J-A07008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD A. KYLER, JR.                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                    v.

EILEEN J. MYERS, AN INDIVIDUAL,
WILLIAM G. MYERS, AN INDIVIDUAL
AND AMY MYERS, AN INDIVIDUAL, AS
TERRE TENANT

APPEAL OF: EILEEN J. MYERS                          No. 536 WDA 2014


                Appeal from the Order Entered March 3, 2014
              In the Court of Common Pleas of Clearfield County
                     Civil Division at No(s): 2012-342-CD


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED MAY 26, 2015

     Eileen J. Myers (Appellant) appeals from the order entered March 3,

2014, granting Edward A. Kyler, Jr. (Appellee) partial summary judgment in

this land dispute. We affirm.

     In December 2011, Appellee purchased a home located at 38 Our

Lane, located in Cooper Township, PA. Our Lane is a private alley or street.

On the opposite side of the alley reside Appellant and Ms. Amy Myers,

Appellant’s daughter. Shortly after Appellee moved into his home, Appellant

and her daughter began obstructing the alley, preventing Appellee from

traversing Our Lane or otherwise accessing his driveway.
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       In March 2012, Appellee commenced this litigation, filing a complaint

in two counts, seeking both injunctive relief and money damages.1

Appellant timely responded pro se with an answer and counterclaim (later

amended), asserting abuse of process and seeking fees, costs, and an

unspecified sanction against Appellee.           Following discovery, in December

2013, Appellee filed a motion for partial summary judgment on his claim for

injunctive relief. In support of his motion, Appellee attached the results of

land surveys, evincing that Appellant has no ownership interest in the alley.

See Appellee’s Motion for Partial Summary Judgment, Exhibits B & C.

Appellant timely responded to the motion but failed to supplement the

record with evidence supporting an ownership interest.

       In March 2014, the trial court granted Appellee’s motion and issued an

order, permanently enjoining Appellant and her daughter from “hindering,

obstructing, or interfering in any way with the use by [Appellee] … of the

sixteen (16’) feet wide private alley known as ‘Our Lane.’”           Trial Court

Opinion and Order, 03/03/2014, at 7.             The Court did not address either

Appellant’s second claim or Appellee’s counterclaim.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

____________________________________________


1
   Contemporaneously, Appellee sought and was granted a preliminary
injunction, directing Appellant and her daughter to refrain from blocking
Appellee’s access to Our Lane.



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      Appellant raises the following issues on appeal:

      [1.] Whether the trial court erred by granting Appellee’s motion
      for partial summary judgment[,] ruling that there was no
      genuine issue of material fact, effectively disposing of all
      substantive issues in favor of [] Appellee.

      [2.] Whether the trial court erred by granting Appellee’s motion
      for partial summary judgment[,] making the previously entered
      preliminary injunction[] permanent, without affording Appellant
      a trial on the merits.

Appellant’s Brief at 4.

      Preliminarily, we must address our jurisdiction to entertain this appeal.

See Riley v. Farmers Fire Ins. Co., 735 A.2d 124, 127 (Pa. Super. 1999)

(“[T]he appealability of an order is a question of jurisdiction and may be

raised sua sponte.”). Appellant asserts, without explanation or clarification,

that we have jurisdiction pursuant to 42 Pa.C.S. § 5105(c) (“There shall be a

right of appeal from such interlocutory orders … as may be specified by

law.”).   See Appellant’s Brief at 1.      Appellee does not challenge this

assertion.

      “Few legal principles are as well settled as that an appeal properly lies

only from a final order unless otherwise permitted by rule or statute.”

Malanchuk v. Sivchuk, 106 A.3d, 789, 792 (Pa. Super. 2014) (en banc)

(quoting G.B. v. M.M.B., 670 A.2d 714, 717 (Pa. Super. 1996) (en banc));

see also 42 Pa.C.S. § 742; Pa.R.A.P. 341. An appeal may be taken as of

right from an interlocutory order granting injunctive relief.        See Pa.




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Orthopaedic Soc’y v. Independence Blue Cross, 885 A.2d 542, 547 (Pa.

Super. 2005); Pa.R.A.P. 311(a)(4).

      Here, the order appealed from is interlocutory, as it did not dispose of

all claims before the trial court.   See Pa.R.A.P. 341(b).   Nevertheless, the

March 3, 2014      order   granted Appellee    permanent, injunctive      relief.

Accordingly, we have jurisdiction to entertain this appeal.          See Pa.

Orthopaedic Soc’y, 885 A.2d at 547; Pa.R.A.P. 311(a)(4).

      In her first issue, Appellant asserts that the trial court erred in

granting Appellee’s motion for partial summary judgment.        We review an

order granting summary judgment in the following manner:

      Summary judgment may be granted only where there is no
      genuine issue of material fact, and the moving party is entitled
      to judgment as a matter of law. In making this assessment, we
      view the record in the light most favorable to the non-moving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. The
      scope of review of an order granting summary judgment is
      plenary. The standard of review provides we reverse the trial
      court's order only where the court committed an error of law or
      clearly abused its discretion. To the extent the issues before us
      are questions of law, our standard of review is de novo; thus, we
      need not defer to the lower court's determinations.

Belden & Blake Corp. v. Commonwealth, Dep’t of Conservation &

Natural Res., 969 A.2d 528, 531 (Pa. 2009) (citations and quotation marks

omitted).

      Appellant’s argument is twofold. First, according to Appellant, she has

maintained control over the private alley known as “Our Lane” for

approximately forty years.      Moreover, Appellant asserts an ownership

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interest in the alley, allegedly established through a chain of title extending

in excess of one hundred years.

      The record does not support Appellant’s assertions.       In support of

Appellee’s motion for partial summary judgment, he attached maps,

prepared from land surveys commissioned by Appellant, establishing that

Appellant has no ownership interest in the alley.       There is no contrary

evidence of record.

      Second, Appellant contends the trial court erred by requiring her to

prove her ownership interest, rather than first examining whether Appellee

established his right to a prescriptive easement over the alley.     Appellant

cites in support Canon Bros., Inc. v. D’Agostino, 514 A.2d 614, 617 (Pa.

Super. 1986) (“[A] plaintiff must rely upon the strength of his or her own

title or other legal right to the property, and not upon the weakness of the

title or legal right asserted by the defendants.”).

      We do not dispute the authority cited by Appellant. This argument is

not persuasive, however, in light of the evidence of record.       Indeed, we

reiterate that the only evidence of record supports Appellee’s basic premise:

Appellant has no ownership interest in the alley and, therefore, no right to

hinder Appellee’s use of it.   Accordingly, we discern no abuse of the trial

court’s discretion and no error of law.

      In her second issue, Appellant contends that the trial court erred in

granting Appellee’s motion by “making the previously entered preliminary


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injunction[] permanent, without affording Appellant a trial on the merits.”

Appellant’s Brief at 11.   Appellant’s argument is without merit.   Summary

judgment is an appropriate remedy where a party seeks injunctive relief.

See, e.g., P.J.S. v. Pa. State Ethics Comm’n, 697 A.2d 286, 288 n.5 (Pa.

Cmwlth. 1997). As concluded by the trial court:

     [A] trial would have been a futile exercise. There was no issue
     of material fact left to litigate, and based upon the record before
     the [c]ourt, [Appellee] was entitled to judgment in his favor.

Trial Court Opinion, 05/01/2014, at 3. Accordingly, we discern no error.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2015




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