J-A29043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT MANNING,                           :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
WILLIAM KELLY, PAMELA KELLY,              :
KELLYCARS, INC., NATIONAL                 :
BUSINESS BROKERS, INC., GPB               :
HOLDING AUTOMOTIVE, LLC, GPB              :
HOLDING LP, GPB AUTOMOTIVE                :
MANAGEMENT, LLC, GPB CAPITAL              :
HOLDINGS, LLC, AND LASH AUTO              :
GROUP, LLC,                               :
                                          :
APPEAL OF: WILLIAM KELLY, PAMELA          :
KELLY AND KELLYCARS, INC.                 :
                                          :
                  Appellants              :           No. 2040 WDA 2014

                   Appeal from the Order December 8, 2014
              in the Court of Common Pleas of Allegheny County,
                       Civil Division, No. GD 14-010482

BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 23, 2015

      In this breach of contract dispute, William Kelly (“Kelly”), Pamela Kelly

(collectively, “the Kellys”), and KellyCars, Inc. (“KellyCars”) (collectively,

“the Defendants”) appeal from the Order granting the Motion for a

preliminary injunction filed by Robert Manning (“Manning”). We affirm.

      The trial court thoroughly set forth the relevant factual and procedural

history underlying this appeal in its Pa.R.A.P. 1925(a) Opinion.     See Trial

Court Opinion, 5/27/15, at 1, 4-10. We adopt and incorporate the court’s

recitation herein by reference. See id.
J-A29043-15

      Following hearings on Manning’s Motion and Amended Motion for a

preliminary injunction, the trial court entered an Order on December 8,

2014, granting preliminary injunctive relief. The Order states, inter alia, as

follows:

      Manning [] is currently suffering, and will continue to suffer,
      immediate and irreparable injury, not otherwise compensable by
      monetary damages[. A]s a result of [the] Defendants[’] …
      violation of the Restrictive Share Agreement (“RSA”), and the []
      Defendants[’] refusal to recognize Manning as a shareholder,
      injunctive relief is necessary to return the parties to the status
      quo as it existed at the time of the [] Defendants’ breach of the
      RSA on November 20, 2013[,] and to prevent Manning from
      suffering immediate, substantial and irreparable injury, including
      the loss of his right to acquire the outstanding shares of
      KellyCars [hereinafter “the Kelly shares”] …; the loss of his
      ownership interest in KellyCars []; and further oppression
      through the attempted freeze out by the [] Defendants.

Order, 12/8/14, at 1-2 (unnumbered).       Concerning the grant of injunctive

relief, the Order provided the following, in relevant part:

       1. The [] Defendants shall immediately cease and desist
          from all efforts and actions to convert the ownership of
          Manning’s 125 shares of KellyCars [] from Manning to the
          [] Defendants.

       2. The [] Defendants shall [continue] to recognize Manning
          as an owner of 125 shares of KellyCars [] stock and shall
          immediately provide Manning with accounting reports,
          information and records, including balance statements
          and profit and loss statements.

       3. The [] Defendant[s] shall immediately cease all efforts to
          sell the Kelly shares.

       4. The [] Defendants shall immediately cease all efforts to
          sell the assets of KellyCars [].

       5. The [] Defendants shall immediately comply with the
          procedure detailed in Section 2.3 of the RSA, which

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J-A29043-15

          provides Manning with the opportunity to purchase the
          Kelly shares[,] and … [t]he [] Defendants shall order an
          appraisal of KellyCars[] ….

Id. at 2-3, ¶¶ 1-5 (unnumbered).

     The Defendants filed a timely Notice of Appeal.1 In response, the trial

court ordered the Defendants to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal.     The Defendants timely filed a Concise

Statement, which raised sixteen separate issues on appeal. The trial court

then issued a Pa.R.A.P. 1925(a) Opinion.

     On appeal, the Defendants present the following issues for our review:

       1. Did the trial court err when it found that [the]
          Defendants … violated the … []RSA[] by failing to provide
          … Manning [] with (1) written notice of [Kelly’s] intention
          to sell the Kelly[] shares; (2) an appraisal; and (3) an
          opportunity to purchase the Kelly[] shares, when credible
          record evidence indicates otherwise, and when Manning
          made multiple judicial admissions that he received
          written notice of Kelly’s intention to sell [the Kelly]
          shares[,] and that Kelly had the option to provide
          [Manning] with a per[-]share value of KellyCars [], in lieu
          of an appraisal?

       2. Was any alleged breach of Section 2.3 of the RSA by the
          [] Defendants a material breach as a matter of law[,]
          when Manning was given all of the financial information
          necessary to ascertain the per[-]share value of
          [KellyCars,] and multiple opportunities to purchase the
          Kelly[] shares before Kelly attempted to sell [the Kelly]
          shares to a third party, after having given Manning
          written notice of his intention to do so?

       3. Did Manning waive his rights pursuant to Section 2.3 of
          the RSA by (1) failing to ever request an appraisal; (2)

1
  We have jurisdiction over this appeal by virtue of Pa.R.A.P. 311(a)(4),
which provides that a party aggrieved by an order granting a preliminary
injunction may appeal the order as of right.

                                 -3-
J-A29043-15

          consenting to Kelly’s efforts to sell [the Kelly] shares to
          the Lash Automotive Group, LLC[,] and GPB Capital
          Holdings, LLC (“Lash/GPB”); and (3) voluntarily
          participating in negotiations with Lash/GPB about the
          terms of his continued employment and retention of his
          equity interest in [KellyCars]?

       4. Did Manning waive his rights to assert that the []
          Defendants’ failure to obtain an appraisal upon receipt of
          the Lash/GPB November 20, 2013 offer to purchase the
          Kelly[] shares constituted a material breach of the RSA[,]
          given his continued performance and acceptance of the
          benefits under the RSA through June 2014?

       5. Does the doctrine of estoppel preclude Manning from
          claiming breach of the RSA?

       6. Did Manning demonstrate that greater injury would result
          from refusing the mandatory injunctive relief than from
          granting it?

       7. Should Manning have been required to post a sufficient
          injunction bond to cover the difference in the value of
          Kelly’s 75% ownership interest in [KellyCars] as of
          November 2013[,] and the date of the actual sale of the
          Kelly[] shares to Manning that is contemplated in
          paragraph 5 of the appealed Order[,] based upon the
          uncontroverted evidence of record?

Brief for Appellants at 4-6 (footnote omitted).

      Our scope of review in preliminary injunction matters is plenary.

Warehime v. Warehime, 860 A.2d 41, 46 n.7 (Pa. 2004). Our standard of

review of a trial court’s order granting preliminary injunctive relief is “highly

deferential.” Id. at 46 (citation omitted). “This highly deferential standard

of review states that in reviewing the grant … of a preliminary injunction, an

appellate court is directed to examine the record to determine if there were

any apparently reasonable grounds for the action of the court below.” Id.



                                   -4-
J-A29043-15

(citation, footnote, and internal quotation marks omitted).           In order to

obtain preliminary injunctive relief, the party must establish all of the

following “essential prerequisites”:

      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.

Id. at 46-47 (citation and quotation marks omitted). The burden of proof is

on the party requesting the preliminary injunctive relief. Id. at 47.

      An injunction can be either preventative or mandatory in nature.

Overland Enter., Inc. v. Gladstone Partners, LP, 950 A.2d 1015, 1019

(Pa. Super. 2008). “While the purpose of all injunctions is to preserve the

status quo, pr[eventative] injunctions do this by forbidding an act or acts[,]

while mandatory injunctions command the performance of some specific act

that will maintain the relationship between the parties.” Ambrogi v. Reber,

932 A.2d 969, 974 (Pa. Super. 2007). Mandatory injunctions are subject to

“greater scrutiny,” and must be issued “more sparingly” than preventative

injunctions. Overland Enter., Inc., 950 A.2d at 1019 (quoting Mazzie v.

Commonwealth, 432 A.2d 985, 988 (Pa. 1981) (stating that “in reviewing



                                   -5-
J-A29043-15

the grant of a mandatory injunction, we have insisted that a clear right to

relief in the plaintiff be established.”)).

      In the instant case, the trial court’s Order granted Manning both

preventative and mandatory preliminary injunctive relief.          See Order,

supra, 12/8/14, at 2-3, ¶¶ 1-5 (unnumbered). Accordingly, to the extent

that the Defendants challenge the mandatory injunctive relief awarded, we

will review such challenge under the stricter, “clear right to relief” standard.

See Mazzie, supra.

      We will address the Defendants’ first six issues simultaneously, as they

are related.   In their first issue, the Defendants argue that the trial court

erred in determining that Kelly had breached the RSA by failing to give

Manning written notice of Kelly’s intent to sell the Kelly shares, an appraisal,

and an opportunity to purchase the Kelly shares. See Brief for Appellants at

26-27, 32-41. According to the Defendants, “Manning was advised of, and

effectively consented to, Kelly’s listing for sale of [the Kellys’] interest in

[KellyCars], a step Kelly took only after Manning was unable to put together

a market-value offer for [the] Kelly[] shares.”       Id. at 26 (emphasis in

original); see also id. at 32-33 (asserting that Kelly’s forwarding to Manning

a “Listing Agreement” that Kelly had executed in September 2013,

concerning the proposed sale of KellyCars to Lash/GPB, constituted written

notice of Kelly’s intent to sell the Kelly shares under the RSA).           The

Defendants further contend that Kelly complied with Section 2.3 of the RSA

when he gave Manning a per-share value of KellyCars (i.e., via Kelly’s

                                     -6-
J-A29043-15

discussions with Manning and the provision to Manning of KellyCars financial

statements) in lieu of an appraisal.2 See id. at 33-37; see also id. at 36

(asserting that “the RSA provided Kelly with the option – not the

requirement – of an appraisal.”). The Defendants additionally challenge the

trial court’s failure to acknowledge that they had provided Manning with

multiple opportunities to purchase the Kelly shares, but Manning was unable

to complete the transaction. See id. at 37-39; see also id. at 45 (asserting

that “[i]t is undisputed that Kelly and Manning engaged in a number of

discussions about the value of [KellyCars].”); id. at 39-40 (describing

instances wherein Kelly allegedly disclosed financial information concerning

KellyCars to Manning and “potential backers” that Manning was coordinating

with in attempts to purchase the Kelly shares).

     In their second issue, the Defendants assert that

     [e]ven if it could be found that Kelly breached the RSA by failing
     to give Manning an appraisal, such breach could not possibly be
     deemed “material.” The sole reason for an appraisal was to give
     Manning a sufficient understanding of the per[-]share value of
     the Kelly[] shares so that he could fashion an appropriate offer.
     Kelly, in fact, provided Manning with all of the financial data
     necessary to ascertain per[-]share value.

Id. at 44-45; see also id. at 44-49 (arguing, at length, that any alleged

breaches by Kelly were not “material”); see also Reply Brief for Appellants

at 20 (asserting that “Kelly did not ‘reject’ any offer from Manning [to

purchase the Kelly shares], as he now alleges, with the exception of the


2
  The Defendants concede that they never provided Manning with an
appraisal. See Brief for Appellants at 37.

                                 -7-
J-A29043-15

June 2013 lowball offer. Rather, Manning could not amass the financing to

present a subsequent offer[,] much less an offer that matched the

per[-]share value.”).

         In their third and fourth issues, the Defendants assert that Manning,

by his actions, waived his rights to written notice and an appraisal under the

RSA.      See Brief for Appellants at 49-50; see also id. at 51-52 (setting

forth,    at   length,   Manning’s   actions   that   allegedly   “overwhelmingly

demonstrate[d] that Manning waived his rights under Section 2.3 of the

RSA,” including, inter alia, that Manning had offered to purchase KellyCars

without an appraisal, and participated in negotiations to sell KellyCars to

Lash/GPB); see also Reply Brief for Appellants at 22 (asserting that

Manning’s “failure to [previously] invoke the Section 2.3 rights he now

asserts …[,] despite the numerous opportunities to do so[,] clearly shows

that Manning waived his rights under that provision.”) (footnote omitted).

Additionally, the Defendants argue that “Manning [] waived any right to

assert a November 2013 violation of Section 2.3 of the RSA because he

continued to behave as though the RSA was in effect for the remainder of

2013[,] and until mid-June 2014, when he finally filed this lawsuit.” Brief for

Appellants at 56; see also id. at 57 (stating that “Manning took no action to

address Kelly’s purported breach of Section 2.3 of the RSA[, in November

2013,] for seven months. During this time, Manning continued to accept the

benefits of the RSA[,]” i.e., he still received tax distributions (emphasis

omitted)).

                                     -8-
J-A29043-15

      In their fifth issue, the Defendants argue that the trial court erred in

failing to rule that Manning was equitably estopped, by means of his

conduct, from asserting a claim for the Defendants’ alleged breach of the

RSA. Id. at 58; see also id. at 59-61 (setting forth, at length, Manning’s

conduct upon which Kelly purportedly relied, to his detriment); see also

Reply Brief for Appellants at 29 (asserting that “the specific contractual

breach that Manning alleges here … would not have occurred had Manning

not consented to it, or otherwise invoked the rights he now claims.”)

(emphasis omitted).

      Finally, the Defendants argue that the trial court erred in determining

that the injury to Manning, in the absence of injunctive relief, is greater than

the harm to the Defendants, since (1) after Manning’s departure from

KellyCars in March 2014, KellyCars’ profits “dramatically improved”; and (2)

“[t]hus, if the [] Defendants are compelled to offer the Kelly shares to

Manning at November 2013 values, Manning stands to purchase the Kelly

shares at a deep discount, thereby costing Kelly the true current value of

[the Kelly] shares.” Brief for Appellants at 62.

      In its Pa.R.A.P. 1925(a) Opinion, the trial court concisely addressed

the Defendants’ above-mentioned claims, discussed the relevant law and all

of the “essential prerequisites” for the granting of an injunction set forth in

Warehime, supra, and concluded that (1) the Defendants had committed a

material breach of the terms of the RSA; (2) Manning did not waive his

rights under the RSA, nor should he be estopped from claiming breach of

                                  -9-
J-A29043-15

contract; and (3) Manning met all of the prerequisites to entitle him to

injunctive relief.   See Trial Court Opinion, 5/27/15, at 11-16.     Our review

discloses that the trial court’s sound analysis is supported by the record and

the law, and we discern no error of law or abuse of discretion by the trial

court in granting preventative and mandatory3 preliminary injunctive relief.

Accordingly, we affirm based on the trial court’s rationale concerning the

Defendants’ first six issues. See id.4

      In their final issue, the Defendants challenge the trial court’s failure to

require Manning to post a bond in connection with the preliminary injunction.

See Brief for Appellants at 6, 62-63. However, this issue is moot in light of

the trial court’s foregoing analysis in its Opinion: “[the] Defendants are

correct in their position that a bond is required. Therefore, with the issuance

of this [O]pinion[, the trial court is] also issuing an order scheduling a


3
  To the extent that the trial court granted mandatory injunctive relief, we
conclude that Manning established a “clear right” to such relief at the trial
court level. See Mazzie, supra.
4
  As an addendum, we observe that, in multiple portions of their Argument,
the Defendants challenge the trial court’s credibility findings. See, e.g.,
Brief for Appellants at 38, 39 n.3, 40, 52, 53. This Court, however, may not
disturb the fact-finder’s credibility determinations.    See Gillingham v.
Consol Energy, Inc., 51 A.3d 841, 861 (Pa. Super. 2012) (observing that
the fact-finder is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses). Moreover, to the extent that the
Defendants allege that they gave written notice to Manning of Kelly’s intent
to sell the Kelly shares by means of the September 2013 “Listing
Agreement,” this claim is waived because the Defendants never raised it in
the trial court. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised
for the first time on appeal). Nevertheless, even if this claim was not
waived, we determine that it lacked merit as being unsupported by the
record and the language of the RSA.

                                  - 10 -
J-A29043-15

hearing on an appropriate bond in this case.” Trial Court Opinion, 5/27/15,

at 16.5

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/2015




5
  Moreover, the Defendants state in their Reply Brief that the trial court
subsequently entered an Order imposing an injunction bond, and that they
intend to appeal the Order, believing the amount of the bond imposed to be
inadequate. See Reply Brief for Appellants at 30. Accordingly, this issue is
not properly before us at this time.

                                - 11 -
                                                                                             Circulated 12/08/2015 03:59 PM




                    .~ THE COURT OF CO:MMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

                ROBERT MANNING,                                             CIVIL DIVISION

                                                       Plaintiff,           G.D. 14-010482

                           v.
                                                                            HON. CHRISTINE WARD
                WILLIAM KELLY, PAMELA KELLY,
                KELLYCARS, INC., NATIONAL
                BUSINESS BROKERS, INC., GPB
                HOLDINGS AUTOMOTIVE, LLC,                                   OPINION
                GPB HOLDINGS, LP, GPB CAPITAL
                HOLDINGS,LLC and LASH AUTOMOTIVE
                GROUP, LLC,

                                                        Defendants.   COPIES SENT TO:
                                                                      Counselfor Plaintiff:
                                                                      James R. Hankle, Esquire
                                                                      Christopher Passodelis, Esquire
                                                                      Christopher J. Davis, Esquire
                                                                      SHERRARD GERMAN & KELLY
                                                                      Two PNC Plaza, 28th Floor
                                                                      Pittsburgh, PA 15222

                                                                      Counsel for Defendant:
                                                                      Jordon M. Webster, Esquire
                                                                      Kate R. Paine, Esquire
                                                                      BUCHANAN INGERSOLL &
                                                                      ROONEY, P.C.
                                                                      One Oxford Centre, 20th Floor
                                                                      Pittsburgh, PA 15219

                                                                      Kip Schwartz, Esquire
                                                                      SCHWARTZ & ASSOCIATES, PLLC
                                                                      1010 Wisconsin Avenue, N.W. Ste. 540
                                                                      Washington, D.C. 20007

                                                                      Robert J. Behling, Esquire
                                                                      DAPPER BALDASARE BENSON
                                                                      BEHLING & KANE, P.C.
.v ~ -.
                                                                      Four Gateway Center, 101h Floor
, .... ;"''
)
                                                                      444 Liberty Avenue
                                                                      Pittsburgh, PA 15222

              r, . . . -~·
              :..,'.'-.J   ·,._,
                                   ~.r·-.:1u.J   l.Z :· ...
                                                 ..                   James A. Prestiano, Esquire
                                                                      631 Commack Road, Suite 2A
                                                                      Cammack, NY 11725


                                    Fli_E[)
                                                                               Circulated 12/08/2015 03:59 PM




IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

ROBERT MANNING,                                         CIVIL DIVISION

                Plaintiff,                              G.D. No. 14-010482

        v.                                              Hon. Christine Ward

WILLIAM KELLY, PAMELA KELLY,
KELLYCARS, INC., NATIONAL
BUSINESS BROKERS, INC., GPB
HOLDINGS AUTOMOTIVE, LLC, GPB
HOLDINGS LP, GPB AUTOMOTIVE
MANAGEMENT LLC, GPB CAPITAL
HOLDINGS, LLC, and LASH
AUTOMOTIVE GROUP, LLC,

               Defendants.




                                               OPINION

               This is a breach of contract action. Plaintiff, Robert Manning ("Manning")

alleges, inter alia, that defendants, William Kelly, Pamela Kelly and KellyCars, Inc., ("Kelly

Defendants") breached a Restrictive Share Agreement ("RSA") between the parties by refusing

to provide Manning with an opportunity to purchase KellyCars, Inc. ("KellyCars"),               before

negotiating for its sale to a third party. Plaintiff has filed a motion for a preliminary injunction.

Plaintiff asks this Court to enforce the RSA and require the Kelly Defendants              to provide

Manning with an opportunity to purchase KellyCars.          An evidentiary hearing was held before

this court on November 1     r,   181h and 241\ 2014. The only question before the Court at this time

is whether the Kelly Defendants breached the RSA and, if so, whether Manning is entitled to

injunctive relief. Based on the evidence presented, this Court found that Manning satisfied his

burden of proof and, therefore, granted his motion.



                                                    1
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       I.        CONCISE STATEMENTS OF ERRORS ON APPEAL

                 The Kelly Defendants have filed a Concise Statement of Errors Complained of on

Appeal, asserting the following errors:

            1.    By issuing the requested mandatory preliminary         injunction,    in that Plaintiff

                 Robert Manning ("Plaintiff' or "Manning") failed to put forth the requisite strong

                 showing of a clear right to such relief;

            2. By issuing the requested preliminary         injunction, insofar as Plaintiff failed to

                 establish that he was suffering, and would continue to suffer, immediate and

                 irreparable injury not otherwise compensable by monetary damages;

            3. By issuing the requested injunction, insofar as Plaintiff failed to demonstrate that

                 greater injury would result from refusing the injunction than from granting it;

            4. By failing to require Plaintiff to post an injunction bond in an amount sufficient

                 to cover the difference in the value of the Kelly's 75 percent ownership interest in

                 KCI ("the Kelly Shares") between November 2013 and the date of the sale of the

                 Kelly Shares to Plaintiff that is contemplated in Paragraph 5 of the Appealed

                 Order;

            5. By issuing the requested preliminary injunction, in that Plaintiff is unlikely to

                 prevail on the merits of his claims;

            6.   To the extent it found that Section 2.3 of the Restrictive            Share Agreement

                 ("RSA") obligated Kelly to provide Plaintiff with an appraisal, given Plaintiff's

                 admissions that Kelly was required to provide Plaintiff with "an appraisal or

                 otherwise provide a per share value of KellyCars, Inc.," along with an opportunity

                 to purchase the Kelly Shares;



                                                   2
                                                                          Circulated 12/08/2015 03:59 PM




7. To the extent it found that Plaintiff had not waived his rights pursuant to Section

     2.3 of the RSA by voluntarily and actively participating in negotiations with the

     Lash Auto Group and the GPB entities ("Lash/GPB")              about the terms of his

     continued    employment,     failing    to object   to the Kellys'     negotiations    with

     Lash/GPB to buy the Kelly Shares, failing to request or demand an appraisal and

     that Kelly sell his shares to Plaintiff;

8. To the extent that it concluded that the doctrine of estoppel did not preclude

     Plaintiff from claiming breach of the RSA;

9.   To the extent that it concluded that any alleged breach of Section 2.3 of the RSA

     by the Kelly Defendants was a material breach as a matter of law, insofar as

     Plaintiff could calculate the pre share value of the Kelly Shares and admits that he

     was given multiple opportunities to purchase the Kelly Shares;

10. By issuing the requested preliminary injunction because Plaintiff has failed to

     demonstrate that the mandatory injunctive relief is reasonably suited to abate the

     alleged offending activity, in view of Plaintiff's admission and the Court's own

     finding in Paragraph 8 of the Appealed Order that Plaintiff wishes to sell his

     shares as part of the dealership;

11. To the extent that it concluded that the Kelly Defendants were attempting to

     convert ownership of Plaintiff's 125 shares of KCI;

12. To the extent that it found that the Kelly Defendants oppressed or attempted to

     "freeze out" Plaintiff;

13. To the extent that it concluded that Plaintiff did not waive his right to assert that

     the Kelly Defendants' failure to obtain an appraisal upon receipt of the GPB



                                         3
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               Entities'   November 20, 2013 offer to purchase the Kelly Shares constituted a

               material breach of the RSA by his continued performance           and acceptance of

               benefits under the RSA through June 2014;

            14. To the extent that it found that Plaintiff is the rightful owner of 125 shares of KCI

               stock after June 20, 2014;

            15. By issuing the requested preliminary injunction, because such injunction was

               broader than necessary for Plaintiff's    interim protection in that it requires the

               Kelly Defendants to obtain an appraisal and sell the Kelly Shares to Manning at

               the appraised per-share value, thus effectively granting permanent relief following

               a hearing on Plaintiff's motion for preliminary injunction; and

            16. By issuing the requested preliminary injunction when Plaintiff failed to meet his

               burden of showing that an injunction was necessary to preserve the status quo.

       II      FACTS

               The following facts were adduced during the hearing held m this matter on

November 1 i\ 181h and 241\ 2014.

               Defendant    William   Kelly ("Kelly")    has been the corporate       President   and

Treasurer of KellyCars, a Chrysler dealership, since November of 2008.           Defendant Pamela

Kelly has been the corporate Vice President and Secretary. Manning was hired as General Sales

Manager for Kelly Cars on April 9th, 2011. Soon after, he was promoted to General Manager.

               In 2012, Manning and Kelly began to negotiate for the sale of some KellyCars

stock to Manning. Their negotiations culminated in an agreement which provided that Manning

would purchase 125 shares of KellyCars stock for $275,000. Manning and Kelly executed three

separate agreements:   (1) The Share Purchase Agreement ("SPA");         (2) The Restrictive Share



                                                 4
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Agreement    ("RSA");      and (3)    The Employment      Agreement.     The parties executed       the

Employment     Agreement    on June 201\    2012 and the other agreements        on June 23, 2012.

Manning purchased the shares on June 23rd, 2012. After he purchased the shares, he owned 25%

of the shares of Kellyf.arsjwith   Kelly and Mrs. Kelly owning the remaining 75%.        In January of

2014, Mrs. Kelly conveyed her shares to Kelly, making him the majority shareholder.

               The RSA provided that, if the Kellys subsequently decided to sell their shares in

KellyCars to a third party, Manning would be provided the first opportunity to purchase the

shares. Specifically, Section 2.3 of the RSA provides, in pertinent part:

               If at any time Kelly wishes to sell any or all of their shares, or
               KellyCars desires to sell all or substantially all of the assets of the
               Business, Kelly or KellyCars, as applicable, may obtain an
               appraisal of KellyCars by a qualified independent appraiser with
               experience in appraising new and used automobile sales and
               service dealerships (the "Appraisal").          The Appraisal will
               determine the Per Share value of KellyCars which will be a value
               equal to the value of the entire Business, without discount for lack
               of control or marketability or any other such discount, divided by
               the total of all outstanding shares in KellyCars.         If Kelly or
               KellyCars wish to sell their Shares or otherwise sell the Business at
               the price determined in such Appraisal or otherwise, they shall
               deliver to Manning written notice thereof together with a copy of
               the Appraisal. Manning shall have the right for a period of sixty
               (60) days after receipt for the Appraisal to purchase all of Kelly's
               Shares for an amount equal to the Per Share Value multiplied by
               the number of Kelly's Shares ("the Purchase Price").

               The RSA further provides that Manning would be required to tender 75% of the

total purchase price to Kelly at the time of the sale. The remaining 25%, according to the RSA,

would be financed by a note from Kelly, and secured by the shares Manning purchased.            In the

event Manning did not purchase the shares, Section 2.3 of the RSA provides that:

               If Manning does not exercise his option to purchase the Shares
               Kelly shall thereafter be free to sell any or all of the Shares or the
               assets of KellyCars at any time during the next eighteen (18)
               months, subject to Section 9 of this Agreement. Any such sale


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               subsequent to Manning's offer shall not be made for a purchase
               price less than the value of the Business as determined in the
               Appraisal. If no binding agreement of sale between either or both
               of Kelly and KellyCars and a third party is executed during that
               eighteen (18) month period, Manning's right of first offer under
               this Section 2.3 shall be reinstated.

               At Section 9, the RSA specifies Manning's rights in the event Manning does not

exercise his option to purchase KellyCars       and Kelly negotiates     a sale to a third party.

Specifically, Section 9 provides that:

               If after having complied with the requirements of Section 2.3 of
               this Agreement, Kelly or KellyCars, as applicable sets forth in a
               signed notice delivered to KellyCars and Manning, their desire to
               effect a sale of KellyCars, then Manning (whether in his capacity
               as a shareholder, director, member of a board, committee or
               otherwise) shall consent to, vote in favor of and raise no objections
               against, such sale, and shall authorize KellyCars' management to
               take all actions reasonably necessary to effect such sale and, if
               such sale is structured as a sale of stock, Manning shall agree, and
               hereby does agree, to sell his Shares on the terms and conditions
               approved by Kelly;        provided the following conditions are
               satisfied:

                       9.1     Upon the consummation of such sale of KellyCars,
                               all of the shareholders shall receive the same form
                               and amount of consideration per share, or if an
                               option is given as to the form or amount of
                               consideration, each such shareholder will be given
                               the same option as the other shareholders owing
                               Shares.

                       9.2     In the event such sale of KellyCars is the sale of
                               stock (excepting only sales of Shares to members of
                               Kelly's family), each shareholder shall be entitled to
                               participate based on such person's pro rata share
                               within the class of stock being sold.

               On June 20, 2012, the parties also executed the Employment Agreement.              The

Employment Agreement provides in Section 1 that "KellyCars hereby employs Manning in the

capacity   of a general manager      and Vice-President,    and Manning      hereby     accepts   such



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employment and agrees to serve KellyCars in such capacity subject to and upon the terms and

conditions set forth herein." The Employment Agreement provided that Manning's employment

could be terminated for any reason or no reason upon ninety (90) days written notice.            If

Manning was terminated prior to the second anniversary of the RSA, or June 23 2014, the RSA

required Manning to transfer his KellyCars shares to the Kellys, in exchange for $275,000.00.

               In November, 2012, Kelly decided to replace Manning as General Manager of

KellyCars and arranged for two advertisements to be placed in local newspapers seeking

candidates. No suitable candidate was found at that time. Manning was not aware of Kelly's

attempts to replace him. In the Spring of 2013, Manning advised Kelly he would like an

opportunity to purchase KellyCars. Kelly then ceased his efforts to replace Manning.

               Kelly contacted Jeff Rochwarger, the senior vice president of Defendant National

Business Brokers ("NBB") in February of 2013 to discuss identifying potential third party

purchasers of KellyCars.      Kelly also forwarded to Mr. Rochwarger financial reports of

KellyCars.    Rochwarger and Kelly met at the National Automobile Dealers Association

conference in Florida on or about February 81\ 2013. Rochwarger and Kelly continued their

discussions after the conference.

               During this period, Kelly and Manning also discussed Manning's desire to make

an offer to purchase KellyCars. Kelly and Manning discussed the value of KellyCars and agreed

that the overall value would be calculated by adding the value of the hard assets to the blue sky

value. Manning had access to the KellyCars financial statements and he was able to discern the

value of the hard assets from the financial statements. In June 2013, Kelly sent to Manning an

article which indicated that Chrysler dealership blue sky value was 3-4 times adjusted net

earnings. In June 2013, Manning made a written offer to purchase KellyCars. The Kellys



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rejected Manning's offer because it was too low and required the Kellys to finance the entire

transaction. Manning did not request an appraisal of KellyCars at this time.

                In September of 2013, Rochwarger notified Kelly he had a potential third party

buyer for KellyCars.    Rochwarger did not, at that time, identify the buyer.        On September     2i\
2013, Kelly executed a one-party listing agreement with NBB. Manning received a copy of the

listing agreement.   Rochwarger then identified the potential buyer as Jeff Lash ("Lash"), of Lash

Automotive Group and GPB ("Lash/GPB").           Manning, Rochwarger and Lash participated in a

conference    call in October of 2013.      Lash explained that he was interested           in acquiring

dealerships with existing General Managers in place who were willing to retain equity in the

dealership, and, therefore, that he would like Manning to continue to be employed by KellyCars

as General Manager.       Lash further explained that it was possible that there would be a future

initial public offering,.at which time Manning could sell his shares for a profit.

                 Manning    told Lash he would be willing to stay on with an appropriate

Employment Agreement.        During this period, Manning consulted with Paul Matvey, a Certified

Public Accountant with Schneider Downs.           Matvey focuses his practice in the automobile

industry.    Manning asked Matvey to provide him with an estimate of the value of KellyCars.

Manning further asked Matvey to draft an offer to purchase KellyCars on his behalf.               Matvey

calculated two values for KellyCars.     The first value used a multiple of three (3) times the net

earnings for blue sky value. The second used a multiple of 3.5 times the net earnings for blue

sky value.     Matvey testified that these calculations were based on the financial information

Manning provided to him. Matvey further testified that he had all the information necessary to

formulate these offers.    Manning never submitted these offers to Kelly.       Manning did not ask

Kelly for an appraisal while working with Matvey.



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               In November of 2013, Kelly received an offer to purchase the assets of the

KellyCars from Lash/GPB.        The offer was for $5,000,000.00.   Kelly shared this offer with

Manning.   Manning objected to the offer on the basis that an asset purchase agreement would

cause him negative tax consequences.    Manning informed Kelly that he would like to present an

offer to purchase the shares.   Kelly refused to hear Manning's offer and told Manning that he

wanted to accept the higher Lash/GPB purchase offer. Kelly then asked Lash/GPB to restructure

the proposed transaction as a stock purchase.

               On November 20, 2013, Lash/GPB presented Kelly with an offer to purchase

Kelly's shares, which constituted 75% of the ownership of KellyCars for $4,800,000.00.           Kelly

shared this offer with Manning.    Manning provided a copy of this offer to Matvey and to his

counsel, Robert Bashaw. Manning asked Matvey to review the offer and advise him as to the tax

consequences of the offer. At Kelly's direction, Manning then met with Lash, Rochwarger and

Brian Marshall, the Chief Financial Officer of the GPB entities to discuss the post sale terms of

his continued employment with KellyCars. Kelly executed the stock purchase offer.

               On December 291h, 2013, Kelly's attorney asked Manning to waive his rights

under Section 2.3 of the RSA so that the deal could go forward. Manning refused to do so. In

spite of Manning's   refusal to waive his rights under the RSA, on February         ih,   2014, Kelly,

Lash/GPB entered into an agreement for the sale of the Kelly Shares for $4,709,134.00.            The

transaction was scheduled to close on April 5th, 2104.

               The terms of the purchase offer required, as a condition precedent, that KellyCars

and Manning enter into a new employment agreement on or before March        9th,   2014. The terms

further required Manning to retain his shares in KellyCars.   If Manning did not agree to a new

employment agreement, the purchase offer could be terminated by Kelly. On March 51\              2014,



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Lash/GPB sent a proposed employment agreement to Manning.                Manning refused to sign it.

Shortly thereafter,   Lash./GPB    sent Manning       a Restrictive   Shareholder   Agreement.       The

Restrictive   Shareholder   Agreement contained       terms that were not acceptable       to Manning.

Manning rejected this agreement as well, but offered to sell his shares to),he'Lash/GPB on the

same terms as they had negotiated with Kelly. Lash/GPB refused Manning's offer.

                On March 201\      2014, Kelly terminated the sale of KellyCars           to Lash/GPB

because they had failed to reach an agreement with Manning.             On March 22"ct, 2014, Kelly

terminated Manning without cause effective June 201\         2014. Manning received his salary and

his other distributions during this period. By letter dated April 151\ 2014, Kelly asked Manning

to return his shares. Manning refused. On June 181\ 2014, counsel for KellyCars, Inc. advised

counsel for Manning that Kelly intended to purchase Manning's               125 shares for $275,000.

Manning refused to sell his shares. Kelly then converted Manning's termination to "for cause"

and again asked Manning to relinquish his shares. Manning again refused.             Since he has been

terminated, Manning has not received any further compensation or distributions from KellyCars,

Inc. Manning's shares remain in the custody of his counsel.

                Kelly continued    his negotiations     for the sale of KellyCars,      Inc. following

Manning's termination. Specifically, both #1 Cochran and Diehl Automotive expressed interest

in purchasing KellyCars after Manning was terminated. KellyCars has not been sold.

                Manning filed this action on June 161\        2014, and contemporaneously         filed a

motion for a preliminary injunction. On June 191\ 2014, Manning filed an amended motion for a

preliminary injunction.     As noted above, a hearing was held on November 1 i\           181h and 241\

2014.




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       III.    STANDARD OF REVIEW


               At issue is whether Manning has shown he is entitled to injunctive relief on his

claim in Count I that Kelly violated the terms of the RSA. In order to obtain injunctive relief,

Manning bears the burden of proving the following six essential prerequisites:

               The party must show: 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." The burden is on the party
               who requested preliminary injunctive relief...


Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. 2004) (citation omitted). "[I]f the petitioner

fails to establish any one [prong] there is no need to address the others." County of Allegheny v.

Commw., 544 A.2d 1305, 1307 (Pa. 1988).

               IV. ANALYSIS

               As noted above, the sole issue before the Court at this juncture is whether

Manning is entitled to injunctive relief on his claim that defendants breached the RSA. Set forth

below is an analysis of each Warehime factor.




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                  A. Irreparable Harm

                 The purpose of a preliminary injunction is the avoidance of immediate and

  irreparable injury or gross injustice until the legality of the challenged action can be determined.

  All-Pak, Inc. v. Johnston, 694 A.2d 347, 350 (Pa. Super. Ct. 1997). In order to constitute

  irreparable harm, the conduct complained of must be harmful in a way that cannot be adequately

  compensated in money damages. The York Group, Inc. v. Yorktowne Caskets, et. al, 924 A.2d

  1234, 1242 (Pa. 2007) (additional citations omitted). A loss, though monetary, is uncompensable

• and thus irreparable if the extent of the loss is not entirely ascertainable. Santoro v. Morse, 781

  A.2d 1220, 1227-28 (Pa. Super. 2001). In the commercial context, the loss of a business

  opportunity may be characterized as an irreparable injury. Id. at 1228.

                 Based on the evidence presented, Manning has satisfied his burden of proof. The

  RSA granted him the right to purchase KellyCars prior to the sale of KellyCars to a third party

  buyer. This opportunity constitutes an intangible benefit, which is neither quantifiable nor

  compensable by money damages alone. If Kelly is permitted to sell KellyCars to a third party in

  violation of the RSA, Manning will lose his rights under the RSA permanently.         Accordingly,

  the Court finds Manning has established the first prong of the Warhime test.

                  B. Balance of Injuries

                  Manning must next establish that greater harm would result from refusing to grant

  the injunction than from granting the injunction. As set forth above, if the Court refuses to issue

  the injunction, Manning will forever lose his opportunity under Section 2.3 of the RSA to

  purchase KellyCars. In addition, in the event he is unable to purchase KellyCars, he will also

  lose his rights under Section 9 of the RSA to sell his shares to the third party buyer for the same

  consideration to be paid to Kelly. In contrast, there was no evidence presented of any harm to



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defendants from issuing the injunction.      They are not being required to sell KellyCars to

Manning. Rather, they are simply being required to honor the RSA by providing Manning with a

written appraisal of KellyCars and an opportunity to purchase KellyCars for that price.

                C. Returnto the Status Quo


               Manning must also establish is that the injunction will properly restore the parties

to their status as it existed immediately prior to the wrongful conduct. Here, the wrongful

conduct was Kelly's attempts to sell KellyCars to a third party without providing Manning with

the opportunity to either purchase KellyCars or sell his shares for the same terms as required by

the RSA. Simply put, the injunction will protect the status quo prior to the breach of contract.


                D. Likelihood of Success on the Merits

               Manning also bears the burden to proof his right to relief is clear and that he is

likely to prevail on the merits of his breach of contract claim. In order to establish a claim for

breach of contract, a party must show: "(1) the existence of a contract, including its essential

terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages." J.F. Walker

Co. v. Excalibur Oil Grp., Inc., 792 A.2d 1269, 1272 (Pa. Super. Ct. 2002). A party is entitled to

specific performance in a breach of contract action where the facts establish the plaintiff's right

to performance, the plaintiff lacks an adequate remedy at law, and where justice so requires it.

Snyder v. Brown, 518 A.2d 558, 560 (Pa. Super. Ct. 1986).

               A breach must have been a material breach of the contract. Oak Ridge

Construction Co. v. Tolley, 504 A.2d 1343, 1348 (Pa.Super. Ct. 1985) A material breach of

contract excuses the non-breaching     party from its performance      obligation     under the same

contract. Widmer Engineering, Inc. v. Dufalla, 8_;7 A.2d 459, 467 (Pa. Super. 2003).




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               Here, there is no dispute that the RSA is a valid contract.    There is further no

dispute that Kelly never provided Manning with an appraisal. And, there is no dispute that Kelly

never provided Manning with written notice of his intention to sell KellyCars together with a

copy of an appraisal. Accordingly, Manning has shown a substantial likelihood of success on the

merits of his claim that defendants breached Sections 2.3 and 9 of the RSA.

               The Court finds that the breach of the RSA was material as a matter of law.     The

essential purpose of the RSA was to provide Manning the opportunity to purchase KellyCars

prior to any negotiations for its sale to a third party. A secondary purpose of the RSA was to

allow Manning, if he was unable to purchase KellyCars himself, to sell his shares to the third

party for the same price negotiated by Kelly. The conduct of the Kelly defendants effectively

rendered the RSA a nullity.

               Defendants contended that, despite their breach of the RSA, Manning either

waived his rights under the RSA or should be estopped from claiming breach of contract.

Defendants argue that because Manning made offers to purchase KellyCars without an appraisal,

participated in the negotiations with the Lash/GPB group and failed to request an appraisal he

should not be permitted to claim that they breached the RSA.       Defendants further argue that

Manning's receipt of compensation and distributions after Kelly accepted the Lash/GPB offer

constitutes a waiver of his rights under the RSA.

               The doctrines of waiver and estoppel are defenses to a breach of contract

Claim. Waiver may be established by a party's express declaration or by a party's undisputed

acts or language so inconsistent with a purpose to stand on the contract provisions as to leave no

opportunity for a reasonable inference to the contrary.   Prime Medica Assocs. v. Valley Forge

Ins. Co., 970 A.2d 1149, 1156-57 (Pa. Super. Ct. 2009).      Estoppel is "a doctrine sounding in



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equity, [which] recognizes that an informal promise by one's words deeds, or representations

which leads another to rely justifiably thereon to his own injury or detriment        "   Novelty

Knitting Mills, Inc. v. Siskind, 457 A.2d 502, 503 (Pa. 1983).

               Here, however, the evidence presented established that Manning did not waive his

rights under the RSA. While it is true that Manning presented offers without an appraisal) his

conduct did not violate or otherwise void the RSA. In fact, Manning had no duties under the

RSA until the Kelly Defendants provided him with written notice of their intention to sell to a

third party}ogether with a copy of an appraisal.

               Further, the credible evidence presented indicated that Manning participated in

the Lash/GPB negotiations at the direction of Kelly. Notably, after the negotiations failed, Kelly

terminated Manning. In additionI the RSA did not require Manning to ask for an appraisal.

Rather, it was Kelly's duty to provide Manning with an appraisal prior to entertaining offers

from third parties.

               Additionally, defendants effectively admitted that Manning had not waived his

rights under the RSA when their attorney asked Manning to waive Section 2.3 of the RSA in

December of 2013. If the Kelly Defendants had in fact believed that Manning had already

waived his rights under the RSA1 or acted in a way that would otherwise estop him from

enforcing the RSA, no such request would have been necessary. Manning's acceptance of

compensation and distributions after the breach did not waive his rights. The Kelly Defendants

have not established that they relied to their detriment on Manning's conduct. Accordingly,

defendants have failed to establish that Manning waived his rights under the RSA or should be

estopped from seeking relief.




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                   E. The Injunction is Reasonably Suited to Restrain the Offending Activity

                   The Court has concluded that Manning is likely to prevail on the merits. The

injunction simply requires the Kelly Defendants to honor their obligations pursuant to the RSA.

Accordingly, the injunction is reasonably suited to restrain the offending activity.

                    F. The Injunction will not Adversely Affect the Public Interest


                   Finally, Manning must establish that the injunction will not adversely affect the

public interest.     Based upon the evidence presented at the hearing, the Court concludes that

issuing the injunction will have no effect on the public interest.

                    G. Bond

                   After review of the parties' arguments regarding the requirement that a bond be

posted when granting injunctive relief, the court finds that Defendants are correct in their

position that a bond is required. Therefore, with the issuance of this opinion we are also issuing

an order scheduling a hearing on an appropriate bond in this case.

         V.        CONCLUSION

                   For the reasons set forth above, Plaintiff's Amended Motion for A Preliminary

Injunction was granted.

                                         BY THE COURT:




Dated:                                  ~J',~k                   l(J~             'J.
          1
  V\,\..().   :i-1-1'\, ?.o IS
                                         Christine Ward, J.




                                                   16
