J-A11034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL J. ROGAN, M.D.                             IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                          Appellee

                     v.

GEISINGER CLINIC D/B/A GEISINGER
MEDICAL GROUP

                          Appellant                   No. 1551 MDA 2018


              Appeal from the Order Dated September 13, 2018
            In the Court of Common Pleas of Lackawanna County
                     Civil Division at No: 2018-CV-4760

BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 29, 2019

      Appellant, Geisinger Clinic d/b/a Geisinger Medical Group (“Geisinger”),

appeals from an order granting the motion of Appellee, Michael J. Rogan, M.D.

(“Rogan”), for special relief under Pa.R.C.P. 1531.       We vacate the order

granting relief and remand for further proceedings.

      On September 12, 2018, Rogan filed a motion for special injunctive relief

in the trial court and transmitted a copy of the motion to counsel for Geisinger.

Rogan had not filed a complaint, but rather commenced this action with the

filing of a writ of summons.

      In his motion, Rogan alleged the following: Rogan is a board-certified

physician in internal medicine, pediatrics, and child abuse pediatrics, and he

has worked for Geisinger for 29 years. Under the terms of a 1990 practice

agreement between Rogan and Geisinger, Rogan could not practice medicine
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within 25 miles of Geisinger’s facility for two years after termination of his

employment. On July 11, 2018, Rogan reported to Geisinger his concern that

exam rooms at Geisinger’s facility were contaminated. Two days later, on July

13, 2018, Geisinger terminated Rogan’s employment.             Rogan appealed

internally, but on July 29, 2018, Geisinger upheld its termination decision.

Rogan’s motion requested the court to (1) schedule a hearing on Rogan’s

request for permanent injunctive relief under Pa.R.C.P. 1531; (2) declare the

25-mile restriction in his practice agreement unenforceable; (3) enjoin

Geisinger from interfering with Rogan’s relationship with his patients by

“misleading and requiring” patients to select a new physician at Geisinger;

and (4) order Geisinger to provide him his patients’ contact information so

that he could contact them directly. Motion, Prayer for Relief, 9/12/18, at 14.

      On September 13, 2018, one day after Rogan filed his motion, the court

held oral argument but did not take evidence from the parties. On the same

date, the court ordered that:

      1. [Geisinger] should refrain from interfering in the
      physician/patient relationship between [Rogan] and his existing
      patients as of July 13, 2018;

      2. [Geisinger] is directed to provide [Rogan] with a list of patients
      being treated by [Rogan] as of July 13, 2018 together with each
      patient’s current contact information, within seven (7) days of the
      date of this Order;

      3. [Geisinger] should use as a starting point the list of those
      patients whom it contacted regarding [Rogan’s] employment
      status subsequent to July 13, 2018; [and]




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       4. A hearing on [Rogan’s] Petition for Special Injunctive Relief
       shall be held on Friday, October 19, 2018[.]

Order, 7/13/18. The court did not order Rogan to post a bond. On September

18, 2018, Geisinger appealed to this Court.

       During the pendency of this appeal, Geisinger ruled Rogan to file a

complaint. Rogan filed a motion to strike the rule and to direct Geisinger to

produce pre-complaint discovery. In an order sent to the parties on May 6,

2019, the trial court granted Rogan’s motion to strike the rule; directed

Geisinger to produce pre-complaint discovery within twenty days; and

directed Rogan to file a complaint within twenty days after receiving all pre-

complaint discovery.

       In this appeal, Geisinger argues that the trial court erred in granting

injunctive relief because (1) Rogan did not file a complaint; (2) Rogan did not

post a bond; (3) the trial court failed to grant Geisinger’s motion for recusal

following disclosure of the fact that the court’s spouse is Rogan’s patient; and

(4) Geisinger did not have the opportunity to present evidence in opposition

to Rogan’s motion.         We agree with Geisinger’s first, second and fourth

arguments.1

       To obtain a preliminary injunction,

       there are six “essential prerequisites” that a party must
       establish[.] The party must show: 1) that the injunction is
____________________________________________


1Geisinger’s third argument seeking recusal is moot because of our disposition
of the other arguments and because the judge who issued the September 13,
2018 order subsequently recused himself.

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        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[.]

Synthes USA Sales, LLC v. Harrison, 83 A.3d 242, 249 (Pa. Super. 2013)

(citation omitted). The moving party’s burdens at the preliminary injunction

stage

        track the burdens at trial[.] To establish a reasonable probability
        of success on the merits, the moving party must produce sufficient
        evidence to satisfy the essential elements of the underlying cause
        of action. Whether success is likely requires examination of legal
        principles controlling the claim and potential defenses available to
        the opposing party.

Id. at 249 n.4 (citations omitted). “Extensive fact-finding” is necessary in

order for the moving party to establish it is likely to prevail on the merits. Id.

at 249.

        In addition, a petition for injunctive relief is effective only “where it is

ancillary to an already pending action,” i.e., only when a complaint has been

filed. In Re G.J.K. & Sons, LLC, 175 A.3d 1033, 1036 (Pa. Super. 2017)

(citing Wm. Garlick & Sons, Inc. v. Lambert, 287 A.2d 143, 144 (Pa.

1972)).       Finally, to obtain a preliminary or special injunction, the moving


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party must post a bond with the prothonotary “in an amount fixed and with

security approved by the court.” Pa.R.C.P. 1531(b)(1). The bond requirement

“is mandatory and an appellate court must invalidate a preliminary injunction

if a bond is not filed by the plaintiff.” Walter v. Stacy, 837 A.2d 1205, 1208

(Pa. Super. 2003).

      Before proceeding further, we note our disagreement with the court’s

contention that it did not actually grant preliminary injunctive relief. The court

claimed that it merely scheduled a subsequent hearing on the merits and

“directed the parties to share information in a collaborative vein,” a subject it

viewed as “tangential” to the issue of whether Geisinger properly terminated

Rogan.   Opinion, 10/24/18, at 2.     Comparison of Rogan’s motion with the

September 13, 2018 order demonstrates that the trial court granted three of

the four forms of relief requested in Rogan’s motion, including a prohibition

against interfering with Rogan’s relationship with his existing patients and a

directive to provide Rogan with his patients’ contact information.         These

clearly are forms of injunctive relief on central issues in this case, not merely

instructions to “collaborate” on “tangential” matters.

      Turning to the merits, the injunction entered by the court is defective

for at least three reasons. First, Rogan has not filed a complaint, but instead

is in the course of obtaining pre-complaint discovery from Geisinger. Without

a complaint, there is no way to assess the causes of action that Rogan intends

to prove, or examine whether he alleges sufficient facts to prove each element


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of his action(s). This in turn prevents reasoned evaluation of whether Rogan

is likely to prevail on the merits. Synthes, 83 A.3d at 249. Second, the trial

court did not conduct any fact-finding, let alone the “extensive fact-finding”

called for under Synthes. Id. Before entering the injunction, the trial court

merely held oral argument with counsel for the parties. Third, the court failed

to order Rogan to post a bond, a mandatory requisite for preliminary injunctive

relief under Rule 1531(b).

      Accordingly, we must vacate the trial court’s order and remand for

further proceedings. On remand, we direct the trial court expeditiously to

hold the evidentiary hearing called for under Synthes if Rogan still seeks

special relief. The court, however, shall not hold this hearing until Rogan has

filed his complaint. If the court awards injunctive relief following the hearing,

it shall order Rogan to post a bond in accordance with Rule 1531(b).

      Order vacated. Case remanded for further proceedings in accordance

with this memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2019




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