Opinion
Civil Action No. 03-6039.
December 19, 2003
MEMORANDUM
Plaintiffs Michael Norley and Mary Norley move for an order enjoining all defendants from selling property located at 912 Greene Countrie Drive, West Chester, Pennsylvania. Plaintiffs agree that the relief they request is in the nature of a temporary restraining order or preliminary injunction. Transcript of Nov. 26, 2003 Conference, at 1. The motion will be denied.
Defendants include the Commonwealth of Pennsylvania, the Judges of the Chester County Court of Common Pleas, various members of the Chester County Sheriff's Department, District Attorney's Office, Prothonotary and Tax Department.
The property is the Norleys' home, which has been sold at sheriff's sale and from which they were evicted. The Norleys filed a related action in this court on October 7, 2003, at No. 03-5596, for a temporary restraining order enjoining the sheriff's sale. The Honorable Petrese B. Tucker denied the motion and dismissed the complaint, finding a lack of subject matter jurisdiction. The complaint filed in this action is identical with the complaint filed in the earlier action. Transcript of Nov. 26, 2003 Conference, at 8.
The pretrial relief requested is extraordinary. "When ruling on a motion for preliminary injunctive relief, a district court must be convinced that consideration of the four following factors favors the granting of preliminary relief: (1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and (4) the public interest." Shire U.S. Inc. v. Barr Laboratories, Inc., 329 F.3d 348, 352 (3d Cir. 2003). The irreparable harm must be immediate; if harm will occur in the indefinite future, it is not sufficient to support the award of a preliminary injunction. Prudential Ins. Co. of America v. Stella, 994 F. Supp. 308, 316 (E.D. Pa. 1998), citing Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91-92 (3d Cir. 1992), Opticians Ass'n of America v. Independent Opticians of America, 920 F.2d 187, 195 (3d Cir. 1990), and Ecri v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987).
Plaintiffs did not produce evidence of immediate and irreparable harm in support of their motion. They do not ask for an order immediately restoring possession of their house. Tr. at 12. Their concerns are (1) that personal possessions of theirs still on the property, including equipment from a former business, be preserved, and (2) that the building on the property not be demolished. Tr. at 14, 16. Currently, First Penn Bank, the executing mortgagee, has possession of the property. Tr. at 20. It has agreed to investigate the disposition of plaintiffs' personal possessions remaining on the property and to attempt to reach agreement with plaintiffs without prejudice to any arguments that defendants may raise regarding jurisdiction. Tr. at 21. Also, First Penn Bank has represented that the property is not being actively marketed at present. Tr. at 21. There is no risk of immediate, irreparable harm to plaintiffs' personal property or to any ownership interest that plaintiffs might have in the Greene Countrie Drive property. The motion for a restraining order will, accordingly, be denied.
Plaintiffs have also filed a motion styled "Emergency Application Order to Show Cause Restraining and Removing Carolyn B. Welsh From Office of County Sheriff, 65 § 1104(d), No Statement of Financial Interest Filed. With a New Election Within 90 Days Placing Michael Norley Back on the Ballot as to a Filed Statement of Financial Interest in the Town of East Bradford." Plaintiffs did not produce evidence of immediate and irreparable harm as relates to this motion, so it, too, will be denied.