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STANDER ET AL. v. KELLEY (10/11/68)

decided: October 11, 1968.

STANDER ET AL., APPELLANTS,
v.
KELLEY



Appeal from order of Court of Common Pleas of Dauphin County, No. 197 Commonwealth Docket 1968, No. 2859 Equity Docket, in case of Irvin Stander et al. v. Joseph J. Kelley, Jr., Secretary of the Commonwealth of Pennsylvania.

COUNSEL

James E. Beasley, for appellants.

William C. Sennett, Attorney General, with him Edward Friedman, General Counsel, for Commonwealth, appellee.

Fairfax Leary, Jr., and Reed, Smith, Shaw & McClay, and Obermayer, Rebmann, Maxwell & Hippel, and Fox, Rothschild, O'Brien & Frankel, for The General State Authority, under Rule 65.

W. J. Krencewicz, for interested person, under Rule 65.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Musmanno.

Author: Bell

[ 432 Pa. Page 2]

This is an appeal from an Order denying a preliminary injunction. In such a case, the issue before this Court and our scope of review is whether there was a clear abuse of discretion, or palpable legal error, and the merits of the case are not considered or decided: City Line Open Hearth, Inc. v. Hotel, Motel & Club Employees' Union, 413 Pa. 420, 436, 197 A.2d 614; McDonald v. Noga, 393 Pa. 309, 311, 141 A.2d 842.

In McDonald v. Noga, 393 Pa., supra, the Court said (page 311): "On an appeal from a decree granting or refusing a preliminary injunction, the appellant has a very heavy burden to overcome; such a decree will not be interfered with upon appellate review in the absence of a plain abuse of discretion by the

[ 432 Pa. Page 3]

    court below: Aldrich v. Geahry, 360 Pa. 376, 379, 61 A.2d 843. . . ."

In City Line Open Hearth, Inc. v. Hotel, Motel & Club Employees' Union, 413 Pa., supra, the Court said (page 436): "On an appeal from the grant or refusal of a preliminary injunction, the test in this Court is well settled. We consider and decide, not the merits of the case*fn1 but only whether there were any apparently reasonable or justifiable grounds*fn2 for the action of the Court below; and if such exists, the Decree (or Order) will be affirmed unless the record presents palpable legal error: Philadelphia v. Philadelphia Transportation Co., 386 Pa. 231, 236, 126 A.2d 132; see also Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 145, 189 A.2d 271; Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899; Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 189 A.2d 180; Lindenfelser v. Lindenfelser, 385 Pa. 342, 123 A.2d 626."

We place our decision on the well recognized ground that there was no clear abuse of discretion, or palpable legal error.

Order affirmed, each party to pay own costs.

Disposition

Order affirmed.

Concurring Opinion by Mr. ...


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