Top of the Hill Plaza v. Hayden Holdings, LTD.

J-A19021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TOP OF THE HILL PLAZA PARTNERS, : IN THE SUPERIOR COURT OF
LP : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 3034 EDA 2018
HAYDEN HOLDINGS, LTD., SPA :
ELYSIUM, LTD., PARK 55, LLC, :
WENDY FELDMAN AND FRANCIS :
HAYDEN :
Appeal from the Judgment Dated, August 30, 2018,
in the Court of Common Pleas of Philadelphia County,
Civil Division at No(s): May Term, 2014, No. 00147.
TOP OF THE HILL PLAZA PARTNERS, : IN THE SUPERIOR COURT OF
LP : PENNSYLVANIA
:
:
v. :
:
:
HAYDEN HOLDINGS, LTD., ET AL., :
: No. 3073 EDA 2018
Appellant. :
Appeal from the Judgment Entered, August 30, 2018,
in the Court of Common Pleas of Philadelphia County,
Civil Division at No(s): No. 140500147.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 28, 2020
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A19021-19
This lawsuit began when neighboring property owners could no longer
agree to operate a joint commercial shopping center and parking lot in the
Chesnut Hill area of Philadelphia. The shopping center consists of three lots.
Currently, Top of the Hill Plaza Partners, LLC (TOH) owns two of them, "Lots
A and B". Hayden Holdings, LTD’s (Hayden) owns the third, "Lot C". The trial
court entered judgment declaring that TOH had an easement to use Lot for
ingress/egress and parking, and enjoining Hayden from blocking TOH’s use
and access to that lot. Both parties appealed this decision and other equitable
relief the trial court granted. TOH also appeals the amount of damages the
trial court awarded to Hayden for use of this lot. After careful review, we
affirm in part and reverse in part.
Ownership history of these properties, dating back to the 1950s,
together with various agreements of the parties and their predecessors is
important to understand and resolve the issues in this.
The original 1950 deed conveyed Lot C to a predecessor of Hayden and
contained the following language:
TOGETHER with the right, liberty and privilege of using
passageways to the Northeast and Southwest and a parking area
in the rear of the premises hereinbefore described as follows:
[Metes and Bounds description] as and for a PARKING AREA,
PASSAGEWAYS and DRIVEWAYS for the mutual use and
accommodation of the owners, tenants and occupiers of the
premises hereinbefore described and/or others to whom the
use thereof may be granted by the said Grantors for
ingress, egress and regress to and from Bethlehem Pike to
said parking area; PROVIDED, however that said passageways
or driveways shall be kept free and clear of all parked vehicles,
and/or any other obstruction, which might prevent free access to
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the Parking Area from Bethlehem Pike; SUBJECT, however, to the
proportionate part of the expense of the maintenance and upkeep
of said passages and parking area at all times, hereafter, forever.
Plaintiff's Ex. 2-A. (emphasis added).
At the time of the original 1950 deed, all of the lots were used as
commercial property. However, from 1950 to 1973, Lots A and B had separate
parking and ingress/egress from Lot C.
In 1973, the owner of Lot C, (a trust with Bert Levy acting as trustee
“Bert Levy, Trustee”), began a plan to develop all three lots into a unified
shopping center. The trustee eventually brought in Top of the Hill Associates
(TOH Associates) to develop the properties. TOH Associates entered into a
“Lease” with the trust, which granted it the managing rights over Lot C to
develop a single commercial complex using all three lots. Although TOH
Associates’ management and development rights regarding Lot C were
secured by the Lease, the Lease had certain conditions to be satisfied before
it became effective. The Lease did not convey an easement over Lot C, as
potentially contemplated by the original 1950 deed.
To achieve the joint operation of the three lots as one commercial
complex, the lot owners and developer worked together to obtain the
necessary variances from the local zoning hearing board. Although they
initially filed separate applications, they eventually consolidated the
applications and submitted a joint plan that showed the three lots merged into
one shared lot. The building plans also showed one entrance and exit
originating at Bethlehem Pike. This driveway connected to designated parking
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areas on both Lots A and C (shared parking lot); there was no parking on Lot
B. The separate, existing access to Lots A and B was eliminated.
After the new commercial complex was built on Lots A and B, the shared
lot was used by all of the lots’ owners, tenants, employees, customers, and
guests. Two one-way lanes were used for vehicular traffic to enter and exit
the shared parking lot from the single point on Bethlehem Pike. At some
point, the parking lot manager placed a toll booth between the two lanes to
charge for parking on the shared lot.
Since 1974, all drivers visiting the shopping center entered the shared
parking lot via a single lane, which was entirely on Lot C; drivers exited the
shared parking lot using a single lane that straddled Lots A and C. However,
the evidence clearly indicated that drivers used that single entrance and exit
point, without incident and with knowledge of all property owners, since the
1970's.
The following diagram presented at trial shows these lots as they existed
in 1974 after construction of the new complex. See Exhibit 41. Lot B is the
far left lot; Lot A is the center lot; and Lot C is the far right lot. The single
entrance and exit points are depicted with arrows on the bottom of the
diagram.
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TOH acquired Lots A and B on July 31, 2007. Following difficulties with
its role as manager under the Lease, TOH elected to terminate the Lease on
December 2, 2010, and consented to having the owner of Lot C, then the Bert
O. Levy Living Trust (Living Trust), manage the shared parking lot.
A few weeks later, Hayden acquired Lot C from the Living Trust on
December 17, 2010. For several years, both parties continued to use the
single point of entrance and exit from Bethlehem Pike and the shared parking
lot in the same manner as all their predecessors since the shopping center
was built in the 1970's without any agreement.
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Sometime in 2014, however, Hayden unilaterally attempted to separate
the shared parking lot into two distinct areas and blocked TOH’s access from
Bethlehem Pike via Lot C. This configuration made ingress/egress unsafe for
drivers and pedestrians. Visitors to Lots A and B were forced into tighter
lanes. Also, parking spaces situated on the property line were roped-off and
no longer accessible. Visitors to Lots A and B did not have use of the Lot C
parking spots. Additionally, Hayden moved the toll booth onto its property,
Lot C.
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The following diagram illustrates the changes from the prior
configuration.
After Hayden changed the shared lot configuration, TOH filed this
lawsuit. Following a bench trial, the court concluded that TOH had an express
easement to use the driveway on Bethlehem Pike and parking area on Lot C
for the benefit of Lots A and B. As a result, it issued a permanent injunction
enjoining Hayden from interfering with TOH’s rights to use the driveway and
parking area on Lot C and permanently ordered Hayden to return the property
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to the configuration that existed in April 2014 as showed on the first diagram
above.
The trial court also directed the parties to hire a third party to implement
the permanent injunction and manage the operation of the parking areas on
Lots A and C, with costs to be shared equally by Hayden and TOH. Judgment
Order, 8/29/18, at 1-3. Additionally, the trial court required TOH and Hayden
to share equally in the future expenses for upkeep and maintenance of the
driveway and parking area on Lot C and the toll booth. However, the trial
court found TOH solely responsible for all expenses associated with Lot A.
Trial Court Findings of Fact/Conclusions of Law, 6/30/17, at 21; but see
Judgment Order, 8/29/18, at 1-3, and discussion infra (the shared parking
area on Lot A).
Finally, the trial court granted TOH’s request for an accounting of the
expenses incurred since January 2014 for maintenance of the driveway and
parking area on Lot C to determine TOH’s proportionate share as required
under the easement. Following a separate hearing, the trial court determined
that TOH owed Hayden $81,895.45, to be paid from funds TOH escrowed
pending resolution of this issue. Id. at 2.
The parties timely filed cross-appeals.
TOH raises four issues for our review:
1. Whether the trial court erred in rejecting TOH's claim for an
easement by estoppel and/or irrevocable license over Lot C?
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2. Whether the trial court erred in unilaterally allowing Hayden's
owners, tenant[s], employees, customer[s] and guests use of
the driveway and parking area on Lot A without compensation?
3. Whether the trial court erred in awarding Hayden [] an amount
for the expense of operating a commercial parking operation?
4. Whether the trial court erred in awarding Hayden [] an
amount for expenses during the period that TOH was excluded
from the use of Lot C?
TOH’s Brief at 7.
Hayden raises two issues for our review:
1. Whether the trial court erred in finding TOH has an easement
by grant over the Lot C parking areas, passageways and
driveways?
2. Whether the trial court erred in granting injunctive relief
against Hayden Holdings?
Hayden’s Brief at 5.
In their first issue, both parties challenge TOH’s claim to a property right
for the use of Lot C. TOH claims the trial court should have found that it had
an irrevocable license. Hayden claims that the trial court erred in finding that
TOH had an express easement.
The following principles guide our review of both TOH and Hayden’s first
issue.
Our standard of review in a declaratory judgment action is narrow.
We review the decision of the trial court as we would a decree in
equity and set aside factual conclusions only where they are not
supported by adequate evidence. We give plenary review,
however, to the trial court’s legal conclusions.
In reviewing a declaratory judgment action, we are limited to
determining whether the trial court clearly abused its discretion or
committed an error of law. Judicial discretion requires action in
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conformity with law on facts and circumstances before the trial
court after hearing and consideration. Consequently, the court
abuses its discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner lacking
reason.
Jarl Investments, L.P. v. Fleck, 937 A.2d 1113, 1121 (Pa. Super. 2007)
(internal citations and quotations omitted).
In its first issue, TOH argues that the trial court erred in concluding that
it had an easement by express grant rather than an irrevocable license.
Specifically, TOH argues that it presented clear and convincing evidence that
TOH’s predecessor detrimentally relied upon the promise that it could use Lot
C for ingress/egress and parking to develop and construct the commercial
complex on Lots A and B at substantial cost. TOH’s Brief at 39-40.
Conversely, in Hayden’s first issue, Hayden argues that the trial court
erred in finding that TOH had an express easement by grant, and similarly
challenges any finding of an irrevocable license. According to Hayden, TOH
did not have an easement or any other property right for ingress/egress or
parking on Lot C. Instead, TOH’s use of Lot C was secured by the long term
Lease executed in 1974. When TOH terminated this Lease and entered into a
settlement agreement relating to its outstanding obligations under the Lease,
Hayden argues TOH relinquished it rights to use the driveway and parking on
Lot C. Hayden’s Brief at 34, 47, 55.
In concluding that TOH had an easement by express grant, the trial
court relied upon the language contained in the 1950 deed, and similar
language contained in subsequent deeds, notably, the 1973 deed.
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Specifically, the trial court found that the right to use Lot C was given to
“others.” The court concluded this meant any person or entity that had not
already been granted use of the parking, passageways, and driveways, i.e.,
an owner, tenant, or occupant of Lot C. Trial Court Opinion, 7/3/18, at 9. The
trial court opined that this language included an adjacent landowner, namely,
owners of Lots A and B, as they were not an “owner, tenant, or occupant” of
Lot C.
In reaching this decision, the trial court relied upon the February 12,
1974 letter submitted to the Zoning Hearing Board on behalf of Bert Levy,
Trustee and TOH Associates. In that letter, their counsel assured the zoning
board that the “combined sites have adequate space for at least sixty-five
parking spaces, together with all needed access to the parking spaces and
buildings.” The trial court opined that this reflected Bert Levy, Trustee’s
decision to grant public use of Lot C for the development of a commercial
complex on all three lots as proposed in the zoning applications. Trial Court
Opinion, 7/3/18, at 10 n. 46.
The trial court also concluded that TOH did not have an irrevocable
license. Initially, the trial court reasoned that, because no one spent money
to alter Lot C during the construction project to prevent it from being returned
to the way it was in 1974, no irrevocable license was created. Findings of
Fact/Conclusions of Law, 6/30/17, at 18. However, in its opinion following
TOH’s post-trial motion on this issue, inter alia, the trial court modified its
rationale and explained that TOH did not acquire an irrevocable license,
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because such a license was not assignable. The court further reasoned that
Lot A’s previous owners made changes to the property and expended money
in pursuit of the shopping complex development itself and not on the promise
to use Lot C. Trial Court Opinion, 7/3/18, at 12.
Upon a thorough review, we are constrained to disagree with the trial
court’s conclusions that TOH obtained an easement by express grant and did
not acquire an irrevocable license. As we explain below, the deeds did not
convey an easement. Instead, TOH, as owner of Lots A and B, has an
irrevocable license for the use of Lot C to enter and exit the properties from
Bethlehem Pike and for parking. Hayden, as owner of Lot C, likewise has a
right to use Lot A for parking and egress. Our rationale follows.
An easement is an interest in land that is in the possession of another.
Restatement (First) of Property § 450 (1944). Notably, “[t]he law is jealous
of a claim to an easement, and the burden is on the party asserting such a
claim to prove it clearly.” Mann-Hoff v. Boyer, 604 A.2d 703, 706 (Pa.
Super. 1992) (quoting Becker v. Rittenhouse, 147 A. 51 (Pa. 1929)). An
easement may be created by express agreement in compliance with the
statute of frauds, or by implication, necessity, or prescription.1 Morning
Call, Inc. v. Bell Atl.-Pennsylvania, Inc., 761 A.2d 139, 142 (Pa. Super.
2000) (emphasis added). In particular, easements by express grant are to be
____________________________________________
1Although TOH also claimed to have obtained an easement by implication or
necessity, only the trial court’s decision regarding an easement by express
grant is before us on appeal.
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construed in accordance with the intentions of the parties, as determined from
examining the agreement as a whole. Owens v. Holzheid, 484 A.2d 107,
109 (Pa. Super. 1984). “[T]he same rules of construction apply to deeds
granting easements as to contracts generally.” Bito Bucks in Potter, Inc. v.
Nat. Fuel Gas Supply Corp., 449 A.2d 652, 653 (Pa. Super. 1982). Our
Supreme Court stated that:
In construing a deed or a contract, certain general principles must
be kept in mind. First, it is the intention of the parties at the time
of entering in thereto that governs, and such intention is to
be gathered from a reading of the entire contract. In addition,
“Contracts must receive a reasonable interpretation, according to
the intention of the parties at the time of executing them, if
that intention can be ascertained from their language.... ”
Wilkes-Barre Twp. Sch. Dist. v. Corgan, 170 A.2d 97, 98 (Pa. 1961)
(citations omitted) (other emphasis added). Based upon our review of the
original 1950 deed conveying Lot C (from Leona and Syl Levy (the Levys) to
Charles Henry) and considering the parties’ intentions at that time, we
conclude that Hayden’s predecessor did not create an easement by express
grant to the owners of Lots A and B or to any other individual or entity.
The original 1950 deed conveyed Lot C to Charles Henry, along with the
right of the owner, tenants, and occupiers to use the “parking area,
passageways, and driveways.” Additionally, the Levy’s reserved to
themselves the ability to grant or convey to “others” the right to use the
“parking area, passageways, and driveways . . . for ingress/egress and regress
to and from Bethlehem Pike to the parking area” on Lot C. “Others” is
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undefined in the deed. And, while we agree with the trial court that the
language was intended to allow someone or some entity other than the
“owner, tenant, or occupier” to use Lot C, the Levys did not specifically give
that right to anyone or any entity at that time. The deed made no reference
to the owners of adjacent lots A and B, any other individual, entity, or the
general public of Chestnut Hill.
Instead, the 1950 deed referred to rights in “others to whom the use
thereof may be granted”. From this language, it is evident that the Levys
merely contemplated that while Henry owned Lot C, the Levys could, if they
chose, allow “others” to use the parking area, passageways and driveways on
Lot C. Conceivably, that could have included the owners of Lots A and B or
some other individual or entity in the future. However, the Levys did not
convey any interest at that time.2
We reach the same conclusion with respect to the 1973 deed, which was
executed shortly before the start of the development on the three lots. This
deed conveyed Lot C from the Levy Executors to the Levy Trustees, and
referenced the original 1950 deed and language allowing the grantor (now the
Levy Executors) to give “others” the right to use Lot C’s “parking area,
passageways, and driveways.” However, it too did not give this right
specifically to anyone or any entity, in particular the owners of Lots A and B,
TOH Associates, or any other individual or entity, as “others” remained
____________________________________________
2 We note that shortly after the Levys conveyed Lot C to Charles Henry, the
property was conveyed back to the Levys.
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undefined. Instead, it also merely reserved to the grantor the ability to give
“others” the right to use Lot C, as described, in the future, if they chose.
Therefore, as of early 1973, no express easement was granted.
We note, however, that these early deeds evince the Levys’ and their
successors’ recognition of the importance of Lot C, their desire to make
beneficial use of it, and their desire, potentially, to grant its use to others.
Consequently, we consider whether, at some other point in time, Hayden’s
predecessor impliedly granted some right to use Lot C’s “parking area,
passageways, and driveways,” by easement or otherwise, to TOH’s
predecessor as TOH claims. If so, we must consider the nature and extent of
that right. In particular, we consider, as the trial court did, what transpired
when the parties’ predecessors sought to develop an integrated commercial
complex on all three lots.
Significantly, in 1973, Bert Levy, Trustee, the then owner of Lot C,
decided to develop Lots A, B, and C into a contiguous commercial and
residential complex.3 It initially hired an affiliated entity, LETR, was hired
initially to be the developer on the project. Levy and LETR applied to the
zoning board for approval of the project initially in October 1973. The planning
of this project, in conjunction with the Chestnut Hill Community Association,
had been ongoing for many months. The goal was to revitalize Lots A and B
____________________________________________
3 The residential component of this project was later dropped.
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which had become run down and make good use of all three properties for the
benefit of the Chestnut Hill Community.
Sometime thereafter, early in 1974, TOH’s predecessor, TOH Associates
took over as the developer and filed a separate application for approval of the
project. Ultimately, two zoning applications of the property owners/developer
were consolidated and a joint building plan was submitted showing the three
lots as one shared lot. The plan specifically contemplated parking and
exclusive access on Lot C in connection with the new development on Lots A
and B.
On February 22, 1974, the zoning hearing board approved the
development conditioned on compliance with the assurances contained in the
February 12, 1974 letter from counsel. Specifically, the permit to develop the
complex on Lots A and B was contingent upon there being at least 75 parking
spaces (mostly located on Lot C) for use by the combined sites and access to
the parking spaces and buildings. The plans, as submitted to and approved
by the board, showed a single point of ingress/egress from Bethlehem Pike
which connected to the parking areas on Lots A and C. The other then-existing
access to Lots A and B was eliminated.
Based upon these facts, the trial court concluded that, through the
zoning process, Bert Levy, Trustee agreed to allow ingress/egress and parking
on Lot C for use by Lots A and B, which was consistent with his vision to
develop the three lots into a large, commercial complex and enhance the
Chestnut Hill Community. See Trial Court Opinion, 7/3/18, at 4. This promise
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was evident as early as October 1973 when Bert Levy, Trustee applied for a
zoning permit.
However, contrary to the trial court’s opinion, we conclude as a matter
of law that, Bert Levy, Trustee’s promise did not establish an express
easement because the statute of frauds requires an easement to be in writing.
At that time, there was no writing conveying an interest in Lot C to TOH
Associates or anyone else or any other entity.
For the reasons set forth below, we reject Hayden’s contention that the Lease
was the source of TOH’s right to use Lot C. Instead, we conclude that, at the
time of the zoning proceedings, Bert Levy, Trustee impliedly granted a license
to use Lot C for parking and ingress/egress from Bethlehem Pike in connection
with the commercial complex to be developed on Lots A and B.
With respect to licenses, generally, this Court has stated:
Licenses are often compared to easements. In general, a license
is a mere personal or revocable privilege to perform an act or
series of acts on the land of another, which conveys no interest or
estate. A license is distinguishable from an easement because it
is usually created orally, is revocable at the will of the licensor,
and is automatically revoked by the sale of the burdened property.
Morning Call, Inc. v. Bell Atl.-Pennsylvania, Inc., 761 A.2d 139, 144 (Pa.
Super. 2000) (citations omitted). However, though generally revocable, a
license may become irrevocable under the rules of estoppel. In those
circumstances, as we have explained, it is similar to an easement.
The Pennsylvania Supreme Court adopted the equitable doctrine
of irrevocable license in the mid-nineteenth century stating that a
license to do something on the licensor's land when followed by
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the expenditure of money on the faith of it, is irrevocable, and is
to be treated as a binding contract. The Court subsequently
explained that such a license, while not strictly an easement, is in
the nature of one. It is really a permission or license, express or
implied, to use the property of another in a particular manner, or
for a particular purpose. Where this permission has led the party
to whom it has been given, to treat his own property in a way in
which he would not otherwise have treated it ... it cannot be
recalled to his detriment. Thus, the irrevocable license gives
absolute rights, and protects the licensee in the enjoyment of
those rights. Moreover, successors-in-title take subject to an
irrevocable license if they had notice of the license before the
purchase.
Morning Call, Inc. v. Bell Atl.–Pennsylvania, Inc., 761 A.2d 139, 144 (Pa.
Super. 2000) (citations, footnotes, and quotation marks omitted).
In concluding that TOH did not have an irrevocable license, the trial
court focused on what transpired in 2007 when TOH acquired the property
from TOH Associates. We agree with the trial court that no irrevocable license
was created at that time; no promises were made to TOH, and TOH did not
make changes to or spend significant money on Lots A and B. However, based
upon our review of the record, we conclude that the license Bert Levy, Trustee
granted in 1973 became irrevocable when TOH’s predecessor proceeded to
develop all three lots as an integrated commercial complex as represented to
the zoning board.
Following approval from the zoning hearing board in 1974, TOH
Associates acquired Lots A and B for the project. TOH then proceeded to
construct a new commercial complex on Lots A and B in accordance with the
plans presented to the zoning board. The improvements required the use of
Lot C for parking as well as ingress/egress from Bethlehem Pike. By design
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and permission of the zoning board, there was no access to this complex from
Germantown Avenue; the Top of the Hill Shopping Center was designed and
built in a way that cut off access to Lots A and B from Germantown Avenue.
Findings of Fact/Conclusions of Law, 6/30/17, at 17. Instead, the only access
to the complex was from Bethlehem Pike through Lot C. Without the access
on Lot C for ingress/egress to Lot A, there was insufficient space for a safe
and zoning compliant two lane driveway on Lot A. Similar issues existed on
Lot C. The new layout of the properties further limited the availability of
parking on Lots A and B themselves.
From these circumstances, one can infer that TOH Associates relied on
Bert Levy, Trustee’s promise that Lot C could be used in connection with the
development of Lots A and B as jointly represented to the zoning board.
Furthermore, although no evidence was presented at trial to show how much
was spent on this project, this development obviously was a significant
undertaking, not just for the parties’ predecessors, but also the community of
Chestnut Hill. It is further apparent, that returning Lots A and B to their prior
condition, likewise, would be a substantial undertaking and a detriment to the
Chestnut Hill Community.
Finally, contrary to the trial court’s conclusion, an irrevocable license
may be transferred if the subsequent purchaser has notice of the license
before the purchase. See Morning Call, supra. From our review, we
conclude that there was sufficient constructive notice for the owners of Lots A
and B to have purchased those properties subject to an irrevocable license
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over Lot C. Wendy Feldman, the president of Hayden testified that, when
Hayden purchased Lot C, she did not know that Lot C was subject to any
license. She knew that TOH’s Lease for Lot C was terminated because she
had been a tenant on Lot C for 11 years prior to Hayden purchasing it.
However, Feldman had been in the Chestnut Hill Community for over 30 years.
During that time period, the properties were used in connection with one
another. As such, she had constructive notice of the license when Hayden
purchased Lot C.
Additionally, although TOH did not know the legal basis for its use of Lot
C, it was evident that, when TOH took over Lots A and B from TOH Associates,
the properties were being used in conjunction with one another as one
integrated lot. Thus, TOH also had constructive notice of the license.
Based on these facts, we conclude that the owner of Lots A and B, TOH,
has an irrevocable license to use the parking area and ingress/egress from
Bethlehem Pike to access the parking areas on both Lots A and C as
represented to and approved by the zoning board in 1974 and as it has existed
for more than 40 years.4
We reach this conclusion despite Hayden’s argument that only the Lease
controlled TOH’s right to use Lot C. As the trial court found, the Lease did not
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4We note that our conclusion is limited to the particular circumstances of this
case. Whether an irrevocable license exists must be examined on a case-by-
case basis as this determination is equitable in nature. Contrary to Hayden’s
contention, where a developer secures temporary rights in neighboring
property, those rights will not necessarily become permanent in all cases as
Hayden suggests. See Hayden’s Brief at 37.
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take effect until August 6, 1975, once all of the conditions had been fulfilled.
Trial Court Opinion, 7/3/18, at 10. As discussed above, by that point, use of
Lot C already had been promised for the development of Lots A and B.
Furthermore, the purpose of the Lease was not to grant the use of Lot
C for ingress/egress and parking in connection with Lots A and B even though
it may have been used to convince the zoning hearing board to approve this
project. Generally, a lease entitles a lessee to more rights than typically
held by a licensee. Dailey's Chevrolet, Inc. v. Worster Realties, Inc., 458
A.2d 956, 960 (Pa. 1983). Here, the Lease gave greater rights to TOH
Associates than those afforded under the license granted in connection with
the development of Lots A and B. For example, the Lease gave exclusive
possession of all of Lot C to TOH Associates. This interest was far more
significant than that granted under the license. Additionally, as the trial court
observed, the Lease covered more than just permitting the use of Lot C for
the benefit of Lots A and B. Findings of Fact/Conclusions of Law, 6/30/17, at
17. While the Lease granted the Lessee use of the parking area and driveway,
it also included use of the building situated thereon and its leased spaces.
Significantly, the Lease obligated TOH Associates to manage the property,
including the building and to oversee the tenants. Consequently, the Lease
enabled TOH Associates, and later TOH, to operate the three lots as an
integrated, commercial complex as contemplated by Bert Levy, Trustee. The
Lease gave TOH exclusive control over Lot C; without the lease, Bert Levy
could have allowed others to use the property, notably the parking area and
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driveway. As such, the original license to use part of Lot C did not change,
but the Lease granted additional rights and obligations to TOH.
Moreover, contrary to Hayden’s argument, because the Lease was not
the source of TOH’s right to use part of Lot C, the termination thereof did not
affect the license previously granted. Instead, the termination of the Lease
only ended the additional rights and obligations provided for therein, i.e.,
TOH’s exclusive possession of Lot C. In fact, consistent with this conclusion,
after termination of the Lease, TOH continued to use Lot C access and parking
as the prior owners of Lots A and B did for 40 years. This continued for almost
fourt year following the termination of the Lease in 2010. Thus, no one
intended for this right to end when the Lease terminated.
In sum, we conclude that TOH’s predecessor acquired an irrevocable
license to use Lot C for ingress/egress and parking in connection with its
shopping center. The license was passed to TOH upon its acquisition of the
properties. The termination of the Lease did not terminate the license, and
consequently, the license continues to give TOH the right to use Lot C as
discussed. Although the basis for its decision was incorrect (because it found
an easement, not an irrevocable license), the trial court properly granted
TOH’s request for a permanent injunction.
We now turn to the parties’ issues regarding the trial court’s award of
other equitable relief. In relation to each of TOH and Hayden’s second issues,
both of which challenge the court’s ability to order other equitable relief, we
note:
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[A]ppellate review of equity matters is limited to a determination
of whether the chancellor committed an error of law or abused his
discretion. The scope of review of a final decree in equity is limited
and will not be disturbed unless it is unsupported by the evidence
or demonstrably capricious.
Vautar v. First Nat. Bank of Pennsylvania, 133 A.3d 6, 12 (Pa. Super.
2016)(quoting First Capital Life Insurance Company v. Schneider, Inc.,
608 A.2d 1082 (Pa. Super. 1992)) (citations omitted).
“Courts sitting in equity hold broad powers to grant relief that will result
in an equitable resolution of a dispute.” Williams Twp. Bd. of Supervisors
v. Williams Twp Emergency Co., Inc., 986 A.2d 914, 921 (Pa. Cmwlth.
2009). “[A] decree which accords with the equities of the cause may be
shaped and rendered; the court may grant any appropriate relief that
conforms to the case made by the pleadings although it is not exactly the
relief which has been asked for by the special prayer.” Lower Frederick
Twp. v. Clemmer, 543 A.2d 502, 512 (Pa. 1988). However, “a trial court
must formulate an equitable remedy that is consistent with the relief
requested;” thus, “while a chancellor in equity may fashion a remedy that is
narrower than the relief requested, he or she may not grant relief that exceeds
the relief requested.” Williams Twp., supra.
In its second issue, Hayden claims that any equitable relief should be
limited. Specifically, Hayden argues that the trial court’s requirement that the
parties hire a third-party manager to implement the permanent injunction and
manage the parking areas on Lots A and C was improper. Hayden contends
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that neither party requested such relief; and it should be allowed to manage
its own property. Hayden’s Brief at 82-83.
Significant to the trial court’s appointment of a third-party manager here
was that, in 1974, Lots A, B and C were designed and developed to be an
integrated complex. To ensure that TOH could continue to use Lot C as so
intended, the trial court prohibited Hayden from blocking TOH’s use thereof.
The trial court believed that this could not be done without assistance from a
third-party manager.
The parties’ inability to resolve the issues confronting them and
cooperate for the good of the community, as their predecessors had done,
necessitated the use of a third-party manager. Moreover, a third party had
managed the parking area for years without incident. In fact, the problems
arose between the parties once the third-party manager ended its services.
As noted above, a court sitting in equity has broad authority to fashion
an appropriate remedy. Although neither party requested this specific form
of relief, in its prayer for relief, TOH asked for “all other relief as the court may
deem just.” The relief granted is consistent with maintaining TOH’s right to
use Lot C, and ensuring the continued operation of the parking areas as a
shared lot. We, therefore, conclude that the trial court did not commit an
error of law or abuse its discretion in granting this relief.5
____________________________________________
5 Certainly, if the parties jointly agree and are able to administer the lots
without a third party, they may agree to do away with this position, provided
such agreement is approved by all parties and the trial court.
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In its second issue, TOH similarly claims that the trial court erred in
crafting its equitable remedy to grant Hayden, as the owner of Lot C, a
reciprocal license to use Lot A. Specifically, TOH claims that the trial court
should not have granted this relief when Hayden did not request it.
Alternatively, if such relief was permitted, then the trial court should have
required Hayden to pay a portion of the expenses relating to use of Lot A, as
it did for TOH’s use of Lot C. TOH’s Brief at 43.
Hayden argues that the trial court properly granted Hayden the use of
Lot A at no charge because TOH did not seek to preclude Hayden’s access to
Lot A or charge Hayden for its use of this lot at any time during the litigation.
Moreover, no documentation required Hayden to share in the expenses for Lot
A, unlike the original 1950 deed required for the use of Lot C. Hayden’s Brief
at 58.
We first consider the trial court’s grant of the right to use Lot A to
Hayden. The trial court ordered, inter alia, that the parties were to be restored
to the status quo before Hayden disrupted the parking lot and ingress/egres
configuration that existed for many years. Judgement Order, 8/30/18, at 2.
Specifically, the trial court directed that the parking areas on Lots A and C
operate as a fully integrated, shared parking lot as they had done previously.
Thus, the trial court authorized Hayden, its tenants, employees, customers,
and guests to use the parking area on Lot A as well as the driveway that
straddled Lots A and C to exit the shopping center onto Bethlehem Pike. Id.
at 3.
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The jurisprudence of this Commonwealth has long recognized important
principles of equity. Nearly a century ago, our Supreme Court held that when
one requests equity from the court, he must do equity. Smith v. Yellow Cab
Co., 135 A. 858, 860 (Pa. 1927) (“he who would have equity must do equity.”)
An equitable decree in one’s favor must not harm those who are, or may be,
affected thereby. Id. Consequently, when a party invokes the equitable
powers of a court, equity may do justice for all of the litigants and vindicate
their legal rights simultaneously. See Ezy Parks v. Larson, 454 A.2d 928,
936 (Pa. 1982). “[A] court of equity has the power to afford relief despite the
existence of a legal remedy when, from the nature and complications of a
given case, justice can best be reached by means of equity's flexible
machinery.” Hill v. Nationwide Insurance Co., 570 A.2d 574, 576 (Pa.
Super. 1990)(quoting Peitzman v. Seidman, 427 A.2d 196, 199 n. 4 (Pa.
Super. 1981)).
In granting TOH the equitable relief it sought, the trial court was
empowered to return both parties to the positions they previously occupied.
At the time of the zoning proceedings, Bert Levy, Trustee was promised that,
reciprocally, Lot A’s parking and egress could be used for the benefit of C, in
order to make the project happen. By doing so, Bert Levy, Trustee changed
the use of Lot C’s parking and driveway from one that was for the sole use of
Lot C owners, tenants and occupiers, to one that was shared with Lots A and
B for the benefit of the integrated commercial complex both property owners
sought to develop. In doing so, Bert Levy, Trustee he relied upon the promise
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made for the continued, future use of Lot A. Because the court used its
equitable powers and granted a benefit to TOH, as owners of Lots A and B,
(i.e., the irrevocable license to use Lot C), under these particular
circumstances, the trial court, similarly, granted a benefit to Hayden (i.e., the
right to use Lot A for parking and egress from the shared parking area). Based
upon well-established principles of equity, we conclude that the trial court did
not commit an error of law or abuse its discretion in granting Hayden the right
to use Lot A.
Next, we consider the trial court’s directive that Hayden share in certain
expenses associated with Lot A. In its findings of fact and conclusions of law,
dated 6/30/17, the trial court concluded that:
29. [TOH] and Hayden are each responsible for proportionate
payment in the amount of one half for maintenance, expense and
upkeep of the toll booth, passageways, driveways and parking
area on Lot C.
30. [TOH] as owner of Lot A is solely responsible for all expenses
on Lot A other [than] those that may relate to any part of the toll
booth that stands over Lot A land.
Findings of Fact/Conclusions of Law, 6/30/17, at 21.
In its judgment order, dated August 29, 2018, the trial court reiterated
its conclusion regarding Lot C. However, with respect to Lot A, it stated:
7. [TOH], as owner of Lot A is solely responsible for all expense
on Lot A other [than] those that may relate to any part of the
toll booth that stands over Lot A land, and the shared parking
area on Lot A land.
***
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9. The Parking Area on Lots A, B, and C shall operate as a fully
integrated, shared parking lot.
Judgment Order, 8/29/18, at 3 (emphasis added).
The trial court’s directives in these documents are ambiguous regarding
who should pay for expenses on Lot A. In the trial court’s findings of facts
and conclusions of law, TOH is solely responsible for everything on Lot A,
except the toll both, which the trial court required the parties to share in
equally. However, in its judgment order, the trial court directed that TOH is
solely responsible for everything on Lot A, except the toll booth and the shared
parking area on Lot A. Although this ambiguity is unfortunate, we conclude
the order best represents the trial court’s intention. Considering the trial
court’s entire disposition, it is clear that it intended for all parties to share in
any cost associated with the shared parking lot. As such, it ordered Hayden
to contribute to the costs associated with the parking area on Lot A. This is
consistent with the trial court’s directive that the parking areas on the different
lots operate as an integrated parking area and consistent with the court’s
overall structure of its equitable relief. Equity requires that Hayden share in
the expenses for what it uses. We therefore conclude that the trial court did
not commit an error of law or abuse its discretion in ordering this relief.
However, because Hayden has a right to use Lot A for parking and
egress from the shared lot to Bethlehem Pike, it is likewise equitable that
Hayden pay for upkeep and maintenance of the driveway on Lot A. We discern
no logical reason to exclude this shared portion of Lot A from Hayden’s
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obligation to share expenses associated with Lot A. We therefore conclude
that the trial court erred in not including this expense, and modify the court’s
order to direct Hayden to share in this expense as well.
In sum, regarding the trial court’s award of other equitable relief, we
conclude that the trial court did not err in requiring the parties to hire a third-
party manager. Additionally, the trial court did not err in granting Hayden the
right to continue using Lot A for parking and egress as its predecessor had for
40 plus years. Furthermore, the trial court did not err in requiring Hayden to
share in the expenses associated with upkeep and maintenance for the
parking area on Lot A as stated in its judgment order. Likewise, Hayden must
share in the future expenses for upkeep and maintenance of the driveway on
Lot A.
We now address TOH’s issues regarding the trial court’s award of
damages to Hayden for TOH’s use of its property since 2014, the point at
which the parties could not agree on expenses and TOH’s respective
contribution. When reviewing these issues, we are mindful of the following:
The duty of assessing damages is for the fact-finder, whose
decision should not be disturbed on appeal unless the record
clearly shows that the amount awarded was the result of caprice,
partiality, prejudice, corruption, or some other improper influence.
In reviewing the award of damages, the appellate courts should
give deference to the decisions of the trier of fact who is usually
in a superior position to appraise and weigh the evidence. The
damage calculation need not be determined with complete
accuracy, but it must be founded on a reasonable factual basis,
not conjecture.
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Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 328 (Pa. Super. 2015)
(citations and quotations omitted) (quoting Lesoon v. Metropolitan Life
Ins. Co., 898 A.2d 620, 628 (Pa. Super. 2006)).
First, TOH argues that the trial court’s calculation of damages, through
its accounting, improperly included costs associated with Hayden’s commercial
operation of the parking area on Lot C as expenses for “maintenance and
upkeep.” According to TOH, the phrase “maintenance and upkeep” does not
contemplate expenses associated with the operation of a commercial parking
lot. In particular, it argues the trial court should not have included
expenditures for payroll, staffing costs, book keeping, and real-estate taxes
in the amount TOH must pay. TOH’s Brief at 45. TOH further claims that
Hayden padded the expenses and shifted expenses from the business of
Wendy Feldman (general partner of Hayden) to the expenses for the parking
area. According to TOH, very little maintenance and upkeep was done to the
parking lot. Id. at 45-46. It therefore asks this Court to remand this matter,
so the trial court can recalculate expenses excluding these amounts and direct
that they be excluded from future determinations of expenses. Id. at 46.
The trial court concluded that, because TOH had a right to use Lot C for
ingress/egress and parking, TOH likewise had an obligation to pay 50% of
expenses for “upkeep and maintenance” of those areas. The trial court
directed Hayden and its parking-management company provide an accounting
of the costs associated with those areas since January 2014.
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Following a hearing, the trial court found that the nature of the expenses
submitted by Hayden and the parking-management company were
appropriate, including those to which TOH took exception as noted above.
Additionally, the trial court found the amount of the expenses presented by
Hayden to be reasonable and rejected TOH’s exceptions to Hayden’s
accounting. Trial Court Opinion, 7/3/18, at 14-16.
The largest expense over approximately a 4-year period was for staffing.
The trial court agreed that, as explained by Hayden, staffing was necessary to
maintain the parking lot. Use of staff to keep and maintain the parking area
on Lots A and C included manning the toll booth, cleaning the lot, assisting
people with parking, excluding people who were not permitted to park there,
and striping. Recognizing the importance of these activities, the trial court
authorized the third-party manager in its discretion to consider the need for
staffing of the lot. Payroll and bookkeeping are overhead costs associated
with staffing and maintaining the parking lots. All of these expenses were
documented.
Moreover, as Hayden argues, TOH presented no evidence to suggest
that any of the expenses were associated with any operations other than the
shared parking lot or that they were inflated. The trial court found that Ms.
Feldman reasonably explained the changes in costs from years past.
Thus, based upon our review of the record, we do not find that the trial
court assessed damages against TOH based upon an improper influence. We
therefore will not disturb the trial court’s determination that Hayden’s
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expenses were reasonable and that TOH should be responsible for its
proportionate share.
Lastly, TOH argues that the trial court erred in imposing expenses on
TOH for the period it was excluded from parking on Lot C. TOH was excluded
from any use of Lot C for ingress/egress and parking from August 2014 until
the trial court entered its Memorandum Opinion dated July 3, 2018. TOH’s
Brief at 46-47. TOH therefore asks the Court to reverse the trial court’s order
imposing expenses on TOH for this period. Id. at 47.
The trial court imposed a proportionate share of expense for “upkeep
and maintenance” on TOH premised upon TOH’s right to use Lot C for
ingress/egress and parking. From November 2014 to July 2018, TOH was
precluded from using Lot C in conjunction with its commercial complex.
Although some patrons of the businesses on Lots A and Lot B may have parked
on Lot C, this was beyond TOH’s control. Rather, Hayden and its parking
management company had the ability to control who parked on Lot C.
Moreover, Hayden was not harmed by having patrons of Lots A and B parking
there since it benefitted by collecting a fee.
Consequently, we conclude that the trial court erred in requiring TOH to
share in the expenses associated with Lot C’s ingress/egress and parking area
during the time which TOH was precluded from using it. Therefore, we remand
for the trial court to recalculate the amount TOH owes to Hayden, excluding
expenses associated with this time period.
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In sum, regarding the trial court’s award of damages, we conclude that
the trial court’s assessment of damages against TOH to Hayden that included
various expenses as discussed above, was not based on some improper
influence, but rather was based on the evidence presented. As such, we affirm
this portion of the award. However, the trial court erred in its assessment of
damages against TOH to Hayden that required TOH to pay expenses for its
use of Lot C during the time period Hayden barred it from using it. We
therefore vacate that portion of the award and remand for the trial court to
recalculate those damages. In all other aspects, the trial court’s decision on
damages is affirmed.
In conclusion, we disagree with the trial court that TOH acquired an
express easement. However, based upon our review, we conclude that TOH
acquired an irrevocable license. We therefore affirm the trial court’s
imposition of an injunction against Hayden to prohibit it from denying TOH’s
use of Lot C.
Additionally, we affirm the trial court’s award of other equitable relief,
including the parties’ use a third-party administrator to manage the shared
parking lot and Hayden’s right to use Lot A for parking and egress to
Bethlehem Pike as it previously did. Because the trial court afforded Hayden
this right, Hayden was granted a reciprocal right to use Lot A, but must share
equally in the expenses associated with the upkeep and maintenance of both
the parking area and driveway on Lot A.
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Finally, we affirm, in part, the trial court’s award of damages to Hayden
and against TOH. TOH shall pay its equal share of expenses for upkeep and
maintenance of the parking area and entrance of Lot C since 2014 as
determined by the trial court except for the time period that Hayden prohibited
TOH from using the lot. On that limited issue, we vacate the trial court’s
award of damages to Hayden, and direct the trial court to recalculate this
award.
Judgment affirmed in part and reversed in part. Case remanded for
proceedings in accordance with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2020
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