NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P BEAVER HILL OWNERS ASSOCIATION, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : RUTH MAYER, : : Appellant : No EDA 2012 Appeal from the Order entered on December 6, 2012 in the Court of Common Pleas of Montgomery County, Civil Division, No BEFORE: BENDER, P.J., DONOHUE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 04, 2013 Ruth Mayer ( Mayer ) appeals, pro se, from the trial court Order granting Beaver Hill Owners Association s ( Beaver Hill ) Petition for a preliminary injunction. We affirm. The trial court set forth the relevant factual history: [Beaver Hill] is a Condominium Association formed in accordance with the terms of the Pennsylvania Uniform Condominium Act, 68 Pa.C.S.[A.] 3101, et seq., and, accordingly, is charged with the promulgation and enforcement of certain Rules and Regulations governing the peaceful enjoyment of the residents of the Beaver Hill Condominium buildings, grounds and common areas, as well as enforcement of the terms of the Declaration of Condominium. [Mayer] has resided as an owner in the premises known as Unit N-307 of the Beaver Hill Condominiums, and has been subject to all of the Rules and Regulations promulgated by [Beaver Hill]. [] Mayer s daughter, a woman in her forties, is severely autistic. She lives in a facility operated by trained professionals capable of providing her with the specialized care she needs. Predominantly on the weekends, [] Mayer invites her daughter

2 to spend nights at her unit in Beaver Hill [Condominiums]. Unfortunately, as a result of her affliction, [Mayer s] daughter is extremely loud throughout the night. Residents of [] Beaver Hill approached [] Mayer on several occasions regarding the unreasonable noise affecting the quiet enjoyment of their respective apartments. The loud noise coming from [] Mayer s apartment has made for unlivable conditions for neighboring units. Residents have been unable to sleep throughout the night without being disturbed, unable to entertain guests, concentrate or simply feel comfortable in their own homes. Despite having been made aware she was negatively affecting other members of Beaver Hill, the noise persisted. Over the last several years, [Mayer] has repeatedly violated the terms of both the Rules and Regulations of the Beaver Hill Condominiums and Declaration of Condominium. These violations have produced several written complaints, warnings, [and] fines[.] [Beaver Hill] filed a [C]omplaint in equity seeking a special injunction ordering [Mayer to] cease and desist producing noises from her apartment unit and within the common areas between the hours of 11:00 PM and 8:00 AM. After a hearing and thorough review of the evidence presented, [the trial c]ourt granted [Beaver Hill s] [P]etition and [issued a preliminary injunction.] [The trial court] ordered[,] inter alia[,] [Mayer s] daughter s overnight visits limited to two Saturdays per month subject to holiday and other special occasion exemptions. [Mayer could also bring her daughter to visit in case of a medical emergency. Mayer was required to give 48-hour notice to Beaver Hill for all visits, unless there was a medical emergency, in which case Mayer is required to give notice as soon as possible.] [Mayer] timely appealed. Trial Court Opinion, 2/6/13, at 1-2. On appeal, while Mayer has not concisely set forth a Statement of Questions Involved as required under Pennsylvania Rule of Appellate Procedure 2116(a), we can discern that she is challenging the trial court s grant of Beaver Hill s Petition for a preliminary injunction

3 Our scope of review in preliminary injunction matters is plenary. Warehime v. Warehime, 860 A.2d 41, 46 n.7 (Pa. 2004). However, our standard of review of a trial court s order granting or denying preliminary injunctive relief is highly deferential. Id. at 46. 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. Id. (internal footnotes, quotation marks and citations omitted). Prior to obtaining preliminary injunctive relief, [t]he party must show 1) that the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages; 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, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show 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. Id. at (citations and quotation omitted). The burden of proof is on the party requesting the preliminary injunctive relief. Id. Further, this - 3 -

4 Court has engaged in greater scrutiny of mandatory injunctions 1 and has often stated that they should be issued more sparingly than injunctions that are merely prohibitory. Overland Enter., 950 A.2d at (citation omitted). follows: The trial court addressed the entry of the preliminary injunction as [Beaver Hill] stands to suffer immediate and irreparable harm if [the trial c]ourt failed to order immediate injunctive relief. Inhibiting a party from the peaceable enjoyment of their home is tantamount to an injury[,] which cannot later be compensated with money damages. In such situations, preliminary/special injunctive relief is particularly appropriate, and in this case[,] it is necessary. Although [the trial c]ourt s order restricts [Mayer s] behavior in her home[,] thus affecting her enjoyment of the premises, this restriction only ensures she adheres to the Rules and Regulations as well as the Declaration at Beaver Hill. Clearly[,] the potential for this harm outweighs any inconvenience that will be suffered by [Mayer] if the requested relief is granted and furthermore, greater injury will result from denying than granting [Beaver Hill s] requested relief. The activity [Beaver Hill] seeks to restrain, the unreasonable after hours noise[,] is certainly actionable. [See 68 Pa.C.S.A. 3302(a)(4) (provides authority to a condominium association to institute litigation on behalf of itself on matters effecting the condominium).] [Mayer s] conduct amounts to a clear violation of the terms of both the Rules & Regulations and Declaration relating to maintaining the quiet enjoyment of other residents of the condominium. [See Declaration of Condominium, 2/11/80, at 11, 7.02(b) (stating that [n]o unit owner may carry on any practice, or permit any practice from being carried on, which 1 There is 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. Overland Enter. v. Gladstone Partners, LP, 950 A.2d 1015, 1019 (Pa. Super. 2008)

5 unreasonably interferes with the quiet enjoyment by the Occupants of any other Apartment. ).] Trial Court Opinion, 2/6/13, at 3. We adopt the sound reasoning of the trial court for the purpose of this appeal. See id. As an addendum, we note that the trial court s action does not adversely affect the public interest as the injunction protects the quiet enjoyment of the residents of the Beaver Hill Condominiums. Here, the trial court did not prohibit Mayer from bringing her daughter to her home despite Mayer s repeated violations of Beaver Hill s rules and regulations. See id. at 2. Instead, the trial court imposed notice requirements and certain restrictions on when Mayer can bring her daughter to her home so that the residents at Beaver Hill Condominiums would be restored to their prior living conditions, including having the right of quiet enjoyment. See Karpiak v. Russo, 676 A.2d 270, 274 (Pa. Super. 1996) (stating that no one is entitled to absolute quiet in the enjoyment of their property and that all that is required is that the degree of quietness be consistent with the standard of comfort in the relevant locality. ). Moreover, the trial court allowed Mayer to bring her daughter to her home for any medical emergencies. See Order for Preliminary Injunction, 12/6/12, at 1-2. Based upon the foregoing, we conclude that the trial court did not err in granting Beaver Hill s Petition for a preliminary injunction. Order affirmed

6 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/4/