nullity.         We remanded the matter and relinquished

jurisdiction.

       On remand, the lower court conducted a status conference to

determine if any issues remained following the decision of this Court. N.T.

6/6/16 at 2.          Neither the lower court nor Henry Street identified any

remaining issues, but South Avis sought reimbursement of its $14,750

restoration payment pursuant to Pa.R.C.P. 1531(b), which provides that a

plaintiff shall pay damages to any person injured from a preliminary

injunction later dissolved because it was improperly granted.2        South Avis
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2
     Pennsylvania Rule of Civil Procedure              1531,   “Special   Relief.
Injunctions,” provides, in pertinent 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.

                ***

       (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,
(Footnote Continued Next Page)


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essentially posited that the PA Energy I decision, through its invalidation of

the permanent injunction, effectively declared the preliminary injunction

improperly granted for purposes of Rule 1531(b). N.T. at 2-3.

      The trial court disagreed, opining that this Court’s decision specifically

declared the preliminary injunction a nullity because the trial court had

issued a final, permanent injunction.            N.T. at 3.   “If it’s a nullity, there’s

nothing for me to do. The Superior Court says it doesn’t exist[,]” the trial

court explained.       Accordingly, the trial court entered its order of June 6,

2016, declining to grant South Avis the relief it sought. This timely appeal

followed.

      South Avis presents the following question for our review:

      DID THE TRIAL COURT PROPERLY DENY SOUTH AVIS
      REALTY, INC.’S REQUEST TO BE REIMBURSED THE COST
                       _______________________
(Footnote Continued)

                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.

Pa.R.C.P. No. 1531(a) and (b) (emphasis added).




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       OF RESTORATION IT WAS ORDERED TO PAY AS PART OF
       THE TRIAL COURT’S ENTRY OF AN “INTERIM ORDER,”
       EVEN THOUGH THAT RULING WAS DETERMINED BY THIS
       COURT TO BE INVALID?

Appellant’s brief at 4.

       South Avis argues that this Court, in PA Energy I, deemed the

preliminary injunction a nullity only within the context of deciding Henry

Street’s cross-appeal, which challenged the permanent injunction’s directive

that Henry Street was solely responsible for payment of restoration costs as

a matter of equity.        See N.T. at 3.         Otherwise, South Avis argues, PA

Energy I invalidated the preliminary injunction, which, if true, would

provide    a pathway for         recovery      under   Rule   1531(B).   South   Avis

misconstrues our prior decision in this case.3

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3
  To the extent South Avis’ position may be read as a request that this Court
revisit our prior determination nullifying the preliminary injunction, we would
deny such request under the “law of the case” doctrine. As our Supreme
Court has observed:

       This doctrine refers to a family of rules which embody the
       concept that a court involved in the later phases of a litigated
       matter should not reopen questions decided by another judge of
       that same court or by a higher court in the earlier phases of the
       matter. See 21 C.J.S. Courts § 149a; 5 Am.Jur.2d Appeal and
       Error § 744. Among the related but distinct rules which make up
       the law of the case doctrine are that: (1) upon remand for
       further proceedings, a trial court may not alter the resolution of
       a legal question previously decided by the appellate court in the
       matter; (2) upon a second appeal, an appellate court may not
       alter the resolution of a legal question previously decided by the
       same appellate court[.]

       ***
(Footnote Continued Next Page)


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      In fact, we declared the preliminary injunction a nullity in response to

South Avis’ appeal challenging the propriety of the preliminary injunction.

Our holding in this regard was unqualified and unconditional, and it rested

upon the application of settled law that the issuance of a subsequent,

permanent injunction nullifies a preliminary injunction.   PA Energy I, 120

A.3d at 1012-13. We neither considered whether the preliminary injunction

was proper nor, it follows, deemed the preliminary injunction invalid. As we

explained:

      South Avis argues the trial court erred in granting a preliminary
      injunction. This issue, however, is now moot because the trial
      court issued a final, permanent injunction. The issuance of a
      permanent injunction supersedes a preliminary injunction.
      Den–Tal–Ez, Inc. v. Siemens Capital Corp., [] 566 A.2d
      1214, 1217 n. 1 (Pa.Super. 1989) (en banc).             “Where a
      preliminary injunction is in force, the issuance of a permanent
      injunction terminates the preliminary injunction.” Izenson v.
      Izenson, [] 418 A.2d 445, 446 (Pa.Super. 1980) (per curiam)
      (internal citation omitted).     In Izenson, for example, we
      dismissed an appeal from an order granting a preliminary
      injunction, because the trial court granted final injunctive relief
      during the appeal's pendency, and the appellants failed to appeal
                       _______________________
(Footnote Continued)

      The various rules which make up the law of the case doctrine
      serve not only to promote the goal of judicial economy (as does
      the coordinate jurisdiction rule) but also operate (1) to protect
      the settled expectations of the parties; (2) to insure uniformity
      of decisions; (3) to maintain consistency during the course of a
      single case; (4) to effectuate the proper and streamlined
      administration of justice; and (5) to bring litigation to an end.
      21 C.J.S. Courts § 149a

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995).




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       the order granting the permanent injunction. Id. Here, the trial
       court rendered a decision on the merits and issued a permanent
       injunction. Any issues regarding the granting of a preliminary
       injunction cannot now be considered in this appeal. Den–Tal–
       Ez, supra; Izenson, supra.

PA. Energy I, 120 A.3d. at 1012-13.4 Accordingly, there was no contextual

limitation to our pronouncement that the permanent injunction had

absolutely nullified the preliminary injunction and rendered moot “any

issues” regarding the preliminary injunction.5

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4
  Cf. Coll. Watercolor Grp., Inc. v. William H. Newbauer, Inc., 360 A.2d
200, 207–08 (Pa. 1976) (allowing appellant to seek damages from allegedly
improper preliminary injunction despite subsequent issuance of permanent
injunction, where permanent injunction was narrower than preliminary
injunction and did not govern matter challenged). In the case sub judice,
the preliminary injunction and permanent injunction were coextensive.
5
  Moreover, we considered it unnecessary to address Henry Street’s claim
only because we had invalidated the permanent injunction and its underlying
judgment imposing a unilateral payment obligation upon Henry Street as
sole use-beneficiary of the restored railroad crossing. See Id., 120 A.3d at
1013-1017 (setting forth legal standard for granting a permanent injunction
and applying it to review lower court’s judgment). Specifically, we held:

       In light of the foregoing whereby we have reversed the trial
       court’s judgment granting equitable relief to Henry Street, we
       need not address Henry Street’s cross-appeal that the trial court
       erred in imposing upon Henry Street the full costs of repair of
       Crossing 2. Because we reverse the trial court’s judgment, it
       follows also that the granting of relief imposing costs of
       restoration as a part of that judgment is a nullity.

Id. at 1017.

      Therefore, our decision disposing of Henry Street’s cross-appeal did
not involve the preliminary injunction at all. Rather, we simply held that
Henry Street was no longer bound to pay all restoration costs as the sole
(Footnote Continued Next Page)


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      The fact that the preliminary injunction was not dissolved as

improperly granted is dispositive to the controversy before us now. South

Avis predicated its present claim on Rule 1531(b), which, as explained

above, provides a mechanism by which a party injured by a preliminary

injunction dissolved as improperly granted may recover resultant damages.

However, in PA Energy I, this Court clarified that the preliminary injunction

in this case was not so dissolved but was, instead, superseded and nullified

as a matter of law by a permanent injunction. Indeed, South Avis asked this

Court in PA Energy I to invalidate the preliminary injunction, but we

refused to reach the question of its validity, as it was, at that time, a legal

nullity.   On remand, the trial court properly implemented this Court’s

determination in this regard.         Accordingly, Rule 1531(b) offers no relief to

South Avis, such that we may not find error with the trial court’s rejection of

South Avis’ claim.

     Appellee’s Motion to Quash is DENIED. Order is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/12/2017
                       _______________________
(Footnote Continued)

beneficiary of the crossing, as we invalidated the permanent injunction and
corresponding judgment therein mandating such payment.




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