J-A05031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    631 NORTH BROAD STREET, LP                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CONGREGATION RODEPH SHALOM                 :   No. 1151 EDA 2017

                Appeal from the Order Entered March 1, 2017
     In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): April Term, 2016 No. 02632


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 20, 2018

       Appellant, 631 North Broad Street, LP, appeals from the trial court’s

entry of a preliminary injunction order1 in favor of movant Appellee,

Congregation Rodeph Shalom, restraining Appellant from modifying a party

wall while engaged in construction activities on its own property. In response,

Appellee has filed a motion to quash the appeal as moot because the trial

court has since entered a final, permanent injunction based on a merits review

of the same substantive issues raised in the preliminary injunction.2 After

careful review, we grant Appellees’ motion and quash Appellant’s appeal.

____________________________________________


1Preliminary injunctions are interlocutory orders immediately appealable as
of right. See Pa.R.A.P. 311(a)(4).

2 On January 25, 2018, Appellant timely filed a separate notice of appeal to
this Court from the judgment entered on December 28, 2017, following the
entry of the trial court’s order that issued a permanent injunction in favor of
Appellees.
____________________________________
* Former Justice specially assigned to the Superior Court.
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        The trial court’s Pa.R.A.P. 1925(a) opinion, dated July 10, 2017, and its

memorandum opinion, dated March 1, 2017, provide apt factual and

procedural histories of the case, such that we may rely on them for our present

purposes. Suffice it to say that, in the present appeal, Appellant maintains

the trial court’s preliminary injunction improperly enjoined it “from exercising

its right to utilize its property in its desired, lawful manner and caused [it] to

suffer substantial damages, including hundreds of thousands of dollars in out-

of-pocket costs to specially maintain a wall that provides no value to

[Appellee] and diminishes the value of [Appellant’s] property.” Appellant’s

Answer to Motion to Quash Appeal, at 3. Pa.R.C.P. 1531(b)3 protects victims

of improper preliminary injunctions, Appellant continues, by allowing them to

recover damages from the party who improperly obtained the injunction.


____________________________________________


3   Rule 1531. Special Relief. Injunctions, provides in pertinent part:

        (b) Except when the plaintiff is the Commonwealth of
        Pennsylvania, a political subdivision of 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 oblige, 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(b)(1).

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Unless this Court considers Appellant’s challenge to the trial court’s

preliminary injunction on the merits, Appellant may lose its opportunity under

Rule 1531(b) to recover damages.

        Generally, an appeal from the grant of a preliminary injunction becomes

moot when the trial court enters a permanent injunction, because the former

merges into the latter. Grupo Mexicano de Desarrollo, S.A. v. Alliance

Bond Fund, Inc., 527 U.S. 308, 119 S.Ct. 1961 (1999) (“Grupo

Mexicano”); Pa. Energy Vision, LLC v. S. Avis Realty, Inc., 120 A.3d 1008

(Pa. Super. 2015). We dismiss appeals in such circumstances, as explained

in Pa. Energy Vision:

        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., 389 Pa.Super. 219, 566
        A.2d 1214, 1217 n. 1 (1989) (en banc). “Where a preliminary
        injunction is in force, the issuance of a permanent injunction
        terminates the preliminary injunction.” Izenson v. Izenson, 274
        Pa.Super. 356, 418 A.2d 445, 446 (1980) (per curiam ) (internal
        citation omitted). . . . 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 Vision, 120 A.3d at 1012-13.4
____________________________________________


4   In Grupo Mexicano, the United States Supreme Court explicated further:

        In the case of the usual preliminary injunction, the plaintiff seeks
        to enjoin, pending the outcome of the litigation, action that he
        claims is unlawful. If his lawsuit turns out to be meritorious—if he
        is found to be entitled to the permanent injunction that he seeks—



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       An exception to this general rule may obtain, however, where the appeal

from the preliminary injunction raises a substantive issue that is wholly

independent from the substantive issue resolved in the final, permanent

injunction.   See, e.g., Grupo Mexicano; Coll. Watercolor Grp., Inc. v.

William H. Newbauer, Inc., 360 A.2d 200, 207-208 (Pa. 1976). Appellant

appears to argue that its case falls under this exception because the order

granting a permanent injunction in the present case did not address delay

expenses incurred by Appellant flowing from the preliminary injunction. As

we explain below, this argument fails, for Appellant’s delay damages claim is

predicated on its challenge to Appellee’s interest in the party wall, and the

trial court rejected Appellant’s predicate challenge on the merits when issuing

the permanent injunction.

       In Coll. Watercolor Grp., Inc., our Supreme Court recognized an

exception to the precept that a permanent injunction nullifies all issues

stemming from a preceding preliminary injunction. Specifically, the appellants

contested a trial court order dissolving a $10,000.00 injunction bond filed by

____________________________________________


       even if the preliminary injunction was wrongly issued (because at
       that stage of the litigation the plaintiff’s prospects of winning were
       not sufficiently clear, or the plaintiff was not suffering irreparable
       injury) its issuance would in any event be harmless error. The
       final injunction establishes that the defendant should not have
       been engaging in the conduct that was enjoined. Hence, it is
       reasonable to regard the preliminary injunction as merging into
       the final one: If the latter is valid, the former is, if not procedurally
       correct, at least harmless.

Id. at 314-15, 119 S.Ct. at 1966.

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the appellee when the court granted a preliminary injunction against the

appellants. After the court issued a permanent injunction in favor of appellee,

appellee requested that the injunction bond be dissolved, as a permanent

injunction did not require security. The trial court granted appellee’s petition

for relief.

       On appeal, the appellants claimed the trial court erred in dissolving the

preliminary injunction bond because the permanent injunction was narrower

in scope than the preliminary injunction had been.               Therefore, it was

conceivable that the appellants could present a meritorious claim for damages

arising   from   that   distinct   portion   of   the   preliminary   injunction   not

contemplated by the permanent injunction. The Court agreed.

       Rule 1531(b), requiring a plaintiff requesting a preliminary injunction to

file a bond, is intended to protect persons injured by improperly granted

preliminary injunctions, the Court noted. It continued, “Since the permanent

injunction issued was narrower than the preliminary injunction, the appellants

may be able to prove damages in a proper proceeding.                  In that event,

appellants are entitled to look to the bond for recovery.” Id. at 208.

       Here, Appellant fails to show that the preliminary injunction complained

of was, in some respect, broader than the permanent injunction that followed

it, such that the permanent injunction failed to govern all aspects of the

preliminary injunction.    Appellant complains that the preliminary injunction

imposed costly restrictions that unfairly delayed its progress on developing its

own property, but clearly the permanent injunction rejects the notion that the

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restrictions were unfairly imposed, as it effectively ratified all substantive

aspects of the preliminary injunction.         Indeed, in asserting that the order

issuing a permanent injunction was nothing more than a “rubber stamping”5

of the preliminary injunction, Appellant essentially concedes that the two

injunctions were coextensive. Therefore, the exception in Coll. Watercolor

Grp., Inc. does not apply to the present matter.

       Similarly, in Grupo Mexicano, the United States Supreme Court

recognized this exception when it unanimously held that the final injunction

resolving the merits of the respondents’ claim in respondents’ favor did not

render moot the petitioner’s issue on appeal that the preliminary injunction

had been wrongly decided. The reason the general rule of mootness did not

apply, the Court explained, was because petitioners’ substantive challenge to

the preliminary injunction addressed a different matter than the permanent

injunction addressed:

       In the present case, however, petitioners’ basis for arguing that
       the preliminary injunction was wrongfully issued—which is that
       the District Court lacked the power to restrain [petitioners’] use
       of assets pending a money judgment—is independent of
       respondents’ claim on the merits—which is that petitioners
       breached the note instrument by failing to make the August 1997
       interest payment. The [final injunction’s] resolution of the merits
       is immaterial to the validity of petitioners’ potential claim on the
       [preliminary injunction] bond.


____________________________________________


5 Appellant’s Answer at 4. We note, further, that the validity of the permanent
injunction, which Appellant also appears to challenge with its “rubber
stamping” charge, is a matter to be raised in its direct appeal from the
judgment entered on the permanent injunction.

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Id. at 317, 119 S.Ct. at 1967.

      Grupo Mexicano was exceptional because it involved an atypical

claim—the preliminary injunction was issued not to enjoin unlawful conduct,

but rather to declare unlawful, for the first time, conduct that was until then

permissible. This decision, the Court reasoned, should have been reserved

for a final, permanent injunction.

      Therefore, the Court held, if petitioners were correct on their claim, they

should be able to recover for the trial court’s premature and unauthorized

preliminary injunction, even if the final, permanent injunction was valid. This

was so, the Court emphasized, because the final, permanent injunction’s

resolution of the merits was immaterial to the validity of the preliminary

injunction. As such, it would make no sense to say the preliminary injunction

merged into the final one.

      In contrast to the facts of Grupo Mexicano, Appellant’s preliminary

injunction implicated the same substantive issues that were addressed in the

trial court’s final, permanent injunction. As noted, the appeal challenges the

propriety of the court’s determination that Appellees possessed sufficient

rights in the party wall to support preliminarily enjoining Appellant from

developing its property as it had planned. Appellant acknowledges that the

trial court’s final, permanent injunction represented an affirmation of

Appellee’s rights in the wall. Essentially, the court concluded in its permanent

injunction that Appellant should not have been developing the property in the

manner that was enjoined preliminarily.

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      Because the preliminary and final, permanent injunctions involved the

same substantive issues, the instant case does not present an exception to

the general rule that a preliminary injunction merges into the final injunction.

Therefore, we conclude the issues raised in the present appeal are moot and

subject to quashal.

     Motion to quash granted. Appeal quashed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/18




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