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JOSTAN ALUMINUM PRODUCTS CO. v. MOUNT CARMEL DISTRICT INDUSTRIAL FUND (07/12/78)

decided: July 12, 1978.

JOSTAN ALUMINUM PRODUCTS CO., INC. AND ALUMO PRODUCTS CO., INC.
v.
MOUNT CARMEL DISTRICT INDUSTRIAL FUND, JOHN F. MILES CO., CELOTEX CORPORATION, AND TRAVELERS INDEMNITY COMPANY, APPELLANTS



No. 2038 October Term, 1977, Appeal from the Order Dated June 9, 1977, of the Court of Common Pleas, Civil Action--Equity, of Northumberland County at No. 77-1207.

COUNSEL

David B. Disney, Harrisburg, for appellants.

A. Stephen Cohen, Sunbury, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Hoffman and Price, JJ., concur in the result. Watkins, former President Judge did not participate in the consideration or decision of this case.

Author: Cercone

[ 256 Pa. Super. Page 356]

This is an appeal from the order of the Court of Common Pleas of Northumberland County, sitting in equity, granting a mandatory preliminary injunction to the plaintiffs, Jostan Aluminum Products Co. ("Jostan") and Alumo Products Co. ("Alumo"), directing the several defendants, Mount Carmel District Industrial Fund ("Mount Carmel"), John F. Miles Co. ("Miles"), Celotex Corp. ("Celotex") and Travelers Indemnity Co. ("Travelers"), to construct and install a new roof upon an industrial building occupied by Alumo.

The factual and procedural events giving rise to this appeal are as follows. On February 25, 1977, plaintiffs filed a complaint in equity against Mount Carmel, Miles, and Celotex requesting the issuance of a preliminary mandatory injunction ordering defendants, among other things, to restore or replace a leaking roof on a plant leased by Mount Carmel to Jostan and subleased by the latter to Alumo. A hearing on the complaint was scheduled for March 7, 1977. At the appointed time, however, it was discovered that defendant Miles had not yet been served and only counsel for Mount Carmel was present for the hearing. Notwithstanding the absence of two of the defendants, the lower court, impressed with the need for prompt action and desirous of receiving a "capsulized" statement of facts, elected to take testimony from two of plaintiffs' witnesses. The court then heard testimony from Alumo's Vice-President and a union official employed at the plant. In essence, these

[ 256 Pa. Super. Page 357]

    witnesses testified that the roof in question has leaked for approximately seventeen years; its condition has progressively deteriorated; the combination of machinery operated in the plant and the leaking roof has created dangerous working conditions; plant production has suffered and plaintiffs had incurred monetary damages as a result of the leaks.

Two days after the hearing, plaintiffs filed another complaint which was identical to the earlier one with the exception that Travelers was added as a defendant. Service of this complaint was eventually effected on all the defendants and a hearing was scheduled for March 31, 1977. On that date all parties were present with counsel. In the meantime, however, defendants had filed preliminary objections to the complaint. Apparently because of the preliminary objections the lower court decided to continue the hearing to a later date. However, without further hearing, pleading, or notice, the court on July 1, 1977, filed an order dated June 9, 1977, decreeing that a mandatory preliminary injunction be issued against the defendants. Although a hearing on the continuance of the injunction was scheduled five days later, no subsequent hearing was conducted and this appeal ensued.

It is firmly established that on an appeal from a decree either granting or denying a preliminary injunction the extent of appellate review is limited. McMullan v. Wohlgemuth et al., 444 Pa. 563, 281 A.2d 836 (1971); Board of Directors of the School District of the City of Scranton v. Roberts et al., 13 Cmwlth. 464, 320 A.2d 141 (1974). The lower court's decision will not be disturbed if there exists any apparently reasonable grounds to sustain its action. McMullan v. Wohlgemuth et al., supra; Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965); Fantastic Plastic, Inc. v. Flaherty, 26 Cmwlth. 11, 361 A.2d 489 (1976). Notwithstanding this limited scope of review, examination of the instant record fails to reveal reasonable grounds for the granting of the injunction.

It is fundamental that a party seeking a preliminary injunction of any nature must ...


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