J-A29025-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

JEFFREY M. ZWERGEL, AN INDIVIDUAL, 

CYNTHIA F. ZWERGEL, AN INDIVIDUAL, 

THE VINYL ANSWER, INC., A 

PENNSYLVANIA CORPORATION, AND TRU 

REAL ESTATE HOLDINGS, LLC, A 

PENNSYLVANIA CORPORATION 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 689 WDA 2021

Appeal from the Order Entered May 6, 2021

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

No(s): GD21-003692

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J. : FILED: FEBRUARY 11, 2022

Jeffrey M. Zwergel, Cynthia F. Zwergel, The Vinyl Answer, Inc., and Tru 

Real Estate Holdings, LLC (collectively “the Zwergels”) appeal from the order 

that granted the Motion for Special and/or Preliminary Injunction filed by Kelly 

L. Cole and Bill Cole’s Pub, Inc. (“Cole”) pending a final hearing on the motion. 

We vacate the order and remand for further proceedings. 

Cole and the Zwergels are owners of adjacent commercial properties, 

operating a pub and a vinyl fabrication business, respectively. In 1962, the 

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* Retired Senior Judge assigned to the Superior Court.
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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 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. 
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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. Motion for Reconsideration and Clarification, 5/18/21, at 7. 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. The trial court directed the Zwergels to file a statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the 

Zwergels timely complied. The trial court issued a Pa.R.A.P. 1925(a) opinion 

in which he, inter alia, posited that the Zwergels’ appeal is premature. As the 

appealability of an order impacts this Court’s jurisdiction, we examine that 

issue before delving into the substance of this appeal. See, e.g., Kulp v. 
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Hrivnak, 765 A.2d 796, 798 (Pa.Super. 2000) (“Since we lack jurisdiction 

over an unappealable order it is incumbent on us to determine, sua sponte

when necessary, whether the appeal is taken from an appealable order.”). 

As a general rule, appeals are to be taken from final orders that dispose 

of all claims and all parties. See Pa.R.A.P. 341. However, there are many 

exceptions, including those interlocutory appeals as of right enumerated in 

Pa.R.A.P. 311. Relevant to the instant appeal, Rule 311 indicates that an

immediate appeal may be taken as of right from:

An order that grants or denies, modifies or refuses to modify, 

continues or refuses to continue, or dissolves or refuses to 

dissolve an injunction unless the order was entered:

(i) Pursuant [certain provisions of the Divorce Code]; 

or

(ii) After a trial but before entry of the final order.

Such order is immediately appealable, however, if the 

order enjoins conduct previously permitted or 

mandated or permits or mandates conduct not 

previously mandated or permitted, and is effective 

before entry of the final order.

Pa.R.A.P. 311(a)(4). 

The Zwergels contend that the May 6, 2021 order was immediately 

appealable pursuant to the initial provision of the Rule. See Zwergels’ brief 

at 1. The trial court and Cole disagree. See Trial Court Opinion, 7/12/21, at 

11; Cole’s brief at 15. Cole argues that the “ruling was temporary in nature,” 

a mere “temporary measure put into place to govern the use of the 

neighboring properties until that time when the court could hold a final hearing 
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on Cole’s Emergency Motion.” Cole’s brief at 15-16. Cole at the same time 

suggests that the interim order entered before the conclusion of the 

preliminary injunction proceedings was one entered “after a trial but before 

entry of the final order,” placing it within the exception established by 

subsection (ii). Id. at 16. Cole maintains that the order merely preserved 

the status quo rather than enjoining conduct previously permitted, rendering 

inapplicable the exception to the subsection (ii) exception. Id. at 16-17. 

We agree with the Zwergels that the order from which they appealed 

was immediately appealable pursuant to Rule 311(a)(4). While at first blush 

it does appear that the Zwergels may have acted prematurely in appealing 

while additional proceedings on the preliminary injunction request were 

pending, upon further examination, we are convinced that the May 6, 2021 

order is one contemplated by Rule 311(a)(4) for interlocutory appeal. 

A preliminary injunction’s purpose “is to preserve the status quo as it 

exists or previously existed before the acts complained of, thereby preventing 

irreparable injury or gross injustice.” City of Allentown v. Lehigh Cty. 

Auth., 222 A.3d 1152, 1156 (Pa.Super. 2019) (cleaned up). The status quo 

is the factual, not the legal, state of affairs between the parties. It “is the last 

actual, peaceable and lawful noncontested status which preceded the pending 

controversy.” Porter v. Chevron Appalachia, LLC, 204 A.3d 411, 417 

(Pa.Super. 2019). A preliminary injunction functions to preserve this pre-
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dispute environment, not to announce a finding that the existing arrangement 

reflects the actual rights of the parties.1 

Preliminary injunctive relief “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.” Ambrogi v. Reber, 932 A.2d 969, 974 

(Pa.Super. 2007). “Parties must obey a preliminary injunction, even if invalid, 

if the order is entered by a court with jurisdiction over the subject matter of 

the order and the parties thereto unless the order is vacated or reversed.” 

Rouse Philadelphia Inc. v. Ad Hoc ‘78, 417 A.2d 1248, 1257 (Pa.Super. 

1979). Failure to obey an injunction subjects the violator to punishment for 

contempt. Brightbill v. Rigo, Inc., 418 A.2d 424, 430 (Pa.Super. 1980). 

Accordingly, Rule 311(a)(4) was “originally designed to permit immediate 

appeals from preliminary injunctions” pending a final resolution of the case. 

Thomas A. Robinson Family Ltd. P'ship v. Bioni, 178 A.3d 839, 845 

(Pa.Super. 2017). 

The entry of preliminary injunctions is governed by Pa.R.C.P. 1531, 

which, relevant to this appeal, provides as follows:

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1 While not necessarily reflected by the prevailing factual status quo, an early 

assessment of the legal rights of the parties is pertinent to the decision 

whether to issue a preliminary injunction, as the trial court must conclude that 

the moving party is likely to ultimately prevail on the merits. See, e.g., 

Matenkoski v. Greer, 213 A.3d 1018, 1025 (Pa.Super. 2019). Given our 

resolution of this appeal, however, we do not address this aspect of the trial 

court’s ruling.
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(a) A court shall issue a preliminary or special injunction[2] 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 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

(1) 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, or

(2) the plaintiff deposits with the prothonotary legal tender 

of the United States in an amount fixed by the court to be 

held by the prothonotary upon the same condition as 

provided for the injunction bond.

(c) Any party may move at any time to dissolve an injunction.

(d) An injunction granted without notice to the defendant shall be 

deemed dissolved unless a hearing on the continuance of the 

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2 Pennsylvania law no longer recognize a distinction between a preliminary 

injunction and a special injunction. See 5 Goodrich Amram 2d § 1531(a):1, 

Amram commentary (“Because of the many similarities between preliminary 

and special injunctions, the two types tend to merge into one and the words 

are used interchangeably. Although the former equity rules made minor 

distinctions between them, the Pennsylvania Rules of Civil Procedure treat 

them exactly alike.”). 
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injunction is held within five days after the granting of the 

injunction or within such other time as the parties may agree or 

as the court upon cause shown shall direct.

(e) After a preliminary hearing, the court shall make an order 

dissolving, continuing or modifying the injunction.

Pa.R.C.P. 1531 (Notes omitted). 

The May 6, 2021 order from which the Zwergel’s appealed was not an 

ex parte emergency injunction which contemplated a full hearing at a later 

date pursuant to Rule 1531(d). Rather, the order was entered following notice 

and a hearing, and plainly granted Cole’s request for a preliminary injunction. 

In so doing, the court became involved in a dispute that had until then 

remained private. Pursuant to the plain language of Rule 311(a)(4), they 

therefore have an immediate right to have these court-imposed constraints 

on their use of their property reviewed by this Court. 

The fact that the order was only a “temporary measure” to preserve the 

status quo pendente lite changes nothing. Cole’s brief at 15-16. Preliminary 

injunctions are by definition temporary and limited to preserving the status 

quo pending resolution of the case. See, e.g., Weeks v. Dep't of Human 

Servs., 255 A.3d 660, 666 (Pa.Cmwlth. 2021) (“A preliminary injunction 

maintains the status quo until the merits of the controversy can be fully heard 

and determined[.]” (cleaned up)). Nothing in the law of Pennsylvania 

recognizes a “temporary” or “interim” injunction that precedes or is distinct 

from a “preliminary” injunction. It is beyond peradventure that the 

restrictions placed upon the Zwergels amounted to a preliminary injunction
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insofar as it barred their free use of the property. See City of Reading v. 

Firetree, Ltd., 984 A.2d 16, 21–22 (Pa.Cmwlth. 2009) (rejecting trial court’s 

contention that its “preliminary temporary prohibitive injunction” entered prior 

to completion of hearings on preliminary injunction was unappealable because 

the status-quo-maintaining restriction it imposed “[u]nquestionably . . . was 

tantamount to a preliminary injunction”).3 

Further, the point of subsection (ii) of Rule 311(a)(4) is to address the 

situation, absent in the case sub judice, where a permanent injunction is 

issued following a full trial of all claims in a case. To prevent Rule 311(a)(4) 

from being used “as a backdoor means of bypassing the post-trial motion and 

final judgment requirements applicable to most appeals,” such orders are not 

ordinarily immediately appealable. Thomas A. Robinson Family Ltd. 

P'ship, supra at 846. However, if the permanent injunction creates new 

court-ordered obligations to act or refrain from acting, then the permanent 

injunction may be appealed prior to the resolution of post-trial motions and 

the entry of judgment. This exception-to-the-exception’s “clear purpose is to 

permit an immediate appeal if an immediately-effective permanent injunction 

makes such a change to the status quo that the aggrieved party needs quick 

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3 We reiterate that, at this stage, the relevant status quo is the factual, not 

the legal, state of affairs between the parties. That status quo was that the 

Zwergels did not obstruct the lot with trucks or a storage area, and Cole’s 

customers could park there. Whether those circumstances were required by 

the 1962 agreement or some other contract or legal theory is not pertinent to 

the Rule 311(a)(4) analysis. 
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appellate recourse without incurring delays from post-trial proceedings in the 

trial court.” Id. at 847.

Hence, the function of Rule 311(a)(4)(ii) is to prohibit interlocutory 

appeals from immediately-effective permanent injunctions that do not newly 

impose court-ordered obligations on the parties. In other words, there is no 

interlocutory appeal from permanent injunctions that do not change the 

existing compulsions ordered by the court, but merely continue to enjoin or 

mandate what the court already enjoined or mandated with a preliminary 

injunction. In those circumstances, appellate review of the propriety of the 

restraints had previously been available. However, if the permanent 

injunction creates new court-ordered mandates or prohibitions to which 

appellate review was not previously available, the newly-burdened party need 

not wait for a final order to obtain that review.

In any event, the injunction issued in the case sub judice was not 

entered “[a]fter a trial but before entry of the final order” that would 

memorialize the final judgment in the case. Pa.R.A.P. 311(a)(4)(ii) (emphasis 

added). Rather, it was issued in the middle of preliminary injunction 

proceedings, with a trial yet to be scheduled and the entry of final judgment 

beyond the horizon.

4

 Thus, subsection (ii) has no bearing. Moreover, we have 

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4 On the matter of the pendency of a final resolution of this case, we are 

perplexed by the trial court’s apparent belief that that this appeal served to 

halt the proceedings in the trial court. See Trial Court Opinion, at 11 (“Despite 
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already established that the order enjoined conduct that theretofore had not 

been enjoined. Consequently, even if the initial hearing were to be considered 

a “trial” for purposes of the rule, the order here meets the exception to the 

exception and is immediately appealable as of right.

Having determined that we have jurisdiction to adjudicate this appeal, 

we turn to the claims of error raised by the Zwergels:

A. The harm complained of by [Cole] is adequately 

compensated by damages.

B. [Cole is] unlikely to prevail on the merits of [her] claims.

1. The license agreement, which was the sole basis 

for [Cole’s] ability to use [the Zwergels’] 

property, was properly terminated effective 

April 1, 2021.

2. [Cole] badly mischaracterize[s] the applicability 

of the 1962 agreement to the disputed parking 

area. 

3. It is clear from the record that the prior owners 

of the parcels in question did not intend an 

easement over the disputed parking area.

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[the trial court’s] finding that this matter is premature of appellate review, 

this writer authors the following opinion in an effort to expedite a final 

judgment on this matter at the [t]rial [c]ourt level.”). Pa.R.A.P. 311(h) plainly 

states that Pa.R.A.P. 1701(a), which provides the general rule that trial courts 

may not proceed further with a matter after an appeal is taken, is inapplicable 

when the appeal is taken from an interlocutory order pursuant to Rule 

311(a)(4). By failing “to proceed with the evidentiary hearing and issue [an 

order] pending this appeal,” the Zwergels have been enjoined from using their 

property and continue to be enjoined nearly one year later although the 

preliminary injunction proceedings have yet to conclude. City of Reading v. 

Firetree, Ltd., 984 A.2d 16, 21 (Pa.Cmwlth. 2009). “What, in effect, 

happened is precisely what Rule 1701[ and 311(h) were] designed to avoid.” 

Id. 
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C. Granting the motion would inflict greater harm on [the 

Zwergels] than the benefit conferred o[n Cole].

D. The trial court abused its discretion by entering the 

preliminary injunction set forth in its order without setting a 

bond or requiring that [Cole] post a bond as is required 

pursuant to Pa.R.C.P. 1531(b).

Zwergels’ brief at 4 (cleaned up).

Our standard of review of a preliminary injunction is “highly deferential.” 

Duquesne Light Co. v. Longue Vue Club, 63 A.3d 270, 275 (Pa.Super. 

2013). In assessing a trial court’s ruling on a request for a preliminary 

injunction, “we do not inquire into the merits of the controversy, but only 

examine the record to determine if there were any apparently reasonable 

grounds for the action of the court below.” City of Allentown v. Lehigh Cty. 

Auth., 222 A.3d 1152, 1156 (Pa.Super. 2019) (cleaned up). “Only if it is plain 

that no grounds exist to support the decree or that the rule of law relied upon 

was palpably erroneous or misapplied will we interfere with the decision of the 

trial court.” Id. (cleaned up). 

As we find it determinative, we address the Zwergels’ last issue first. As 

quoted supra, Rule 1531(b) provides that a preliminary injunction shall be 

granted only if the plaintiff (1) files a bond “in an amount fixed and with 

security approved by the court,” or (2) “deposits with the prothonotary legal 

tender of the United States in an amount fixed by the court. . . .” Pa.R.C.P. 

1531(b). “The purpose of an injunction bond . . . is to protect [the party] in 

the event that the preliminary injunction was improperly granted and damages 
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were sustained thereby.” Parkinson v. Lowe, 760 A.2d 65, 68 (Pa.Super. 

2000).

It is well-established 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) (emphases added). See also Rosenzweig v. Factor, 

327 A.2d 36, 38 (Pa. 1974) (“The decree was also defective and subject to 

being vacated for the further reason that it issued without the requisite bond 

being filed by appellee pursuant to Pa.R.C.P. 1531(b).”). Indeed, “[e]ven if 

the trial court’s order was otherwise proper, its failure to require the posting 

of a bond mandates our reversal of its decision.” Walter v. Stacy, 837 A.2d 

1205, 1208 (Pa.Super. 2003) (cleaned up). 

Cole attempts to avoid the ramifications of the order’s failure to comply 

with Rule 1531(b) by arguing (1) that the Zwergels waived the issue pursuant 

to Pa.R.A.P. 302(a) by not objecting prior to the entry of the May 6, 2021 

order, and (2) that the bond requirement was not triggered yet because this 

was merely a “temporary and preliminary ruling,” rather than one issued after 

“a final hearing on a preliminary injunction.” Cole’s brief at 28-29. 

We are unpersuaded. First, we have already detailed our reasons for 

rejecting the notion that the May 6, 2021 injunction was something other than 

a preliminary injunction. Second, the Zwergels obviously had no opportunity, 

let alone obligation, to object to the order’s lack of a bond requirement before 
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it knew that an order would be entered without a bond requirement. Promptly 

after the trial court entered the offending order, the Zwergels filed a motion 

for reconsideration and clarification, in which the first issue raised was the 

court’s failure to set a bond amount. See Motion for Reconsideration and 

Clarification, 5/18/21, at 1-3. The trial court thereafter proceeded to impose 

more specific restrictions than those included in the May 6, 2021 order and 

schedule further proceedings, but neglected to correct the bond omission.5 

See Order, 6/4/21. Accordingly, we discern no basis to deem the issue 

waived. 

Therefore, because the trial court enjoined the Zwergels without first 

requiring Cole to post a bond, the injunction cannot stand. We thus vacate 

the May 6, 2021 order, as well as the June 4, 2021 order which augmented it, 

and remand for the trial court to reschedule its July 9, 2021 hearing and 

resolve Cole’s preliminary injunction request in full compliance with Pa.R.C.P. 

1531. 

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5 We further observe that the Zwergels again raised the failure to set a bond 

amount as their primary claim or error in their Pa.R.A.P. 1925(b) statement, 

but the trial court still did not correct the error. Cf. Downs v. Smythe, 701 

A.2d 591, 594 (Pa.Super. 1997) (concluding that the trial court, upon realizing 

that the initial injunction was invalid due to lack of a bond, “was correct in reissuing the preliminary injunction [after] it ordered appellees to post 

bond[.]”). Indeed, the trial court, although acknowledging in its opinion that 

the Zwergels complained of the lack of a bond, failed to address the claim of 

error in its Rule 1925(a) opinion. 
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Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/2022