Kessler v. Broder

851 A.2d 944
CourtSuperior Court of Pennsylvania
DecidedJune 1, 2004
StatusPublished
Cited by52 cases

This text of 851 A.2d 944 (Kessler v. Broder) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kessler v. Broder, 851 A.2d 944 (Pa. Ct. App. 2004).

Opinion

TAMILIA, J.

¶ 1 Appellants appeal the May 18, 2008 Order entering a mandatory, preliminary injunction requiring them to provide appel-lees with one out of every three readings of certain magnetic resonance images (MRI’s).

¶ 2 At issue is a dispute among radiologists who co-own MRI centers. Appellants (the Broder Group) 1 are the majority shareholders of the four defendant corporations. 2 Appellees (the Kessler Group) 3 are the minority shareholders. The Kes-sler Group initiated this action in which they allege, inter alia, an oral agreement pursuant to which the Broder Group promised to allocate MRI reads from the commonly owned MRI centers in proportion to the shareholders’ ownership interests in the defendant corporations, i.e. the Kessler Group would receive approximately one out of every three reads. 4 There is no dispute that in November 2002, the Broder Group reduced the number of reads allocated to the Kessler Group to approximately ten to fifteen percent of all reads, and that since December 2002, the Broder Group has ceased allocating reads to the Kessler Group altogether.

¶ 3 On November 27, 2003, the Kessler Group filed a complaint and a petition for an injunction and appointment of a custo *946 dian against the Broder Group and the defendant corporations. The trial court held a hearing on the petition, and on January 9, 2003, entered an Order granting it in part, and denying it in part. It ordered, inter alia, that appellants make available to appellees the corporate books and records and denied the request for a custodian. The court held under advisement the request to enjoin the distribution of MRI reads inconsistent with the distribution prior to November 2002, until the results of financial examinations were published.

¶ 4 The trial court held another hearing on the petition on May 13, 2003, and entered a mandatory, preliminary injunction requiring appellants to allocate one-third of the MRI reads to appellees commencing on June 2, 2003, and requiring appellees to post a bond for $70,000. On May 20, 2003, appellants appealed seeking expedited relief. On June 19, 2003, the trial court denied appellants’ petition for reconsideration or a stay of preliminary injunction pending appeal. By our July 10, 2003 Order, this Court granted appellants’ emergency application for supersedeas and directed the trial court to file an Opinion, which the trial court did on July 28, 2003.

¶ 5 Appellants raise the following issues in this appeal.

1. Did the trial court err in entering a mandatory preliminary injunction requiring defendants to assign MRI readings to plaintiffs’ physicians where the only injury proven by plaintiffs was the loss of readily-cal-eulable revenue that plaintiffs otherwise would have earned by performing those readings?
2. Did the trial court err in entering a mandatory preliminary injunction requiring defendants to assign MRI readings to plaintiffs’ physicians where (a) the only radiology services contracts between the parties, did not require those assignments and (b) the ultimate financial beneficiary of the assignments would be plaintiffs’ separately-owned, third party corporation?
3. Did the trial court err in entering a mandatory preliminary injunction requiring defendants to assign a fixed percentage of MRI readings to plaintiffs’ physicians where the status quo had been that MRI readings were assigned on the basis of practical business considerations, not according to the percentage of plaintiffs’ collective ownership interests?
4. Did the trial court err in entering a mandatory preliminary injunction requiring defendants to assign MRI readings to plaintiffs’ physicians where plaintiffs stood to gain only additional revenue but where plaintiffs’ performance of the MRI readings threatens to disrupt the operation of the parties’ MRI Centers?

Appellants’ brief at 6.

¶ 6 Our Supreme Court recently restated the standard of review applicable to the grant or refusal of a preliminary injunction. See Summit Towne Centre, Inc. v. Shoe Show of Rocky Mt, Inc., 573 Pa. 637, 828 A.2d 995 (2003). Generally, appellate inquiry is limited to a determination of whether an examination of the record reveals that “any apparently reasonable grounds” supports the trial court’s disposition of a preliminary injunction request. Id., at 646, 828 A.2d at 1001. The standard of review differs, however, where, as here, the trial court has granted a mandatory preliminary injunction. See id., note 7. Such a remedy is extraordinary and should be utilized only in the rarest of cases. See id., note 13. Our Supreme Court has deviated from the general standard applicable to *947 review of preliminary injunctions, only when reviewing the grant of a mandatory preliminary injunction. See Mazzie v. Commonwealth, 495 Pa. 128, 134, 432 A.2d 985, 988 (1981). The Mazzie Court explained:

Generally, preliminary injunctions are preventive in nature and are designed to maintain the status quo until the rights of the parties are finally determined. There is, however, a distinction between mandatory injunctions, which command the performance of some positive act to preserve the status quo, and prohibitory injunctions, which enjoin the doing of an act that will change the status quo. This Court has engaged in greater scrutiny of mandatory injunctions and has often stated that they should be issued more sparingly than injunctions that are merely prohibitory. Thus, in reviewing the grant of a mandatory injunction, we have insisted that a clear right to relief in the plaintiff he established. However, since the preliminary injunction appealed from in this case is merely prohibitory, we will not review the merits of the controversy but will only determine if there were any apparently reasonable grounds to suppoH that action and will reverse only if no such grounds exist.

Id. (citations omitted and emphasis supplied.)

¶ 7 As the above elucidates, in reviewing the grant of a mandatory preliminary injunction we must examine the merits of the controversy and ensure that “a clear right to relief in the plaintiff [is] established.” See Id. With this standard in mind we begin our review.

¶ 8 A petitioner seeking a preliminary injunction must establish every one of the following prerequisites; if the petitioner fails to establish any one of them, there is no need to address the others. Summit Towne Centre, supra, at 646, 828 A.2d at 1001, citing County of Allegheny v. Commonwealth, 518 Pa. 556, 560, 544 A.2d 1305, 1307 (1988).

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Bluebook (online)
851 A.2d 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kessler-v-broder-pasuperct-2004.