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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

 No. 646 WDA 2022 

             

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v. 

EFFERY 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 

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 

EFORE:  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 

1  Pa.R.C.P.  1531(b)(1)  (requiring  plaintiff  seeking  preliminary  injunction  to 
post bond set by trial court) (discussed in detail infra). 

  This  interlocutory  order  is  immediately  appealable  as  of  right  pursuant  to 
Pa.R.A.P. 311(a)(4). 
 

  2

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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. 

ending  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. . . 
 

  P

(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 

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 

II. 

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at 13). 

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. 

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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omitted). 

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 

 

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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oseph D. Seletyn, Esq. 
Prothonotary 

ate:  3/16/2023 

   

    J

  D

J-A06037-23 

Judgment Entered.