Opinion
No. 1183 C.D. 2013
04-08-2014
Christa Warda, Robert Janusko, Donna Janusko, Deanna Walliser, David Lightfoot and Patricia Lightfoot, individually, and as Active Members on behalf of the Lehigh Saengerbund v. Sylvia Fowler, Devon Frey, Kurt Ernst, Carol Yanavitch, Rebecca Cappello and John Lojko, Individually and as non-Active Members, and the purported officers, of the Lehigh Saengerbund, and The Lehigh Saengerbund Appeal of: Sylvia Fowler, Devon Frey, Kurt Ernst, Carol Yanavitch, Rebecca Cappello, John Lojko, and the Lehigh Saengerbund
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Sylvia Fowler, Devon Frey, Kurt Ernst, Carol Yanavitch, Rebecca Cappello, and John Lojko, Individually and as non-Active Members, and the purported officers, of the Lehigh Saengerbund (Saengerbund) (collectively referred to as "Officers") and the Saengerbund appeal from the February 15, 2013 and the February 19, 2013 Orders of the Court of Common Pleas of Lehigh County (trial court) granting the preliminary injunctive relief requested by Christa Warda, Robert Janusko, Donna Janusko, Deanna Walliser, David Lightfoot and Patricia Lightfoot, individually, and as Active Members on behalf of the Saengerbund (collectively referred to as "Members") and enjoining Officers from "amending, presenting for amendment, calling for vote upon amendment, voting upon, and/or attempting in any other way to amend the Saengerbund Constitution and By-Laws until further Order of Court." On appeal, Officers argue that the trial court erred by granting the requested injunctive relief because Members did not establish the essential prerequisites for granting such relief.
The Saengerbund is a nonprofit corporation organized in 1858 and incorporated in 1875; thus, it is governed by the Pennsylvania Nonprofit Corporation Law of 1988 (Nonprofit Corporation Law), 15 Pa. C.S. §§ 5101 - 5997. The organization currently has approximately 179 members. (Trial Ct. Op. at 2.) Members' Amended Complaint states that "[i]n the German language, the term 'Saengerbund' means 'Choral Society.'" (Amended Complaint ¶ 1, R.R. at 125a.) However, in their Answer to the Amended Complaint, Officers allege that "the word 'Saengerbund' is not German for 'Choral Society;' it means 'Singers['] Association.'" (Answer ¶ 1, R.R. at 299a.)
This dispute started when, by separate letters dated November 29, 2012, the Saengerbund's recording secretary, Officer Carol Yanavitch, notified Members that during the November 19, 2012 membership meeting of the Saengerbund, a motion was passed to suspend and exclude them from the organization pursuant to Article 10 of the Saengerbund's Constitution "on account of resistance toward the President and violation of the laws or conduct in or out of the society." (Amended Complaint, Exs. D-E, R.R. at 161a-67a.) The letters further notified Members that a vote would be taken at the next membership meeting scheduled for December 17, 2012 to validate the motion to suspend and exclude Members from the Saengerbund. (Amended Complaint, Exs. D-E, R.R. at 161a-67a.)
The underlying dispute between Members and Officers involves which class of members has the right to vote on matters related to both the business and the singing of the Saengerbund. Members are singers in the Saengerbund's chorus and because of their participation in the chorus they are considered "active members" of the Saengerbund. Members allege that only "active members" have the right to vote, and that "active members" are those who are approved by the Singing Director of the chorus and who actively participate in chorus functions. Members allege further that because Officers are not members of the chorus, they are not "active members" and are not authorized to: (1) vote or hold office; (2) remove Members from the Saengerbund; or (3) change the governing documents.
The record contains evidence that, prior to being incorporated under the Nonprofit Corporation Law, the Saengerbund was organized with a Constitution, although there is also evidence that the Constitution may have been amended over time. The Constitution originally provided that the purpose of the Saengerbund is threefold: (1) "[c]ulture and promotion of the German singing;" (2) "[c]ulture and fostering of social intercourse among members of the society;" and (3) "[m]utual support in sickness or death." (Amended Complaint, Ex. A, R.R. at 147a.) With respect to membership, Article 4 of the Constitution provided as follows:
The society shall be composed of active, passive and contributing members. Active and passive members only, may have the privilege of taking part in all business discussions. Only active members shall have the right to vote.(Amended Complaint, Ex. A, R.R. at 147a.) Article 8 of the Constitution provided that "[a]ll officers may be chosen from the active or passive members." (Amended Complaint, Ex. A, R.R. at 148a.) Article 10 of the Constitution permitted the membership of the Saengerbund, upon a motion for exclusion, notice, and a vote thereon, "to suspend any member on account of a violation of the laws or conduct in or out of the society, or on account of resistance toward the President or the Singing Director." (Amended Complaint, Ex. A, R.R. at 148a.)
When the Saengerbund became incorporated under the Nonprofit Corporation Law, it adopted Articles of Incorporation. Article II of the Articles of Incorporation states that the object of the Saengerbund "is to encourage and foster . . . the spirit of self[-]improvement by cultivationand promotion of German Vocal and Instrumental music & the establishment of a Reading room Library, etc." (Amended Complaint, Ex. C, R.R. at 155a (emphasis in original).) Article IV of the Articles of Incorporation provides that "all members of the Society shall have a vote in the business in the affairs of the same but active members shall have the exclusive right to vote and conduct the business of the singing of said association." (Amended Complaint, Ex. C, R.R. at 156a.) Article XIII provides that "[a]ll officers except those elected as Trustees shall be active members." (Amended Complaint, Ex. C, R.R. at 157a.) The By-Laws provide that "[a]ny singer absent more than four times in any quarter without valid cause shall be transferred to membership other than active singer." (Amended Complaint, Ex. B, R.R. at 151a.)
There are governing documents in the record that appear to define the terms "active," "passive," or "contributing" member. Officers do not dispute that they are not members of the chorus and appear to concede that, because they do not sing in the chorus, they are not considered "active members." However, Officers contend that, based upon the provisions of the Articles of Incorporation and prior amendments to the Saengerbund's Constitution at monthly meetings, they are entitled to vote on the Saengerbund's business matters and hold office.
On December 12, 2012, Members simultaneously filed with the trial court a Complaint against Officers seeking injunctive and declaratory relief, a Petition for Preliminary Injunctive Relief seeking an injunction enjoining Officers and the Saengerbund from voting on December 17, 2012 to suspend and exclude Members from the Saengerbund, and a motion for an expedited hearing on Members' request for preliminary injunctive relief. An expedited hearing was held before the trial court on December 17, 2012, after which the trial court entered an order granting Members' Petition for Preliminary Injunctive Relief. The trial court enjoined Officers and any member of the Saengerbund "from presenting, calling for a vote upon, and/or voting upon their purported Motion to remove [Members] from membership in the Lehigh Saengerbund." (Trial Ct. Order, December 17, 2012, R.R. at 83a.) Officers did not appeal the trial court's December 17, 2012 order granting the preliminary injunction.
Officers then filed preliminary objections to Members' Complaint and, in response, Members filed an Amended Complaint on February 4, 2013, which, inter alia, added the Saengerbund as an additional defendant. Officers filed an Answer and New Matter to the Amended Complaint.
On February 11, 2013, Members filed a Petition for Additional Preliminary Injunctive Relief (Petition for Additional Relief) requesting that the trial court enjoin Officers, at a meeting scheduled for February 18, 2013, from amending the Saengerbund's Constitution and By-Laws to give Officers and other non-active members voting rights. (Petition for Additional Relief ¶¶ 21-34, R.R. at 177a-79a.) By Order dated February 15, 2013, the trial court preliminarily granted Members' Petition for Additional Relief and enjoined Officers and the Saengerbund "from amending, presenting for amendment, calling for vote upon amendment, voting upon amendment, and/or attempting in any other way to amend the Lehigh Saengerbund Constitition (sic) and By-Laws until further Order of Court." (Trial Ct. Order, February 15, 2013.) The trial court scheduled a hearing on Members' Petition for Additional Relief for February 19, 2013.
Members also filed a Petition to Appoint Custodian on February 11, 2013 and, by Order dated February 19, 2013, the trial court issued a rule to show cause and scheduled a hearing for April 12, 2013. Members' Petition to Appoint Custodian is not presently before this Court.
On February 19, 2013, Officers filed a Motion to Dissolve the Preliminary Injunctions (Motion to Dissolve) entered by the trial court on December 17, 2012 and February 15, 2013. A hearing on Members' Petition for Additional Relief and Officers' Motion to Dissolve began on February 19, 2013. Members presented the testimony of Officer Sylvia Fowler, as on cross, and the testimony of Member Patricia Lightfoot. Officers presented the testimony of Marita Reeder, an expert on the German language, and Officer Carol Yanavitch.
During Yanavitch's testimony on direct examination regarding certain minutes of the Saengerbund purporting to show that the Saengerbund's Constitution had been amended to permit passive members a right to vote, Members' counsel objected to such questioning because the minutes were not available for his examination. (Hr'g Tr. at 151, February 19, 2013, R.R. at 567a.) The trial court agreed and a discussion ensued about continuing the hearing in order for the parties to engage in discovery and provide the relevant minutes to Members' counsel for examination. (Hr'g Tr. at 152-57, R.R. at 568a-69a.) Due to the discovery issue and the late hour, the trial court then advised the parties that the hearing would conclude at the end of Yanavitch's direct testimony. (Hr'g Tr. at 156-57, R.R. at 569a.) The parties further discussed with the trial court what date the hearing would be rescheduled for and the consensus was to continue the hearing until March 11, 2013, which would be before the next scheduled monthly membership meeting of the Saengerbund. (Hr'g Tr. at 152-54, R.R. at 568a.) The hearing then ended at the conclusion of Yanavitch's direct testimony, with the trial court observing that it had two motions in front of it that it could not resolve in one day, that it would continue the injunction prohibiting the amendment of the Saengerbund's governing documents until March 11, 2013, and that the trial court would again address Members' Petition for Additional Relief and Officers' Motion to Dissolve on March 11, 2013. (Hr'g Tr. at 165-66, R.R. at 571a.) No one objected on the record to rescheduling the hearing for March 11, 2013. (Hr'g Tr. 166-67, R.R. 571a.) The trial court then issued an Order dated February 19, 2013 stating that after consideration of Members' Petition for Additional Relief, Officers' Motion to Dissolve, and the hearing held on February 19, 2013: (1) Members' Petition for Additional Relief was granted; (2) that the preliminary injunctive relief was effective immediately; (3) that Members were directed to post a bond in the amount of $1.00 with the Prothonotary of Lehigh County on or before February 21, 2013; (4) that prior to March 11, 2013 the parties shall engage in discovery; and (5) that a further hearing in the matter was scheduled for March 11, 2013. (Trial Ct. Order, February 19, 2013, R.R. at 297a-98a.)
As pointed out by the trial court, the February 19, 2013 Order incorrectly refers to Members' Petition for Additional Relief as "Plaintiff's Second Petition for Preliminary Injunctive Relief." (Trial Ct. Op. at 5.)
Concerned they would lose their right to appeal if they did not appeal the trial court's Orders within 30 days, Officers' appealed the trial court's February 15, 2013 and February 19, 2013 Orders on March 15, 2013 to the Superior Court, which transferred the matter to this Court. In its opinion filed pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(a), the trial court states that it is clear that its Orders are interim because the record is not closed and the hearing was continued so that relevant minutes from past meetings would be made available to all of the parties. (Trial Ct. Op. at 5-6.) The trial court states further that it explained during the February 19, 2013 hearing that the trial court had just received the Motion to Dissolve that morning and asked Members to file a response prior to the next hearing. (Trial Ct. Op. at 6.) The trial court also states that the parties participated in a settlement conference on March 5, 2013 and, as a result of that conference, the hearing on the Petition for Additional Relief and the Motion to Dissolve was rescheduled from March 11, 2013 to April 16, 2013. (Trial Ct. Op. at 6.) The trial court explains that it granted Members' Petition for Additional Relief because Officers had presented proposed amendments to the Saengerbund's Constitution and By-Laws at a January 21, 2013 meeting that would "virtually redefine which members have the right to vote." (Trial Ct. Op. at 7.) Consequently, the trial court states, had a meeting taken place and a vote held on the proposed amendments, the underlying issue of which members have the right to vote would have been rendered moot. (Trial Ct. Op. at 7.) The trial court states that it has yet to rule on Officers' Motion to Dissolve. (Trial Ct. Op. at 8.) The trial court believes that, despite Officers' appeal of the February 19, 2013 Order granting Members' preliminary injunction, the appeal is from an interim order because the record was not closed on Members' Petition for Additional Relief and that Officers' appeal "is a misuse of the resources of the parties as well as of this Court, the Superior Court, and now the Commonwealth Court." (Trial Ct. Op. at 8.)
See Section 762(a)(5)(i), (ii) of the Judicial Code, 42 Pa. C.S. § 762(a)(5)(i), (ii) (providing that the Commonwealth Court has exclusive jurisdiction over appeals involving actions and proceedings relating to nonprofit corporations).
Appellate review of a trial court order granting or denying preliminary injunctive relief is highly deferential. Warehime v. Warehime, 580 Pa. 201, 209, 860 A.2d 41, 46 (2004). As such, "we will not inquire into the merits of the controversy, but instead we will examine the record only to determine if there were any apparently reasonable grounds for the action of the court below." Free Speech, LLC v. City of Philadelphia, 884 A.2d 966, 970 n.1 (Pa. Cmwlth. 2005). "'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. (quoting Roberts v. Board of Directors of the School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975)).
The essential prerequisites for granting injunctive relief are:
(1) that the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages;Free Speech, 884 A.2d at 970. "For a preliminary injunction to issue, every one of these prerequisites must be established; if the petitioner fails to establish any one of them, there is no need to address the others." County of Allegheny v. Commonwealth, 518 Pa. 556, 560, 544 A.2d 1305, 1307 (1988). "The burden is on the party who requested preliminary injunctive relief." Warehime, 580 Pa. at 210, 860 A.2d at 47.
(2) that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings;
(3) that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct;
(4) that the activity it seeks to restrain is actionable, its right to relief is clear and the wrong is manifest, or, in other words, that it is likely to prevail on the merits;
(5) that the injunction it seeks is reasonably suited to abate the offending activity; and
(6) that a preliminary injunction will not adversely affect the public interest.
We will first address the Officers' appeal of the February 15, 2013 Order. Officers do not offer any specific argument as to why the trial court's February 15, 2013 Order should be overturned. The trial court issued the February 15, 2013 Order, granting preliminary injunctive relief, pursuant to Rule 1531 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1531. (Trial Ct. Op. at 4.) Rule 1531(a) permits a court to issue a preliminary injunction without written notice to the adverse party and hearing if "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." Pa. R.C.P. No. 1531(a). "An injunction granted without notice . . . shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five days . . . or within such other time as the parties may agree or as the court upon cause shown shall direct." Pa. R.C.P. No. 1531(d). "After a preliminary hearing, the court shall make an order dissolving, continuing or modifying the injunction." Pa. R.C.P. No. 1531(e). Here, the trial court held a preliminary hearing on February 19th, after which the court issued the February 19, 2013 Order, which effectively continued the injunctive relief entered by the trial court's February 15, 2013 Order for four days, until the next hearing. Accordingly, the trial court's February 15, 2013 Order was properly entered pursuant to Pa. R.C.P. No. 1531 although it was only in effect for four days and it is affirmed.
We now turn to Officers' appeal of the trial court's February 19, 2013 Order. Officers argue that Members did not demonstrate a right to relief because they have not shown that they are likely to succeed on the merits or that they will suffer irreparable harm. In response, Members argue that there are apparently reasonable grounds for the action of the trial court. The parties' arguments are all based upon their interpretation of the evidence that they purport is part of the record. However, because the trial court believed that the record was not closed and it was entering interim relief in its February 19, 2013 Order, it did not determine whether Members established the essential prerequisites for granting preliminary injunctive relief.
The trial court indicates that, because discovery was needed and the hour was late, it granted the Petition for Additional Relief to maintain the status quo until the rights of the parties could be determined. (Trial Ct. Op. at 8.) The only reason articulated by the trial court for granting the requested relief was its belief that the underlying issue in this matter, which members have the right to vote, would have been rendered moot if a vote on the proposed amendments to the governing documents redefining who had the right to vote would have gone forward. (Trial Ct. Op. at 7.) However, if the members voting to amend the governing documents do not have the authority in the first instance to vote to amend, then any amendments that might have been passed would have been null and void. As such, even absent an injunction prohibiting the amendments, this issue remains before the trial court. Accordingly, without a determination by the trial court that Members established the elements necessary for issuance of preliminary injunctive relief, this Court is unable to discern whether any apparently reasonable grounds exist for the trial court's Order.
Moreover, notwithstanding the trial court's belief that it was entering interim relief, the February 19, 2013 Order granted the requested injunctive relief and required a bond. As such, the February 19, 2013 Order is appealable as of right to this Court pursuant to Pa. R.A.P. 311(a)(4). However, during the pendency of Officers' appeal of the February 19, 2013 Order, the trial court retained jurisdiction to proceed in this matter pursuant to Pa. R.A.P. 311(h). See Chruby v. Department of Corrections, 4 A.3d 764, 770 (Pa. Cmwlth. 2010) (noting that "by virtue of Pa. R.A.P. 311(h), an appeal from such an order does not divest the trial court of jurisdiction to proceed further with the underlying case" (emphasis in original)). Therefore, the proceedings in this matter did not need to come to a standstill pending resolution of this appeal. The trial court could have completed the proceedings regarding the request for preliminary injunctive relief and proceeded further on the merits of Members' Amended Complaint seeking permanent injunctive and declaratory relief in an effort to resolve the underlying issues in this case.
Rule 311(a)(4) provides that an interlocutory order granting an injunction is appealable as of right. Pa. R.A.P. 311(a)(4).
Although Rule 1701(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1701(a), generally provides that a trial court may no longer proceed further in a matter after an appeal is taken, this section is not "applicable to a matter in which an interlocutory order is appealed under Subdivisions (a)(2) or (a)(4) of [Rule 311]." Pa. R.A.P. 311(h). Thus, it is not applicable in this matter. --------
Accordingly, the trial court's February 19, 2013 Order is vacated and this matter is remanded for the trial court to continue the proceedings in this matter.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 8, 2014, the Court of Common Pleas of Lehigh County's February 15, 2013 Order is AFFIRMED, the February 19, 2013 Order is VACATED, and this matter is REMANDED for further proceedings in accordance with the foregoing opinion.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge