J-A06037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KELLY L. COLE, AN INDIVIDUAL, 

AND BILL COLE'S PUB, INC., A 

PENNSYLVANIA CORPORATION

v.

JEFFERY M. ZWERGEL, AN 

INDIVIDUAL, CYNTHIA F. ZWERGEL, 

AN INDIVIDUAL, THE VINYL 

ANSWERS, INC., A PENNSYLVANIA 

CORPORATION, AND TRUE REAL 

ESTATE HOLDINGS, LLC, A 

PENNSYLVANIA CORPORATION 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 646 WDA 2022

Appeal From the Order Entered May 3, 2022

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD-21-003692

BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: March 16, 2023

Jeffery M. Zwergel, Cynthia F. Zwergel, The Vinyl Answers, Inc., and 

True Real Estate Holdings, LLC (the Zwergels) appeal from the order entered 

in the Court of Common Pleas of Allegheny County (trial court) reinstating the

previously issued order granting the motion for special and/or preliminary 

injunction filed by Kelly L. Cole and Bill Cole’s Pub, Inc. (Cole). This case 

returns to us from remand in which we vacated the initial order because it 

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* Retired Senior Judge assigned to the Superior Court.
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enjoined the Zwergels without first requiring Cole to post a bond in 

contravention of Pennsylvania Rule of Civil Procedure 1531.

1

 We vacate the 

May 2022 order and remand for further proceedings.2

I.

We previously set forth the relevant factual and procedural history of 

this case as follows:

Cole and the Zwergels are owners of adjacent commercial 

properties, operating a pub and a vinyl fabrication business, 

respectively. In 1962, the parties’ predecessors in interest had 

recorded an agreement to allow customers of both businesses to 

use a parking lot between the establishments. Unaware of the 

existence of this 1962 agreement, the Zwergels in 2018 

approached Cole with a license agreement, requiring her to pay 

for the continued use of their portion of the lot. When Cole 

discovered the prior agreement and her apparent right to use the 

lot free of charge, she stopped making the monthly payments. 

The Zwergels then took steps to erect a fence to close off that 

portion of the lot owned by them. Cole responded by filing a 

complaint seeking, inter alia, declaratory and injunctive relief. 

Cole also filed an emergency motion for a preliminary injunction 

to maintain her customers’ access to the parking during the 

pendency of the action. The trial court scheduled a status 

conference and then a hearing on the motion. On May 6, 2021, 

following the initial hearing, the court signed what appears to be 

the proposed order drafted by Cole, which stated as follows:

AND NOW, this 6th day of May 2021, upon consideration of 

the Plaintiff’s emergency motion for special and/or 

preliminary injunction, it is hereby ORDERED that the motion 

is GRANTED. Plaintiffs have demonstrated a reasonable 

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1 Pa.R.C.P. 1531(b)(1) (requiring plaintiff seeking preliminary injunction to 

post bond set by trial court) (discussed in detail infra).

2 This interlocutory order is immediately appealable as of right pursuant to 

Pa.R.A.P. 311(a)(4).
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probability of success on the merits against Defendants. 

Plaintiffs have also demonstrated that they would suffer 

immediate and irreparable harm in the absence of an 

injunction, that an injunction would not cause greater harm 

to Defendants and that an injunction would be in the public 

interest.

Pending a final resolution of this action on the merits, it is 

hereby ORDERED that Defendants will not construct or install 

a fence or any other barrier on that portion of the property 

used to access Plaintiff’s property.

Order, 5/6/21. The court further added additional hand-written 

provisions to the order, including the following: “A final hearing 

to be held at the request of the parties.” Id.

On May 18, 2021, the Zwergels filed a motion for 

reconsideration and clarification, in which they, inter alia, 

requested a final hearing on Cole’s Motion for Preliminary 

Injunction in accordance with the provision of the May 6 order. 

On May 21, 2021, Cole filed a motion for sanctions, claiming that 

the Zwergels violated the May 6 order by blocking the area of the 

pertinent parking lot with large trucks instead of a fence, 

something they had never done in the past. By order of June 4, 

2021, the court prohibited the Zwergels from parking more than 

one truck at a time in that area, deferred sanctions to the final 

hearing on the matter, scheduled a final hearing to take place on 

July 9, 2021, and indicated that the trial court would conduct a 

site visit on July 8, 2021, to be arranged by the parties. See

Order, 6/4/21.

The Zwergels immediately filed a notice of appeal to this 

Court from the May 6, 2021 order. . .

(Cole v. Zwergel, 273 A.3d 1047, at *1-2 (Pa. Super. 2022)) (unpublished 

memorandum) (some record citations and quotation marks omitted).

We vacated the May 6, 2021 preliminary injunction and the June 4, 2021 

order augmenting it because the trial court enjoined the Zwergels without 

requiring Cole to post a bond and remanded for further proceedings in full 
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compliance with Rule 1531. (See id. at *6). In doing so, we emphasized that 

the bond requirement is mandatory and that its purpose is to protect the 

defendant in the event the preliminary injunction was improperly granted, 

causing damages. (See id. at *5).

On remand, the trial court held a hearing on April 21, 2022, for the 

purpose of setting a bond for reissuance of the preliminary injunction. The 

court heard testimony from both parties and took the matter under 

advisement pending their submission of briefs. On May 3, 2022, the trial court 

entered its order reinstating the May 2021 preliminary injection and requiring 

Cole to post a $15,000 bond within 14 days. Cole did not file a bond in 

accordance with the order. This timely appeal followed.3

II.

On appeal, the Zwergels challenge the trial court’s issuance of the 

preliminary injunction on multiple bases, including that Cole is unlikely to 

prevail on the merits. (See Zwergels’ Brief, at 3).4 However, we must first 

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3 The trial court did not order the Zwergels to file a Rule 1925(b) statement.

It issued a brief opinion referring this Court to its previously entered orders 

and opinion to aid our disposition of this matter. See Pa.R.A.P. 1925(a)-(b).

4

[O]ur review of the grant . . . of a preliminary injunction is limited 

to determining whether there were any apparently reasonable 

grounds for the action of the trial court. We will interfere with the 

trial court’s decisions regarding a preliminary injunction only if 

there exist no grounds in the record to support the decree, or the 

rule of law relied upon was palpably erroneous or misapplied. It 
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address the effect of Cole’s failure to post the required bond on our disposition 

of this appeal. Cole maintains that because she “was unable to post the 

required bond . . . the requested preliminary injunction did not go into effect

. . . [and] this appeal must be dismissed[.]” (Cole’s Brief, at 5, 10; see id.

at 13).

We begin by observing that “a preliminary injunction is an 

extraordinary, interim remedy that should not be issued unless the moving 

party’s right to relief is clear and the wrong to be remedied is manifest.” 

Anchel, supra at 351 (citation omitted; emphasis added). “The purpose of 

a preliminary injunction is to preserve the status quo as it exists or previously 

existed before the acts complained of, thereby preventing irreparable injury 

or gross injustice.” Id. (citation omitted). Rule 1531 governs the procedural 

steps that must be taken to secure a preliminary injunction, and it requires 

the plaintiff to file a bond with the prothonotary. The Rule provides in relevant 

part:

(a) A court shall issue a preliminary or special injunction only after 

written notice and hearing unless it appears to the satisfaction of 

the court that immediate and irreparable injury will be sustained 

before notice can be given or a hearing held, in which case the 

court may issue a preliminary or special injunction without a 

hearing or without notice. In determining whether a preliminary 

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must be stressed that our review of a decision regarding a 

preliminary injunction does not reach the merits of the 

controversy.

Anchel v. Shea, 762 A.2d 346, 351 (Pa. Super. 2000), appeal denied, 782 

A.2d 541 (Pa. 2001) (citation omitted).
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or special injunction should be granted and whether notice or a 

hearing should be required, the court may act on the basis of the 

averments of the pleadings or petition and may consider affidavits 

of parties or third persons or any other proof which the court may 

require.

(b) Except when the plaintiff is the Commonwealth of 

Pennsylvania, a political subdivision or a department, board, 

commission, instrumentality or officer of the Commonwealth or of 

a political subdivision, a preliminary or special injunction shall be 

granted only if

(i) The plaintiff files a bond in an amount fixed and with 

security approved by the court, naming the Commonwealth as 

obligee, conditioned that if the injunction is dissolved because 

improperly granted or for failure to hold a hearing, the plaintiff 

shall pay to any person injured all damages sustained by reason 

of granting the injunction and all legally taxable costs and fees[.]

Pa.R.C.P. 1531(a), (b)(1) (emphasis added).

Compliance with 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) 

(emphasis original; citation omitted). This bond posted by a plaintiff serves 

as a safeguarding measure and “exists for the specific purpose of protecting 

a defendant by supplying a fund to pay damages if this relief is granted 

erroneously.” Goodies Olde Fashion Fudge Co. v. Kuiros, 597 A.2d 141, 

144 (Pa. Super. 1991) (citation omitted). There is no similar bond 

requirement to obtain a final injunction, and the absence of a preliminary 

injunction does not foreclose an order for a permanent injunction. See Soja 

v. Factoryville Sportsmen’s Club, 522 A.2d 1129, 1131 (1987). This is 

because the “right to preliminary relief is based on the imminence of 
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irreparable harm,” while entry of a final injunction is appropriate under a 

comparatively lesser standard, where “such relief is necessary to prevent a 

legal wrong for which there is no adequate redress at law.” Id. (citation 

omitted).

Our decision in Goodies, supra is instructive. In that case, the plaintiff 

was unable to post a bond because of financial difficulties. This Court vacated 

the preliminary injunction and explained as to the bond requirement:

If Goodies is without the wherewithal to post the bond, they are 

unlikely to possess sufficient resources for any damages awarded 

if defendants comply with the order and the injunction is later 

determined to have been issued in error. It is precisely this 

situation which the Rules mean to prevent by requiring the posting 

of a bond. Thus, we find that Goodies has not posted the bond 

according to the trial court’s order and vacate the order at issue.

Goodies, supra at 144.

In the instant case, Cole concedes her inability to file the bond set by 

the trial court after a hearing and that the preliminary injunction is, therefore,

invalid. We agree and conclude that in light of the extraordinary remedy Cole

is seeking in the form of preliminary interim relief, we cannot ignore the 

mandatory bond posting requirement of Rule 1531 or its purpose of protecting 

the Zwergels in the event they sustain damages. Accordingly, we vacate the 

trial court’s order and remand for further proceedings.

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2023