J-A26021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SBA TOWERS II LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
WIRELESS HOLDINGS, LLC AND : 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: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.
CONCURRING & DISSENTING MEMORANDUM BY MURRAY, J.:
FILED MARCH 19, 2019
I agree with the Majority that Appellant’s appeal is properly before this
Court pursuant to Pa.R.A.P. 311(a)(4). However, I respectfully disagree with
the Majority’s conclusion that the parties’ lease terms, regarding Appellant’s
access to the property, were ambiguous. Accordingly, I concur and dissent.
I note the relevant standards of review:
Appellate courts review a trial court order refusing or granting a
preliminary injunction for an abuse of discretion. This standard is
applied as follows:
[O]n 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 Chancellor.
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See Brayman Constr. Corp. v. DOT, 13 A.3d 925, 935-936 (Pa. 2011)
(citations omitted).
With respect to contract interpretation:
“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.
Lenau v. Co-Exprise, Inc., 102 A.3d 423, 429-430 (Pa. Super. 2014)
(citations omitted).
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
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unambiguous.” . . . “A patent ambiguity is that which appears on
the face of the instrument, and arises from the defective, obscure,
or insensible language used.”
Betz v. Erie Ins. Exch., 957 A.2d 1244, 1254 n.2 (Pa. Super. 2008) (citations
and parentheses omitted).
A contract may be deemed ambiguous “[i]f, and only if, it is
reasonably or fairly susceptible of different constructions and is
capable of being understood in more senses than one and is
obscure in meaning through indefiniteness of expression or has a
double meaning.” [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.
Id. at 1253-1254 (citations omitted).
Further, 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
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 v. McChesney, 444 A.2d 659, 662 (Pa. 1982) (citations omitted).
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Instantly, the pertinent paragraph in the parties’ lease states:
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.
Appellant’s Motion for Temporary Injunction, 4/15/16, Exhibit B (Land Lease,
12/21/09, at 4) (Paragraph 18).
I agree with Appellant that the language of Paragraph 18 is clear. See
Lenau, 102 A.3d at 429; Appellant’s Brief at 12-13. In providing Appellant
“the right of access” to the property and all utility installations servicing the
leased space, Paragraph 18 delineates 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”). Paragraph 18 also states that Appellant may
access the property to install and maintain utility equipment. Notably,
Paragraph 18 does not set forth any restrictions on Appellant’s access to the
property, and it is silent as to whether Appellees may, in the future, impose
any restrictions. While the Majority interprets this silence as an ambiguity as
to whether Appellant’s access may be restricted, the silence, in my view,
clearly evinces the parties’ intent not to restrict Appellant’s access. Thus, I
would conclude that Paragraph 18 is free of any latent or patent ambiguity.
See Betz, 957 A.2d at 1254 n.2.
That Appellees may have become concerned about security — however
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reasonable a concern — is not relevant.1 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 keeps expensive
equipment and property on the leased premises, and the parties, both of
whom are sophisticated business entities, could have included in the lease
terms allowing Appellees 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) (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). However, in
this case, the parties included no such provision in the lease, and neither the
trial court nor the Majority should rewrite that which the “parties have made
for themselves, without regard to its wisdom or folly.” See Steuart, 444 A.2d
at 662.
Further, the Majority’s rationale — that a contract term is ambiguous
because it did not specify whether there were any restrictions or caveats —
would allow a party to alter its rights or contractual obligations, or the rights
1 Appellees’ dual arguments — 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 Appellees’ Brief
at 5, 9-10, 15. Under the former rationale, Appellees argue 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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or obligations of the other party, by arguing that the contract was silent as to
whether that alteration was permissible. This Court’s prior findings of contract
ambiguity have generally arisen from an existing contract term that could be
interpreted in more than one way. See, e.g., Int'l Diamond Imps., Ltd. v.
Singularity Clark, L.P., 40 A.3d 1261, 1278 (Pa. Super. 2011) (lease
provision, which permitted tenant to assign the lease to sub-letter, was
ambiguous because it could be interpreted to have two meanings: that
“assignment without [the landlord’s] permission required the” tenant to show
the sub-letter’s creditworthiness, and that a showing of creditworthiness was
“required only to relieve the [tenant] of liability under the lease following
assignment;” this Court further noted “[m]uch hinges on the use of the
semicolon at the end of the first clause, and the immediately following clause
beginning ‘provided.’”); Betz, 957 A.2d at 1252 (insurance policy term, “the
action of water on limestone or similar rock formations,” was a patent
ambiguity because “similar rock formations” was reasonably susceptible of
different construction, where the “policy language fails to describe in what
manner rock formations other than limestone must be ‘similar’ to limestone
and further, fails to name any type of rock other than limestone”); Metzger
v. Clifford Realty Corp., 476 A.2d 1, 7 (Pa. Super. 1984) (contract had a
patent ambiguity because the phrase, “the purchaser’s right to ‘terminate the
operation of the business’ can refer to either liquidation of the business by the
purchaser, or sale of the business by the purchaser, or both”); Z & L Lumber
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Co. v. Nordquist, 502 A.2d 697, 699-701 (Pa. Super. 1985) (contract term
where the defendant “agrees to provide all the materials as specified and to
perform all the labor shown on the working drawings and described in the
specifications,” was a latent ambiguity where defendant “contended that the
specifications were limited to the schematic drawings (sketches two through
six) . . . ” but additional defendant argued “that the specifications included all
of the materials and labor necessary to construct the home as it appeared in
the ‘elevations’ (drawings seven and eight)”).
In sum, although an ambiguity could, in another scenario, arise from
the silence in a contract as to a particular term, Appellees in this case have
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.2
2 Because I would conclude that Paragraph 18 clearly conveys the parties’
intent, I would not consider the terms of Paragraph 15 (“the Hold Harmless
Clause”) for context or guidance as to the interpretation of Paragraph 18. See
Majority Memorandum at 10-11. However, even if Paragraph 15 would be
considered, I would opine that its terms, which define the circumstances in
which Appellees could be held liable for damages, is not relevant to the
question of what actions Appellees could take to better protect themselves
from liability.
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For the foregoing reasons, I would reverse in part the order of the trial
court.3
3 Like the Majority, I would affirm the portion of the trial court’s order
prohibiting Appellees from physically blocking Appellant’s access to the
property. See Majority Memorandum at 3.
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