Berlin, K. v. Spencer, R. ( 2015 )

J-S66013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KEVIN BERLIN AND COREY FRY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellees
v.
RANDY J. SPENCER
Appellant No. 159 WDA 2015
Appeal from the Order January 7, 2015
In the Court of Common Pleas of Venango County
Civil Division at No(s): 354-2014
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 14, 2015
Appellant, Randy J. Spencer, appeals from the order entered on
January 7, 2015. We affirm.
The trial court accurately summarized the factual background and
procedural history of this case as follows.
Plaintiff Kevin Berlin (“Berlin”) owns property situated at 116
Garden Lane, Franklin, P[A] 16323 (“subject property”). Plaintiff
Corey Fry (“Fry”) and his significant other, Leah Morrison, along
with two children . . . reside on the subject property.
[Appellant] claims ownership over a right-of-way that is attached
to the subject property and which is the only means of ingress
and egress onto the subject property. In the past, [Appellant]
has blocked access to the subject property. . . . In the instant
case, evidence adduced at the hearings held on April 28, 2014
and January 8, 2015, suggests that on March 20, 2014,
[Appellant] once again availed himself of self-help which resulted
in preventing [Berlin and Fry] from using the right-of-way to
access the subject property. . . . Berlin was unable to drive to
access his workshop, while [Fry and his family] could only get to
*Retired Senior Judge assigned to the Superior Court.
J-S66013-15
and from their residence by parking their vehicle some 300 feet
away, near Rt. 322, and walking up a dirt hill to their home.
***
On March 31, 2014, [Berlin and Fry] filed a [c]omplaint seeking
to [enjoin Appellant from] blocking access to the property owned
by [] Berlin, and on which [] Fry resides. That same day, [Berlin
and Fry] also filed their [p]etition for [a p]reliminary
[m]andatory [i]injunction. [A hearing was held on April 28,
2014 to address, inter alia, Appellant’s filing of a suggestion of
bankruptcy.] The next day, on April 29, 2014, [the trial court]
issued an order denying [Berlin and Fry’s] petition for an
injunction due to the pendency of [Appellant’s] bankruptcy filing.
The proceedings were continued pending the lifting of the stay
by the bankruptcy court or a conclusion of the bankruptcy
proceedings.
On August 14, 2014, the United States Bankruptcy Court for the
Western District of Pennsylvania ordered that [Appellant]
immediately remove any impediments or obstructions that he
had placed on Garden Lane, refrain from placing any other such
impediment or obstructions, and permit [] Fry and his family to
freely cross over Garden Lane as a means of ingress and egress
to their residence. On September 15, 2014, the United States
Bankruptcy Court for the Western District of Pennsylvania
entered an order stating that the [trial court] was free to resume
proceedings in this case. On September 25, 2014, counsel for
[Berlin and Fry] filed a [m]otion for [h]earing on [t]emporary
[i]njunction. A hearing was then [held on January 7, 2015.] On
that date, [the trial court] received testimony from three
witnesses, and [the trial court] granted the [m]otion for
[p]reliminary [i]njunction.
Trial Court Opinion, 7/9/15, at 1-3 (footnotes omitted).
Appellant presents one issue for our review:
Whether the trial court abused its discretion in granting a
preliminary injunction in this case where [Berlin and Fry] did not
present any evidence of a legal right to use [Appellant’s] private
road to access [the subject property]?
Appellant’s Brief at 4.
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This Court has stated:
Our review of a trial court's order granting or denying
preliminary injunctive relief is highly deferential. 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.
An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias, or ill will, as shown by the evidence
or the record, discretion is abused. We do not inquire into the
merits of the controversy. Only if it is plain that no grounds
exist to support the decree or that the rule of law relied upon
was palpably erroneous or misapplied will we interfere with the
decision of the trial court.
A trial court has apparently reasonable grounds for granting the
extraordinary remedy of preliminary injunctive relief if it properly
finds that all of the essential prerequisites are satisfied.
There are six essential prerequisites that a party must establish
prior to obtaining preliminary injunctive relief. The 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. The burden is on the party who
requested preliminary injunctive relief.
WMI Grp., Inc. v. Fox, 109 A.3d 740, 747-748 (Pa. Super. 2015) (internal
quotations marks and citation omitted; emphasis removed).
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In this appeal, Appellant argues that Berlin and Fry failed to satisfy the
fourth element necessary for a preliminary injunction. In other words,
Appellant argues that there was insufficient evidence for the trial court’s
determination that Berlin and Fry were likely to succeed on the merits.
Specifically, Appellant argues that there was insufficient evidence for the
trial court to find that there was an easement by prescription.
The trial court, however, found not only that there was a likelihood
that Berlin and Fry could establish an easement by prescription but also a
likelihood that the plaintiffs could demonstrate an easement by necessity.
See Trial Court Opinion, 7/9/15, at 8. Appellant makes no argument in his
brief as to how this finding by the trial court is unsupported by the record.
See Appellant’s Brief at 10-14. Accordingly, Appellant has waived any
argument that the trial court erred in finding that Berlin and Fry could
establish an easement by necessity. See Pa.R.A.P. 2119(a). As the trial
court’s finding of an easement by necessity is sufficient to satisfy the fourth
requirement for a preliminary injunction, we ascertain no abuse of discretion
by the trial court in granting the preliminary injunction.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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