PSC Assoc. v. Simon Property Group ( 2014 )

J-A21042-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
PSC ASSOCIATES, LLC, T/A AND : IN THE SUPERIOR COURT OF
GENERAL PARTNER OF PSC : PENNSYLVANIA
ASSOCIATES, LP, :
:
Appellant :
:
v. :
:
SIMON PROPERTY GROUP, INC., AND :
KING OF PRUSSIA ASSOCIATES, :
:
Appellees : No. 81 EDA 2014
Appeal from the Order Entered December 11, 2013,
in the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-14729
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 17, 2014
PSC Associates, LLC, t/a and general partner of PSC Associates, LP
(PSC), appeals from an order denying its request for a preliminary
injunction. We affirm.
The trial court aptly summarized the background underlying this
matter as follows.
The King of Prussia Mall Complex is located in Upper
Merion Township and presently consists of three separate units:
multi-tenant lifestyle center. The Court and The Pavilion are
physically connected to one another.
[PSC] is the owner of The Pavilion, located adjacent to
Dekalb Pike/Route 202 and Allendale Road. PSC currently leases
* Retired Senior Judge assigned to the Superior Court.
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space in The Pavilion to multiple retail stores and restaurants.
directly or through affiliated entities[,] owns 96.1% of the
partnership interests in KPA.
On April 17, 1980, KPA (as developer), R.H. Macy & Co.,
Inc. (as the proposed owner of part of the land), and Federated
(as the proposed owner of other parts of the land) signed a
Construction, Operation, and Reciprocal Easement Agreement
, PSC is a successor and
or/assign of Federated Stores, Inc. under the COREA. Simon, as
the 96.1% owner of KPA, is the successor to the original
Developer, as that term is defined under the COREA.1
1
,
Stores, Inc. under the COREA.
operate a unified and integrated shopping center and imposes,
inter alia, restrictions on what parties can do within the
The Court and The Pavilion, together with the associated parking
and access/egress aisles[,] are located within the boundaries of
the Developer Site.
On November 14, 2012, the Upper Merion Township
Land Development Plan in regard to the proposed construction of
The Container Store. Then, on December 6, 2012, the Upper
Development Plan for The Container Store project. In addition,
The Pennsylvania Department of Transportation approved the
relocation of a traffic signal eighty (80) feet south on Route 202
as part of this development.
On May 20, 2013, Simon, d/b/a KPA, recorded a
Preliminary/Final Amended Land Development Plan for the
within an area depicted as parking on The Court Development
Plan. At the time of the hearings on this matter, The Container
Store was being constructed within the Developer Site, as that
term is defined in the COREA. Construction of The Container
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Store required the relocation eighty (80) feet south along Route
202 of the existing entrance drive.
The parties stipulated that Simon did not seek consent
from PSC to (1) construct The Container Store within the
Developer Site, (2) alter and relocate the existing entrance drive
within the Developer Site, or (3) alter the parking configuration
within the Developer Site.
On June 8, 2013, after construction of The Container Store
had commenced, [PSC] filed a Complaint and a Motion for a
Special and Preliminary Injunction against [Simon and KPA
(collectively referred to as Appellees)], alleging that [Appellees]
violated the COREA by constructing The Container Store. On
July 22, 2013, [the trial court] denied a request for an Interim
Special Injunction and Temporary Restraining Order to halt
construction of The Container Store. Thereafter, [the court] held
eight (8) days of hearings on the Motion for a Preliminary
Injunction which sought to demolish The Container Store
building in mid-construction. On December [11], 2013, [the
preliminary injunction. [PSC] now [timely] appeals from [that]
determination.[1]
Trial Court Opinion, 3/17/2014, at 1-3 (citation omitted).
In its brief to this Court, PSC asks us to consider the questions that
follow.
1. Whether the Lower Court committed an error of law by
preliminary injunction by requiring PSC to conclusively prove its
case on the merits?
2. Whether the Lower Court committed an error of law by not
upholding the unambiguous language of the COREA
demonstrating that the COREA is still in effect and has not been
terminated?
1
Pa.R.A.P. 2111(a)(1) and 2114. This Court, however, does have jurisdiction
to review the denial of a request for an injunction. Pa.R.A.P. 311(a)(4).
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3. Whether Simon violated the COREA where the clear language
construction of The Container Store and where it was
undsipusted [sic
4. Whether the Lower Court erred by concluding that the
construction of The Container Store did not result in the addition
of floor area to the Mall so that consent from PSC was not
required to build The Container Store?
5. Whether Simon illegally modified the recorded Court
6. Whether the Lower Court committed an error of law by
concluding that PSC will not suffer irreparable harm as a result of
the construction of The Container Store where the testimony
demonstrated that Simon acted intentionally in violation of the
COREA or at least took a risk that the COREA was violated?
The manner in which we must review the trial cour
settled.
[I]n general, appellate courts review a trial court order refusing
or granting a preliminary injunction for an abuse of discretion.
We have explained that this standard of review is to be applied
within the realm of preliminary injunctions as follows:
[W]e recognize that on an appeal from the grant or denial
of a preliminary injunction, we do not inquire into the
merits of the controversy, but only examine the record to
determine if there were any apparently reasonable
grounds for the action of the court below. 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].
This Court set out the reasons for this highly deferential
standard of review almost a hundred years ago:
It is somewhat embarrassing to an appellate court to
discuss the reasons for or against a preliminary decree,
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because generally in such an issue we are not in full
possession of the case either as to the law or testimony
hence our almost invariable rule is to simply affirm the
decree, or if we reverse it to give only a brief outline of our
reasons, reserving further discussion until appeal, should
there be one, from final judgment or decree in law or
equity.
Thus, in general, appellate inquiry is limited to a determination
disposition of the preliminary injunction request.
In ruling on a preliminary injunction request, a trial court
. 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.
Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828
A.2d 995, 1000-01 (Pa. 2003) (citations and footnote omitted).
The trial court addressed the first essential prerequisite as follows.
[PSC] did not establish any alleged harm from construction of
The Container Store that could not be readily cured with
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monetary compensation. [Appellees] offered the expert
testimony of Joseph Pasquarella, a licensed real estate appraiser
with over forty (40) years of experience in appraising shopping
malls. Pasquarella opined that, based upon generally accepted
appraisal methodologies, any harm that the construction of The
Container Store may cause to The Pavilion can be readily
calculated monetarily. This [c]ourt found this testimony
credible. Accordingly, if [PSC] is able to establish its case at the
time of trial, then money damages would be an adequate
remedy and a preliminary injunction would not be appropriate.
Trial Court Opinion, 3/17/2014, at 8-
supported by the record. N.T., 11/21/2013, at 16-31.
We observe the following legal principles applicable to the first
prerequisite of the preliminary injunction standard.
In general, an injury is regarded as irreparable if it will cause
damages which can be estimated only by conjecture and not by
any accurate pecuniary standard. An injury is deemed
irreparable if it cannot be adequately compensated by an award
of damages. For harm to be irreparable, moreover, it must be
irreversible.
Boehm v. University of Pennsylvania School of Veterinary Medicine,
573 A.2d 575, 586 (Pa. Super. 1990) (citations and quotation marks
omitted).
Here, Appellees presented expert testimony from Joseph Pasquarella.
Mr. Pasquarella testified that, based upon generally accepted appraisal
methodologies, The Pavilion can be appraised in its condition before and
after the construction of The Container Store. N.T., 11/21/2013, at 19.
When Appellees
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Id. at 25. As we noted above, the trial court credited this testimony.
Thus, an examination of the record reveals that the trial court had an
injunction insomuch as the court concluded that any harm suffered by PSC
due to the construction of The Container Store can be adequately
compensated by monetary damages.2 For these reasons, we hold that the
trial court did not abuse its discretion by denying this request.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
2
issues.
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