J-S66013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KEVIN BERLIN AND COREY FRY                     IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellees

                    v.

RANDY J. SPENCER

                         Appellant                  No. 159 WDA 2015


                   Appeal from the Order January 7, 2015
              In the Court of Common Pleas of Venango County
                      Civil Division at No(s): 354-2014


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 14, 2015

      Appellant, Randy J. Spencer, appeals from the order entered on

January 7, 2015. We affirm.

      The trial court accurately summarized the factual background and

procedural history of this case as follows.

      Plaintiff Kevin Berlin (“Berlin”) owns property situated at 116
      Garden Lane, Franklin, P[A] 16323 (“subject property”). Plaintiff
      Corey Fry (“Fry”) and his significant other, Leah Morrison, along
      with two children . . . reside on the subject property.
      [Appellant] claims ownership over a right-of-way that is attached
      to the subject property and which is the only means of ingress
      and egress onto the subject property. In the past, [Appellant]
      has blocked access to the subject property. . . . In the instant
      case, evidence adduced at the hearings held on April 28, 2014
      and January 8, 2015, suggests that on March 20, 2014,
      [Appellant] once again availed himself of self-help which resulted
      in preventing [Berlin and Fry] from using the right-of-way to
      access the subject property. . . . Berlin was unable to drive to
      access his workshop, while [Fry and his family] could only get to



*Retired Senior Judge assigned to the Superior Court.
J-S66013-15


      and from their residence by parking their vehicle some 300 feet
      away, near Rt. 322, and walking up a dirt hill to their home.

                                    ***

      On March 31, 2014, [Berlin and Fry] filed a [c]omplaint seeking
      to [enjoin Appellant from] blocking access to the property owned
      by [] Berlin, and on which [] Fry resides. That same day, [Berlin
      and Fry] also filed their [p]etition for [a p]reliminary
      [m]andatory [i]injunction. [A hearing was held on April 28,
      2014 to address, inter alia, Appellant’s filing of a suggestion of
      bankruptcy.] The next day, on April 29, 2014, [the trial court]
      issued an order denying [Berlin and Fry’s] petition for an
      injunction due to the pendency of [Appellant’s] bankruptcy filing.
      The proceedings were continued pending the lifting of the stay
      by the bankruptcy court or a conclusion of the bankruptcy
      proceedings.

      On August 14, 2014, the United States Bankruptcy Court for the
      Western District of Pennsylvania ordered that [Appellant]
      immediately remove any impediments or obstructions that he
      had placed on Garden Lane, refrain from placing any other such
      impediment or obstructions, and permit [] Fry and his family to
      freely cross over Garden Lane as a means of ingress and egress
      to their residence. On September 15, 2014, the United States
      Bankruptcy Court for the Western District of Pennsylvania
      entered an order stating that the [trial court] was free to resume
      proceedings in this case. On September 25, 2014, counsel for
      [Berlin and Fry] filed a [m]otion for [h]earing on [t]emporary
      [i]njunction. A hearing was then [held on January 7, 2015.] On
      that date, [the trial court] received testimony from three
      witnesses, and [the trial court] granted the [m]otion for
      [p]reliminary [i]njunction.

Trial Court Opinion, 7/9/15, at 1-3 (footnotes omitted).

      Appellant presents one issue for our review:

      Whether the trial court abused its discretion in granting a
      preliminary injunction in this case where [Berlin and Fry] did not
      present any evidence of a legal right to use [Appellant’s] private
      road to access [the subject property]?

Appellant’s Brief at 4.

                                    -2-
J-S66013-15


     This Court has stated:

     Our review of a trial court's order granting or denying
     preliminary injunctive relief is highly deferential. This highly
     deferential standard of review states that in reviewing the grant
     or denial of a preliminary injunction, an appellate court is
     directed to examine the record to determine if there were any
     apparently reasonable grounds for the action of the court below.

     An abuse of discretion is not merely an error of judgment, but if
     in reaching a conclusion the law is overridden or misapplied, or
     the judgment exercised is manifestly unreasonable, or the result
     of partiality, prejudice, bias, or ill will, as shown by the evidence
     or the record, discretion is abused. We do not inquire into the
     merits of the controversy. Only if it is plain 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.

     A trial court has apparently reasonable grounds for granting the
     extraordinary remedy of preliminary injunctive relief if it properly
     finds that all of the essential prerequisites are satisfied.

     There are six essential prerequisites that a party must establish
     prior to obtaining preliminary injunctive relief. The party must
     show: 1) that the injunction is necessary to prevent immediate
     and irreparable harm that cannot be adequately compensated by
     damages; 2) that greater injury would result from refusing an
     injunction than from granting it, and, concomitantly, that
     issuance of an injunction will not substantially harm other
     interested parties in the proceedings; 3) that a preliminary
     injunction will properly restore the parties to their status as it
     existed immediately prior to the alleged wrongful conduct; 4)
     that the activity it seeks to restrain is actionable, that its right to
     relief is clear, and that the wrong is manifest, or, in other words,
     must show that it is likely to prevail on the merits; 5) that the
     injunction it seeks is reasonably suited to abate the offending
     activity; and, 6) that a preliminary injunction will not adversely
     affect the public interest. The burden is on the party who
     requested preliminary injunctive relief.

WMI Grp., Inc. v. Fox, 109 A.3d 740, 747-748 (Pa. Super. 2015) (internal

quotations marks and citation omitted; emphasis removed).

                                      -3-
J-S66013-15


      In this appeal, Appellant argues that Berlin and Fry failed to satisfy the

fourth element necessary for a preliminary injunction.        In other words,

Appellant argues that there was insufficient evidence for the trial court’s

determination that Berlin and Fry were likely to succeed on the merits.

Specifically, Appellant argues that there was insufficient evidence for the

trial court to find that there was an easement by prescription.

      The trial court, however, found not only that there was a likelihood

that Berlin and Fry could establish an easement by prescription but also a

likelihood that the plaintiffs could demonstrate an easement by necessity.

See Trial Court Opinion, 7/9/15, at 8. Appellant makes no argument in his

brief as to how this finding by the trial court is unsupported by the record.

See Appellant’s Brief at 10-14.       Accordingly, Appellant has waived any

argument that the trial court erred in finding that Berlin and Fry could

establish an easement by necessity.      See Pa.R.A.P. 2119(a).     As the trial

court’s finding of an easement by necessity is sufficient to satisfy the fourth

requirement for a preliminary injunction, we ascertain no abuse of discretion

by the trial court in granting the preliminary injunction.

      Order affirmed.




                                      -4-
J-S66013-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




                          -5-
