Leisenring v. Pennsylvania Lighting Co. , 1915 Pa. Super. LEXIS 48 ( 1915 )

Opinion by

Rice, P. J.,

This case is so well stated in the opinion of the learned trial judge that a restatement of it by us would be superfluous.

One of the questions embraced in appellant’s statement of questions involved is as to the jurisdiction of a court of equity, on an application for a preliminar injunction, to make a mandatory order restoring the status quo. As the appeal in the present case is from final decree made after hearing upon bill, answer and testimony, and as no other decree is specifically assigned for error, it seems that, if that decree is right, the question above stated is not now a vital one. We remark, however, that, while in some of the earlier cases will be found the expression that an interlocutory or preliminary injunction cannot be mandatory, yet later cases furnish instances where the power has been exercised. See Taylor v. Sauer, 40 Pa. Superior Ct. 229, and cases there cited; to which may be added Corbet v. Oil City Fuel Supply Co., 5 Pa. Superior Ct. 19. It is not to be exercised except in the clearest cases, and only so far as is necessary to restore the status quo, that is, the last actual peaceable and uncontested status which preceded the pending controversy. But that a court of equity has jurisdiction to make even a preliminary injunction mandatory is now well settled. The grounds upon which the jurisdiction rests, the special conditions that will justify a chancellor in exercising it, and the principles that should govern him are set forth by Justice Mitchell in Fredericks v. Huber, 180 Pa. 572, and by our Brother Henderson in Taylor v. Sauer, 40 Pa. Superior Ct. 229, and Tussey v. Clark, 45 Pa. Superior Ct. 433, and need not be restated here.

With regard to the second question presented by appellant in the statement of questions involved, it seems sufficient to say that the claim of the defendant against the plaintiff’s vendor and the purchase money fund was not superior to those of other creditors, and, therefore, plaintiff’s refusal to pay defendant more than its pro rata share of the fund was not inequitable conduct which barred plaintiff from filing the bill.

The first question as set forth in the statement of questions involved is as to a light company’s “right to cut supply of current to present occupant of building for refusal to pay prior tenant’s arrearages.” In passing on this question, as applied to the present case, the facts should be noticed, that no rule or regulation was adopted and promulgated by the board of directors of the defendant company imposing such obligation, and that the evidence does not show that the plaintiff had notice of the practice of the company in that regard. As thus qualified, the question is conclusively answered in the negative by the ruling in Miller v. Wilkes-Barre Gas Co., 206 Pa. 254, which is correctly stated in the syllabus as follows: A gas company chartered for the purpose of supplying with gas a municipality and such individuals residing therein as might desire gas, and having the right of eminent domain, is bound to supply gas to any resident of the municipality, and it cannot refuse such a supply to a tenant because of a refusal of the latter to pay a former tenant’s gas bill, if it appears that the tenant before going into possession had no actual notice that he would be required to pay such bill, and was not affected with constructive notice by any resolution or by-law of the company to that effect. The learned trial judge has shown convincingly that the principle there decided is precisely applicable to the facts of this case, that the cutting of the current from the plaintiff’s premises was wrongful, and that she was entitled to equitable relief. We affirm his conclusions in these regards upon his clear and satisfactory opinion. If there was any inconsistency in not requiring the defendant to pay all the costs, or in directing the plaintiff to pay to defendant a proportionate part of the purchase money, it inured to defendant’s benefit, and, therefore, it cannot graciously or justly complain.

The assignments of error are overruled and the decree is affirmed: the costs of this appeal to be paid by appellant.