SBA Towers v. Wireless Holdings ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SBA TOWERS II LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
WIRELESS HOLDINGS, LLC AND JEFF : No. 325 WDA 2018
MACALARNEY :
Appeal from the Order Entered February 8, 2018
In the Court of Common Pleas of Blair County Civil Division at No(s):
2016 GN 01215
BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 19, 2019
SBA Towers II LLC (“SBA” or “Appellant”) appeals from the trial court’s
order granting in part and denying in part Appellant’s motion for an injunction
against Wireless Holdings, LLC, and Jeff MacAlarney (collectively “Appellees”).
After careful review, we affirm.
The instant case involves a lease (“the Lease”), wherein Appellees
leased a portion of their premises to Appellant in December of 2009. The
subject property contains a cellular tower and related communication facilities.
Appellant is one of several tenants at the site, some of whom are storing
equipment there worth millions of dollars. Paragraph 18 of the lease contains
the following language:
[Appellant] shall have at all times during the initial term or
renewal term the right of access to and from the Leased Space
and all utility installations servicing the Lease Space on a 24 hours
per day/7 days per week basis, on foot or by motor vehicle,
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including trucks, and for the installation and maintenance of utility
wires, cables, conduits and pipes over, under and along the right-
of-way extending from nearest accessible public right-of-way.
Lease, 12/21/09, at 4, ¶18.
Prior to filing for injunctive relief, Appellant had 24/7 access to the site
via lock box. Appellees changed the procedure and instead instituted a call-
in system, whereby Appellant could seek access during non-regular business
hours by calling Appellees, and one of Appellees’ representatives would meet
Appellant at the property in less than one hour and provide access. Appellees
also began to require that Appellant’s employees check in before entering the
premises and required background checks for some of Appellant’s
subcontractor’s employees. On April 15, 2016, Appellant filed a motion for
injunctive relief, seeking to enjoin Appellees from interfering with Appellant’s
24/7 access to the property. Motion for Temporary Injunction, 4/15/16.
Specifically, Appellant sought to enjoin Appellees from blocking physical
access to certain parts of the property and requiring individuals who worked
for Appellant to provide a photo identification and criminal background check
before allowing access to the site. Id. The trial court granted Appellant’s
motion and issued a preliminary injunction enjoining Appellees from “engaging
in any conduct that in any way interferes with or obstructs [Appellant], its
tenants, any contractors, or subcontractors access to the leased premises….”
Order of Court, 4/15/16.
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The trial court held a hearing on May 8, 2017. Following the hearing,
and after the submission of briefs on the matter, the trial court issued its
opinion and order. Opinion, 2/8/18. In it, the court noted that the Lease did
not specifically provide whether Appellant’s access to the property was to be
unrestricted, as Appellant argued, or subject to reasonable restrictions, as
Appellees argued. Id. at 6. Ultimately, the trial court found the Lease to be
ambiguous and susceptible to differing interpretations. Id. at 7. Noting that
the interpretation of a contract is a question of law, the trial court interpreted
the Lease as allowing for reasonable security. Id. at 8. The trial court
affirmed the preliminary injunction’s prohibition against Appellees physically
blocking Appellant’s access to the property. However, the court refused to
enjoin Appellees from requiring the following: that visitors check in at the main
office, that Appellant use a call-in system as opposed to a lock box for after-
hours access, that Appellant’s employees show their identification badges
before gaining access, and that certain subcontractors provide background
checks. Id. at 8–9.
Before we reach the merits of the appeal, we must address Appellant’s
failure to file post-trial motions pursuant to Pa.R.C.P. 227.1(c)(2), which
states that “[p]ost-trial motions shall be filed within ten days . . . after the
decision in the case of a trial without jury.” A party must file post-motions in
order to preserve issues on appeal. The failure to raise an issue in a post-trial
motion results in waiver for purposes of the appeal. See, e.g., Lane
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Enterprises v. L.B. Foster Co., 710 A.2d 54 (Pa. 1998). Given the above,
this Court entered a per curiam order, directing Appellant to show cause, in
the form of a letter to the Prothonotary, why its appeal should not be
dismissed. Order, 4/5/18.
In its response, Appellant cited to Pa.R.A.P. 311(a)(4)(ii), relating to
interlocutory appeals. That rule states in relevant part,
(a) General Rule.—An appeal may be taken as of right and
without reference to Pa.R.A.P. 341(c) from:
* * *
(4) Injunctions.--An order that grants or denies,
modifies or refuses to modify, continues or refuses
to continue, or dissolves or refuses to dissolve an
injunction unless the order was entered:
(i) Pursuant to 23 Pa.C.S.
§§ 3323(f), 3505(a); or
(ii) After a trial but before entry of the
final order. Such order is
immediately appealable, however, if
the order enjoins conduct previously
permitted or mandated or permits or
mandates conduct not previously
mandated or permitted, and is
effective before entry of the final
order.
Pa.R.A.P. 311(a)(4)(i–ii). Appellant also cited to this Court’s recent opinion in
TA Robinson v. Bioni, 178 A.3d 839 (Pa. Super. 2017). In Bioni, the
appellants, relying on Pa.R.A.P. 311(a)(4)(ii), filed an immediate appeal,
without filing post-trial motions, from an order granting permanent injunctive
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relief and a prescriptive easement in favor of the appellees. Bioni, 178 A.3d
at 840. The appellees commenced the action after the appellants erected a
steel post on the edge of their property, which obstructed a portion of an
easement/road that appellees believed they had a right to use. Id. at 841.
The trial court issued an order requiring appellants to show cause why the
appeal should not be dismissed for failure to file post-trial motions, pursuant
to Pa.R.C.P. 227.1, and the appellees filed a motion to quash.1 The Bioni
Court discharged the order to show cause and deferred the appellees’ motion
to quash to the Court’s merits panel. Bioni, 178 A.3d at 843.
Ultimately, the Bioni Court found that the appeal was properly before
it, despite the appellant’s failure to file post-trial motions. Specifically, we
found that under Pa.R.A.P. 311(a)(4)(ii), “an appeal may be taken from an
order that (because a final judgment has not been entered) is not otherwise
appealable under Rule 311(a)(4)(ii) if[:] (1) the order enjoins conduct
previously allowed or allows conduct previously prohibited[;] and (2) the
injunction takes effect before entry of a final judgment.” Id. at 847. In Bioni,
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1 Pa.R.C.P. 227.1(c) states in relevant part:
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree,
or nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision in the case of a
trial without jury.
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neither party moved to have the trial court direct the entry of judgment in
favor of any party, pursuant to Pa.R.C.P. 227.1(a)(2); thus, this Court found
that no final judgment had been entered. Id. at 846. Moreover, as the
permanent injunction changed the status quo by prohibiting conduct that had
not been previously enjoined, this Court found that the appeal was properly
before the Court because the trial court’s order was appealable without the
need for post-trial motions. Id. at 848.
In the instant case, we find the appeal is properly before us because the
two prongs of the test set forth in Bioni are satisfied. First, neither party filed
a post-trial motion seeking entry of a final judgment, and the injunction took
effect before the entry of a final judgment. Second, the order, which granted
Appellant’s request for injunctive relief in part and denied it in part, constitutes
a departure from the status quo. Pursuant to the preliminary injunction,
Appellees were enjoined from utilizing any additional security measures.
Under the terms of the permanent injunction, Appellees were not enjoined
from utilizing reasonable security measures. Therefore, Appellant did not
need to file post-trial motions, and the case is properly before us.
Appellant presents the following questions for our review:
1. Whether the [t]rial [c]ourt erred in failing to grant the
injunctive relief requested by [Appellant?]
2. Whether the [t]rial [c]ourt improperly mandated changes to
the parties’ lease when no Petition or Bond was posted by
[Appellees] seeking such equitable relief and [Appellant] was
not put on notice of the potential that such injunctive relief
could be issued[?]
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Appellant’s Brief at 2.
In support of its first issue, Appellant argues that the trial court erred
when it failed to issue a permanent injunction. Appellant’s Brief at 11.
Appellant alleges that the trial court erred when it found the Lease’s language
relating to Appellant’s 24/7 access to the property ambiguous. Id. Appellant
further argues that even if the language in the Lease was ambiguous, the trial
court erred in failing to consider the parties’ course of performance. Id. at
14.
The grant or denial of a permanent injunction is a question of law.
Bioni, 178 A.3d at 844. “Regarding the trial court’s legal determination, our
standard of review is de novo, and our scope of review is plenary.” Id. at
843. “As in all equity matters, however, we must accept the trial court’s
factual findings and give them the weight of a jury verdict when they are
supported by competent evidence.” Id. Further, it is well established that a
lease is a contract and should be interpreted according to contract principles.
Hutchinson v. Sunbeam Coal Co., 519 A.2d 385, 389 (Pa. 1986). A
contract is ambiguous where “it is reasonably susceptible of different
constructions and capable of being understood in more than once sense.” Id.
at 390. “To determine whether there is an ambiguity, it is proper for a court
to hear evidence from both parties and then decide whether there are
objective indications that the terms of the contract are subject to different
meanings.” Nicholas v. Hoffman, 158 A.3d 675, 693 (Pa. Super. 2017).
The mere fact that the parties disagree as to the terms of a contract does not
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render it ambiguous. Id. Where a lease is ambiguous, “it is sound policy to
adopt an interpretation which does not impose on land undue restrictions
tending to deprive the owner of the customary rights, privileges and incidents
of ownership.” Clearfield Volunteer Fire Dept. v. BP Oil, Inc., 602 A.2d
877, 880 (Pa. Super. 1992).
In its opinion, the trial court found that the Lease does not specify
whether Appellant’s access is restricted or unrestricted. Trial Court Opinion,
2/8/18, at 6. Given this fact, the trial court determined that the language is
susceptible to more than one meaning and does not specifically support
Appellant’s contention that it should have unfettered access to the property.
Similarly, it does not support Appellees’ contention that access is subject to
reasonable restrictions essential to Appellees’ duty to provide security for the
premises. Id. After determining that the Lease was ambiguous, the trial
court looked to the fact that multiple companies, including Appellant, were
storing millions of dollars worth of equipment on the premises and found a
need for reasonable security. Id. at 8.2 We agree.
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2 In finding that 24/7 access allows for reasonable restrictions, the trial court
noted that Paragraph 15, the Hold Harmless Clause in the Lease, stated that
Appellees would be liable for damages caused by misconduct or negligence of
Appellees, “or any of [Appellees’] agents, servants, employees, licensees, or
invitees.” Lease, 12/21/09, at 3, ¶ 15. The court noted that because the
police had been involved in several incidents involving individuals trying to
access the premises, Appellees were required to take action to improve
security. Id. at 9.
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As the trial court noted, the Lease does not specify whether Appellant’s
access to the leased space, which as per the terms of the Lease allows
Appellant access on “a 24 hours per day/7 days per week basis,” is restricted
or unrestricted. Lease, 12/21/19, ¶ 18. Appellant argues that “the Lease
clearly established [Appellant] had the right to access the property on a ‘24/7’
basis, without any caveats, limits or other restrictions provided in the Lease.”
Appellant’s Brief at 13. Appellees contend Appellant’s 24/7 access to the
property is “not in any way hampered” by the security restrictions Appellees
have put in place. Appellees’ Brief at 15. Therefore, as the trial court found,
the Lease does not state whether Appellant’s access is unfettered or subject
to security measures, and we agree that the terms of paragraph 18 of the
Lease are ambiguous.
Appellant next argues that even if the Lease is ambiguous, the trial court
erred because it failed to consider the parties’ course of performance.
Appellant’s Brief at 14. Specifically, Appellant argues that the parties’ course
of performance over the first seven years of the Lease establishes that
Appellant’s right to the property was unrestricted. Id. at 14–15.
This Court has reviewed the transcript from the May 8, 2017 hearing on
the preliminary injunction. We note that the trial court heard testimony from
both Appellant and Appellees regarding Appellant’s ability to access the
property via lock box, in an unrestricted manner, until Appellees introduced
the security measures at issue. N.T. (Preliminary Injunction hearing), 5/8/17,
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at 11, 12, 54. However, Appellant’s argument fails to take into consideration
the security breaches that occurred at the subject property, which
necessitated the implementation of reasonable security measures. When
determining whether the Lease was ambiguous, the trial court looked to the
testimony of Appellee, Jeff MacAlarney. It noted that Mr. MacAlarney testified
that the additional security measures became necessary following multiple
security concerns, including one break-in, and the disappearance of a key from
the lock box. Trial Court Opinion, 2/8/18, at 4. The trial court also viewed
the subject premises and noted that the location is generally accessible to the
public and sits directly across from a Motel 6. The court ultimately found that
“there is a legitimate security concern which fairly suggests a need for some
additional security.” Id.
Further, in interpreting the terms of the Lease, the trial court
underscored another provision in the Lease, the Hold Harmless Clause, which
states:
Lessor will be held harmless by Lessee from any liability for
damages to any person or any property in or upon the Leased
Space at Lessee’s invitation, or for any damages to person or
property resulting from the actions of the Lessee (including
damages caused by or resulting from the existence of the
Structures) on the Lease Space, unless the damages are
caused by, or are the result of, the misconduct or
negligence of Lessor or any of Lessor’s agents, servants,
employees, licensees, or invitees.
Lease, 12/21/09, at 3, ¶ 15 (emphasis added). The trial court noted that
because Appellees were aware of unauthorized individuals “hanging around”
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the property and security breaches that required police involvement, the
Lease required that Appellees take action to insure that the property remained
secure. Trial Court Opinion, 2/8/18, at 9. The trial court further found that
although the criminal background check for subcontractors who are not
Verizon or SBA employees was required by another tenant at the property,
specifically the County 911 Center, that requirement was not unreasonable
and not subject to injunctive relief. Id.
Ultimately, the trial court reached the following conclusions:
1) the [L]ease is ambiguous; 2) there is evidence to suggest the
property of the tenants (again including [Appellant]) might be at
risk; and 3) the [Appellees have] an affirmative obligation to
reasonably protect [Appellant’s] property (especially where they
are on notice of recent attempts to intrude on the premises by
strangers). Under those circumstances, we resolve the ambiguity
in favor of reasonable security and decline to conclude the actions
taken are per se unreasonable.
Id. at 9–10. Given our finding that the Lease is ambiguous as to the right to
restricted or unrestricted access, we conclude that the trial court did not err
when it found that Appellees have an affirmative obligation to protect the
property of both Appellant and Appellees’ other tenants, and that it correctly
resolved the ambiguity in favor of reasonable security measures.
In support of its second issue, Appellant posits that the trial court erred
when it inserted “new and onerous terms” into the Lease, although Appellees
did not request any such equitable relief. Appellant’s Brief at 15. Specifically,
Appellant avers that although Appellees opposed equitable relief sought by
Appellant, Appellees failed to seek any equitable relief, as “neither requested
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the [t]rial [c]ourt to equitably reform the Lease, nor did either of them seek
to enjoin [Appellant] from exercising its right to access when the Lease
provides for no such restrictions.” Appellant’s Brief at 16. In what appears
to be an attempt to re-argue that the Lease in this case was not ambiguous,
Appellant asserts that the trial court erred by “reform[ing] the parties’ Lease
by allowing [Appellees] to limit [Appellant’s] access to the Subject Property,
in contravention of the clear terms of the Lease and the parties’ course of
performance thereunder.” Appellant’s Brief at 17.3
In support of this issue, Appellant relies on Bioni, 178 A.3d 839. In
Bioni, this Court vacated a portion of the trial court’s order that granted the
general public an easement across the appellant’s property after finding that
the neither party sought a public easement, nor did the township or any other
public body intervene seeking to establish that such an easement existed. Id.
at 851. In vacating that portion of the trial court’s order, this Court noted
that there was a “dearth of facts in support of a prescriptive public easement,”
and also noted that there was little testimony regarding who used the
easement at issue, other than the parties to the dispute. Id.
In contrast, in the instant case, Appellant sought a permanent injunction
allowing it unfettered access to the subject property, alleging that the Lease
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3 Although Appellant asserts that the Lease provides for no security
restrictions, that statement is directly contradicted by the trial court’s opinion
and order in which it found the Lease was ambiguous regarding whether
Appellant’s access was restricted or unrestricted.
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was unambiguous and allowed for such access. Although the trial court
granted Appellant a preliminary injunction, following a hearing and briefing
from the parties, the court found the Lease was ambiguous. It resolved the
ambiguity in favor of reasonable security measures and denied Appellant’s
request that Appellees be enjoined from implementing them. Trial Court
Opinion, 2/8/18, at 10. The trial court did not, as Appellant argues, reform
the parties’ lease “in contravention of the clear terms of the Lease.”
Appellant’s Brief at 17. Thus, Appellant is due no relief.
Order affirmed.
P.J.E. Bender joins the Memorandum.
Judge Murray files a Concurring & Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2019
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