J-E02003-19
2020 PA Super 86
SBA TOWERS II LLC : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : WIRELESS HOLDINGS, LLC AND : No. 325 WDA 2018 JEFF 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: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J.
OPINION BY MURRAY, J.: FILED APRIL 6, 2020
SBA Towers II LLC (Appellant) appeals from the order granting in part
and denying in part Appellant’s motion for a permanent injunction. We first
conclude that, pursuant to Pa.R.A.P. 311(a)(4), this appeal is properly before
this Court despite Appellant’s failure to file a post-trial motion. Upon careful
review, we further hold that the trial court erred in finding a contract
ambiguity. We thus affirm in part and reverse in part.
The notes of testimony from the May 8, 2017 evidentiary hearing reveal
that on December 18, 2009, Appellant executed a lease with Appellee,
Wireless Holdings (Wireless Holdings), to rent an outdoor cellular tower and
an indoor “shelter” in Altoona, Pennsylvania. N.T., 5/8/17, at 2. Appellant
sub-leased the outdoor tower to cell phone carriers, including Verizon, as well J-E02003-19
as to the State Police, the Federal Bureau of Investigation, and the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF). Id. at 14, 23. The shelter
was located on the second floor of Wireless Holding’s building, and it housed
Verizon equipment that enabled cellular communications through the tower.
Id. at 26.
Pertinently, Paragraph 18 of the parties’ lease stated:
Access to Leased Space/Premises. [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 Leased Space on a 24 hours per day/7 days per week basis, on foot or by motor vehicle, 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 the nearest accessible public right-of-way.
Lease, 12/18/09, at 4.
For six years, Appellant accessed the shelter via a lockbox, located on
the outside of the building. N.T., 5/8/17, at 11. Meanwhile, Appellant’s
tenants and their subcontractors could access the property by calling
Appellant’s “knock center” or signing into an “app.” Id. at 25. According to
Appellant, it, as well as its tenants, required 24-hour access to the leased
premises to perform any necessary repairs. Id. at 14.
In approximately 2016, Wireless Holdings became concerned with
possible theft and equipment damage, arising from: the disappearance of a
key from the lockbox; the presence, in the building, of “millions of dollars of
inventory” owned by Wireless Holding’s sister company, ComPros; the
presence of Blair County’s 911 call system as another tenant; the presence of
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an unidentified individual in the building, which involved a response from the
Logan Township Police; another individual who “stalk[ed]” a Wireless Holdings
employee and was detained by the police; and the presence of a nearby hotel
that was “a magnet for crime.” See N.T., 5/8/17, at 35, 54, 67, 80. Wireless
Holdings thus removed the lockbox and imposed the following regulations:
Appellant, its tenants, and their contractors were to check-in upon entering
the building; Appellant’s tenants and contractors were to submit to criminal
background checks in order to enter the building; and for access to the
property outside regular business hours, Appellant was to call Wireless
Holdings and a representative would meet at the property to allow entry. See
id. at 14, 34, 37-38, 67-68.
On April 15, 2016, Appellant filed the underlying motion for a temporary
injunction against both Wireless Holdings and Jeff MacAlarney, an employee
of Wireless Holdings.1 The motion averred that the parties’ lease did not
permit Wireless Holdings to enforce the new check-in or criminal background
conditions. The motion further averred that Wireless Holdings was physically
blocking Appellant’s access to the tower by storing cable and debris in front
of a gate, and requested an injunction prohibiting such interference. The trial
court issued a preliminary injunction, temporarily granting the requested
1 While the parties’ 2009 lease identified Mr. MacAlarney as the president of
Wireless Holdings, the May 8, 2017 hearing transcript did not identify his position.
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relief. Wireless Holdings filed preliminary objections, which did not address
whether its conduct was permissible under the terms of the lease.2
The trial court conducted an evidentiary hearing on May 8, 2017.
Appellant called its regional operations manager, Jason Dellavalle, who
testified that he managed 270 cell towers throughout central and western
Pennsylvania, and Appellant had “24/7 access” at all but one of these towers
and Wireless Holdings’ building. N.T., 5/8/17, at 8-9, 11. Appellant’s
employees, carriers, maintenance workers, and utility companies all need
access to the cell towers in order to repair equipment as quickly as possible.
Id. at 9, 13-14. On separate occasions, one of Appellant’s contractors and a
Verizon employee were denied access to the property, and in November of
2016, Mr. Dellavalle himself was told by Mr. MacAlarney that Mr. Dellavalle
could not be there because he had not signed in. Id. at 12, 16-17, 27. Finally,
Wireless Holdings placed bags of salt, debris, and spools of cable in such a
way as to block both Appellant’s and Verizon’s access to the property. Id. at
18, 20, 22, 31-32.
Appellant also called as a witness Mr. MacAlarney, who testified about
2 Instead, the preliminary objections averred that Appellant failed to file a complaint; failed to establish that Mr. MacAlarney was a properly-named defendant; and failed to plead any facts justifying an injunction. Wireless Holdings further argued that an injunction was unnecessary because any person wishing to access the shelter could “easily obtain the necessary criminal background” check. Wireless Holdings’ Preliminary Objections, 4/15/16, at 3.
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Wireless Holdings’ security concerns, as outlined above. N.T., 5/8/17, at 54,
59. He stated that Wireless Holdings merely wanted individuals visiting the
property to be accompanied by Appellant’s or Verizon’s employees, and if they
were not, to check in or, if they were a regular visitor, to establish
“credentials.” Id. at 63, 77-79. Mr. MacAlarney estimated that over a year,
a subcontractor will visit the shelter once or twice, and Verizon employees
may visit once or twice a month. Id. at 81. Mr. MacAlarney denied that
Wireless Holdings ever blocked access, because anyone wishing to visit could
comply with the conditions. Id. at 65. With respect to the after-hours call-in
procedure, Mr. MacAlarney stated that Wireless Holdings has “technicians on
call 24/7” and they could typically arrive at the property within 15 to 20
minutes. Id. at 66, 82.
Additionally, Mr. MacAlarney stated that criminal background checks for
building visitors was a condition imposed on Wireless Holdings by another
tenant, the Blair County 911 call center. N.T., 5/8/17, at 61-62, 68; see also
Trial Court Opinion, 2/8/18, at 5. Mr. MacAlarney conceded, however, that
Wireless Holdings’ lease with Appellant did not provide for criminal background
checks, and Appellant’s lease preceded Wireless Holdings’ lease with the Blair
County 911 call center. Id. at 60-63, 68, 84. Finally, Mr. MacAlarney denied
that any equipment was blocking Appellant’s access to the property. Id. at
47, 75.
Wireless Holdings did not present any evidence, and made no argument
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that the lease was ambiguous. Instead, on cross-examination of Mr.
Dellavalle, Wireless Holdings suggested that it was reasonable to require
individuals to check-in when entering the building, where ComPros had stored
“millions of dollars worth of inventory” and individuals in the building “could
sabotage the 911 system of Blair County and cause great harm.” N.T., 5/8/17,
at 34-35. Wireless Holdings also argued that security issues had “changed”
from 2009, when the lease was executed.3 Id. at 35-36.
3 The relevant exchange was:
[Wireless Holdings:] And are you aware that people within that building have access to millions of dollars worth of inventory from ComPros?
[Mr. Dellavalle:] Don’t know.
Q. That they have direct access where they could sabotage the 911 system of Blair County and cause great harm?
A. When we purchased [sic] the tower why wasn’t this put in place as soon as we purchased [sic] the tower?
[Wireless Holdings:] Would you acknowledge that the issue of security has changed over time and that the things we found to be silly in 2000 we don’t find to be silly now?
A. No.
[Appellant’s counsel:] Objection, Your Honor.
BY THE COURT: Well he clearly doesn’t have any knowledge of what else might be going on in the building and has said that. ....
[Wireless Holdings’ counsel:] The point being is that things between when the lease originally was done and now have changed. . . .
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Following the hearing, the parties submitted briefs. Appellant requested
that the trial court permanently enjoin Wireless Holdings’ various restrictions
because they were not authorized by the lease terms allowing Appellant free
ingress and egress. Meanwhile, Wireless Holdings averred, for the first time,
both that nothing in the lease prohibited “reasonable procedures” for access
to the property, and the language allowing “24/7” access was ambiguous.
Wireless Holdings’ Trial Brief, 7/27/17, at 7-8 (unpaginated).
On February 8, 2018, the trial court issued an opinion and the underlying
order. It granted in part Appellant’s request for a permanent injunction by
barring Wireless Holdings from physically blocking Appellant’s access to the
property with equipment. However, the court denied the request in part by
permitting Wireless Holdings to enforce its check-in, after-hours call-in, and
criminal background check procedures. The court observed that whereas
Appellant would add the word “unrestricted” just before the provision
providing “24 hours per day/7 days per week” access, Wireless Holdings would
add the phrase “reasonably restricted.” Trial Court Opinion, 2/8/18, at 7. The
court thus found an ambiguity “because the lease specifically supports neither
position.” Id.
The court then resolved the perceived ambiguity in Wireless Holdings’
favor, finding that the lease should be interpreted to allow “reasonable
N.T., 5/8/17, at 35-36.
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restrictions essential to [Wireless Holdings’] duty to provide security for the
premises.” Trial Court Opinion, 2/8/18, at 8. In support, the court cited
another portion of the lease, which it termed the “Hold Harmless Clause,” and
which stated:
[Wireless Holdings] will be held harmless by [Appellant] from any liability for damages to any person or any property in or upon the Leased Space at [Appellant’s] invitation, or for damages to any person or property resulting from the actions of [Appellant] (including damages caused by or resulting from the existence of the Structures) on the Leased Space, unless the damages are caused by, or are the result of, the misconduct or negligence of [Wireless Holdings] or any of [Wireless Holdings’] agents, servants, employees, licensees, or invitees. . .
Id. at 8, quoting Lease, 12/18/09, at 3 (emphasis added).
Appellant did not file a motion for reconsideration, but filed a timely
notice of appeal. The trial court did not issue a Pa.R.A.P. 1925(b) order
directing Appellant to file a concise statement of matters complained of on
appeal.
At the outset, we consider whether this appeal is properly before us,
where Appellant did not file a post-trial motion. This Court issued a per curiam
order directing Appellant to show cause why this appeal should not be
dismissed on this basis pursuant to Pa.R.Civ.P. 227.1(c)(2). Appellant
responded that the appeal was proper pursuant to Pa.R.A.P. 311 and Thomas
A. Robinson Family, Ltd. v. Bioni, 178 A.3d 839 (Pa. Super. 2017) (Bioni).
This Court discharged the rule to show cause, but advised that the merits
panel may revisit this issue.
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Pennsylvania Rule of Civil Procedure 227.1(c)(2) provides: “Post-trial
motions shall be filed within ten days after . . . the filing of the decision in the
case of a trial without jury.” Pa.R.Civ.P. 227.1(c)(2) (emphasis added).
In Bioni, the trial court granted a preliminary injunction, which
prohibited the defendants from interfering with the plaintiffs’ access to a strip
of land. Bioni, 178 A.3d at 841. Following a hearing, the court granted a
permanent injunction, which barred the defendants from interfering with not
only the plaintiffs’ access, but also the public’s access. Id. at 842. On appeal
by the defendants, this Court considered whether to quash, where the
defendants had not filed a post-trial motion. Id. at 843. We noted that under
Rule 227.1,
a party must file post-trial motions at the conclusion of a trial in any type of action in order to preserve claims that the party wishes to raise on appeal. In other words, a trial court’s order at the conclusion of a trial, whether the action is one at law or in equity, simply cannot become final for purposes of filing an appeal until the court decides any timely post-trial motions.
Id. at 844 (emphasis in original), quoting Chalkey v. Roush, 805 A.2d 491,
496 (Pa. 2002).
However, this Court also considered Pa.R.A.P. 311(a)(4), which provides
that an interlocutory appeal may be taken as of right 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:
* * *
(ii) After a trial but before entry of the final order.
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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)(ii). Generally, “it is improper to file a motion for post-
trial relief when appealing pursuant to Rule 311.” Bioni, 178 A.3d at 846,
quoting Nevyas v. Morgan, 921 A.2d 8, 13 (Pa. Super. 2006). The Bioni
Court reasoned,
an appeal may be taken from an order that (because a final judgment has not yet 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.
Applying this rationale to the facts before it, the Bioni Court observed
that the order granting permanent injunctive relief took immediate effect, was
not contingent upon entry of a final judgment, and imposed different terms
from those under the preliminary injunction (barring interference with the
plaintiffs’ access, versus barring interference with the plaintiffs’ and the
public’s access). Bioni, 178 A.3d at 847. This Court concluded that the
permanent injunction was an interlocutory order immediately appealable as
of right under Rule 311(a)(4)(ii), and thus the defendants were not required
to file a post-trial motion before taking an appeal. Id. at 847-848.
Applying Bioni, we note that in the present case, final judgment was
not entered. However, the trial court’s permanent injunction took immediate
effect, and allowed conduct that was prohibited under the preliminary
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injunction — namely, that Wireless Holdings could impose conditions affecting
Appellant’s access to the property. Accordingly, pursuant to Pa.R.A.P.
311(a)(4)(ii) and the reasoning set forth in Bioni, we conclude that this appeal
is properly before us. See Pa.R.A.P. 311(a)(4)(ii); Bioni, 178 A.3d at 847-
848.
Appellant presents two issues for our review:
[1.] Whether the Trial Court erred in failing to grant the injunctive relief requested by [Appellant]?
[2.] Whether the Trial Court improperly mandated changes to the parties’ lease when no Petition or Bond was posted by [Wireless Holdings] seeking such equitable relief and [Appellant] was not put on notice of the potential that such injunctive relief could be issued?
Appellant’s Brief at 2.
In its first issue, Appellant avers that the trial court erred in finding that
Paragraph 18 of the parties’ lease was ambiguous. Appellant’s Brief at 14.
Appellant maintains that the plain language and express terms of Paragraph
18 clearly granted it “24/7” access to the property, and nothing in the lease
restricted or modified this access. Id. at 11-13. Appellant contends that
Wireless Holding did not point to any conflicting terms in the lease, but rather
“simply advanced a novel argument that the Lease is somehow ambiguous
because it did not include the terms ‘restricted’ or ‘unrestricted.’” Id. at 14.
Appellant asserts that the trial court erred in reading “an ambiguity into an
agreement that could easily have been addressed by parties within its express
terms.” Id. at 15-16, citing Wert v. Manorcare of Carlisle PA, LLC, 124
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A.3d 1248 (Pa. 2015). Appellant concludes that the trial court effectively
reformed the parties’ lease to allow Wireless Holdings to impose restrictions
on Appellant’s right of access, in contravention of the clear terms of the lease.
We agree.
We first recite the law regarding appellate review: “The grant or denial
of a permanent injunction is a question of law. Regarding the trial court’s
legal determination, our standard of review is de novo, and our scope of
review is plenary.” Bioni, 178 A.3d at 843 (citation omitted).
“The interpretation of a contract is a matter of law and, as such, we need not defer to the trial court’s reading of the [a]greement.”
It is also well[-]established that under the law of contracts, in interpreting an agreement, the court must ascertain the intent of the parties.
In the cases of a written contract, the intent of the parties is the writing itself. If left undefined, the words of a contract are to be given their ordinary meaning. When the terms of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the document itself. . . .
With specific reference to what constitutes “ambiguity” in the context of contract interpretation, our Supreme Court has opined as follows:
Contractual language is ambiguous “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” This is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. We will not, however, distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.
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Lenau v. Co-Exprise, Inc., 102 A.3d 423, 429-430 (Pa. Super. 2014)
(citations omitted).
[Contract] language is not rendered ambiguous “if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends[.]” Mere disagreement between the parties on the meaning of language or the proper construction of contract terms does not constitute ambiguity.
Betz v. Erie Ins. Exch., 957 A.2d 1244, 1253-1254 (Pa. Super. 2008)
There are two types of contract ambiguity. “[A] latent ambiguity arises
from extraneous or collateral facts which make the meaning of a written
agreement uncertain although the language thereof, on its face, appears clear
and unambiguous.” Betz, 957 A.2d at 1254 n.2 (citation and parentheses
omitted). “The usual instance of a latent ambiguity is one in which a writing
refers to a particular person or thing and is thus apparently clear on its face,
but upon application to external objects is found to fit two or more of them
equally.” Steuart v. McChesney, 444 A.2d 659, 663 (Pa. 1982) (citations
omitted). On the other hand, a “patent ambiguity is that which appears on
the face of the instrument, and arises from the defective, obscure, or
insensible language used.” Betz, 957 A.2d at 1254 n.2 (citation and
parentheses omitted).
Finally, our Supreme Court:
long ago emphasized that ‘[t]he parties [have] the right to make their own contract, and it is not the function of this Court to re- write it, or to give it a construction in conflict with . . . the accepted
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and plain meaning of the language used.’ “‘It is not the province of the court to alter a contract by construction or to make a new contract for the parties; its duty is confined to the interpretation of the one which they have made for themselves, without regard to its wisdom or folly.’” In 17A C.J.S. Contracts § 296(3), appears the following:
The court may not rewrite the contract for the purpose of accomplishing that which, in its opinion, may appear proper, or, on general principles of abstract justice . . . make for [the parties] a better contract than they chose, or saw fit, to make for themselves, or remake a contract, under the guise of construction, because it later appears that a different agreement should have been consummated in the first instance . . . .
Steuart, 444 A.2d at 662 (citations omitted).
As stated above, the parties’ lease provides:
18. Access to Leased Space/Premises. [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 Leased Space on a 24 hours per day/7 days per week basis, on foot or by motor vehicle, 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 the nearest accessible public right-of-way.
We agree with Appellant that the language of Paragraph 18 is not
ambiguous. See Lenau, 102 A.3d at 429. In granting Appellant “the right of
access” to the property and all utility installations servicing the leased space,
Paragraph 18 delineated the hours of access (“on a 24 hours per day/7 days
per week basis”) and the manner of access (“on foot or by motor vehicle,
including trucks”). See Lease, 12/18/09, at 4. Paragraph 18 also stated that
Appellant may access the property to install and maintain utility equipment.
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Notably, Paragraph 18 did not impose any restrictions on Appellant’s access
to the property, and it was silent as to whether Wireless Holdings may, in the
future, impose any restrictions. While the trial court interpreted this silence
as an ambiguity, we conclude that the lack of any restriction, or provision for
future modification, evinced the parties’ intent not to restrict Appellant’s
access.
Neither the trial court nor Wireless Holdings addressed whether the
alleged ambiguity was patent or latent.4 See Betz, 957 A.2d at 1254 n.2. As
the court did not identify any “defective, obscure, or insensible language”
appearing on the face of the lease, we infer that it did not find a patent
ambiguity. See id.
Although a latent ambiguity may arise “from extraneous or collateral
facts which make the meaning of a written agreement uncertain although the
language thereof, on its face, appears clear and unambiguous,” we conclude
that the trial court’s reliance on Wireless Holdings’ post-lease security
concerns was misplaced. See Betz, 957 A.2d at 1254 n.2. This Court’s prior
findings of a latent ambiguity have generally arisen from the parties’ dispute
over the meaning of a term present in the contract, not the absence of
4 We note that Wireless Holdings’ dual arguments on appeal — that (1) its “check-in procedures” did not interfere with Appellant’s “24/7 access” and (2) the lease was ambiguous because it did not define “24/7 access” — are in conflict. See Wireless Holdings’ Brief at 17, 19. Under the former rationale, Wireless Holdings argues that it complied with the lease terms (which presumably are clear), whereas in the latter, they aver that the lease terms are not clear.
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language specifying prospective concerns.
For example, in In re Estate of Schultheis, 747 A.2d 918 (Pa. Super.
2000), the testator’s will bequeathed “my shares of stock” to nine devisees,
listing the specific amounts of shares, which totaled 2,045, to each devisee.
Id. at 920. The will also gave the residuary estate to the appellants. Id. at
919. After the testator’s death, however, the executrix learned that the
testator in fact owned 3,288 shares of stock. Id. The appellants argued that
the additional 1,243 shares were a part of the residuary estate, and thus
should be given to them. Id. This Court concluded that the testamentary
term, “my shares of stock,” was a latent ambiguity because it was unclear
whether the term referred only to the 2,045 shares of stock that the testator
believed he owned, or to all of the stock he in fact owned. Id. at 923, 926.
Further, in Z & L Lumber Co. v. Nordquist, 502 A.2d 697 (Pa. Super.
1985), a contract stated that a builder was “to perform all the labor shown on
the working drawings and described in the specifications.” Id. at 698. “The
working drawings and specifications consisted of a series of ten documents[.]”
Id. This Court concluded that the term “specifications” was a latent
ambiguity, where the parties ascribed different meanings: the contractor
contended that the “specifications” were limited to the second through sixth
drawings, whereas the defendant argued the “specifications” consisted of the
seventh and eighth drawings. Id. at 700-701.
In the present case, our review reveals that the evidence did not
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establish — and the trial court did not find — that when Appellant and Wireless
Holdings executed the lease, they ascribed different meanings to any of the
existing terms in Paragraph 18. In this regard, we emphasize Mr.
MacAlarney’s testimony conceding that the lease did not provide for criminal
background checks. N.T., 5/8/17, at 60. Instead, as discussed above, the
trial court found ambiguity based on the absence, within the detailed
paragraph prescribing Appellant’s access to the property, of any further
specification as to whether the access may be “restricted.” This perceived
absence of an additional term or condition did not create a latent ambiguity.
See Steuart, 444 A.2d at 663; Betz, 957 A.2d at 1254 n.2. The trial court’s
rationale would allow a party to modify its contractual rights or obligations, or
the other party’s rights or obligations, by simply arguing that the contract was
silent as to whether that alteration was permissible.
That Wireless Holdings may have become concerned following the
execution of the lease about security — however reasonable a concern — is
not relevant. See Lenau, 102 A.3d at 429 (“When the terms of a contract
are clear and unambiguous, the intent of the parties is to be ascertained from
the document itself.”). Appellant kept expensive equipment and property on
the leased premises, and the parties, both sophisticated business entities,
could have included in the lease, terms allowing Wireless Holdings to impose
security procedures. See Newman Dev. Group of Pottstown, LLC v.
Genuardi’s Family Mkt., Inc., 98 A.3d 645, 659 (Pa. Super. 2014) (en banc)
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(finding no error in trial court’s decision not to reduce landlord’s verdict for
future damages to present value, where commercial contract was negotiated
by sophisticated business people who had the ability to control, decide and
design remedies for breach). Instantly, the parties included no such
provisions in the lease, and the trial court may not alter that which the “parties
have made for themselves, without regard to its wisdom or folly.” See
Steuart, 444 A.2d at 662. Although an ambiguity could, in another scenario,
arise from the silence in a contract as to a particular term, Wireless Holdings
in this case failed to articulate a basis for finding ambiguity in Paragraph 18
of the lease, e.g., unclear wording or punctuation, the impossibility of
enforcement of the contract term as written, or language in another paragraph
that would make Paragraph 18 confusing or unworkable.
Finally, we note that it was undisputed that Wireless Holdings’
requirement for criminal background checks was implemented due to the
condition being imposed by the Blair County 911 call center. See N.T.,
5/8/17, at 61-62, 68; Trial Court Opinion, 2/8/18, at 5 (“Apparently, the
criminal background checks became policy based on the requirements of
another tenant at the site (the County 911 Center) which also has millions of
dollars of equipment on the property.”). The subsequent demands of another
tenant do not support the unilateral alteration of the parties’ existing Lease.
For the reasons discussed above, we reverse the portion of the trial court’s
order denying in part Appellant’s motion for a permanent injunction.
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As to Appellant’s second issue, Appellant argues that even if the trial
court correctly concluded that the lease was ambiguous, the court “improperly
mandated changes to the parties’ lease” and erred in not considering the
parties’ course of performance over the first seven years of the lease. In light
of our disposition of Appellant’s first issue, we need not address this claim.
In sum, and in light of the foregoing, we affirm the trial court’s order to
the extent it enjoined Wireless Holdings from physically obstructing
Appellant’s access to the premises. However, we reverse the order to the
extent it permitted Wireless Holdings to impose restrictions on Appellant’s
contractual “24/7” access, i.e. by requiring check-ins, after-hours call-ins, and
criminal background checks.
Order affirmed in part and reversed in part. Case remanded.
Jurisdiction relinquished.
Judge Bowes, Judge Lazarus, Judge Olson, Judge Dubow, Judge
Kunselman, and Judge Nichols join the opinion.
Judge Stabile files a concurring dissenting opinion in which Judge
Shogan joins.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/6/2020
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