J-A21001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN D. REESE, IV,

v.

ALAN J. DORE AND SONYA DORE 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 653 EDA 2018

Appeal from the Order Entered January 23, 2018

In the Court of Common Pleas of Montgomery County 

Civil Division at No(s): No. 2017-18882

BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY PANELLA, J.: FILED OCTOBER 03, 2019

Alan J. Dore and Sonya Dore (collectively “the Dores”) appeal from the 

Order of the Honorable Emanuel A. Bertin, S.J., dated January 23, 2018, 

entered in favor of John D. Reese, IV (“Reese”), in the Court of Common Pleas 

of Montgomery County. The order granted a preliminary injunction prohibiting

the Dores from occupying or interfering with Reese’s use of an area located 

between the parties’ adjoining residential properties. We affirm.

Reese filed a complaint in equity asserting that he established ownership 

of a portion of the Dores’ land through adverse possession. He also filed a 

petition for a preliminary injunction seeking to prohibit the Dores from 

interfering with his use of the contested land. After a hearing, the court 
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granted the preliminary injunction. The underlying action based on Reese’s 

complaint seeking to quiet title to the contested property is still pending.1

On appeal, the Dores raise four challenges to the preliminary injunction. 

Appellate courts review a trial court order refusing or granting

a preliminary injunction for an abuse of discretion. “We disturb the trial court's 

decision ‘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 . . . .’” 

Turner Const. v. Plumbers Local 690, 130 A.3d 47, 57 (Pa. Super. 2015).

Our review of a trial court's order granting or denying a 

preliminary injunction is “highly deferential”.2 Warehime v. Warehime, 580 

Pa. 201, 860 A.2d 41, 46 (2004). Thus, 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.” Id. The scope of our review is plenary. Id. at n.7.

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1 We have jurisdiction over this appeal pursuant to Pa.R.A.P. 311(a)(4) as an 

interlocutory appeal as of right. See Commonwealth ex rel. Kane v. UPMC, 

129 A.3d 441 (Pa. 2015).

2 As the trial court properly points out in its Opinion filed pursuant to Pa.R.A.P. 

1925(a), the injunctive relief granted was prohibitory only, requiring the Dores

to refrain from interfering with Reese’s use of the portion of the driveway in 

issue pending further proceedings. The Dores were not ordered to remove or 

undo the alterations which had already been made to the property. 

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A petitioner seeking a preliminary injunction must establish six 

prerequisites; failure to establish any one of them results in the denial of 

relief:

(1) relief is necessary to prevent immediate and irreparable harm 

that cannot be adequately compensated by money damages; 

(2) greater injury will occur from refusing to grant the injunction 

than from granting it;

(3) the injunction will restore the parties to their status quo as it 

existed before the alleged wrongful conduct; 

(4) the petitioner is likely to prevail on the merits; 

(5) the injunction is reasonably suited to abate the offending 

activity; and

(6) the public interest will not be harmed if the injunction 

is granted.

Brayman Const. Corp. v. Com., Dep't of Transp., 13 A.3d 925, 935 (Pa. 

2011), citing Summit Towne Centre, Inc. v. Shoe Show of Rocky Mt.,

Inc., 828 A.2d 995, 1001 (Pa. 2003).

In this appeal, the Dores claim that the evidence of record does not 

support three of these prerequisites.

First, they contend that the evidence cannot establish that Reese was 

likely to succeed on the merits of his underlying claim for adverse possession.

To succeed in his claim for adverse possession, Reese is required prove that 

his use of the property was: (1) actual, (2) visible, (3) notorious, 

(4) exclusive and distinct, (5) hostile, (6) and continuous (7) for twenty-
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one years. Dunlap v. Larkin, 493 A.2d 750, 756 (Pa. Super. 1985); see also 

Flannery v. Stump, 786 A.2d 255 (Pa. Super. 2001).

We have often stated that it is a serious matter to take away another's 

property. See Edmondson v. Dolinich, 453 A.2d 611, 614 (Pa. Super. 

1982). Consequently, the law imposes such strict requirements of proof on 

one who claims title by adverse possession. See id.

In order to establish adverse possession, the possession must be such 

as to import a denial of the true owner's title and must be sufficient to place 

the true owner on notice of plaintiff's claim to the land. Brennan v.

Manchester Crossings, Inc., 708 A.2d 815, 818 (Pa. Super. 1998). Where 

an individual is using property with the permission of the real owner, his use 

is not adverse and hostile and he is not entitled to ownership by adverse 

possession. See Flannery, 786 A.2d at 258-259 .

Hostility may be implied where all the other elements of adverse 

possession exist. See id. However, this is only true where there is no evidence 

capable of disproving hostility. See id. The element of hostility to support a 

claim of adverse possession requires that the court examine not just the 

physical facts of possession but also the evidence, if any, which can establish

the intent with which the land in question was possessed. See id.

In general, actual possession of land means dominion over the property.

See Brennan, 708 A.2d at 818. The requirements for “actual” possession of 

a property will necessarily vary based on the nature of the property. See id.
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With these standards in mind, we have reviewed the decision of the trial 

court. In its opinion, the trial court fully and correctly sets forth the relevant 

facts and procedural history of this case. See Trial Court Opinion, 1/23/18, at 

1-2. Therefore, we have no need to restate them here. For the convenience 

of the reader, we note briefly that the trial court noted that Reese, since 

purchasing the property in 1986, had used the property in issue, along with 

his family and friends, with the clear implication that they found the parcel in 

issue to constitute the western boundary of their property. 

The Dores had threatened to dig up the driveway, plantings, and wall, 

which were constructed by Reese on the common boundary between their two 

properties. After receiving a survey which the Dores commissioned, the Dores

advised Reese that a portion of the driveway, retaining wall and a swing set 

were intruding on the Dores’ property. After an exchange between the 

attorneys for the parties, Reese filed the complaint to quiet title and the 

instant emergency petition for special and preliminary injunction to enjoin 

Dore from making further onsite adjustments to the disputed property. 

After a thorough review of the record, the briefs of the parties and the 

well-reasoned opinion of the Honorable Emanuel A. Bertin, S.J., we conclude 

that the Dores’ first issue on appeal merits no relief. Granting the proper 

discretion to Senior Judge Bertin, we find that he did not abuse his discretion 

in finding that Reese was likely to succeed on the merits of his underlying 

claim. See id., at 3-4 (concluding that evidence of adverse possession was 
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“overwhelming,” and that the Dores had not effectively rebutted Reese’s 

claim).

Next, the Dores argue the court erred in finding that the injunction was 

necessary to prevent immediate and irreparable harm. Once again, having 

reviewed the arguments of the parties and the record, we conclude that Senior 

Judge Bertin’s opinion thoroughly addresses the issue. See id. at 5 (finding 

that a continuous trespass on property was sufficient harm to constitute an 

immediate and irreparable harm). We can find no abuse of discretion in Senior 

Judge Bertin’s conclusions, and therefore adopt them as our own.

Finally, the Dores contend that the trial court erred in ordering relief 

that exceeded what Reese sought in his petition for preliminary injunction. 

Senior Judge Bertin’s opinion thoroughly addresses this contention. See id., 

at 6 (finding that the Dores’ actions after Reese initiated the proceedings 

required relief above and beyond that initially requested in order to restore 

the status quo). This reasoning is not an abuse of discretion and we adopt it 

as our own.

In sum, the evidence supported a finding that the status quo be restored 

and that the Dores be restrained from taking any further self-help actions. As 

stated by Senior Judge Bertin: 

Plaintiff does not request, and the Court will not enter, a 

mandatory injunction requiring action by [the Dores] to put 

the land back the way they found it; Plaintiff seeks only a 

prohibitory injunction preventing [the Dores] from doing 

any further harm, or from interfering with his use and 
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enjoyment of the land the Court has found he lawfully 

acquired through adverse possession.

See id. Accordingly, we affirm on the basis of the trial court opinion dated

January 23, 2018.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/3/19
Circulated 09/12/2019 10:38 AM

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Received 3/21/2018 2:30:58 PM Superior Court Eastern District 

Defendants, in writing, had threatened Plaintiff with digging up, by a certain date, Plaintiff's 

Jan. 1- j 2018 

: NO. 17-18882 

vs. 

MEMORANDUM AND ORDER 

I. PROCEDURAL HISTORY 

On July 24, 2017, Plaintiff filed a complaint in equity, together with an emergent petition for 

Filed 3/21/2018 2:30:58 PM Superior Court Eastern District 

653 EDA 2018 

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA 

CIVIL DIVISION 

Defendants, notwithstanding their knowledge of an impending preliminary injunctive hearing to 

ALAN J. DORE AND SONYA DORE, H/W 

JOHN D. REESE, IV 

legal ownership of a small strip of Defendants' land on the boundary line between the properties by the 

boundary dispute between Plaintiff and Defendants. Plaintiff's legal position was that he had acquired 

without testimony, a temporary restraining order (TRO) against such threatened actions by Defendants. 

were on Defendants' property, notwithstanding Plaintiffs claim of ownership thereof by adverse 

were not prepared for a hearing thereon that day, and Court Administration had scheduled the matter 

for that day for a conference, not a hearing. The Court, however, did that day schedule the matter for 

BERTIN, S.J. 

hearing on Plaintiff's request for a preliminary injunction against Defendants' threatened action. 

driveway, plantings, and wall on the disputed land, which Defendants had surveyed and determined 

Defendants opposed Plaintiffs request. The undersigned denied Plaintiff's request, since the parties 

possession. Plaintiff came to Court requesting that the undersigned, at a conference only, enter, 

special and preliminary injunctive relief, against his adjoining neighbors, Defendants, concerning a 

legal doctrine of adverse possession. 

address and decide the legal dispute, followed through on their threatened behavior and dug up the 
land with heavy equipment, although the removal of land, plantings, and driveway and replacements 

were not complete prior to the hearing on the preliminary injunction. Before the hearing was held, 

Plaintiff filed an amended petition for preliminary injunction. 

The Court held preliminary injunction hearings on October 16 and 25, 2017. The Court received 

post-hearing briefs on November 14, and Plaintiffs brief in reply on November 21, 2017. Though 

Defendants had included with their brief a proposed order, Plaintiff had not, so the Court ordered one 

submitted. Upon submission of Plaintiffs proposed order, Defendants objected, saying the scope of 

relief in the proposed order differed from that sought in Plaintiffs petition(s) for preliminary injunction. 

The Court therefore ordered the parties to brief the issue of the scope of relief in Plaintiffs proposed 

order, and the parties filed briefs on this issue December 14, 2017. On December 21, 2017, Plaintiff 

served and filed a final brief in reply. The matter is now ripe for decision. 

II. DISCUSSION 

In order to merit the grant of a preliminary injunction, a party must establish each of the 

following prerequisites: 

First, a party seeking a preliminary injunction must show that an injunction is necessary 

to prevent immediate and irreparable harm that cannot be adequately compensated by 

damages. Second, the party must show 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. Third, the party 

must show that a preliminary injunction will properly restore the parties to their status 

as it existed immediately prior to the alleged wrongful conduct. Fourth, the party 

seeking an injunction must show 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. Fifth, the party must show that the injunction it 

seeks is reasonably suited to abate the offending activity. Sixth, and finally, the party 

seeking an injunction must show that a preliminary injunction will not adversely affect 

the public interest. 

York Grp. v. Yorktowne Caskets, Inc., 924 A.2d 1234, 1240-41 (Pa. Super. Ct. 2007) (citing Summit Towne 

Centre, Inc. v. Shoe Show of Rocky Mt., Inc., 573 Pa. 637, 646-47, 828 A.2d 995, 1001 (2003)). 

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After reviewing the matter carefully, the Court concludes that Plaintiff has proved the elements 

necessary for the Court to grant him his requested preliminary injunction against Defendants. 

Accordingly, the Court will enter the preliminary injunction. 

Defendants contend that Plaintiff has failed to prove two elements necessary for the grant of a 

preliminary injunction, namely, a likelihood of success on the trial of this matter and/or irreparable harm 

incapable of being cured by money damages. 

Firstly, plaintiff has proven a likelihood of success. This Court finds that Plaintiff has proven that 

he has acquired ownership of the disputed land by the legal doctrine of adverse possession. 

Adverse possession is an extraordinary doctrine which permits one to achieve 

ownership of another's property by operation of law; it is dependent upon possession 

for a set period of time and authorized by statute. One who claims title by adverse 

possession must prove actual, continuous, exclusive, visible, notorious, distinct[,] and 

hostile possession of the land for twenty-one years. 

Weible v. Wells, 156 A.3d 1220, 1224 (Pa. Super. Ct.) (citation omitted), appeal denied, 170 A.3d 1031 

(Pa. 2017); accord, e.g., Brennan v. Manchester Crossings, Inc., 708 A.2d 815, 817 (Pa. Super. Ct. 1998); 

Klos v. Molenda, 355 Pa. Super. 399, 401--02, 513 A.2d 490, 492 (1986); Reed v. Wolyniec, 323 Pa. Super. 

550, 555, 471 A.2d 80, 84 (1983); see also 68 P.S. §§ 81-88 (claim by adverse possession). In elaborating 

upon the elements of adverse possession, the court said in Brennan, 708 A.2d at 817-19 (citations 

omitted) (footnoted omitted): 

Broadly speaking, "actual possession" of land is dominion over the land; it is not 

equivalent to occupancy. There is no fixed rule, however, by which the actual 

possession of real property by an adverse claimant may be determined in all cases. The 

determination of what constitutes actual possession of property for purposes of adverse 

possession depends on the facts of each case, and to a large extent on the character of 

the premises. 

The words "visible and notorious possession," as applied to the adverse holding 

of land by a party without color of title, mean that the claim of ownership must be 

evidenced by conduct sufficient to place a reasonable person on notice that his or her 

land is being held by the claimant as his own. 

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To constitute distinct and exclusive possession for purposes of establishing title 

to real property by adverse possession, the claimant's possession need not be 

absolutely exclusive. Rather, it need only be a type of possession which would 

characterize an owner's use .... 

The word "hostile," as an element of adverse possession does not mean "ill will" 

or "hostility," but implies an assertion of ownership rights adverse to that of the true 

owner and all others. Simply stated, the possession must be "such as to import a denial 

of the owner's title." Furthermore, if all of the elements of adverse possession are 

established, the element of hostility is implied. 

Finally, in order for adverse possession to ripen into title, it is necessary that 

such possession had been continuous and uninterrupted for the full statutory period. In 

this Commonwealth, as in most jurisdictions, the statutory period is twenty-one years. 

The law does not require that the claimant remain continuously on the land and 

perform acts of ownership from day to day. A temporary break or interruption, not of 

unreasonable duration, does not destroy the continuity of the adverse claimant's 

possession. 

The evidence before the Court was overwhelming that Plaintiff had proven each of the required 

elements to show that he adversely possessed the disputed area of land for well in excess of twenty-one 

years before Defendants' threatened encroachment, and eventual actual encroachment, began. Indeed, 

Defendants did not at all effectively rebut these elements. 

This Court finds, in assessing credibility, that Plaintiff was very credible in his testimony and 

presentation of evidence. As to assessment of the evidence and the credibility of the witnesses by a trial 

court, the law states, "In a non-jury trial, the factfinder is free to believe all, part, or none of the 

evidence, and [a reviewing court] will not disturb the trial court's credibility determinations." Gutteridge 

v. 13 Energy Grp., Inc., 165 A.3d 908, 916 (Pa. Super. Ct. 2017) (en bane). "[A]ssessments of credibility 

and conflicts in evidence are for the trial court to resolve; [a reviewing court] is not permitted to 

reexamine the weight and credibility determinations or substitute [its] judgments for those of the 

factfinder." Turney Media Fuel, Inc. v. Toll Bros., 725 A.2d 836, 841 (Pa. Super. Ct. 1999), quoted in 

Gutteridge, 165 A.3d at 916. "The test is not whether [a reviewing court] would have reached the same 

result on the evidence presented, but rather, after due consideration of the evidence ... the trial court 

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found credible, whether the trial court could have reasonably reached its conclusion." Ter/etsky v. 

Prudential Prop. & Cos. Ins. Co., 437 Pa. Super. 108, 120, 649 A.2d 680, 686 (1994), quoted in Gutteridge, 

165 A.3d at 916; see also Daddona v. Thorpe, 749 A.2d 475, 480 (Pa. Super. Ct. 2000) ("The trial judge, 

sitting in equity as a chancellor, is the ultimate fact-finder. The scope of review, therefore, is limited .... 

The findings of fact made by the trial court will not be disturbed unless they are unsupported by 

competent evidence or are demonstrably capricious."); Reed, 323 Pa. Super. at 556, 471 A.2d at 84 

("[T]he findings of fact of the trial judge ... have the weight and effect of a jury verdict, and an appellate 

court will not disturb them if they are adequately supported by competent evidence." (citing 

Wheatcroft v. Albert Co., 407 Pa. 97, 180 A.2d 216 (1962))). 

Secondly, as to the element of irreparable harm, not compensable by money damages, 

Defendants' legal assertions are incorrect. The law is clear in disputes of this nature that once Plaintiff 

has established legal ownership of the disputed land, as Plaintiff has done here, encroachments by 

Defendants on Plaintiffs land constitute a "continuing trespass" that the law remedies through the 

entry of injunctive relief, as the law deems the same to be irreparable harm. "There is no doubt equity 

has power to grant a restraining order preventing actual or threatened trespasses of a continuing and 

permanent character." Tri-Cities Water Co. v. Monessen, 313 Pa. 83, 85, 169 A. 159, 159 (1933) 

(unanimous opinion) (citing Gray v. Phi/a. & Reading Coal & Iron Co., 286 Pa. 11, 132 A. 820 (1926)), 

quoted in Gardner v. Allegheny Cty., 382 Pa. 88, 102, 114 A.2d 491, 498 {1955); accord Rogoff v. Buncher 

Co., 395 Pa. 477, 480, 151 A.2d 83, 86 (1959); cf. Youst v. Keck's Food Serv., Inc., 94 A.3d 1057, 1079 (Pa. 

Super. Ct. 2014) (citing Gardner, 382 Pa. at 102, 114 A.2d at 498) (finding court of equity had authority 

to permanently enjoin continuing nuisance). 

In considering the scope of relief appropriate to Defendants' continuing encroachment on 

Plaintiffs land lawfully acquired through adverse possession, the Court reviewed the parties' 

supplemental post-hearing briefs filed after Defendants objected to the form of order Plaintiff 

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submitted at the Court's behest. Defendants' objection that the relief sought in the proposed order 

differed from that requested in Plaintiffs petition(s) for a preliminary injunction is not well taken. Once 

a case goes to trial and evidence is presented to the Court, inevitably the facts and circumstances as 

depicted in pretrial pleadings and petitions will take on different inflections and hues as they emerge in 

a new light. That is especially true in this case in which Defendants, knowing that the Court would soon 

be hearing Plaintiffs request for a preliminary injunction to enjoin them from taking actions that would 

interfere with Plaintiffs use and enjoyment of the land he claimed was his by adverse possession, 

nevertheless effectively seized possession of the disputed land and altered it considerably to suit 

Defendants' purposes through the use of landscaping and heavy equipment. Under the law and rules of 

equity, the Court has the power to restore, to the extent practicable, the status quo existing before 

Defendants' precipitous actions; that Plaintiff may not have fully realized at the time he wrote his 

petitions for relief the extent to which Defendants would disturb or had disturbed the status quo before 

the Court could hear the matter does not prevent the Court from entering a decree that properly takes 

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into account the facts as they now exist on the ground. 

In any event, Plaintiffs post-hearing requests for relief do not materially or substantially differ 

from those in his petition in any way that would impinge on Defendants' rights. Plaintiff does not 

request, and the Court will not enter, a mandatory injunction requiring affirmative action by Defendants 

to put the land back the way they found it; Plaintiff seeks only a prohibitory injunction preventing 

Defendants from doing any further harm, or from interfering with his use and enjoyment of the land the 

Court has found he lawfully acquired through adverse possession. 

ORDER 

And now, this Z.. $ day of January, 2018, after hearings, and consideration of the parties' posthearing briefs and submissions, the Court hereby orders as follows: (1) Plaintiffs petition for a 

preliminary injunction is granted. (2) The Court issues a preliminary Injunction in favor of Plaintiff and 

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against Defendants enjoining Defendants and their agents, employees, and contractors, or anyone 

claiming rights by or through them, from in any way occupying, entering upon, using, obstructing, or 

interfering with Plaintiff's use of the area described in Plaintiff's complaint and his amended petition for 

injunction as the "Acquired Area" (Compl. Ex. D; Pl. Am. Pet. Prelim. lnj. Ex. D) (as shown on the plan 

admitted as Exhibit P-5 at the hearing). (3) The Court further orders that Defendants shall desist and 

refrain from cutting or removing any plantings or improvements from or in the Acquired Area or 

otherwise disturbing or interfering with the use thereof by Plaintiff and his family members and invitees, 

and from performing any demolition or other work therein, or erecting improvements thereon. (4) 

Plaintiff and his family members and invitees shall have the exclusive right to occupy and use the 

described Acquired Area. (5) This preliminary injunction shall remain in effect until such time as ordered 

otherwise. 

BY THE COURT: ... 

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