July 10, 1984
JOSEPH ZALESKI AND OLGA ZALESKI, APPELLEES
STEFAN MADYLUS AND AMELIA MADYLUS, APPELLANTS
No. 636 Philadelphia, 1983, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 522 January Term, 1983.
Before Wickersham, Wieand and Hoffman, JJ.
This is an appeal from a preliminary injunction restraining Stefan and Amelia Madylus from obstructing a narrow alley lying between buildings owned by them so as to prevent Joseph and Olga Zaleski from using the alley for purposes of ingress and egress to and from their residence. We affirm.
The purpose of a preliminary injunction is to preserve the status quo until the merits of a controversy can be fully heard and determined, thus preventing irreparable injury or gross injustice in the interim. Naus & Newlyn, Inc. v. Mason, 295 Pa. Super. 208, 211, 441 A.2d 422, 424 (1982). In determining the propriety of an order granting a preliminary injunction, the question is whether there are any reasonable grounds in the record to justify its issuance. Fischer v. Department of Public Welfare, 497 Pa. 267, 270, 439 A.2d 1172, 1174 (1982). Only if it is clear that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the trial court. Mazzie v. Commonwealth, 495 Pa. 128, 133, 432 A.2d 985, 988 (1981), quoting Roberts v. Board of Directors Of School District Of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975).
Joseph and Olga Zaleski have owned and resided at premises 758 North Ringgold Street, Philadelphia, since 1945. Stefan and Amelio Madylus, since 1951, have owned and resided at premises which are generally to the rear of Zaleskis' residence. Their residence is known as 763 North Taylor Street. In 1974, Mr. & Mrs. Madylus acquired title also to an adjoining property at 761 North Taylor Street, which is directly behind the Zaleski property. An alley, less than three feet in width, lies between the Madylus properties. A door was recently erected by Madylus which, when locked, prevents the Zaleskis from passing through the alley. This has had the effect of denying them access to the rear of their property from Taylor Street. The court ordered appellants to remove the door and to refrain from otherwise obstructing the Zaleskis' right to pass through the alley no foot.
Appellees' right to use the alley, the court found, was based upon a right of passage granted in their deed. Appellants contend that the deed reference to the alley is not precise and that the location of the alley referred to therein is ambiguous. An examination of the deed discloses a clause which purports to convey to appellees the right to the alleys adjoining their property as passageways forever. The record does not presently disclose, and we find it unnecessary to determine in this appeal the nature of the interest which Zaleskis' grantor had in these alleys. Appellees argue that, in any event, they have acquired a prescriptive right to use the alley for right of way purposes. The trial court made no findings with respect to a prescriptive right; and we express no opinion regarding this aspect of the case. These issues, which have not been argued on appeal, may well be the subjects of additional evidence before a final adjudication is entered. In any event, it was not error to preserve the status quo until the rights of the parties could be litigated fully.
Appellants also contend that the right of way between their improved lost has been abandoned. "In order for the servient tenement to establish abandonment, 'Pennsylvania law requires that there be a showing of intent of the owner of the dominant tenement to abandon the easement, coupled with either (1) adverse possession by the owner of the servient tenement; or (2) affirmative acts by the owner of the easement that render the use of the easement impossible; or (3) obstruction of the easement by the owner of the easement in a manner that is inconsistent with its further enjoyment.'" Piper v. Mowris, 466 Pa. 89, 98, 351 A.2d 635, 640 (1976). Accord: Ruffalo v. Walters, 465 Pa. 236, 348 A.2d 740 (1975); Hatcher v. Chesner, 422 Pa. 138, 221 A.2d 305 (1966); Sabados v. Kiraly, 258 Pa. Super. 532, 393 A.2d 486 (1978). The evidence in the instant case supports and confirms the trial court's finding that the right of way had not been abandoned by the owners of the dominant tenement. Although they did not use the easement frequently, the evidence is clear that they did not intend to abandon it. See: Piper v. Mowris, supra.
The order granting a preliminary injunction will be affirmed.
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