              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John J. Lynch,                                   :
                         Appellant               :
                                                 :
                  v.                             :   No. 1330 C.D. 2015
                                                 :   Submitted: March 11, 2016
Andrew L. Gittelmacher                           :

BEFORE:           HONORABLE MARY HANNAH LEAVITT, President Judge
                  HONORABLE ANNE E. COVEY, Judge
                  HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                            FILED: May 11, 2016

                  John J. Lynch, pro se, appeals a July 2, 2015, order of the Court of
Common Pleas of Philadelphia County (trial court) that denied his petition for a
preliminary injunction to restrain the allegedly abusive conduct of Andrew L.
Gittelmacher, the defendant in Lynch’s underlying equity complaint. The trial
court denied the preliminary injunction without prejudice in order to allow Lynch
to file a private criminal complaint against Gittelmacher. See PA. R.CRIM.P. 504.1
Gittelmacher, appellee, contends that Lynch’s appeal should be quashed because
the trial court’s order was not a final and appealable order. We deny the motion to
quash, reverse the order of the trial court, and remand for further proceedings.
                  This controversy began when, on July 2, 2015, Lynch filed a
complaint against Gittelmacher seeking damages in the amount of $150,000 for
Gittelmacher’s allegedly assaultive, harassing, annoying, and life-threatening
conduct.       Along with the complaint, Lynch filed a petition for a preliminary

1
    The text of PA. R.CRIM.P. 504 is recited later in this opinion.
injunction to restrain Gittelmacher from coming within 250 feet of Lynch. The
petition alleged that a preliminary injunction was necessary to restrain
Gittelmacher’s assaultive, harassing, annoying, and life-threatening conduct. The
trial court denied the preliminary injunction for the stated reason that the
restraining order sought by Lynch was barred by a legal remedy, i.e., the filing of a
criminal complaint pursuant to Rule 504 of the Pennsylvania Rules of Criminal
Procedure.       The trial court retained jurisdiction over Lynch’s underlying
complaint. On July 7, 2015, Lynch appealed the trial court’s order.2
               On appeal, Lynch argues that the trial court erred and abused its
discretion. He contends that there is no law, statute, or rule of procedure that
precludes his requested injunction, which he asserts is governed by Pennsylvania
Rule of Civil Procedure 1531(a).3 Gittelmacher responds that the trial court’s
order was not final and, thus, this Court lacks jurisdiction to consider Lynch’s
appeal.




2
  Generally, this Court does not hear appeals in a civil action between two private individuals.
Nevertheless, because Gittelmacher has not objected to our jurisdiction it is perfected. See Pa.
R.A.P. 741(a) (“The failure of an appellee to file an objection to the jurisdiction of an appellate
court on or prior to the last day under these rules for the filing of the record shall, unless the
appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such
appellate court[.]”).
3
  It states, in relevant part, as follows:
       (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.
PA. R.C.P. No. 1531(a).


                                                 2
              We first address whether the order denying the preliminary injunction
is appealable.4 As a general rule, an appeal may be taken only from a final order.
Rae v. Pennsylvania Funeral Directors Association, 977 A.2d 1121, 1124-25 (Pa.
2009). “The purpose of limiting appellate review to a final order is ‘to prevent
piecemeal determinations and the consequent protraction of litigation.’” In re First
Baptist Church of Spring Mill, 22 A.3d 1091, 1095 (Pa. Cmwlth. 2011) (quoting
Hionis v. Concord Township, 973 A.2d 1030, 1034 (Pa. Cmwlth. 2009)). A final
order is any order that either (i) “disposes of all claims and all parties” or (ii) is
certified as a final order by the trial court or governmental unit. PA. R.A.P. 341(b),
(c).5 An order that sustains preliminary objections with leave to file an amended


4
  Whether an order is appealable is a question of law, as to which our standard of review is de
novo and our scope of review is plenary. Rae v. Pennsylvania Funeral Directors Association,
977 A.2d 1121, 1126 n.8 (Pa. 2009).
5
  Rule 341 states, in relevant part, as follows:
        (b) Definition of Final Order.—A final order is any order that:
               (1) disposes of all claims and of all parties; or
               (2) RESCINDED;
               (3) is entered as a final order pursuant to paragraph (c) of this rule.
       (c) Determination of finality.—When more than one claim for relief is presented
       in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or
       when multiple parties are involved, the trial court or other government unit may
       enter a final order as to one or more but fewer than all of the claims and parties
       only upon an express determination that an immediate appeal would facilitate
       resolution of the entire case. Such an order becomes appealable when entered. In
       the absence of such a determination and entry of a final order, any order or other
       form of decision that adjudicates fewer than all the claims and parties shall not
       constitute a final order. In addition, the following conditions shall apply:
               (1) The trial court or other government unit is required to act on
               an application for a determination of finality under paragraph (c)
               within 30 days of entry of the order. During the time an
               application for a determination of finality is pending the action is
               stayed.
(Footnote continued on the next page . . . )
                                                3
complaint is not considered a final order. See Hionis, 973 A.2d at 1034; Mier v.
Stewart, 683 A.2d 930 (Pa. Super. 1996) (order dismissing a complaint without
prejudice and giving plaintiff 30 days to file an amended complaint is not a final
order).
              Here, the July 2, 2015, order is not a final order within the meaning of
Pa. R.A.P. 341(b) and (c).           It is an interlocutory order.          Nevertheless, an
interlocutory order that denies preliminary injunctive relief can be appealed.
              The Pennsylvania Rules of Appellate Procedure provide, in relevant
part, as follows:

              Rule 311. Interlocutory Appeals as of Right
              (a) General rule. An appeal may be taken as of right and
              without reference to Pa. R.A.P. 341(c) from:
                                                   ***



(continued . . . )
              (2) A notice of appeal may be filed within 30 days after entry of
              an order as amended unless a shorter time period is provided in Pa.
              R.A.P. 903(c). Any denial of such an application shall be
              reviewable only for abuse of discretion pursuant to Chapter 15.
              (3) Unless the trial court or other government unit acts on the
              application within 30 days of entry of the order, the trial court or
              other government unit shall no longer consider the application and
              it shall be deemed denied.
              (4) The time for filing a petition for review will begin to run
              from the date of entry of the order denying the application for a
              determination of finality or, if the application is deemed denied,
              from the 31st day. A petition for review may be filed within 30
              days of the entry of the order denying the application or within 30
              days of the deemed denial unless a shorter time period is provided
              by Pa. R.A.P. 1512(b).
PA. R.A.P. 341(b), (c).


                                               4
                      (4) Injunctions. An order that grants or denies,
                      modifies or refuses to modify, continues or refuses
                      to continue, or dissolves or refuses to dissolve an
                      injunction unless the order was entered:
                             (i) Pursuant to [Section 3323(f) or
                             3505(a) of the Divorce Code,] 23 Pa.
                             C.S. §§3323(f), 3505(a); or
                             (ii) After a trial but before entry of
                             the final order.      Such order is
                             immediately appealable, however, if
                             the order enjoins conduct previously
                             permitted or mandated or permits or
                             mandates conduct not previously
                             mandated or permitted, and is
                             effective before entry of the final
                             order.

PA. R.A.P. 311(a)(4) (emphasis added). Because the July 2, 2015, order denied a
preliminary injunction, it is an appealable interlocutory order. Accordingly, we
deny Gittelmacher’s motion to quash.
              We turn, then, to the merits of the trial court’s denial of a preliminary
injunction.6 Preliminary injunctive relief “is an equitable remedy available only in
actions brought in equity.” Barcia v. Fenlon, 37 A.3d 1, 6 (Pa. Cmwlth. 2012)
(quoting Norristown Area School District v. A.V., 495 A.2d 990, 992 (Pa. Cmwlth.
1985)). The purpose of a preliminary injunction is to “preserve the status quo and
prevent imminent and irreparable harm” until the merits of the underlying
complaint in equity can be decided. Berger v. West Jefferson Hill School District,



6
  Our review of a trial court order granting or denying preliminary injunctive relief is “highly
deferential and is limited to determining whether the trial court abused its discretion.”
Commonwealth ex rel. Corbett v. Snyder, 977 A.2d 28, 41 (Pa. Cmwlth. 2009) (emphasis in
original).


                                               5
669 A.2d 1084, 1085 (Pa. Cmwlth. 1995). Our Supreme Court has established the
prerequisites for a preliminary injunction:

             [A] party must establish prior to obtaining preliminary
             injunctive relief … 1) “that the injunction is necessary to
             prevent immediate and irreparable harm that cannot be
             adequately compensated by damages”; 2) “that greater injury
             would result from refusing an injunction than from granting it,
             and, concomitantly, that issuance of an injunction will not
             substantially harm other interested parties in the proceedings”;
             3) “that a preliminary injunction will properly restore the
             parties to their status as it existed immediately prior to the
             alleged wrongful conduct”; 4) “that the activity it seeks to
             restrain is actionable, that its right to relief is clear, and that the
             wrong is manifest, or, in other words, must show that it is likely
             to prevail on the merits”; 5) “that the injunction it seeks is
             reasonably suited to abate the offending activity”; and, 6) “that
             a preliminary injunction will not adversely affect the public
             interest.”

Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. 2004) (quoting Summit Towne
Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003)).
A trial court may deny relief where the moving party fails to prove even one of the
“essential prerequisites” for a preliminary injunction.          Maritrans GP Inc. v.
Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1282-83 (Pa. 1992).
             Gittelmacher does not argue that Lynch’s petition for a preliminary
injunction lacks the essential prerequisites for a preliminary injunction. Indeed,
Gittelmacher does not defend the merits of the trial court’s order denying the
preliminary injunction, i.e., that Lynch had a legal remedy.
             Lynch seeks to restrain Gittelmacher from assaultive, harassing,
annoying, and life-threatening conduct towards Lynch, i.e., conduct prohibited by
the Pennsylvania Crimes Code, 18 Pa. C.S. §§101-9402. The trial court held that a



                                            6
private criminal complaint under Rule 504 of the Rules of Criminal Procedure
constituted an adequate legal remedy.7 We disagree.


7
    Rule 504 states:
          Every complaint shall contain:
          (1)      the name of the affiant;
          (2)      the name and address of the defendant, or if unknown, a description of the
          defendant as nearly as may be;
          (3)      a direct accusation to the best of the affiant’s knowledge, or information and
          belief, that the defendant violated the penal laws of the Commonwealth of Pennsylvania;
          (4)      the date when the offense is alleged to have been committed; provided, however:
                   (a)     if the specific date is unknown, or if the offense is a continuing
                   one, it shall be sufficient to state that it was committed on or about any
                   date within the period of limitations; and
                   (b)     if the date or day of the week is an essential element of the offense
                   charged, such date or day must be specifically set forth;
          (5) the place where the offense is alleged to have been committed;
          (6)(a) in a court case, a summary of the facts sufficient to advise the defendant of the
          nature of the offense charged, but neither the evidence nor the statute allegedly violated
          need be cited in the complaint. However, a citation of the statute allegedly violated, by
          itself, shall not be sufficient for compliance with this subsection; or
              (b) in a summary case, a citation of the specific section and subsection of the statute or
               ordinance allegedly violated, together with a summary of the facts sufficient to advise
               the defendant of the nature of the offense charged;
          (7) a statement that the acts of the defendant were against the peace and dignity of the
          Commonwealth of Pennsylvania or in violation of an ordinance of a political subdivision;
          (8) a notation if criminal laboratory services are requested in the case;
          (9) a notation that the defendant has or has not been fingerprinted;
          (10) a request for the issuance of a warrant of arrest or a summons, unless an arrest has
          already been effected;
       (11) a verification by the affiant that the facts set forth in the complaint are true and
       correct to the affiant’s personal knowledge, or information and belief, and that any false
       statements therein are made subject to the penalties of the Crimes Code, 18 Pa.C.S. §
       4904, relating to unsworn falsification to authorities; and
       (12) the signature of the affiant and the date of the execution of the complaint.
PA. R.CRIM.P. 504.


                                                    7
                Rule of Criminal Procedure 506 requires that where the complainant
“is not a law enforcement officer,” the complaint must be submitted to the District
Attorney. Rule 506 states:

                (A) When the affiant is not a law enforcement officer, the
                complaint shall be submitted to an attorney for the
                Commonwealth, who shall approve or disapprove it without
                unreasonable delay.
                (B)   If the attorney for the Commonwealth:
                      (1) approves the complaint, the attorney shall
                      indicate this decision on the complaint form and
                      transmit it to the issuing authority;
                      (2) disapproves the complaint, the attorney shall
                      state the reasons on the complaint form and return
                      it to the affiant. Thereafter, the affiant may petition
                      the court of common pleas for review of the
                      decision.

PA. R.CRIM.P. 506. Because Lynch’s ability to have a criminal proceeding brought
against Gittelmacher is dependent on the decision of the District Attorney, it is not
a legal remedy that will preclude equitable relief.
                Simply because conduct may be criminal does not take that conduct
beyond the reach of a civil remedy. For example, assault can trigger both criminal
and civil sanctions. Assault is a crime under Section 2701 of the Pennsylvania
Crimes Code, 18 Pa. C.S. §2701.8 This does not preclude the victim from pursuing



8
    It states:
           (a) Offense defined.--Except as provided under section 2702 (relating to
           aggravated assault), a person is guilty of assault if he:
                  (1) attempts to cause or intentionally, knowingly or recklessly
                  causes bodily injury to another;
(Footnote continued on the next page . . . )
                                             8
a tort action. See Sides v. Cleland, 648 A.2d 793, 796 (Pa. Super. 1994) (citing
Restatement (Second) of Torts, §21) (“An assault occurs when an actor intends to
cause imminent apprehension of a harmful or offensive bodily contact.”). Private
interests are vindicated in a civil tort action, and society’s interest in keeping the
peace is vindicated in a criminal law enforcement proceeding. In short, the trial
court erred in denying Lynch’s request for a preliminary injunction for the stated
reason that he had a legal remedy by way of a private criminal complaint.
             On February 24, 2016, Lynch also filed a “Petition and/or Application
for Relief” related to the instant appeal as well as two other appeals docketed at
Nos. 2467 C.D. 2015 and 185 C.D. 2016. That application has been denied in a
per curiam order of this Court dated April 1, 2016, and, thus, will not be addressed
herein.




(continued . . . )
               (2) negligently causes bodily injury to another with a deadly
               weapon;
               (3) attempts by physical menace to put another in fear of
               imminent serious bodily injury; or
               (4) conceals or attempts to conceal a hypodermic needle on his
               person and intentionally or knowingly penetrates a law
               enforcement officer or an officer or an employee of a correctional
               institution, county jail or prison, detention facility or mental
               hospital during the course of an arrest or any search of the person.
       (b) Grading.--Simple assault is a misdemeanor of the second degree unless
       committed:
               (1) in a fight or scuffle entered into by mutual consent, in which
               case it is a misdemeanor of the third degree; or
               (2) against a child under 12 years of age by a person 18 years of
               age or older, in which case it is a misdemeanor of the first degree.
18 Pa. C.S. §2701.


                                            9
            For all the foregoing reasons, we reverse the trial court’s order of July
2, 2015, and remand for further proceedings.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                        10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John J. Lynch,                           :
                     Appellant           :
                                         :
            v.                           :   No. 1330 C.D. 2015
                                         :
Andrew L. Gittelmacher                   :

                                   ORDER
            AND NOW, this 11th day of May, 2016, the order of the Court of
Common Pleas of Philadelphia County dated July 2, 2015, is hereby REVERSED
and the matter is REMANDED for further proceedings in accordance with the
foregoing opinion.
            Jurisdiction relinquished.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge
