Tolino, C. v. Bello, S. ( 2022 )

J-A07040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CARL TOLINO, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHALOMIT BELLO AND NIR BELLO :
:
Appellants : No. 2152 EDA 2021
Appeal from the Order Entered October 1, 2021
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 02287-CV-2021
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
JUDGMENT ORDER BY KING, J.: FILED AUGUST 1, 2022
Appellants, Shalomit Bello and Nir Bello, appeal from the order entered
in the Monroe County Court of Common Pleas, which granted the petition of
Appellee, Carl Tolino, Jr. for a preliminary injunction. We vacate and remand
for further proceedings.
The relevant facts and procedural history of this case are as follows.
Appellants own property that abuts property owned by Appellee. The
properties are located along Marshalls Creek. To access the main road from
their properties, the parties utilize a shared road that crosses a bridge over
Marshalls Creek. On May 6, 2021, Appellee filed a complaint alleging that
Appellants were blocking access to his property by obstructing the path to the
shared road over which Appellee’s property held an easement. Appellee
sought declaratory relief confirming his right of access and damages for
J-A07040-22
trespass and tortious interference with contractual relations.
On June 28, 2021, Appellee filed a petition for injunctive relief to enjoin
Appellants from blocking access to the shared road to Appellee’s property.
Following a hearing, the court issued a preliminary injunction on September
22, 2021, which prohibited Appellants from blocking access to or interfering
with Appellee’s use of the driveway/easement to his property. On September
29, 2021, Appellants filed a motion for reconsideration, which the court denied
on September 30, 2021. Appellants timely filed a notice of appeal on October
13, 2021. On the same day, the court ordered Appellants to file a Pa.R.A.P.
1925(b) concise statement; Appellants timely complied on November 1, 2021.
As a preliminary matter, we observe that Rule 1531 of the Pennsylvania
Rules of Civil Procedure states, in relevant part:
Rule 1531. Special Relief. Injunctions
* * *
(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
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to be held by the prothonotary upon the same condition as
provided for the injunction bond.
Pa.R.C.P. 1531(b). “The bond requirement is mandatory and an appellate
court must invalidate a preliminary injunction if a bond is not filed by the
plaintiff. Even 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) (internal quotation and
citations omitted) (emphasis in original). “The purpose of an injunction
bond…is to protect [the party] in the event that the preliminary injunction was
improperly granted and damages were sustained thereby.” Parkinson v.
Lowe, 760 A.2d 65, 68 (Pa.Super. 2000).
Instantly, the record confirms that the trial court did not require
Appellee to post an injunction bond. “We note, however, that although the
court’s failure in this regard renders the injunction null, the error may be cured
by the re-issuance of the preliminary injunction if the order includes the
requirement of a bond.” Id. “Rule 1531(b) authorizes the trial court to set
bond in an amount it deems proper under the circumstances.” Id. Thus, we
are constrained to vacate the trial court’s order due to its failure to require a
bond and remand the matter to the trial court for imposition of a bond in an
amount it deems appropriate. See Pa.R.C.P. 1531(b); Walter, supra. See
also Cole v. Zwergel, No. 689 WDA 2021 (Pa.Super. Feb. 11, 2022)
(unpublished memorandum) (vacating preliminary injunction based on court’s
failure to require bond and remanding for court to resolve preliminary
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injunction request in full compliance with Rule 1531).1
Order vacated. Case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2022
____________________________________________
1See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this
Court filed after May 1, 2019 for persuasive value).
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