Appeal, No. 186, Jan. T., 1952, from decree of Court of Common Pleas of Lehigh County, Jan. T., 1952, in Equity, No. 9, in case of Elias B. Roth v. Columbia Distributing Company of Allentown and Leon M. Levy. Decree affirmed.
Morris Wolf, with him J. Julius Levy, Julius M. Rapoport, Groman & Rapoport and Wolf, Block, Schorr & Solis-Cohen, for appellants.
E. G. Scoblionko, with him Scoblionko & Frank, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff, on April 3, 1952, filed in the court below his bill of complaint and an affidavit of immediate and irreparable loss or damage. The court, pursuant to Equity Rule 38, granted a preliminary injunction without notice to the defendants after the required security had been entered by the plaintiff and approved by the court. April 8, 1952, at 9:30 A.M. was the time fixed for the hearing on a motion to continue the injunction. A copy of the bill and injunction were duly served on the defendants.
At the hearing on April 8th, counsel for both parties were present. According to the appellee's Counter-History of the Case, the defendants filed a motion to dissolve the injunction, which motion, after argument, the court denied the same day. We mention this only as a part of the undisputed chronology of the litigation and not that the refusal of the motion to dissolve has any bearing on the outcome of this appeal.
Also, on April 8th the court orally made an order continuing the injunction until April 17, 1952, for the purpose of taking testimony. The next day (April 9th), the defendants took this appeal from the granting of the preliminary injunction as allowed by Act of February 14, 1866, P.L. 28, 12 PS § 1101.
The appellee has moved to quash on the grounds (1) that the appeal is from the order continuing the preliminary injunction which is said to be unappealable and (2) that the appellants failed to comply with our Rule 22. The latter ground was expressly abandoned at bar and need not be considered. It is the appellants' contention that the appeal is from the granting of the preliminary injunction.
Despite the statement to be found in some of our cases that an order continuing a preliminary injunction is not appealable, the fact of the matter is, so far as our research discloses, that not once has the rule been applied decisionally by this court. The one time that the question was squarely presented, it was intentionally not passed upon and the appeal was disposed of on the merits which, of course, it could not rightly have been had the appealed order not been legally appealable: see Pennsylvania Railroad Company v. Driscoll, 330 Pa. 97, 99-100, 198 A. 130. Courts do not lawfully acquire jurisdiction by usurping it and any such infraction is all the more to be deprecated where what jurisdiction there is is statutory as in the case of this court.
As just indicated, there is nothing decisional in this State requiring us to hold that the right of appeal from the granting of a preliminary injunction is not exercisable after an order continuing the injunction has been made. A review of the cases will so confirm. In Pennsylvania Railroad Company v. Driscoll, supra, which the appellee ...