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WILLIAM L. NELSON BY ORRIE L. NELSON AS HIS ATTORNEY--FACT AND ORRIE L. NELSON v. JOHN DIBBLE (05/29/86)

filed: May 29, 1986.

WILLIAM L. NELSON BY ORRIE L. NELSON AS HIS ATTORNEY-IN-FACT AND ORRIE L. NELSON
v.
JOHN DIBBLE, INDIVIDUALLY AND D/B/A JOHN "JACK" DIBBLE TREE SERVICE, APPELLANT



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Erie County at No. 30 E 1984.

COUNSEL

Frank L. Kroto, Jr., Erie, for appellant.

Edward J. Lucht, Erie, for appellee.

Del Sole, Montemuro and Popovich, JJ.

Author: Popovich

[ 353 Pa. Super. Page 538]

This is an appeal from a final decree of the trial court which granted injunctive relief and declaratory judgment to appellees-plaintiffs, the Nelsons.*fn1 We must reverse and remand the matter for the reasons herein stated.

The record establishes the following set of facts:

In April, 1984, one of the appellees, Orrie L. Nelson, filed a complaint in equity seeking to enjoin a neighbor, appellant-defendant, John Dibble, from blocking appellees' use of a certain adjoining roadway. The trial court discharged a Rule to Show Cause why the injunction should not be issued because Orrie L. Nelson lacked standing to bring the lawsuit since he was not the owner of the property. An amended complaint was filed after William Nelson executed a document which gave Orrie Nelson, his father, a power of attorney and a life estate in the subject property.

Subsequently, a hearing was held and the trial court issued the following verbal order, which was later reduced to writing:

THE COURT: Thank you. The Court will enter an Order. I want to give you some idea of what is going to be contained in it so that you, the parties, may be aware.

[ 353 Pa. Super. Page 539]

First of all, whether we call this Lavery Lane vacated or abandoned, it is my opinion, at this point at least, that that is a difference without any real distinction. It is now no longer maintained or claimed by the township. The Court finds that there does exist an easement either by the prescriptive use of the plaintiff or as a public road now ignored and this is available to both parties; that neither party may deny the other party use of this easement; neither party may block nor deliberately obstruct the use of the easement by the other party. I'm not going to require that it be maintained or make some ruling on what is passable or impassable. I simply do not have the evidence before me to get into that type of -- get in the middle of that type of squabble. However, my ruling should be broadly construed to include neither a negligent nor a deliberate blocking or tearing up or destruction of the easement of the other -- of the other party. This would include, of course, parking on it, as has been testified to, or if in fact trucks had been left on the road so as to deny the other person access. The Court would consider that to have been a violation had such an Order existed at the time. That's about -- that's about as definite as I will get for you at this time. We will draw up something and provide it for you. Make sure that the exhibits that I do not have, the pictures and everything, remain here and that is on the board. We're all set here. I believe that's all.

(Court was ...


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