The opinion
J-A11021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HOUSING & REDEVELOPMENT : IN THE SUPERIOR COURT OF
INSURANCE EXCHANGE & : PENNSYLVANIA
EXCALIBUR INSURANCE MGMT :
SRVCS :
:
Appellant :
:
:
v. : No. 1546 MDA 2019
:
:
BROWN & BROWN OF LEHIGH :
VALLEY, LP., BROWN & BROWN OF :
FLORIDA, INC., BROWN & BROWN :
OF LOUISIANA, LLC, GENERAL :
PARTNERS, TIMOTHY BACAK, :
INDIVIDUALLY AND AS AGENT OF :
BROWN & BROWN OF LEHIGH :
VALLEY, LP
Appeal from the Order Entered August 7, 2019
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2019-04642
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 08, 2020
Housing & Redevelopment Insurance Exchange (“HARIE”) and Excalibur
Insurance Management Services, LLC (“Excalibur”), (collectively “HARIE”),
appeal from trial court order in favor of Brown & Brown of the Lehigh Valley
(“Brown & Brown”), denying HARIE’s application for a preliminary injunction.
We affirm.
Petitioner HARIE is an insurance exchange doing business in
Pennsylvania, and Petitioner Excalibur is the Attorney-in-Fact for
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A11021-20
HARIE. HARIE insures housing authorities, redevelopment
authorities and municipal governments in Pennsylvania, which
includes providing workers compensation insurance to the Altoona
Housing Authority. Respondents Brown & Brown and its agent, Mr.
Bacak, provide insurance to governmental clients in Pennsylvania
as well.
[HARIE] allege that on or about July 16, 2019, Cheryl Johns,
executive director of the Altoona Housing Authority and a member
of the HARIE Board of Directors, received an unsolicited email
from Mr. Bacak. The email stated that HARIE had recently become
non-rated by a national rating agency. See Exhibit C to
Petitioners’ Application for a Preliminary Injunction. Petitioners
allege that the email contains libelous misrepresentations, and
that [Brown & Brown] sent similar misrepresentations to other
insureds, the extent to which is still unknown. . . .
On August 7, 2019, the parties appeared before this court
for a hearing on the application and this court heard argument
from both sides and denied the application for a preliminary
injunction.
Trial Court Opinion, 11/12/19, at 2-3 (some record citations omitted).
On August 13, 2019, HARIE filed a motion for reconsideration of the
order refusing to grant the preliminary injunction, which the court denied on
August 23, 2019. On September 19, 2019, HARIE appealed nunc pro tunc
from the denial of their application for preliminary injunction.1
____________________________________________
1 On September 13, 2019, HARIE filed a motion to appeal nunc pro tunc
explaining that HARIE missed the 30-day filing deadline to appeal the court’s
order denying the preliminary injunction because of the sudden death of
counsel’s immediate family member. The trial court granted the motion on
September 16, 2019, and HARIE filed their notice of appeal on September 19,
2019. On November 21, 2019, Brown & Brown filed an application to quash
the appeal with this Court, claiming that “no adequate basis exists for the
nunc pro tunc relief granted.” Application to Quash, at 6.
“An abuse of discretion standard governs our review of the propriety of
a grant or denial of an appeal nunc pro tunc.” Commonwealth v. White, 806
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HARIE raises one issue on appeal.
1. Whether the Trial Court committed an error of law and/or
abuse of discretion in its Order of August 7, 2019, by denying
Appellants’ Application for Special Relief in the form of a
Preliminary Injunction and denying to even offer a Rule to
Show Cause allowing the litigants the opportunity to engage in
a meaningful hearing on said Application?
HARIE’s Br. at 4.2
On appeal, HARIE claims that the trial court erred when it denied the
request for a preliminary injunction. HARIE argues that the court was incorrect
in finding that HARIE had not proved it would suffer immediate and irreparable
harm without a preliminary injunction. Conversely, HARIE asserts that
“irreparable injury . . . may result from the disruption of established customer
relationships, as well as a potential loss of a business opportunity or market
advantage.” Id. at 37. It claims that the extent of damages has not been fully
calculated because it is unsure how many of its insureds were contacted and
____________________________________________
A.2d 45, 46 (Pa.Super. 2002). “[A]n appeal nunc pro tunc may be granted in
some cases where an appeal was untimely filed because of non-negligent
circumstances related to appellant, appellant’s counsel, or an agent of
appellant’s counsel.” Fischer v. UPMC Nw., 34 A.3d 115, 120 n.2 (Pa.Super.
2011) (citing Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001)).
Upon review, we conclude that the trial court did not abuse its discretion
when it granted HARIE’s motion to appeal nunc pro tunc following the sudden
death of counsel’s family member. Accordingly, we deny Brown & Brown’s
motion to quash.
2 Although HARIE’s question presented raises the topic of the trial court’s
failure to conduct a hearing on the preliminary injunction or issue a rule to
show cause, HARIE did not develop this claim in their argument. Therefore it
is waived. See Pa.R.A.P. 2119(a).
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whether they will cancel their policies, or whether any potential customers
may decide not buy insurance from HARIE. See id. at 37-38. Furthermore,
HARIE contends that the trial court should have made “an exception to the
general rule that equity will not enjoin defamation,” because the email from
Brown & Brown was reckless and meant to injure HARIE. Id. at 21. We
disagree.
Appellate courts review a trial court order refusing or granting a
preliminary injunction for an abuse of discretion. “We disturb the trial court’s
decision 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.” Turner
Const. v. Plumbers Local 690, 130 A.3d 47, 57 (Pa.Super. 2015) (citation
and internal quotation marks omitted). Our review of a trial court’s order
denying or granting a preliminary injunction is “highly deferential.” “This
highly deferential standard of review states that in reviewing the grant or
denial of a preliminary injunction, an appellate court is directed to examine
the record to determine if there were any apparently reasonable grounds for
the action of the court below.” Warehime v. Warehime, 860 A.2d 41, 46
(Pa. 2004) (citation, internal quotation marks, and footnote omitted).
A petitioner seeking a preliminary injunction must establish six
prerequisites; failure to establish any one of them results in the denial of
relief:
(1) relief is necessary to prevent immediate and irreparable harm
that cannot be adequately compensated by money damages;
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(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.
Brayman Constr. Corp. v. Com., Dep’t of Transp., 13 A.3d 925, 935 (Pa.
2011) (citing Summit Towne Centre, Inc. v. Shoe Show of Rocky Mt.,
Inc., 828 A.2d 995, 1001 (Pa. 2003)).
Instantly, the trial court denied HARIE’s request for a preliminary
injunction after concluding that HARIE failed to establish that an injunction is
necessary to prevent immediate and irreparable harm that cannot be
adequately compensated by damages. The court explained, “The harm that
[HARIE] claim[s] that [it] may suffer is loss of business which can easily be
calculated, and will be remedied through the legal damages they seek in the
complaint.” Trial Ct. Op., at 6.
We conclude that the trial court acted within its discretion when it denied
HARIE’s application for a preliminary injunction. HARIE failed to establish that
a preliminary injunction is necessary to prevent immediate and irreparable
harm. In its complaint, HARIE alleges that Brown & Brown made libelous and
slanderous statements to Altoona and other HARIE insureds, all of whom are
customers of HARIE. See Complaint. If a present or potential customer
chooses not to use HARIE’s services because of the email, any lost premiums
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can be easily calculated and compensated. HARIE’s allegations about
impairment to its reputation or any other actual harm, aside from these easily
calculable and compensable business losses, are merely speculative, and the
cases HARIE cites are distinguishable as relating to identifiable lost
opportunities. Moreover, damage to reputation is compensable at law with
money damages.
Having found support for the trial court’s decision based on HARIE’s
failure to establish the six required prongs for issuance of a preliminary
injunction, we do not reach HARIE’s argument concerning whether the court
should have made an exception to the general prohibition against enjoining
defamatory statements. The court appropriately denied HARIE’s application
based on HARIE’s failure to prove the required prerequisites. See Brayman
Const. Corp., 13 A.3d at 935. Accordingly, we affirm the trial court’s order
denying HARIE’s petition for a preliminary injunction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/08/2020
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