J-A29023-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRUSTER’S L.P.,                                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

GOLDEN DEER CORPORATION, JCG
CHERRIES LLC,

APPEAL OF: GOLDEN DEER
CORPORATION

                                                    No. 1927 WDA 2014


                Appeal from the Order Entered October 29, 2014
                In the Court of Common Pleas of Beaver County
                       Civil Division at No(s): 11420-2014


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

MEMORANDUM BY BOWES, J.:                         FILED JANUARY 12, 2016

       Golden Deer Corporation (“Golden Deer”) appeals from the aspects of

an October 29, 2014 preliminary injunction1 pertaining to it. We reverse the

injunction entered against Golden Deer.

       Bruster’s L.P. (“Bruster’s”) instituted this breach of contract action2

against Golden Deer and JCG Cherries LLC (“Cherries”). On September 24,

____________________________________________


1
  An order granting a preliminary injunction is appealable pursuant to
Pa.R.A.P. 311(a)(4).
2
  The contracts in question had a forum selection clause vesting jurisdiction
in Pennsylvania.
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2014, Bruster’s presented a motion seeking injunctive relief against the

named defendants.       The matter proceeded to a hearing on October 24,

2014.

        The following facts are pertinent. Bruster’s is a Pennsylvania limited

partnership headquartered in Beaver County, Pennsylvania; it operates ice

cream shops in eighteen states. Golden Deer is a Georgia corporation whose

president is Ashwin Manjee. On April 9, 2001, Mr. Manjee, individually, paid

Bruster’s $30,000 to become a Bruster’s franchisee for a ten-year term.

Pursuant to the franchise agreement, Mr. Manjee opened a Bruster’s

franchise in a building located at 2970 Stonecrest Pass, Lithonia, Georgia

(“2970 Stonecrest Pass”), which is owned by the Redwood Company LLC

(“Redwood”).

        After the April 9, 2001 accord expired, the franchise was renewed by

Golden Deer and Bruster’s. Specifically, on May 25, 2012, Golden Deer and

Bruster’s executed a new ten-year franchise agreement. Mr. Manjee signed

that contract in his capacity as president of Golden Deer. The May 25, 2012

franchise contract contained a clause whereby Golden Deer agreed that it

would not compete with Bruster’s for three years after the franchise was

terminated for any reason.

        Golden Deer decided to cease operating the ice cream shop.         In

February 2013, Bruster's approached Cherries to operate the Bruster’s

franchise at 2970 Stonecrest Pass.     On March 26, 2013, Bruster’s entered


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into a franchise agreement with Cherries.       Golden Deer and Bruster’s

entered into negotiations to terminate the franchise. Bruster’s admitted that

“Golden Deer and Bruster’s mutually terminated the Golden Deer Franchise

Agreement and Golden Deer transferred operations of the Premises[, 2930

Stonecrest Pass,] to Defendant JCG Cherries.” Complaint, 9/17/14, at ¶ 14.

The franchise agreement between Cherries and Bruster’s also contained a

covenant not to compete.

      Cherries operated its Bruster’s franchise at 2970 Stonecrest Pass until

July 25, 2014, when it received a letter from Bruster’s that its franchise was

terminated based upon Cherries’ default of its financial obligations. Cherries

closed its Bruster’s store but, on August 9, 2014, it re-opened another ice

cream parlor called Cherries at the same location, 2930 Stonecrest Pass.

      Bruster’s initiated this lawsuit against Cherries and Golden Deer,

averring Golden Deer violated the terms of the covenant not to compete

contained in Golden Deer’s franchise agreement with Bruster’s.       Bruster’s

made these representations even though Golden Deer did not own 2930

Stonecrest Pass and despite the fact that it had admitted in its complaint

that Golden Deer transferred its operation of the ice cream shop at 2930

Stonecrest Pass to Cherries.    Bruster’s alleged that Golden Deer was in

violation of the non-compete clause because it was leasing the property at

2970 Stonecrest Pass to Cherries. The certified record does not contain a

copy of a lease between Golden Deer and Cherries.


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        At the hearing, Golden Deer submitted evidence that the record owner

of the property at 2970 Stonecrest Pass is Redwood, which was never joined

as a party in this lawsuit. While Mr. Manjee is the registered agent for the

Redwood in Georgia, Bruster’s submitted no proof that either Golden Deer or

Mr. Manjee owned 2930 Stonecrest Pass. After the hearing, the trial court

issued a preliminary injunction against both Cherries and Golden Deer. It

enjoined Cherries from operating an ice cream shop at 2970 Stonecrest

Pass.    Cherries did not appeal the portion of the injunction applying to it.

Additionally, the court entered the following injunction against Golden Deer:

        a.) Golden Deer Corp. is enjoined until March 1, 2016 from
        either directly or indirectly renting, leasing, subletting, assigning
        or otherwise transferring possession of the building located at
        2970 Stonecrest Pass, Lithonia, GA 30038 to Cherr[ies] or any
        other entity for operating it as an ice cream or yogurt shoppe.

        b.) Ashwin Manjee, as the owner of Golden Deer Corp. acting
        alone or in conjunction with any other partnership, corporation
        or other entity, is enjoined until March 1, 2016 from either
        directly or indirectly (including through Redwood, LLC, an entity
        of which he is a member) renting, leasing, subletting or
        otherwise transferring possession of the building located at
        2970 Stonecrest Pass, Lithonia, GA 30038 to Cherry's or any
        other entity for operating it as an ice cream or yogurt shoppe.
        Accordingly, Golden Deer Corp. is directed to have
        Redwood, LLC terminate its lease with Cherr[ies] within
        one week from the entry of this Order.

Order of Court, 10/29/14, at 1.




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       Golden Deer appealed from the October 29, 2014 order and raises

these issues on appeal:3

       A. Whether the trial court erred by failing to consider the
       evidence of Bruster's unclean hands which should have
       invalidated its right to an equitable remedy as a matter of law.

       B. Whether the trial court erred in granting injunctive relief for
       Brusters by seeking to compel Golden Deer Corporation to
       compel non-parties to take actions in furtherance of preventing
       harm to Brusters.

       C. The court erred by enjoining property outside the
       Commonwealth that is not connected to the party's in the
       litigation.

Appellant’s brief at 8.

       As we agree with Golden Deer’s second contention,4 we do not address

the remaining ones.        We are mindful that “an appellate court reviews an

order granting or denying a preliminary injunction for an abuse of
____________________________________________


3
   According to the docket, on December 1, 2014, the trial court issued an
order for a Pa.R.A.P. 1925(b) statement. Golden Deer sent the trial court a
copy of the statement, but it did not file it of record. The trial court
maintains that these issues were waived due to the failure to file the
statement. It is true that the failure to file a Pa.R.A.P. 1925(b) statement,
when one is ordered, will result in waiver. However, the order requiring that
the statement be filed must “specify[, inter alia,] that any issue not properly
included in the Statement timely filed and served pursuant to sub division
(b) shall be deemed waived.” Pa.R.A.P. 1925(a)(3)(iv). Ironically, the order
requiring the Pa.R.A.P. 1925(b) statement is also not in the certified record.
While the docket notes that the order was sent, the docket does not indicate
that this mandated language was included in that order. Hence, we decline
to find the issues herein waived.
4
  Additionally, Golden Deer’s first position, pertaining to unclean hands, was
not preserved in the Pa.R.A.P. 1925(b) statement mailed to the trial court,
which did not address it.



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discretion.”   SEIU Healthcare Pennsylvania v. Commonwealth, 104

A.3d 495, 501 (Pa. 2014). We do not examine the merits of the lawsuit and,

instead, must determine if “there were any apparently reasonable grounds

for the action of the court below.”      Id. (citation omitted).   A preliminary

injunction may not be issued unless the party seeking that relief establishes

the following essential prerequisites:

       (1) the injunction is necessary to prevent immediate and
      irreparable harm that cannot be compensated adequately by
      damages; (2) greater injury would result from refusing the
      injunction than from granting it, and, concomitantly, the
      issuance of an injunction will not substantially harm other
      interested parties in the proceedings; (3) the preliminary
      injunction will properly restore the parties to their status as it
      existed immediately prior to the alleged wrongful conduct; (4)
      the party seeking injunctive relief has a clear right to relief and
      is likely to prevail on the merits; (5) the injunction is reasonably
      suited to abate the offending activity; and, (6) the preliminary
      injunction will not adversely affect the public interest.

Id. at 502.

      In the present case, Bruster’s failed to establish its right to the relief

granted against Golden Deer, and the trial court had no apparently

reasonable grounds for finding otherwise. Golden Deer was not operating a

franchise in violation of the non-competition clause of its franchise

agreement; Cherries had opened the ice cream shop in violation of its non-

compete clause. Indeed, Golden Deer was not enjoined for operating an ice

cream store, and, instead, was enjoined from granting possession, in any

form, of 2970 Stonecrest Pass to Cherries or any other ice cream or yogurt




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business. It also was ordered to direct Redwood to terminate the lease that

Redwood had entered with Cherries.

      As both the trial court and Bruster’s acknowledge, Golden Deer does

not own 2970 Stonecrest Pass. We cannot fathom how either the trial court

or Bruster’s can believe that a party that does not own or occupy a piece of

real estate can be enjoined from conducting activities on it.         Indeed,

Bruster’s specifically admitted in its complaint that Golden Deer transferred

its operations on the premises, 2930 Stonecrest Pass, to Cherries. Through

the mechanism of entering an order against one party, Golden Deer, the trial

court has attempted to compel a completely distinct entity, Redwood, from

taking certain actions.   Moreover, the trial court has required Redwood to

abide by the terms of an agreement that it did not execute, i.e., the non-

competition clause in the franchise agreement entered by Bruster’s with

Golden Deer. The trial court and Bruster’s have completely disregarded the

basic legal precept that corporations are distinct legal entities.

      As we have observed, “Service of process is a mechanism by which a

court obtains jurisdiction of a defendant, and therefore, the rules concerning

service of process must be strictly followed.” Lerner v. Lerner, 954 A.2d

1229, 1237 (Pa.Super. 2008).       Redwood was not served herein at all.    A

court does not have jurisdiction over a person or entity that was not served

and was not made a party to an action.           Redwood did not execute an

agreement consenting to Pennsylvania’s jurisdiction, and there is no


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indication that it was subject to jurisdiction in this Commonwealth through

our long-arm statute, 42 Pa.C.S. § 5301.5 The trial court could not enjoin

____________________________________________


5
    That enactment provides:

        (a) General rule.--The existence of any of the following relationships
             between a person and this Commonwealth shall constitute a
             sufficient basis of jurisdiction to enable the tribunals of this
             Commonwealth to exercise general personal jurisdiction over
             such person, or his personal representative in the case of an
             individual, and to enable such tribunals to render personal orders
             against such person or representative:

              (1) Individuals.--

                     (i) Presence in this Commonwealth at
                           the time when process is served.

                     (ii) Domicile in this Commonwealth at
                           the time when process is served.

                     (iii) Consent, to the extent authorized
                            by the consent.

              (2) Corporations.--

                     (i) Incorporation under or qualification as
                            a foreign corporation under the
                            laws of this Commonwealth.

                     (ii) Consent, to the extent authorized by
                            the consent.

                     (iii) The carrying on of a continuous and
                            systematic part of its general business
                            within this Commonwealth.

              (3) Partnerships, limited partnerships, partnership
              associations,       professional        associations,
              unincorporated associations and similar entities.--
(Footnote Continued Next Page)


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the party herein to refrain from actions that only Redwood was capable of

undertaking.

      Bruster’s first counters that “at no point before the initiation of this

lawsuit was anyone at Bruster’s aware of this alleged fact,” which was that

Redwood, rather than Golden Deer, owned 2970 Stonecrest Pass. Appellee’s

brief at 7. Bruster’s also suggests that Mr. Manjee represented to it that he

owned the building. Id. at 8. Bruster’s is represented by legal counsel in

this lawsuit, and title to real estate is a matter of public record. In order to

obtain an injunction regarding activities being conducted on a piece of

                       _______________________
(Footnote Continued)


                       (i) Formation under or qualification as a
                             foreign entity under the laws of
                             this Commonwealth.

                       (ii) Consent, to the extent authorized by
                              the consent.

                       (iii) The carrying on of a continuous and
                              systematic part of its general
                              business         within        this
                              Commonwealth.

      (b) Scope of jurisdiction.--When jurisdiction over a person is
           based upon this section any cause of action may be
           asserted against him, whether or not arising from acts
           enumerated in this section. Discontinuance of the acts
           enumerated in subsection (a)(2)(i) and (iii) and (3)(i) and
           (iii) shall not affect jurisdiction with respect to any act,
           transaction or omission occurring during the period such
           status existed.

42 Pa.C.S. § 5301.



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property, Bruster’s lawyers had an obligation to ascertain the correct legal

owner of that property and join it as a party to the lawsuit. See Hoare v.

Bell Tel. Co. of Pennsylvania, 500 A.2d 1112 (Pa. 1985) (owner of

business allegedly responsible for maintenance of sidewalk where plaintiff

fell could not be added as a party to lawsuit after statute of limitations had

run where plaintiff originally sued a different and distinct entity claiming that

it was responsible for condition of sidewalk).

      Bruster’s also notes that Mr. Manjee, as an officer of Golden Deer,

must abide by the terms of the franchise agreement as well as the

conditions of the injunction.      See Belle v. Chieppa, 659 A.2d 1035

(Pa.Super. 1995) (officers, directors, and shareholders of a corporation must

abide by injunction entered against the corporation).          In leveling this

argument, Bruster’s ignores the fact that Redwood was not enjoined. While

Mr. Manjee, if he was an officer, director, or shareholder of Redwood, would

be obligated to abide by the terms of an injunction entered against

Redwood, Redwood was not a party to this lawsuit and an injunction was not

issued against it. Instead, Golden Deer was enjoined. Meanwhile, Golden

Deer is incapable of abiding by the terms of the injunction entered against it

because it does not own 2970 Stonecrest Pass and there was not a scintilla

of proof presented by Bruster’s that Golden Deer controls Redwood. Thus,

Bruster’s argument in this respect is unavailing. Accordingly, we strike the

portions of the preliminary injunction entered against Golden Deer, as the


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trial court had no apparently reasonable grounds for requiring Golden Deer

to undertake actions outlined in the order with respect to 2970 Stonecrest

Pass.

        Order affirmed as to JCG Cherries LLC and reversed as to Golden Deer

Corporation. Case remanded. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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