Unruh Turner Burke & Frees, PC v. Tattersall Dev. Co.
Decision Date | 30 September 2022 |
Docket Number | 555 EDA 2022 |
Citation | 283 A.3d 1265 |
Parties | UNRUH TURNER BURKE AND FREES, PC v. TATTERSALL DEVELOPMENT COMPANY t/a Tattersall Properties LP Kenneth C. Hellings and Joyce M. Hellings Appeal of: Kenneth C. Hellings and Joyce M. Hellings |
Court | Pennsylvania Superior Court |
Andrew C. Eckert, West Chester, for appellant.
Kristen W. Ladd, West Chester, for appellee.
Kenneth C. Hellings (Mr. Hellings) and Joyce M. Hellings (collectively, Appellants) appeal from order denying their motion to dissolve the preliminary injunction granted at the request of Appellee Unruh Turner Burke & Frees, P.C. (UTBF). UTBF had obtained a judgment against Appellants, and the trial court's preliminary injunction enjoined Appellants from transferring funds through four entities: Capstone5 LP (Capstone); Embreeville Redevelopment GP, LLC (Embreeville GP); Embreeville Redevelopment, LP (Embreeville LP); and KCH, LLC (KCH) (collectively, the Embreeville Entities)) to avoid payment of the judgment. We affirm.
The trial court summarized the procedural history as follows:
Trial Court Opinion, 4/4/22, at 1-3 (footnotes in original).
In this appeal, Appellants present the following claims for our review:
Appellants’ Brief at 5 (some capitalization omitted).
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.
Shepherd v. Pittsburgh Glass Works, LLC , 25 A.3d 1233, 1241 (Pa. Super. 2011).
A mandatory preliminary injunction, such as the one imposed here, is designed to restore the status quo to the "last actual, peaceable [and] noncontested status which preceded the pending controversy." Commonwealth v. Coward , 489 Pa. 327, 414 A.2d 91, 99 (1980) (citation omitted). It "should be issued only in rare cases and certainly more sparingly than one which is merely prohibitory." Roberts v. School Board of the City of Scranton , 462 Pa. 464, 341 A.2d 475, 478 (1975).
In their first issue, Appellants challenge the trial court's jurisdiction to enter a preliminary injunction involving the Embreeville Entities, as UTBF never served the Embreeville Entities with its preliminary injunction petition. Appellants’ Brief at 11. Appellants argue UTBF failed to comply with Pennsylvania Rules of Civil Procedure 3118(a) and 440. Id. at 11, 13. Appellants acknowledge UTBF served their own "undersigned counsel" with a copy of the petition. Id. However, Appellants claim their counsel does not represent the Embreeville Entities:
[T]here is no evidence that counsel for Appellants was authorized to accept service on the Embreeville Entities’ behalf. There is no provision in either Pa.R.C.P. 3118(a) or 440 that even allows for service in such a manner.
Id. Appellants dispute the trial court's finding that:
Because the allegations and supporting documentation that [Appellants] and Embreeville Entities are one in the same and [Appellants] have been served and are participating in the proceedings, there is no issue.
Id. (citing Trial Court Opinion, 4/4/22, at 10). According to Appellants, there is no presumption as to the validity of service upon the Embreeville Entities. Id. at 15. In the absence of valid service, Appellants maintain the trial court lacked jurisdiction over the Embreeville Entities. Id. Appellants thus claim the trial court erred in not dissolving the preliminary injunction. Id. at 15-16.
Id. (emphasis added).
Notably, Appellants, not the Embreeville Entities, challenge the lack of service on the Embreeville Entities.1 This Court is unable to discern how Appellants, in their individual capacities, are prejudiced by the lack of service upon the Embreeville Entities.
In McCreesh v. City of Philadelphia , 585 Pa. 211, 888 A.2d 664, 674 (2005), our Supreme Court stated that when a defendant has actual notice of an action, dismissal for lack of service will be appropriate "where plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs’ failure to comply with the Rules of Civil Procedure has prejudiced defendant." In other words, "a plaintiff will not be punished for technical missteps if he has satisfied the statute of limitations by supplying a defendant with actual...
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