J-S79018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINE SCOTT, DEBORAH 

DEPHILLIPO; CAROL M. BLEDSOE, 

CATHERINE VERNON, WILLIAM 

ONSLAGER, LARRY CHANG,

JULIA SCHWARTZ, JULIA BLOCK, LISA 

TANNER, CHEIN HONG FUNG,

WEN CHING FUNG

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

DANIEL M. BERGER AND BOOTHWYN 

PARTNERS, LLP AND

BGP REALTY AND WILLOWBROOK 

APARTMENTS AND

BERGER REAL ESTATE CLIENT SERVICES 

CORPORATION AND

BERGER REAL ESTATE SALES AND 

BERGER RENTAL COMMUNITIES

AND PA MANAGEMENT & MAINTENANCE 

CORP AND ZACK MOORE

Appellants No. 1153 EDA 2016

Appeal from the Order Entered April 11, 2016

In the Court of Common Pleas of Delaware County

Civil Division at No(s): March Term 2016-002456

BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 21, 2016

Daniel M. Berger, Boothwyn Partners, LLP, BGP Realty, Willowbrook 

Apartments, Berger Real Estate Client Services Corporation, Berger Real Estate 

Sales, Berger Rental Communities, PA Management and Maintenance 

Corporation, and Zack Moore (together, “Berger”) appeal from the April 11, 

2016 order of the Court of Common Pleas of Delaware County granting in part 
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the motion for special emergency relief and preliminary injunction filed by 

Christine Scott, Deborah DePhillipo, Catherine Vernon, William Onslager, Larry 

Chang, Julia Schwartz, Lisa Tanner, Chein Hong Fung, and Wen Ching Fung 

(together, “Minority Owners”). We vacate and remand.

Minority Owners own condominium units in a building located at 3360 

Chichester Avenue in Upper Chichester, Pennsylvania (“Condominium”). On 

February 8, 2016, with an eye toward selling the building and distributing the 

proceeds, more than 80 percent of the unit owners voted to terminate the 

Condominium by agreement pursuant to section 3220 of the Pennsylvania 

Uniform Condominium Act (“UCA”), 68 Pa.C.S. § 3220. Thereafter, the 

Willowbrook Condominium Owners Association (“Association”), controlled by 

Berger, obtained an independent appraisal of the property, which set the fair 

market value at $18.5 million. An auction sale of the Condominium was 

scheduled for April 13, 2016.

On March 16, 2016, Minority Owners filed a complaint against Berger and 

a motion for special emergency relief and preliminary injunction (“Motion”).1 

Their principal complaint was that Berger had not distributed the entire 

appraisal to all unit owners, which Minority Owners claimed was required by 

section 3220(f) of the UCA. In their Motion, Minority Owners requested a stay 

____________________________________________

1

In their Complaint, Minority Owners averred that they did not file suit 

against the Association because they believed that Berger would “use the legal 

costs to defend this matter as an excuse to simply increase their 

condo[minium] fees again.” Compl. ¶ 116.
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of the April 13, 2016 auction. Berger responded to the Motion on April 8, 

2016.

On April 11, 2016, after an evidentiary hearing, the trial court granted 

the Motion in part. The trial court ordered that the auction “be stayed until at 

least thirty (30) days after [Berger] distribute[s] the full decision of the 

appraiser to all unit owners.” Trial Ct. Order, 4/11/16, at 1. Berger timely 

appealed to this Court.2

On appeal, Berger asserts that the trial court erred in failing to require 

Minority Owners to post a bond before issuing the preliminary injunction as 

required by Pennsylvania Rule of Civil Procedure 1531(b)(1). We agree.

Rule 1531(b)(1) states that “a preliminary injunction . . . shall be 

granted only if . . . the plaintiff files a bond in an amount fixed and with 

security approved by the court.” Pa.R.C.P. 1531(b)(1) (emphasis added). Our 

Court has explained that the bond “requirement is mandatory[,] and an 

appellate court must invalidate a preliminary injunction if a bond is not filed by 

the plaintiff.” Soja v. Factoryville Sportsmen’s Club, 522 A.2d 1129, 1131 

(Pa.Super. 1987); see Goodies Olde Fashion Fudge Co. v. Kuiros, 597 

A.2d 141, 143 (Pa.Super. 1991). A preliminary injunction issued without the 

filing of a bond is a nullity. Mamula v. United Steelworkers of Am., 185 

A.2d 595, 597 (Pa. 1962); see also Surco Prods., Inc. v. Kieszek, 80 A.2d 

____________________________________________

2 See Pa.R.A.P. 311(a)(4) (permitting interlocutory appeal as of right 

from order granting injunction).
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842, 845 (Pa. 1951) (holding that “[trial] court was utterly without power” to 

issue injunction without bond). Moreover, “even if the trial court’s [injunction] 

order was otherwise proper, its failure to require the posting of a bond . . . 

mandate[s] our reversal of its decision.” Soja, 522 A.2d at 1131; see also 

Surco, 80 A.2d at 845 (stating that trial court’s failure to require bond “cannot 

be corrected or cured after an appeal has been made”). Therefore, we must 

vacate the trial court’s order.

In its opinion, the trial court acknowledges that it erroneously failed to 

require a bond but asks this Court to remand so that it may re-issue the 

injunction with a bond requirement. Trial Ct. Op., 6/13/16, at 4-5 (citing 

Walter v. Stacy, 837 A.2d 1205 (Pa.Super. 2003)). In Walter, the trial court 

did not require the plaintiff in a wrongful death action to post a bond before 

issuing a preliminary injunction due to the plaintiff’s indigence. 837 A.2d at 

1208. On appeal, we held that the failure to require a bond rendered the 

injunction a nullity and required vacation of the injunction order. Id. 

However, we then considered whether the injunction was otherwise proper, 

noting that the trial court’s “error may be cured by the re-issuance of the 

preliminary injunction if the order includes the requirement of a bond.” Id. at 

1208-10. Because we determined that the injunction was otherwise proper, 

we remanded for the imposition of an appropriate bond. Id. at 1210.

Walter suggests that in some cases, the facts and equities may justify a 

remand for re-issuance of the preliminary injunction with a bond requirement. 

Nonetheless, the Walter Court held, consistent with the precedent discussed 
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above, that the trial court lacked jurisdiction to enter an injunction without a 

bond “despite the fact that the trial court’s order was ‘otherwise proper.’” Id. 

(quoting Soja, 522 A.2d at 1131).

Here, given the facts of this case and the limited nature of the 

preliminary injunction, circumstances may have changed since the trial court 

granted injunctive relief in a way that would render re-issuance of the 

injunction inappropriate.3 For this reason, we deny the trial court’s request for 

a remand solely to re-issue its injunction order with a bond requirement.

4

Order vacated. Case remanded. Jurisdiction relinquished.

____________________________________________

3 Minority Owners have not filed a brief with this court. Their failure to 

contest the claims raised on appeal could indicate a change in the ownership 

status, or legal position, of some of the named plaintiffs.

4 Berger also asserts that the trial court’s injunction was improper 

because the Association is an indispensable party that has not been joined as a 

defendant. Specifically, Berger claims that although the trial court enjoined 

Berger from proceeding with the auction sale, the Association is the only entity 

that can legally sell the Condominium. Berger’s Br. at 11-12; see 68 Pa.C.S. 

§ 3220(c) (stating that after condominium is terminated, “title to [the] real 

estate . . . vests in the association as trustee” for all unit owners and the 

association “has all powers necessary and appropriate to effect the sale” of 

condominium). Because we conclude that the injunction is a nullity, we need 

not address this claim. On remand, however, both the parties and the trial 

court should be prepared to address this issue if Minority Owners continue to 

seek an injunction.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2016