HomeMy WebLinkAbout12-0985Matthew A. Sembach, Esquire
Daley Zucker Meilton
Miner & Gingrich, LLC
635 N. 12th Street, Suite 101
Lemoyne, PA 17043
(717) 724-9821
Debra B. Cohen,
Appellant
V.
Docket No. (a _ 9 8S ei V/
Commonwealth of Pennsylvania LICENSE SUSPENSION APPEAL
Department of Transportation
Bureau of Driver Licensing, ;
Appellee
APPEAL OF SUSPENSION OF OPERATOR'S PRIVILEGE
AND REOUEST FOR SUPERSEDEAS
AND NOW, this 14th day of February, 2012, comes Appellant, Debra B. Cohen, by and
through her attorneys Daley Zucker Meilton Miner & Gingrich, LLC and avers as follows:
1. Appellant resides at 8 Hidden Meadow, Drive, Mechanicsburg, Cumberland
County, Pa 17050.
2. Appellant was cited for Excessive Speeding' and Failure to Use Safety Belt
System2 on November 18, 2011. Appellant was cited by the Harrisburg Police Department for a
traffic stop in Hampden Township, Cumberland County, Pennsylvania.
3. Appellant pled guilty to said offenses and paid all fines and costs on November
28, 2011.
4. On January 20, 2012 Appellant received a Notice to Attend a Departmental
Hearing as required by 75 Pa. C.S.A. §1538(d). Said Departmental Hearing was held on
February 8, 2012.
5. At said Departmental Hearing, Appellant attempted to present mitigating
circumstances as to why she was speeding and the ramifications of a driver's license suspension
'75 Pa. C.S.A. § 3362(a)(2)
2 75 Pa. C.S.A. § 4581
ILED-OFFICE
C fT PROTHONOTARy
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IN THE COURT OF COMM 9M
CUMBERLAND COUNTY, PENNSYLVANIA
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but was prohibited from doing so because the hearing officer stated, "I just do what my
supervisor tells me to do, and in this case I am told to suspend the license for fifteen (15) days".
6. Appellant received an Official Notice of the Suspension dated February 15, 2012
stating that as authorized by Section 1538 of the Pennsylvania Vehicle Code, her driving
privilege was being suspended for a period of fifteen (15) days effective March 21, 2012. A
copy of said Notice is attached and incorporated as Exhibit "A".
7. Said suspension is contrary to law because the suspension is based on an
unwritten policy of the Pennsylvania Department of Transportation requiring a fifteen (15) day
license suspension when a driver is convicted of driving in excess of 31 miles per hour. Pursuant
to Com., Dept. of Transp Bureau of Driver Licensing v Bankston, 625 A.2d 1333, 1336 (Pa.
Cmwlth. 1993), the hearing examiner has an obligation to exercise discretion based upon the
individual facts of the case. Therefore, the hearing examiner's decision to suspend Appellant's
license must be reversed because said suspension was contrary to law.
WHEREFORE, Appellant respectfully requests this Honorable Court to grant her the
right to go forward with a license suspension appeal seeking a reversal of said suspension and
pending the hearing a Supersedeas be granted pursuant to the provisions of 75 Pa. C.S.A. §1550.
Respectfully submitted,
DALEY ZUCKER WILTON
MINER & GINGRICH, LLC
Date: WIVII By: /U a J?S
Matthew A. Sembach, Esquire
Supreme Court I.D. #308727
635 N. 12'h Street, Suite 101
Lemoyne, PA 17043
(717) 724-9821
Attorneys for Appellant
EXHIBIT "A"
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION.
Bureau of-Driver Licensing
-Mail Date: FEBRUARY 15, 2012
DEBRA B COHEN WID # 120396856523505 002
8 14IDDEN MEADOW DR PROCESSING DATE 0210812012
ME.CHANI.CSBURG PA 17p50 DRIVER LICENSE # 20372589
DATE OF BIRTH 09/02/1954
D,e_&c. Ms.
This is an Official Notice of the Suspension of Your Driving
Privilege as authorized by Section 1538 of the Pennsylvania
Vehicle Code. As-a result-of your departmental hearing:
¦ Your driving privilege is SUSPENDED for a period of 15 a
DAY(S) effective 03/21/2012 at 12:01 a.m.
Before PennDOT can restore your driving privilege, you must
follow the instructions in this letter for COMPLYING WITH
THIS SUSPENSION and PAYING THE RESTORATION FEE. You should.
follow ALL instructions very carefully. Even if you have
served all the time on the suspension/revocation, we cannot
restore your driving privilege until all the requireiments
are satisfied.
COMPLYING WITH THIS SUSPENSION
You must return all current Pennsylvania driver's licenses,
learner's permits, temporary driver's licenses (camera
cards) in your possession on or before 0312112012. You may
surrender these items before, 03/21/2012, for earlier
credit; however, you may not drive after these items are
$ r? eeyt r- gd - - - ?- -_ - - -- - _
YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION
PURPOSES. However, you may apply for and obtain a photo
identification card at any Driver License Center for a cost
of 513.50. You must present two (2) forms of proper
identification (e.g., birth certificate,. valid U.S.
passport, marriage certificate, etc.) in order to obtain
Your photo identification card.?-
You'will not receive credit toward serving any suspension
until we receive your license(s).. Complete the following
steps to acknowledge this suspension.
I. Return all current Pennsylvania driver's licenses,
learner's permits and/or camera cards to PennDOT. If
12039ASS6523505
You do not have any of these, items-, send a sworn
notarized letter stating you ar-e aware of the suspension
of your driv.i'ng privilege. You must specify in your
letter why you are unable to return your driver's
license. Remember: You may not retain your drive'r's
license for identification purposes. Please-send these
items to:
Pennsylvania Department of Transportation
-^- - , Bureau of _Driver Licensin
P. 0. Box 68693
Harrisburg, PA 17106-8693
.2. Upon receipt, review and acceptance of your Pennsylvania
driver's license(s), learner's permit(s), and/or a sworn
notarized letter, PennDOT will send you a receipt
.confirming the date that credit began. If you do not
receive a receipt from us within 3 weeks, please contact
our office. Otherwise, you will not be given credit
toward serving this suspension. PennDOT phone numbers
are listed at the end of this letter.
3. If you do not return all current driver license
products, we must refer this matter to the Pennsylvania
State Police for prosecution under SECTION 1571(a)(4)
of the Pennsylvania Vehicle Code.
PAYING THE RESTORATION FEE
You must pay a restoration fee to PennDOT to be restored
from a suspension/revocation of your driving privilege. To
pay your restoration fee,.complete the following steps:
amount due is listed on the?applation?_? T#?
2. Write your driver's license number (listed on the first
page) on the check or money order to ensure proper
credit.
3. Follow the payment-and mailing instructions on the-back
of the application.
Please note: Paying the restoratiop.__fa DOES NOT satisfy „--
the requirement to acknowledge your suspension/revocation.
If you have not acknowledged 'Your suspension/revocation,
please follow the instructions listed under "Complying with
this Suspension/Revocation".
120396856523505
J ,
APPEAL
You have the r4 ght to appeal this action to the Court of
Common Pleas (Civil Division) within. 30 days of the mail
date, FEBRUARY 15, 2012,-of this letter. .If you file'an
appeal in the County court, the Court will give you a
time-stamped certified copy of the appeal. In order for
your appeal to be valid, you must send this time-stamped
certified-copy of the appeal by certified mail to:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg,.PA 17104-2516
Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You
must return all current Pennsylvania driver license products
to PennDOT by 03/21/2012.
Sincerely,
?- Z f-e
Janet L. Dolan, Director
Bureau of Driver Licensing
INFORMATION 8:00 a.m. to 5:00 .m. "
IN STATE 1-800-932-4600 TDD-IN STATE 1-800-228-0676
OUT:OF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380
WEB SITE ADDRESS www.dmv.state.pa.us
j
'V]MIFICATION
I, Debra B. Cohen, verify that the statements made in this,lppeat of Sttspenrion of
Operator's Privilege and Reguestfor &per'se-deas.aro true and correct to the bcst of my kno'w'ledge,
infoanation and belief, I understand that false statements hej:ein are made subject to the penalties of
18 Pa. C,S. SeoOon 4904, relating to unsworn falsification to authorities.
Dated:
1pl, Appellant
Debts 13. Cohe
CERTIFICATE OF SERVICE
I, Amy M. Ewing, Paralegal, hereby certify that on this day of
2012, an original and two (2) copies of Appeal from Suspension of
Operator's Privilege, by United States Mail, postage pre-paid, to the following address:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104-2516
Respectfully Submitted,
DALEY ZUCKER WILTON
MINER & GINGRICH, LLC
By:
Amy M. Ewing, Paralegal
635 N. 12th Street, Suite 101
Lemoyne, PA 17043
(717) 724-9821
IN THE COURT OF COMMON PLEASE OF
CUMBERLAND COUNTY, PENNSYLVANIA
Debra B. Cohen,
Appellant
V.
Commonwealth of Pennsylvania
Department of Transportation
Bureau of Driver Licensing,
Appellee
: Docket No.
LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this day of , 2012, upon consideration of this
Appeal from Suspension of Operator's Privilege and Request for Supersedeas, it is Ordered that
a hearing on the matter shall be held on the o;U"?'day of , 2012 at
:00 o'clock Am. in Courtroom No. 02. of the Cumberland County Courthouse.
A Supersedeas is granted pursuant to Vehicle Code Section 1550(b)(1) until such time
that this Honorable Court resolves this appeal.
BY THE COURT
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Distribution:
VOffice of Chief Counsel, PA Department of Transportation, Third Floor, Riverfront Office Center, Harrisburg,
Pennsylvania 17104-2516
V Matthew A. Sembach, Esquire, Daley Zucker Meilton Miner & Gingrich, LLC, 635 N. 12th Street, Suite 101,
Lemoyne, Pa 17043
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DEBRA B. COHEN,
Appellant
V
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
2012-0985 CIVIL TERM
LICENSE SUSPENSION APPEAL
IN RE: APPEAL FROM LICENSE SUSPENSION
ORDER OF COURT
AND NOW, this 22nd day of June, 2012, this being the
time and place set for a hearing on an appeal from suspension of
operating privilege, and the parties having requested that the
matter be remanded to the Department of Transportation, IT IS
HEREBY ORDERED AND DIRECTED that it is so remanded.
By the Court,
M. L. Ebert, Jr., J.
V Matthew A. Sembach, Esquire
For Appellant
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V Philip M. Bricknell, Esquire rnw -?
For Appellee :;o
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J-A03039-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PENN PRODUCTS CORPORATION, DAVID IN THE SUPERIOR COURT OF
J. HORICK, DOUGLAS C. HORICK, PENNSYLVANIA
MARILYN SNYDER BUDZYNSKI,
EXECUTRIX DBN OF THE ESTATE OF
MAYBELLE ASPER, DECEASED, DANIEL
A. KUHN, DONNA LEE GOFF, LEWIS G.
KUHN, CAROLYN WAGNER, DORIS I.
ERNST AND JEAN M. HORICK, r,-76
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Appellees � c
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V. i c
SANDRA L. MCCORKEL, GREGORY R.
SWOPE, MEGAN SWOPE AND JOHN D.
SWOPE,
Appellants No. 985 MDA 2012
Appeal from the Judgment Entered May 29, 2012
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 2838 Civil 2012.
BEFORE: BOWES, GANTMAN and OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 25, 2013
Appellants, Sandra L. McCorkel, Gregory R. Swope, Megan Swope, and
John D. Swope, appeal from the judgment entered on May 29, 2012
following the entry of an order on May 15, 2012 that issued a permanent
J-A03039-13
injunction in favor of Appellees.- After careful review, we vacate and
remand for further proceedings.
This case arises from a struggle for control over Penn Products, a
closely held corporation organized under Pennsylvania law. Appellants are
shareholders of Penn Products who, as of April 25, 2012, served as officers
and directors of the company. Together, Appellants hold a minority share of
the voting power at Penn Products. The individual Appellees include:
persons who are shareholders of Penn Products, persons who hold
shareholder proxies, and a representative of the estate of a deceased
shareholder. The individual Appellees hold a majority of the voting power of
the outstanding shares of Penn Products.
1 Appellees include Penn Products Corporation and David J. Horick, Douglas
C. Horick, Marylyn Snyder Budzinski, executrix-dbn of the estate of Maybelle
Asper, deceased, Daniel A. Kuhn, Donna Lee Goff, Lewis G. Kuhn, Carolyn
Wagner, Doris I. Ernst, and Jean M. Horick. Collectively, we shall refer to all
appellees as "Appellees." We refer to the corporate appellee as "Penn
Products" and to the individual appellees either by name or, collectively, as
"individual Appellees."
Appellees have filed an application to quash this appeal. In their application,
Appellees allege that the present appeal is subject to quashal because
Appellants failed to file and serve the required designations or notice under
Pa.R.A.P. 2154, Appellants' reproduced record fails to comply with Pa.R.A.P.
2171(a) and 2173, and Appellants' concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) was too vague and failed to
include the issues raised in Appellants' brief. As these alleged procedural
defects have not materially hampered our ability to conduct appellate
review, we deny Appellees' application for relief.
- 2 -
J-A03039-13
On April 25, 2012, the annual shareholders meeting of Penn Products
was convened. The Appellants, as well as the individual Appellees, were
present at the meeting. Other attendees included an attorney retained by
the individual Appellees and one of his employees. Corporate counsel for
Penn Products was not present.
Sandra McCorkel (McCorkel), president of Penn Products, presided
over the meeting. The assembly, however, descended into chaos as
disputes arose concerning the validity of the proxies, the identity of
shareholders of record who were entitled to vote, and the selection of the
judge of elections. At various times during the meeting, several, if not all of
the Appellants, including McCorkel, telephoned corporate counsel for Penn
Products. Counsel suggested to McCorkel that she adjourn the meeting and
reconvene when he could be present and address the disputed issues. In
accordance with this advice, McCorkel adjourned the meeting and ushered
the individual Appellees out of the meeting place.
The individual Appellees left the shareholders meeting, immediately
reconvened amongst themselves in the parking lot, appointed a judge of
elections, and elected themselves as officers and directors of Penn Products.
On May 2, 2012, corporate counsel for Penn Products notified all
shareholders that the annual shareholders meeting would resume on May
10, 2012. The trial court summarized the ensuing procedural history in this
case as follows:
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[Thereafter, the individual Appellees, on behalf of themselves
and Penn Products, filed a complaint on May 7, 2012 seeking
both a preliminary or special injunction and a permanent
injunction. By way of relief, the complaint requested a
preliminary injunction in which the trial court would: 1) enjoin
the "Resumption of Annual Meeting of Stockholders" noticed for
May 10, 2012; 2) prohibit Appellants from acting on behalf of
Penn Products; 3) prohibit Appellants from accessing the various
financial accounts of Penn Products; 4) recognize the directors
and officers who were elected on April 25, 2012; and, 5) direct
Appellants to deliver to the new directors all keys to corporate
property, all corporate checkbooks and financial accounts, all
corporate records, and the corporate seal. The demands for
permanent injunctive relief differed only slightly from the
demands for preliminary injunctive relief. Paragraph five of
Appellees' prayer for preliminary relief asked the trial court to
order the return of corporate property to the newly elected
directors. Whereas, paragraph five of Appellees' request for
permanent relief asked the trial court to place the responsibility
for management of Penn Products into the hands of the newly
elected directors and officers.]
On May 8, 2012, [the trial c]ourt issued an order which granted
the requested preliminary or special injunction and set a hearing
on the matter for Friday, May 18, 2012, at 1:30 p.m. Upon
realizing [that it] had erred in failing to set bond and in failing to
schedule a timely hearing pursuant to Pa.R.C.P. No. 1531, [the
court] entered an order on May 9, 2012, that vacated the order
of May 8, 2012 and, in effect, reissued the same order with two
exceptions - bond was set at $1.00 and the hearing was
scheduled for May 14, 2012, at 9:00 a.m.
On May 14, 2012, the [trial] court heard approximately six hours
of testimony from nine witnesses, admitted 18 exhibits into
evidence and heard argument from counsel [for the parties.]
[Based upon the evidence presented at the hearing, the trial
court made the following findings of fact:]
1. Proper notice was given to the [s]hareholders of the April 25, 2012
Annual Shareholders Meeting of Penn Products Corporation.
2. The largest shareholder in attendance (holding 5,195 shares or
20.78% of all outstanding shares) was Marilyn Budzynski, who was
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the duly appointed personal representative of the estate of
Maybelle Asper.
3. [Appellees] submitted legitimate proxies to [Appellants] prior to
the meeting being convened.
4. Then [p]resident, [McCorkel], called the meeting to order in the
living room because there were too many attendees to meet in the
kitchen as planned.
5. McCorkel declared the first order of business to be the election of
the Board of Directors and began to pass out preprinted ballots
that only contained the names of [Appellants].
6. McCorkel was advised by counsel for [the individual Appellees] that
there was an alternate slate of candidates consisting of David
Horick, Douglas Horick, Marilyn Budzynski, Donna Goff, Sandra
Kreider, Richard Magee and Daniel Kuhn all of whom were properly
moved, seconded and ultimately added to the ballot.
7. After the ballots were revised, McCorkel attempted to
appoint/nominate [] Greg Swope, John Swope and/or Megan
Swope to serve as judges of election, but was informed by counsel
for [the individual Appellees] that pursuant to the Penn Products
by-laws and the statutes of Pennsylvania, a candidate may not
serve as a judge of election.
8. After some additional confusion, discussion, and perhaps a few
raised voices, Marilyn Budzynski nominated [an individual who was
one of only three] present at the meeting who were legally eligible
to serve as judge of elections.
9. There was a somewhat begrudged consensus among the
[s]hareholders that [the nominee] would serve as judge of
elections, and McCorkel, the officer empowered to appoint the
judges of elections, stated words to the effect of `alright [sic] let's
proceed."
10. Following the resolution of the question as to who would serve as
judge of elections, McCorkel passed out the ballots.
11. Shortly after passing out the ballots, and following a [telephone]
call with then corporate counsel, without a motion or vote to
adjourn, McCorkel announced this meeting is over" and within
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minutes turned out the lights in order to usher the [individual
Appellees] out of the house.
12. Amidst a flurry of objections to adjournment by the [individual
Appellees], McCorkel declared "don't make me have to call the
police" in order to force the [individual Appellees] off the premises.
13. [The judge of elections] attempted to collect all of the ballots prior
to leaving, but [Appellants] refused to give him their ballots.
14. After [the judge of elections] collected the ballots in the house,
[the individual Appellees] proceeded to meet outside in the parking
lot and continued the election of officers that had commenced
inside, with each candidate on the aforesaid alternate slate
receiving well over 50% of the votes present, in person or by
proxy (14,630 votes of a possible 23,175).
15. Following their attempt to abort the election of directors,
[Appellants] met on May 1, 2012 and continued to transact
business on behalf of the corporation, including the payment of
approximately $300,000[.00] in accounts payable, the declaration
of a dividend in the amount of $22.00 per share and the mailing of
notices to reconvene the [a]nnual [s]hareholders [m]eeting on May
10, 2012.
16. The transactions by [Appellants] required sizeable transfers of
funds between corporate accounts with Charles Schwab and ACNB
leaving only $20,000[.00] in the corporate accounts for operation
of the corporation.
17. All [of the Appellants] deposited their $62,476.00 dividend checks
into their ACNB accounts on May 7, 2012, withdrew $60,000[.00]
in cash two days later and deposited the same into accounts with
different institutions.
18. On May 3, 2012, the newly elected [d]irectors met at a properly
called meeting to authorize the filing of th[is action for injunctive
relief.]
Trial Court Opinion, 8/24/12, 1-8 (internal footnotes and citations omitted).
Based on the foregoing findings, the trial court, on May 15, 2012,
entered an order which found "that the [a]nnual [s]hareholders [m]eeting
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on April 25 was properly noticed and convened and that the ensuing election
of [d]irectors and [o]fficers comported with both the by-laws of the
corporation and the laws of this Commonwealth." Trial Court Order,
5/15/12. Consequently, the trial court issued a permanent injunction
authorizing the directors and officers elected on April 25, 2012 to undertake
the management of the corporation. The court's May 15 order also
prohibited Appellants from acting on behalf of the corporation, declared
Appellants' actions following the April 25, 2012 annual meeting to be null
and void unless ratified by the newly constituted board, and directed
Appellants to deliver all of the corporate records of Penn Products to the new
directors of the corporation. Id.
On May 25, 2012, Appellants filed preliminary objections alleging that
Appellees' complaint failed to conform to law in that it was unverified.
[Appellants') Preliminary Objections to [Appellees'] Complaint, 5/25/12, at
¶ 1. Appellants also alleged that the complaint contained scurrilous matter
and that no petition for a preliminary injunction had been filed. Id. at
¶¶ 2-3. Thereafter, Appellees filed a petition for preliminary injunctive relief,
explaining that this submission had been inadvertently omitted from their
complaint. On May 29, 2012, Appellants filed a praecipe for entry of
judgment upon the trial court's May 15 order together with a timely notice of
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appeal.2 On May 31, 2012, the court ordered Appellants to file a concise
statement of errors complained of on appeal. Appellants timely complied on
June 20, 2012. The trial court issued its opinion on August 24, 2012.
Appellant's brief raises the following questions for our consideration:
Did [the trial court] act properly and in accordance with law
when, on May 8, 2012, [it] issued an ex parte, mandatory
preliminary injunction, on the basis of an unverified complaint,
with no petition for a preliminary injunction having been filed,
and without requiring that a bond be posted, and scheduled a
hearing for May 18, 2012[?]
Did [the trial court] act properly and in accordance with law
when, on May [9], 2012, [it] vacated [its] [o]rder of May 8, and
issued an ex parte, mandatory preliminary injunction, on the
basis of an unverified complaint, with no petition for a
preliminary injunction having been filed, and requiring that a
bond of $1.00 be posted and scheduled a hearing for May 14,
2012[?]
Did [the trial court] act properly and in accordance with law
when, on May 14, 2012, [it] conducted a hearing on the merits
of the [c]omplaint, adjudicated the issues between the parties,
and issued a permanent injunction?
Appellants' Brief at 5.
Appellants' three claims challenge orders entered by the trial court on
May 8, 2012 (issuing preliminary injunction), May 9, 2012 (vacating order of
May 8, 2012 and issuing amended preliminary injunction), and May 15, 2012
(issuing permanent injunction). Appellees respond that Appellants waived
2 Appellants' filing of a praecipe for entry of judgment on the trial court's
May 15, 2010 order was unnecessary. See Pa.R.A.P. 311(a)(4) (permitting
interlocutory appeal as of right from order granting injunctive relief).
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J-A03039-13
appellate review of their claims and, alternatively, challenge the validity of
Appellants' claims on appeal. We first address whether Appellants waived
appellate review of their claims and, since we conclude that they did not, we
then confront the merits of their appellate contentions.
Appellees cite three grounds for finding waiver. Appellees claim that
Appellants filed a noncompliant concise statement under Pa.R.A.P. 1925 that
was too vague to advise the trial court of the nature of the objections they
sought to raise on appeal. Appellees also argue that Appellants failed to
object to the issuance of a permanent injunction before the trial court and,
thus, failed to preserve their claims under Pa.R.A.P. 302 ("Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal."). Appellees further maintain that Appellants waived appellate
consideration of their claims since they did not move for post-trial relief
under Pa.R.C.P. 227.1(c).
We conclude that Appellants' concise statement was not so vague as
to preclude the trial court from identifying the issues raised on appeal.
Hence, we find no basis for waiver under Pa.R.A.P. 1925. We are also
convinced that in light of the unusual procedural posture of this case,
including the fact that the specific error raised on appeal did not occur until
the trial court issued its May 15, 2012 order (after the proceedings before
the trial court had concluded), Appellants did not waive their claims under
Pa.R.A.P. 302. Lastly, for the reasons set forth below, we find that Pa.R.C.P.
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227.1, setting forth the requirements for filing post-trial motions, does not
preclude appellate review.
In this case, the trial court initially granted preliminary injunctive relief
without ordering a bond or scheduling a hearing within five days, in violation
of Pa.R.C.P. 1531(b). Upon realizing its error, it vacated that order and
entered a new order granting relief pending the posting of a bond of $1.00
and scheduling a hearing within the mandatory five days pursuant to
Pa.R.C.P. 1531(b). A hearing on the preliminary injunction was held on May
14, 2012. One day later, on May 15, 2012, the trial court entered an order
granting a permanent injunction, rather than a preliminary injunction.
Appellants filed an appeal to this Court alleging, inter a/ia, that the
trial court's issuance of a permanent injunction based on the preliminary
injunction hearing was a denial of procedural due process. Appellees assert
that Appellants' failure to file post-trial motions pursuant to Pa.R.C.P.
227.1(c) compels us to find waiver. We disagree.
In Newman Development Group of Pottstown, LLC v. Genuardi's
Family Markets, Inc,, 52 A.3d 1233 (Pa. 2012), our Supreme Court
unanimously reversed this Court's application of Rule 227.1 to proceedings
following an appellate remand. The Court reasoned that neither the explicit
language of Pa.R.C.P. 227.1, nor the official note to that rule, expressly
provided for such a procedure. It focused on the language of the rule in
concluding that "to warrant the heavy consequence of waiver, in a rules
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schemata designed to 'secure the just and speedy and inexpensive
determination' of disputes, the applicability of the Rule should be apparent
upon its face or failing that, in clear decisional law construing the Rule." Id.
at 1247, quoting Pa.R.C.P. 126. To determine whether post-trial motions
are clearly required by Rule 227.1, our Supreme Court in Genuardi's looked
to several factors, including: 1) whether the plain language of Rule 227.1
clearly required the filing of a post-trial motion under the circumstances;
2) whether interpretive case law made clear that a post-trial motion was
required even though Rule 227.1 may be silent on the subject; and, 3)
whether application of a post-trial motion requirement would be at odds with
the reasonable expectations of practicing attorneys who read the rule and
attempted to discern the scope of the post-trial motion requirement under
the circumstances. Genuardi's, 52 A.3d at 1248.
Pa.R.C.P. 227.1 provides that, "[a]fter trial," and upon a written
motion for post-trial relief filed within ten days after "the filing of the
decision in the case of a trial without jury," the court may order various
types of relief.3 However, the Note to the Rule further provides that a
3 Pa.R.C.P. 227.1, which addresses post-trial relief, sets forth the
prerequisites to preserve an issue for appellate review. In relevant part, it
states:
Rule 227.1. Post-Trial Relief
(Footnote Continued Next Page)
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motion for post-trial relief is not to be filed to orders relating to proceedings
which do not constitute a trial or to matters governed exclusively by the
rules of petition practice. Pa.R.C.P. 227.1, Note.
Here, the trial court, on May 8, 2012, issued an order granting the
requested preliminary or special injunctive relief and set a hearing on the
matter for May 18, 2012. Upon realizing that this order failed to conform to
Pa.R.C.P. 1531, the court amended its order on May 9, 2012 and scheduled
a hearing for May 14, 2012. The May 14, 2012 hearing was an evidentiary
hearing on a request for preliminary injunction and, as such, was convened
to allow the trial court to receive testimony and enter evidence into the
record in determining whether the previously issued temporary preliminary
injunction should be dissolved, continued, or modified. Pa.R.C.P. 1531(e).
The key issue at such a proceeding is whether Appellees' pleadings and
evidence demonstrated that they had a reasonable likelihood of success on
the merits. Thus, while it was appropriate for the court to consider the
merits, it was improper to treat the proceeding as a final hearing unless the
(Footnote Continued)
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or
nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision in the case of a
trial without jury.
Pa.R.C.P. 227.1.
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parties stipulated to such treatment. Sofa v, Factoryvi le Sportsmen's
Club, 522 A.2d 1129, 1133 (Pa. Super. 1987). There was no stipulation in
this case. For this reason, we will not consider the May 14, 2012 proceeding
as a trial without a jury under Rule 227.1.
We also conclude that the May 14th proceeding was not a "trial without
a jury" within the meaning of Pa.R.C.P. 1038. Rule 1038 governs trials
without a jury and provides that at the conclusion of such a trial, the trial
judge will render a decision.4 The Note to Rule 1038 states that, "[a]
4 Rule 1038 states:
Rule 1038. Trial without Jury
(a) Except as otherwise provided in this rule, the trial of an
action by a judge sitting without a jury shall be conducted as
nearly as may be as a trial by jury is conducted and the parties
shall have like rights and privileges, including the right to move
for nonsuit.
(b) The decision of the trial judge may consist only of general
findings as to all parties but shall dispose of all claims for relief.
The trial judge may include as part of the decision specific
findings of fact and conclusions of law with appropriate
discussion.
(c) The decision may be made orally in open court at the end of
the trial, and in that event shall be forthwith transcribed and
filed in the office of the prothonotary, or it may be made there-
after in writing and filed forthwith. In either event the
prothonotary shall notify all parties or their attorneys of the date
of filing. The trial judge shall render a decision within seven days
after the conclusion of the trial except in protracted cases or
cases of extraordinary complexity.
(Footnote Continued Next Page)
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decision includes what were formerly known as a decree nisi and an
adjudication. A decision is not a final decree, also known as a judgment."
Pa.R.C.P. 1038, Note. For these reasons, Rule 1038 requires the filing of a
post-trial motion under Rule 227.1 after the trial court issues a decision.
Here, however, the fact that the trial court erroneously issued permanent
injunctive relief that purported to finally dispose of all issues following the
May 14th preliminary hearing did not convert that hearing into a trial. We
look to the nature and purpose of the hearing, not the result, to characterize
the proceeding.5 As we concluded above with respect to Rule 227.1, Rule
1038 is inapplicable under the present circumstances since there was no
trial. Thus, no post-trial motion was required under Rule 1038.
Finally, we are not persuaded that Rules 1531(f)(1)-(2), governing
preliminary injunctions involving freedom of expression, not at issue herein,
(Footnote Continued)
Note: A decision includes what were formerly known as a decree
nisi and an adjudication. A decision is not a final decree, also
known as a judgment.
For post-trial relief following a trial without jury, see Rule 227.1.
Pa.R.C.P. 1038.
5 In Warehime v, Warehime, 860 A.2d 41 (Pa. 2004), our Supreme Court
reversed a decision issued by this Court in which we treated an appeal from
the denial of a preliminary injunction as equivalent to a permanent
injunction because the trial court conducted exhaustive hearings. The
Supreme Court observed, "The mere holding of hearings . . . does not
somehow morph that motion into a request for a permanent injunction." Id.
at 46.
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compel the filing of a post-trial motion in this case.6 Rule 1531(f)(1)
presupposes that a preliminary injunction has issued either with or without
notice and a hearing. It then requires the court to hold a final hearing within
three days after a demand by the defendant and file a final order within
twenty-four hours after the close of the hearing or the injunction is deemed
dissolved. Subsection (2) provides that when the defendant demands a final
hearing, no further pleadings are required, and Rules 1038 and 227.1 to
227.3, relating to post-trial relief, do not apply. We will not infer from these
6 Rules 1531(f)(1) and (f)(2) provide an exception to the application of Rules
1038 and 227.1 where a request for injunctive relief involves the freedom of
expression. In relevant part, Pa.R.C.P. 1531 provides:
(f)(1) When a preliminary or special injunction involving freedom
of expression is issued, either without notice or after notice and
hearing, the court shall hold a final hearing within three days
after demand by the defendant. A final order shall be filed in the
office of the prothonotary within twenty-four hours after the
close of the hearing. If the final hearing is not held within the
three-day period, or if the final order is not filed within twenty-
four hours after the close of the hearing, the injunction shall be
deemed dissolved.
Note: The three-day period is the maximum time. In particular
cases a shorter period may be required. The court is "always
open for the transaction of judicial business". See Section 324
of the Judicial Code, 42 Pa.C.S. § 324[.]
(2) When the defendant demands such a final hearing, no
further pleadings shall be required and Rule 1038(b) and (c)
relating to decision in a trial without jury and Rules 227.1 to
227.3 relating to post-trial relief shall not apply.
Pa.R.C.P. 1531(f)(1)-(2).
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provisions that this is the only time that Rules 1038 and 227.1 do not apply
to injunctive relief. It is well-settled that an order concerning a preliminary
injunction is appealable as of right pursuant to Pa.R.A.P. 311(a)(4), and
post-trial motions are neither required nor permitted in that instance. See
City of Philadelphia v. Frempong, 865 A.2d 314 (Pa. Cmwlth. 2005)
citing Kennedy & Carter Constr. Co., Inc. v. Barkley, 468 A.2d 513 (Pa.
Super. 1983). When read in context, Rules 1531(f)(1) and (f)(2) appear to
excuse the filing of post-trial motions following a final hearing on an
injunction involving freedom of speech issues. For non-speech-related
issues, a final hearing is a trial and Rules 1038 and 227.1 require the post-
trial motions. In this case, however, there was no final hearing and, hence,
no trial. Thus, no post-trial motion was required and we will not find that
Appellants waived their claims pursuant to Pa.R.C.P. 1531.
In sum, based upon the foregoing, we do not find that the plain
language of Rule 227.1 clearly required the filing of a post-trial motion under
the present circumstances. We also are not convinced that our interpretive
case law made clear that a post-trial motion was required even though Rule
227.1 was silent on the issue. Lastly, we conclude that application of a post-
trial motion requirement under the circumstances would be at odds with the
reasonable expectations of practicing attorneys who read the applicable rules
in an attempt to discern the scope of the post-trial motion requirement. We
therefore turn to the merits of Appellants' due process claim.
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We conclude that the trial court erred in granting a permanent
injunction following the May 14, 2012 hearing on Appellees' request for
preliminary injunctive relief. The individual Appellees filed their complaint to
obtain judicial confirmation of the election of directors and officers that
occurred on April 25, 2012, and to preserve the status quo as it existed prior
to certain actions by Appellants. Those actions involved Appellants'
transaction of business on behalf of Penn Products after April 25, 2012,
including the payment of certain accounts payable, the declaration of a
dividend, and the mailing of notices to reconvene the annual shareholders
meeting on May 10, 2012. To that end, the individual Appellees sought
preliminary and permanent injunctive relief. Because this request required
the trial court to satisfy itself that the right to relief requested by the
individual Appellees was clear, the court needed to determine whether the
individual Appellees had substantial evidence that shareholder proxies were
properly submitted, that the judge of elections was validly selected, that
shares in Penn Products were properly voted, and that proper procedures
were followed in the elections of directors and officers on April 25, 2012.
See Santoro v. Morse, 781 A.2d 1220, 1229 (Pa. Super. 2001) (in dispute
between owners of closely held corporation, request for issuance of
preliminary injunction required court to consider testimony relating to merits
of moving party's claim at time of preliminary injunction hearing, including
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movant's ownership of shares). Thus, the trial court properly considered the
merits of Appellees' claims at the preliminary injunction hearing on May 14tH
Although the trial court properly considered the likelihood that
Appellees might succeed on the merits of their claims, Appellants raise a
valid contention that the trial court erred in treating the May 14th hearing on
the preliminary injunction as a final hearing for purposes of issuing a
permanent injunction. It is well-established that a court may not treat a
hearing for a preliminary injunction as a final hearing and as a basis for a
permanent injunction, unless the parties so stipulate. Santoro, 781 A.2d at
1229 (trial court may not "convert the proceeding for a preliminary
injunction into a final hearing[]"); Soja, 522 A.2d at 1133; Burrell Educ.
Ass'n v. Burrell School Dist., 674 A.2d 348, 350 (Pa. Cmwlth. 1996) ("It
is well established that a court may not treat a hearing for a preliminary
injunction as a final hearing and as a basis for a permanent injunction,
unless the parties stipulate to the contrary."); Berger by & Through
Berger v. West Jefferson Hill Sch, Dist., 669 A.2d 1084 (Pa. Cmwlth.
1995). The rationale against treating these two proceedings as one is that
separate and distinct standards control a request for a preliminary injunction
and a request for a permanent injunction. Moreover, the procedure is
fundamentally unfair where, as here, the parties participate in what they
believe is a preliminary hearing subject to one standard of proof, only to
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learn afterwards that the hearing was a final hearing governed by a different
standard. This Court in Soja, supra, succinctly articulated the problem:
Certainly, it is unfair for a court to determine an action based
upon a different legal standard than that by which the litigants
believed themselves to have been governed. It is the antithesis
of due process to bring someone before a court to defend
himself on one basis if the court then reaches its decision on a
different basis. It is also unfair to reach a final decision after a
preliminary proceeding. A litigant may not prepare as completely
as he would had he realized that he was not going to receive a
second chance to present his case.
Id. 522 A.2d at 1133.
Hence, in light of the procedural irregularities present herein, we
reverse the judgment, vacate the May 15th order granting permanent
injunctive relief, direct the trial court to enter an order - consistent with its
findings - that grants Appellees' request for a preliminary injunction (see
Trial Court Opinion, 8/24/12, at 12 (concluding that "Appellees established
their entitlement to relief under the standards for both preliminary and
permanent injunctive relief.")), and remand for disposition of Appellees'
petition for a permanent injunction.
Appellees' application for relief denied. Order and judgment vacated.
Case remanded for further proceeding consistent with this memorandum.
Jurisdiction relinquished.
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Judgment Entered.
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J•sSeletyn,D. Selet EsV
P Y � ��
Prothonotary
Date: 11/25/2013
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