J-A31014-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARVIN L. SLOMOWITZ, IN HIS 

CAPACITY AS GENERAL PARTNER OF 

HANOVER ASSOCIATES, A 

PENNSYLVANIA LIMITED PARTNERSHIP, 

AND IN HIS CAPACITY AS A JOINT 

VENURER IN CLARMARK ASSOCIATES, 

THE GENERAL PARTNER OF FIRST 

VALLEY ASSOCIATES, A PENNSYLVANIA 

LIMITED PARTNERSHIP, AND IN HIS 

CAPACITY AS GENERAL PARTNER OF 

HERSHEY PLAZA ASSOCIATES, A 

PENNSYLVANIA LIMITED PARTNERSHIP,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

STUART A. KESSLER, IN HIS CAPACITY 

AS GENERAL PARTNER OF HANOVER 

ASSOCIATES, A PENNSYLVANIA LIMITED 

PARTNERSHIP, AND IN HIS CAPACITY AS 

PARTNER WITH JOHN B. ROSENTHAL, 

DECEASED, IN CLARIDGE PROPERTIES, 

THE OTHER JOINT VENTURER IN 

CLARMARK ASSOCIATES, THE GENERAL 

PARTNER OF FIRST VALLEY 

ASSOCIATES, A PENNSYLVANIA LIMITED 

PARTNERSHIP, AND IN HIS CAPACITY AS 

GENERAL PARTNER OF HERSHEY PLAZA 

ASSOCIATES, A PENNSYLVANIA LIMITED 

PARTNERSHIP,

Appellant No. 510 MDA 2014

Appeal from the Order February 25, 2014

In the Court of Common Pleas of Luzerne County

Civil Division at No(s): 3844-2011

BEFORE: BOWES, OTT, and STABILE, JJ.
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MEMORANDUM BY BOWES, J.: FILED OCTOBER 14, 2014

Stuart A. Kessler, in his capacity as partner/joint venturer in three 

limited partnerships (the “partnerships”), appeals from the February 25, 

2014 order denying his request for a preliminary injunction.1 We dismiss 

this appeal as moot. 

On March 16, 2011, Appellee Marvin L. Slomowitz, as partner/joint 

venturer in the partnerships, instituted this declaratory judgment action 

against Appellant. Appellee averred the following. The partnerships owned, 

operated, and maintained rental apartment buildings for elderly and other 

low-income people in Luzerne County. Development of the apartment 

complexes was financed by the Pennsylvania Housing Finance Agency (the 

“Agency”), and the partnerships were subject to the Agency’s rules and 

regulations. Appellee was in control of the partnerships under the pertinent 

governing documents and had secured funding for improvements to some of 

the partnership’s apartment buildings through the Preservation Through 

Smart Rehab Program, which was established by the Agency. Appellant was 

engaging in actions that undermined Appellee’s ability to close on the loan 

from the Agency. Appellee sought a declaration that he was the general 

partner in charge of the partnerships and could close on the loan from the 

Agency without Appellant’s consent. 

____________________________________________

1

 This Order is appealable as of right. Pa.R.A.P. 311 (a)(4).
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After an amended complaint was filed, Appellant filed an answer, new 

matter, and counterclaim. Appellant maintained the following. Before this 

action was instituted, the parties had a third partner who died in 2008 and 

who was in charge of the partnerships. After that event, Appellant and 

Appellee began to differ as to the proper management of the partnerships 

and were essentially at a deadlock. Appellant denied that Appellee had 

unilateral, general authority to enter the loan arrangement with the Agency 

under the documents governing the partnerships. Appellant also averred 

that he had various concerns about the proposed loan transaction with the 

Agency. 

Appellant sought dissolution and the appointment of a receiver for the 

partnerships. Appellant also sought declaratory and injunctive relief. He 

wanted, inter alia, a declaration that Appellee needed his consent before 

entering any agreements on behalf of the partnerships and that both parties 

had the joint power to operate the partnerships. Appellant also requested 

an order enjoining Appellee from unilaterally taking action on behalf of the 

partnerships without Appellee’s consultation and concurrence. 

Appellee filed a response to Appellant’s pleading and then 

unsuccessfully sought summary judgment. The matter remained 

unresolved. In January, 2014, Appellant petitioned for the issuance of a 

preliminary injunction against Appellee. Appellant sought to prevent 

Appellee from conveying or selling any interest in real estate owned by one 
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of the partnerships, Hershey Plaza Associates, and located at 233 W. 

Chocolate Avenue, Hershey. Appellee had executed an agreement of sale 

for the property in question with Brickbox Investments LLC (“Brickbox”) and 

Appellant sought to prevent that sale from occurring. 

Appellee answered the petition for injunctive relief and the trial court 

scheduled a hearing. During oral argument that occurred before the 

hearing, the trial court twice asked Appellant how he would suffer 

irreparable harm that could not be cured through the recovery of monetary 

damages if the proposed sale transpired.2 After Appellant was unable to 

answer that inquiry, the trial court did not hold a hearing. It ruled that 

Appellant would not be able to satisfy all the prerequisites for issuance of a 

preliminary injunction. Specifically, the court concluded that Appellant was 

“unable to demonstrate that he would suffer immediate and irreparable 

harm not compensable by money damages if the preliminary injunction were 

____________________________________________

2

 In Brayman Construction Corp. v. Commonwealth Department of 

Transportation, 13 A.3d 925, 935 (Pa. 2011) (emphasis added), our 

Supreme Court noted:

To obtain a preliminary injunction, a petitioner must establish 

that: (1) relief is necessary to prevent immediate and 

irreparable harm that cannot be adequately compensated 

by money damages; (2) greater injury will occur from refusing 

to grant the injunction than from granting it; (3) the injunction 

will restore the parties to their status quo as it existed before the 

alleged wrongful conduct; (4) the petitioner is likely to prevail on 

the merits; (5) the injunction is reasonably suited to abate the 

offending activity; and (6) the public interest will not be harmed 

if the injunction is granted. 
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not issued.” Trial Court Opinion, 6/2/14, at 2. It denied the request for a 

preliminary injunction, and this appeal followed. 

Before entertaining the merits, we resolve a pending motion to dismiss 

filed by Appellee. Appellee maintains that the sale of the real estate in 

question has occurred, thereby rending this appeal moot. He seeks 

dismissal under Pa.R.A.P. 1972(a)(4) (“[A]ny party may move . . . [t]o 

dismiss for mootness.”). As we observed in In re L.Z., 91 A.3d 208, 212 

(Pa.Super. 2014), appeal granted on other grounds, 96 A.3d 989 (Pa. 2014) 

(quoting In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002) (en banc ):

The mootness doctrine requires that an actual controversy exist 

at all stages of review, not merely at the time the complaint is 

filed.

 As a general rule, an actual case or controversy must exist at 

all stages of the judicial process, or a case will be dismissed as 

moot. An issue can become moot during the pendency of an 

appeal due to an intervening change in the facts of the case or 

due to an intervening change in the applicable law. In that case, 

an opinion of this Court is rendered advisory in nature. An issue 

before a court is moot if in ruling upon the issue the court cannot 

enter an order that has any legal force or effect.

 Nevertheless, this Court will decide questions that otherwise 

have been rendered moot when one or more of the following 

exceptions to the mootness doctrine apply: 1) the case involves 

a question of great public importance, 2) the question presented 

is capable of repetition and apt to elude appellate review, or 3) a 

party to the controversy will suffer some detriment due to the 

decision of the trial court.

Appellant concedes that the real estate was sold to Brickbox, but 

invokes all three exceptions to the mootness doctrine. He first claims that 

this appeal involves a matter of great public importance since it pertains to 
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low-income housing, commonly called Section 8 housing. We disagree. This 

matter involves an interpersonal dispute that revolves around whether 

Appellee has the authority, without Appellant’s approval, to sell certain 

partnership real estate that merely happens to be Section 8 housing. It 

involves no issue of public importance. Association of Pennsylvania 

State College and University Faculties v. Pennsylvania Labor 

Relations Board, 8 A.3d 300 (Pa. 2010). Appellant also complains about a 

violation of his due process rights since he was not accorded a hearing on 

the injunction, and he suggests this question is of public importance. 

However, the purported constitutional violation is also personal to 

Appellant’s individual rights rather than those of the public at large. We 

therefore reject Appellant’s attempt to invoke the first exception to the 

mootness doctrine. 

Appellant also maintains that the issue herein is capable of repetition 

and avoiding review since the partnerships own other properties that can be 

sold. We also reject this premise. Appellant is in the process of obtaining 

review at the trial court level of the central question involved herein, i.e., 

whether Appellee has the ability to act without Appellant’s consent for 

purposes of operating the partnerships in question. Thus, the contention on 

appeal is not capable of evading review but actually should be resolved by 

the trial court deciding the merits of the declaratory judgment action in the 

first instance. Additionally, there is no proof that there is another pending, 
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let along potential, sale of a piece of real estate owned by the partnerships, 

and, concomitantly, no indication that this question will arise again. 

Finally, Appellant suggests that he will suffer some detriment due to 

the trial court’s decision. Specifically, he maintains that, due to the 

consummation of the sale, there will be litigation since Brickbox thought 

that, in addition to the partnership real estate, it was purchasing adjacent 

property from parties that are related to the parties herein. Any potential 

lawsuit does not flow from the denial of the injunction but pertains to an 

interpretation of the sales documents in question. The problem exists 

whether or not we reverse the decision of the trial court. Hence, there is no 

detriment to Appellant that would be remedied by our reversal of the order 

presently on appeal. 

As we have observed, “An issue before a court is moot if in ruling upon 

the issue the court cannot enter an order that has any legal force or effect.” 

Rivera v. Pennsylvania Department of Corrections, 837 A.2d 525, 527 

(Pa.Super. 2003) (citation omitted). Appellant sought injunctive relief to 

prevent the sale of the real estate to Brickbox. That event has occurred, 

and any ruling by this Court would have no force or effect. Allen v. 

Birmingham Township, 244 A.2d 661 (Pa. 1968) (appeal involved 

unsuccessful request for injunction by township residents to prevent an 

excavation; appeal was rendered moot by fact that excavation had 

occurred); Strassburger v. Philadelphia Record Co., 6 A.2d 922 (Pa. 
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1939) (appeal was from refusal of a request for preliminary injunction to 

prevent an annual meeting of shareholders from transpiring on a certain 

day; appeal was rendered moot due to fact that annual meeting took place);

Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577(Pa.Super. 2005) 

(appealing party was successful bidder at a sheriff’s sale that the trial court 

set aside, but the property subsequently was sold at a second sheriff’s sale; 

we dismissed the appeal as moot since “the property was sold at the second 

sale, and now an order declaring the first sale valid would have no effect.”). 

The property at issue herein was sold; therefore, we cannot issue an 

injunction preventing that event. The issue herein is moot, and the appeal 

must be dismissed. 

The application to dismiss is granted. Appeal dismissed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2014