No. 791 October Term, 1977, On Appeal from the Order of the Court of Common Pleas of Lebanon County, Pennsylvania, dated January 4, 1977, Civil Action - Equity, No. 16, 1976.
Richard W. Davis, Lebanon, for appellant.
William H. Neff, Jr., York, for appellee, Harold H. Hogg, Inc.
Donald L. Reihart, District Attorney, York, and George E. Christianson, District Attorney, Lebanon, on brief for appellee, York County Industrial Development Authority.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
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This appeal arises from the order of the chancellor dated January 4, 1977, dismissing appellant's exceptions to the dismissal of its complaint in equity on June 14, 1976.*fn1 Appellant
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contends that the chancellor erred in failing to find that Appellee Hogg denied appellant its right to quiet enjoyment of the demised premises. We agree and, therefore, reverse and remand for the entry of a decree granting a mandatory injunction.
Appellant is a Delaware corporation which is the assignee of the interest of Checker Oil Company, an Illinois corporation, in a lease entered into with the Lebanon Valley Management Corporation on March 29, 1974. The lease provided for the rental of the southwest corner of the Lebanon Valley Shopping Center in Palmyra, Pennsylvania, to Checker for use as a service station.*fn2 On or about December 30, 1975, the Lebanon Valley Management Corporation deeded the premises to the York County Industrial Development Authority, which in turn entered into an installment agreement of sale with Appellee Hogg, assigning to the latter the Authority's interest in the Checker lease.*fn3 In May, 1976, Hogg, in response to instructions from the Pennsylvania Department of Transportation, began erecting a metal guardrail along the southern edge of the premises, bordering on U.S. Route 422. The purpose of this construction was to
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replace a deteriorating rolled asphalt curb which had previously served to limit access to the service station from the highway; one forty or fifty foot opening had been left in the curb at the eastern end of the one-hundred and fifty foot frontage. Although the construction permit obtained by Appellee Hogg from the Department of Transportation provided for an opening in the guardrail similar to that which had previously existed, Hogg constructed a continuous barrier along the entire frontage which blocked, and continues to block, all direct access to appellant's gasoline station from Route 422.*fn4
On June 4, 1976, while the construction was in progress, appellant brought a complaint in equity requesting both prohibitive and mandatory injunctive relief requiring the cessation of the guardrail erection and the removal of that portion blocking the previous opening. A preliminary injunction was granted on June 7th and a hearing held on June 11, 1976. The chancellor applied the maxim expressio unius est exclusio alterius, and held that specific provisions in the lease guaranteeing continued access from Duke Street*fn5 precluded by implication any such ...