Ellis School v. Crawford

Dissenting Opinion by

Mr. Justice Cohen :

This is an appeal from a decree denying a request by the Ellis School for a preliminary injunction. Our case law is clear as to when such an injunction may be granted and what our scope of review is.

“Since a preliminary injunction is somewhat like a judgment and execution before trial, it will only issue where there is an urgent necessity to avoid injury which cannot be compensated for by damages and should never be awarded except when the rights of the plaintiff are clear. Also, it should in no event ever be issued unless greater injury will be done by refusing it than in granting it.” Herman v. Dixon, 393 Pa. 33, 36-7, 141 A. 2d 576 (1958).

In Schwab v. Pottstown Borough, 407 Pa. 531, 533, 180 A. 2d 921 (1962), we stated: “a preliminary injunction will not issue unless (1) the rights of the plaintiff are clear; (2,) there is an urgent necessity to avoid injury which cannot be compensated for by damages; and (3) greater injury will be done by refusing it than in granting it.” See also Bliss Excavating Company v. Luzerne County, 418 Pa. 446, 211 A. 2d 532 (1965).

In Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-4, 123 A. 2d 626 (1956), we defined our role on appeal as follows: “Our uniform rule is that, on appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we will not further consider the merits of the case or pass upon the reasons for or against such action unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable.” See also Bliss Excavating Company, supra; Herman v. Dixon, supra.

In this action the court below refused to issue a preliminary injunction. I would affirm that decree because there has been no showing that relief was urgently needed or that greater injury would result from the denial of a preliminary injunction than from its grant. In addition appellant has not established a clear right to such relief because it has not shown that the driveway was established according to law. The majority opinion itself indicates that it was the school that decided to improve traffic flow and constructed the driveway. I do not see how any relief conld be granted until the propriety of the establishment of the driveway has been adjudicated.

On review we are only to consider whether there are any apparently reasonable grounds for the court’s action. The record discloses that the court below had such reasonable grounds for its decision to withhold relief. When considering a matter that rests largely in the discretion of the court below, we should be slow to reverse that court’s decision when it has determined that preliminary relief should be withheld.

1 dissent.