J-A31014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARVIN L. SLOMOWITZ, IN HIS                  IN THE SUPERIOR COURT OF
CAPACITY AS GENERAL PARTNER OF                     PENNSYLVANIA
HANOVER ASSOCIATES, A
PENNSYLVANIA LIMITED PARTNERSHIP,
AND IN HIS CAPACITY AS A JOINT
VENURER IN CLARMARK ASSOCIATES,
THE GENERAL PARTNER OF FIRST
VALLEY ASSOCIATES, A PENNSYLVANIA
LIMITED PARTNERSHIP, AND IN HIS
CAPACITY AS GENERAL PARTNER OF
HERSHEY PLAZA ASSOCIATES, A
PENNSYLVANIA LIMITED PARTNERSHIP,

                        Appellee

                   v.

STUART A. KESSLER, IN HIS CAPACITY
AS GENERAL PARTNER OF HANOVER
ASSOCIATES, A PENNSYLVANIA LIMITED
PARTNERSHIP, AND IN HIS CAPACITY AS
PARTNER WITH JOHN B. ROSENTHAL,
DECEASED, IN CLARIDGE PROPERTIES,
THE OTHER JOINT VENTURER IN
CLARMARK ASSOCIATES, THE GENERAL
PARTNER OF FIRST VALLEY
ASSOCIATES, A PENNSYLVANIA LIMITED
PARTNERSHIP, AND IN HIS CAPACITY AS
GENERAL PARTNER OF HERSHEY PLAZA
ASSOCIATES, A PENNSYLVANIA LIMITED
PARTNERSHIP,

                        Appellant                 No. 510 MDA 2014


                  Appeal from the Order February 25, 2014
              In the Court of Common Pleas of Luzerne County
                      Civil Division at No(s): 3844-2011


BEFORE: BOWES, OTT, and STABILE, JJ.
J-A31014-14



MEMORANDUM BY BOWES, J.:                            FILED OCTOBER 14, 2014

       Stuart A. Kessler, in his capacity as partner/joint venturer in three

limited partnerships (the “partnerships”), appeals from the February 25,

2014 order denying his request for a preliminary injunction. 1     We dismiss

this appeal as moot.

       On March 16, 2011, Appellee Marvin L. Slomowitz, as partner/joint

venturer in the partnerships, instituted this declaratory judgment action

against Appellant. Appellee averred the following. The partnerships owned,

operated, and maintained rental apartment buildings for elderly and other

low-income people in Luzerne County.             Development of the apartment

complexes was financed by the Pennsylvania Housing Finance Agency (the

“Agency”), and the partnerships were subject to the Agency’s rules and

regulations. Appellee was in control of the partnerships under the pertinent

governing documents and had secured funding for improvements to some of

the partnership’s apartment buildings through the Preservation Through

Smart Rehab Program, which was established by the Agency. Appellant was

engaging in actions that undermined Appellee’s ability to close on the loan

from the Agency.        Appellee sought a declaration that he was the general

partner in charge of the partnerships and could close on the loan from the

Agency without Appellant’s consent.
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1
    This Order is appealable as of right. Pa.R.A.P. 311 (a)(4).



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     After an amended complaint was filed, Appellant filed an answer, new

matter, and counterclaim. Appellant maintained the following. Before this

action was instituted, the parties had a third partner who died in 2008 and

who was in charge of the partnerships.          After that event, Appellant and

Appellee began to differ as to the proper management of the partnerships

and were essentially at a deadlock.        Appellant denied that Appellee had

unilateral, general authority to enter the loan arrangement with the Agency

under the documents governing the partnerships.              Appellant also averred

that he had various concerns about the proposed loan transaction with the

Agency.

     Appellant sought dissolution and the appointment of a receiver for the

partnerships.    Appellant also sought declaratory and injunctive relief.        He

wanted, inter alia, a declaration that Appellee needed his consent before

entering any agreements on behalf of the partnerships and that both parties

had the joint power to operate the partnerships. Appellant also requested

an order enjoining Appellee from unilaterally taking action on behalf of the

partnerships without Appellee’s consultation and concurrence.

     Appellee     filed   a   response    to   Appellant’s    pleading    and   then

unsuccessfully    sought      summary    judgment.       The     matter   remained

unresolved.     In January, 2014, Appellant petitioned for the issuance of a

preliminary injunction against Appellee.          Appellant sought to prevent

Appellee from conveying or selling any interest in real estate owned by one


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of the partnerships, Hershey Plaza Associates, and located at 233 W.

Chocolate Avenue, Hershey.          Appellee had executed an agreement of sale

for the property in question with Brickbox Investments LLC (“Brickbox”) and

Appellant sought to prevent that sale from occurring.

       Appellee answered the petition for injunctive relief and the trial court

scheduled a hearing.          During oral argument that occurred before the

hearing, the trial court twice asked Appellant how he would suffer

irreparable harm that could not be cured through the recovery of monetary

damages if the proposed sale transpired.2        After Appellant was unable to

answer that inquiry, the trial court did not hold a hearing.        It ruled that

Appellant would not be able to satisfy all the prerequisites for issuance of a

preliminary injunction. Specifically, the court concluded that Appellant was

“unable to demonstrate that he would suffer immediate and irreparable

harm not compensable by money damages if the preliminary injunction were
____________________________________________


2
  In Brayman Construction Corp. v. Commonwealth Department of
Transportation, 13 A.3d 925, 935 (Pa. 2011) (emphasis added), our
Supreme Court noted:

       To obtain a preliminary injunction, a petitioner must establish
       that: (1) relief is necessary to prevent immediate and
       irreparable harm that cannot be adequately compensated
       by money damages; (2) greater injury will occur from refusing
       to grant the injunction than from granting it; (3) the injunction
       will restore the parties to their status quo as it existed before the
       alleged wrongful conduct; (4) the petitioner is likely to prevail on
       the merits; (5) the injunction is reasonably suited to abate the
       offending activity; and (6) the public interest will not be harmed
       if the injunction is granted.



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not issued.” Trial Court Opinion, 6/2/14, at 2. It denied the request for a

preliminary injunction, and this appeal followed.

      Before entertaining the merits, we resolve a pending motion to dismiss

filed by Appellee.   Appellee maintains that the sale of the real estate in

question has occurred, thereby rending this appeal moot.            He seeks

dismissal under Pa.R.A.P. 1972(a)(4) (“[A]ny party may move . . . [t]o

dismiss for mootness.”). As we observed in In re L.Z., 91 A.3d 208, 212

(Pa.Super. 2014), appeal granted on other grounds, 96 A.3d 989 (Pa. 2014)

(quoting In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002) (en banc ):

      The mootness doctrine requires that an actual controversy exist
      at all stages of review, not merely at the time the complaint is
      filed.

          As a general rule, an actual case or controversy must exist at
      all stages of the judicial process, or a case will be dismissed as
      moot. An issue can become moot during the pendency of an
      appeal due to an intervening change in the facts of the case or
      due to an intervening change in the applicable law. In that case,
      an opinion of this Court is rendered advisory in nature. An issue
      before a court is moot if in ruling upon the issue the court cannot
      enter an order that has any legal force or effect.

          Nevertheless, this Court will decide questions that otherwise
      have been rendered moot when one or more of the following
      exceptions to the mootness doctrine apply: 1) the case involves
      a question of great public importance, 2) the question presented
      is capable of repetition and apt to elude appellate review, or 3) a
      party to the controversy will suffer some detriment due to the
      decision of the trial court.

      Appellant concedes that the real estate was sold to Brickbox, but

invokes all three exceptions to the mootness doctrine. He first claims that

this appeal involves a matter of great public importance since it pertains to

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low-income housing, commonly called Section 8 housing. We disagree. This

matter involves an interpersonal dispute that revolves around whether

Appellee has the authority, without Appellant’s approval, to sell certain

partnership real estate that merely happens to be Section 8 housing.                It

involves no issue of public importance.          Association of Pennsylvania

State     College    and   University    Faculties     v.    Pennsylvania     Labor

Relations Board, 8 A.3d 300 (Pa. 2010). Appellant also complains about a

violation of his due process rights since he was not accorded a hearing on

the injunction, and he suggests this question is of public importance.

However,     the    purported   constitutional   violation   is   also   personal   to

Appellant’s individual rights rather than those of the public at large.             We

therefore reject Appellant’s attempt to invoke the first exception to the

mootness doctrine.

        Appellant also maintains that the issue herein is capable of repetition

and avoiding review since the partnerships own other properties that can be

sold. We also reject this premise. Appellant is in the process of obtaining

review at the trial court level of the central question involved herein, i.e.,

whether Appellee has the ability to act without Appellant’s consent for

purposes of operating the partnerships in question. Thus, the contention on

appeal is not capable of evading review but actually should be resolved by

the trial court deciding the merits of the declaratory judgment action in the

first instance. Additionally, there is no proof that there is another pending,


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let along potential, sale of a piece of real estate owned by the partnerships,

and, concomitantly, no indication that this question will arise again.

      Finally, Appellant suggests that he will suffer some detriment due to

the trial court’s decision.    Specifically, he maintains that, due to the

consummation of the sale, there will be litigation since Brickbox thought

that, in addition to the partnership real estate, it was purchasing adjacent

property from parties that are related to the parties herein. Any potential

lawsuit does not flow from the denial of the injunction but pertains to an

interpretation of the sales documents in question.        The problem exists

whether or not we reverse the decision of the trial court. Hence, there is no

detriment to Appellant that would be remedied by our reversal of the order

presently on appeal.

      As we have observed, “An issue before a court is moot if in ruling upon

the issue the court cannot enter an order that has any legal force or effect.”

Rivera v. Pennsylvania Department of Corrections, 837 A.2d 525, 527

(Pa.Super. 2003) (citation omitted).     Appellant sought injunctive relief to

prevent the sale of the real estate to Brickbox.     That event has occurred,

and any ruling by this Court would have no force or effect.              Allen v.

Birmingham Township, 244 A.2d 661 (Pa. 1968) (appeal involved

unsuccessful request for injunction by township residents to prevent an

excavation; appeal was rendered moot by fact that excavation had

occurred); Strassburger v. Philadelphia Record Co., 6 A.2d 922 (Pa.


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1939) (appeal was from refusal of a request for preliminary injunction to

prevent an annual meeting of shareholders from transpiring on a certain

day; appeal was rendered moot due to fact that annual meeting took place);

Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577(Pa.Super. 2005)

(appealing party was successful bidder at a sheriff’s sale that the trial court

set aside, but the property subsequently was sold at a second sheriff’s sale;

we dismissed the appeal as moot since “the property was sold at the second

sale, and now an order declaring the first sale valid would have no effect.”).

The property at issue herein was sold; therefore, we cannot issue an

injunction preventing that event. The issue herein is moot, and the appeal

must be dismissed.


      The application to dismiss is granted. Appeal dismissed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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