The opinion
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BOWFIN KEYCON HOLDINGS, LLC; CHIEF : No. 80 MAP 2022
POWER FINANCE II, LLC; CHIEF POWER :
TRANSFER PARENT, LLC; KEYCON : Appeal from the Order of the
POWER HOLDINGS, LLC; GENON : Commonwealth Court at No. 247
HOLDINGS, INC.; PENNSYLVANIA COAL : MD 2022 dated July 8, 2022
ALLIANCE; UNITED MINE WORKERS OF :
AMERICA; INTERNATIONAL :
BROTHERHOOD OF ELECTRICAL :
WORKERS; AND INTERNATIONAL :
BROTHERHOOD OF BOILERMAKERS, :
IRON SHIP BUILDERS, BLACKSMITHS, :
FORGERS AND HELPERS, :
:
Appellees :
:
:
v. :
:
:
PENNSYLVANIA DEPARTMENT OF :
ENVIRONMENTAL PROTECTION AND :
PENNSYLVANIA ENVIRONMENTAL :
QUALITY BOARD, :
:
Appellants :
BOWFIN KEYCON HOLDINGS, LLC; CHIEF : No. 86 MAP 2022
POWER FINANCE II, LLC; CHIEF POWER :
TRANSFER PARENT, LLC; KEYCON : Appeal from the Order of the
POWER HOLDINGS, LLC; GENON : Commonwealth Court at No. 247
HOLDINGS, INC.; PENNSYLVANIA COAL : MD 2022 dated June 28, 2022
ALLIANCE; UNITED MINE WORKERS OF :
AMERICA; INTERNATIONAL :
BROTHERHOOD OF ELECTRICAL :
WORKERS; AND INTERNATIONAL :
BROTHERHOOD OF BOILERMAKERS, :
IRON SHIP BUILDERS, BLACKSMITHS, :
FORGERS AND HELPERS :
:
:
v. :
:
:
PENNSYLVANIA DEPARTMENT OF :
ENVIRONMENTAL PROTECTION AND :
PENNSYLVANIA ENVIRONMENTAL :
QUALITY BOARD :
:
:
APPEAL OF: CITIZENS FOR :
PENNSYLVANIA'S FUTURE, SIERRA :
CLUB, CLEAN AIR COUNCIL, AND :
ENVIRONMENTAL DEFENSE FUND, :
:
Possible Intervenors :
:
BOWFIN KEYCON HOLDINGS, LLC; CHIEF : No. 88 MAP 2022
POWER FINANCE II, LLC; CHIEF POWER :
TRANSFER PARENT, LLC; KEYCON : Appeal from the Order of the
POWER HOLDINGS, LLC; GENON : Commonwealth Court at No. 247
HOLDINGS, INC.; PENNSYLVANIA COAL : MD 2022 dated July 8, 2022
ALLIANCE; UNITED MINE WORKERS OF :
AMERICA; INTERNATIONAL :
BROTHERHOOD OF ELECTRICAL :
WORKERS; AND INTERNATIONAL :
BROTHERHOOD OF BOILERMAKERS, :
IRON SHIP BUILDERS, BLACKSMITHS, :
FORGERS AND HELPERS :
:
:
v. :
:
:
PENNSYLVANIA DEPARTMENT OF :
ENVIRONMENTAL PROTECTION AND :
PENNSYLVANIA ENVIRONMENTAL :
QUALITY BOARD :
:
:
APPEAL OF: CITIZENS FOR :
PENNSYLVANIA'S FUTURE, SIERRA :
CLUB, CLEAN AIR COUNCIL, AND :
ENVIRONMENTAL DEFENSE FUND, :
:
Possible Intervenors :
:
[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]
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BOWFIN KEYCON HOLDINGS, LLC; CHIEF : No. 89 MAP 2022
POWER FINANCE II, LLC; CHIEF POWER :
TRANSFER PARENT, LLC; KEYCON : Appeal from the Order of the
POWER HOLDINGS, LLC; GENON : Commonwealth Court at No. 247
HOLDINGS, INC.; PENNSYLVANIA COAL : MD 2022 dated July 8, 2022
ALLIANCE; UNITED MINE WORKERS OF :
AMERICA;INTERNATIONAL :
BROTHERHOOD OF ELECTRICAL :
WORKERS; AND INTERNATIONAL :
BROTHERHOOD OF BOILERMAKERS, :
IRON SHIP BUILDERS, BLACKSMITHS, :
FORGERS AND HELPERS, :
:
Appellants :
:
:
v. :
:
:
PENNSYLVANIA DEPARTMENT OF :
ENVIRONMENTAL PROTECTION AND :
PENNSYLVANIA ENVIRONMENTAL :
QUALITY BOARD, :
:
Appellees :
CONCURRING STATEMENT
JUSTICE DONOHUE FILED: March 24, 2023
As a result of an equally divided Court, the order underlying Appellants’ appeal,
which challenges the amount of the bond required in connection with its preliminary
injunction, is affirmed by per curiam order. I offer this concurring statement to explain
why, in my view, Appellants’ appeal was rendered moot by virtue of Appellants’ failure to
file a bond.
Appellants (collectively “Bowfin”) filed a complaint in equity seeking declaratory
and injunctive relief against Appellees (collectively “DEP”) regarding regulations that
would permit the DEP to participate in the Regional Greenhouse Gas Initiative
[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]
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(“Rulemaking”). At the same time, Bowfin sought a preliminary injunction enjoining the
DEP from implementing the Rulemaking. A group of non-profit organizations (“Non-
profits”) filed a petition seeking to intervene in the litigation. Following a hearing, the trial
court denied the Non-profits’ petition to intervene and granted Bowfin’s petition for a
preliminary injunction.
In conformance with Pennsylvania Rule of Civil Procedure 1531(b)(1), 1 the order
granting the preliminary injunction required Bowfin to file a bond within fourteen days of
the order, the amount of which the Commonwealth Court set at $100 million. Bowfin
unsuccessfully sought reconsideration of the bond amount before the Commonwealth
Court. It is uncontested that Bowfin put forth no evidence during the preliminary injunction
proceedings as to what it believed to be an appropriate amount for the bond or concerning
its inability to secure the bond, nor did it request an opportunity to be heard to present
such evidence in connection with their application for reconsideration. Although the
Commonwealth Court denied Bowfin’s request to modify the amount of the bond, it
provided Bowfin with an additional thirty days in which to file it.
The DEP and the Non-profits timely appealed from the order granting the
preliminary injunction. Their appeals are docketed at 80 MAP 2022 and 88 MAP 2022,
respectively. On August 8, 2022, Bowfin filed the appeal challenging the amount of the
1 “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, …
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(b)(1).
[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]
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bond, which is docketed at 89 MAP 2022. On August 16, 2022, Bowfin filed an application
asking this Court to reduce the bond to a nominal amount pending the resolution of its
appeal. On September 8, 2022, following remand to the Commonwealth Court for an
opinion and further briefing by the parties, this Court denied Bowfin’s application and
ordered that the bond be filed by September 15, 2022. 2 Bowfin did not file the bond.
Bowfin’s failure to file the bond rendered the preliminary injunction a legal nullity
and inoperative, Mamula v. United Steelworkers of America, 185 A.2d 595, 597 (Pa.
1962), and consequently, renders the appeals therefrom moot. Indeed, this is how the
Court has disposed of the appeals filed by the DEP and the Non-profits. I would extend
our finding of mootness to Bowfin. Despite being given multiple extensions of time in
which to act, Bowfin failed to file the required bond by the deadline set by this Court.
Thus, the issue presented by Bowfin on appeal was mooted because of its failure to file
the requisite bond, just as the issues presented by the DEP and the Non-profits were. To
conclude otherwise would afford consideration of Bowfin’s appeal while dismissing as
moot the appeals filed by the DEP and the Non-profits. Doing so would have provided
Bowfin, who failed to comply with the orders from this Court and the Commonwealth
Court, to file the bond, the benefit of appellate review while denying the same to the DEP
and the Non-profits. This outcome not only contravenes mootness principles but also
renders an inconsistent and unfair result.
Justice Dougherty joins this concurring statement.
2 The order was supported by a majority of the Court then including former Chief Justice
Baer. Justices Mundy and Brobson filed dissenting statements and Justice Dougherty
noted his dissent. See Bowfin KeyCon Holdings, LLC v. Pa, Dep’t of Env’t Prot., 282 A.3d
688, 689 (Pa. 2022).
[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]
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