Philips, J. v. New Cingular Wireless

J-A10021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN L. PHILIPS AND GLEN A. : IN THE SUPERIOR COURT OF
PHILIPS : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 2583 EDA 2018
NEW CINGULAR WIRELESS PCS, LLC, :
NCWPCS TOWER NEWCO, LLC, :
CCATT, LLC AND CCATT HOLDINGS, :
LLC :

Appeal from the Order Entered July 25, 2018
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2016-03577-CT

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 24, 2019

John L. Philips and Glen A. Philips (collectively, “the Philipses”)1 appeal

from the order entered July 25, 2018,2 in the Chester County Court of

Common Pleas, granting summary judgment in favor of New Cingular Wireless

PCS, LLC, NCWPCS Tower Newco, LLC, CCATT, LLC and CCATT Holdings, LLC

(collectively, “New Cingular”). The underlying action arises from a contract

dispute between the parties, in which New Cingular used a portion of the

Philipses’ property for cellular and wireless services. On appeal, the Philipses

____________________________________________

1 The record does not indicate the relationship between the two men.

2 Judgment was entered on August 23, 2018, to reflect the order.
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raise the following issues: (1) this is not an interlocutory appeal because the

court’s determination regarding attorneys’ fees is ancillary; (2) summary

judgment was not appropriate because the facts established that New

Cingular’s continued operation of cellular equipment on the leased tower,

following assignment of the lease to a new tenant, triggered the new tenant’s

obligation to share income from New Cingular with the Philipses, and there

was an ambiguity with regard to the meaning of the certain terms in the lease

agreement; and (3) summary judgment was improper with respect to New

Cingular’s claims of specific performance and attorneys’ fees. See Philipses’

Brief at i. Based on the following, we affirm.

The facts and procedural history are as follows. The Philipses own real

property located at 233 Sweet Springs Road, Glenmoore, Pennsylvania. See

Order, 7/25/2018, at unnumbered 1 n.1. On January 7, 2011, the Philipses

and New Cingular, their tenant, entered into a lease agreement (the “Lease”)

regarding said property.

The Lease permitted New Cingular (1) to own and operate a
cellular tower on [the Philipses’] property (“Tower”) and (2) to
operate New Cingular wireless equipment on the Tower. New
Cingular also had the ability to find additional collocators to use
portions of the Tower for radio, television, microwave or wireless
or other communication transmission and receiving equipment.[
Lease at § 10.1] Specifically, the Lease’s “Collation Clause” at
Section 10 provides:

Landlord and Tenant shall each have the right to permit
additional collocators (“Collocators”) to use portions of the
Tower for radio, television, microwave or wireless or other
communication transmission and receiving equipment... All
rents and proceeds resulting from use by other users of the

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Tower pursuant to this Subsection 10.1 shall be shared
equally by Landlord and Tenant regardless of which party
procured such other user. (Emphasis added).

The Lease further provides that

If an Affiliate (hereafter defined) of Tenant co-locates on the
Tower, the rent for the Tower shall be at then prevailing
market rates and Landlord and Tenant shall each be entitled
to 50% of said rent... An Affiliate of the Tenant refers to
any entity in control of, under the control of, or under
common control with AT&T, Inc. and New Cingular Wireless
PCS, LLC.

([Lease] at § 10.3).

Order, 7/25/2018, at unnumbered 1-2 n.1 (some citations omitted; emphasis

in original).3 Subsequently,

[i]n late 2013, New Cingular transferred the Lease to defendant
CCATT LLC (“CCATT”) as part of a larger transaction between their
parent companies (AT&T Inc. and Crown Castle International
Corp. (“Crown Castle”), respectively). AT&T Inc. and its
subsidiaries (collectively, “AT&T”) transferred over 9,000 of their
cellular tower sites, including [the Philipses’] site, to Crown Castle
____________________________________________

3 As will be discussed infra, “collocators” and “collation” are not defined by
the court, the parties, or the Lease. Nevertheless, we briefly mention that the
Pennsylvania Wireless Broadband Collocation Act defined “collocation” as:

The placement or installation of new wireless telecommunications
facilities on previously approved and constructed wireless support
structures, including self-supporting or guyed monopoles and
towers, electrical transmission towers, water towers or any other
structure not classified as a wireless support structure that can
support the placement or installation of wireless
telecommunications facilities if approved by the municipality. The
term includes the placement, replacement or modification of
accessory equipment within a previously approved equipment
compound.

53 P.S. § 11702.2.

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International Corp. and its subsidiaries. The corporate
transactions that followed, in sum, were:

 New Cingular assigned the Lease and other listed items
to Tower Newco.

 CCATT Holdings, Inc. purchased the membership
interests in Tower Newco.

 Tower Newco then merged into CCATT.

 New Cingular retained its right to operate its cellular
equipment on the Tower.

In March of 2014, Crown Castle advised [the Philipses] that it “or
a subsidiary is now responsible for the rights and obligations under
the ground [L]ease agreement with you” and that Crown Castle
would be “servicing all future ground [L]ease payments due and
payable on or after May 1, 2014.” Thereafter, in August of 2014
the [Philipses], upon further inquiry, were advised that “currently
AT&T is the only carrier operating equipment on the [T]ower.”

Order, 7/25/2018, at unnumbered 2-3 n.1 (citations omitted).

On April 15, 2016, the Philipses filed their complaint for breach of

contract, unjust enrichment, and eviction. In their complaint, they alleged,

inter alia, New Cingular permitted “AT&T Mobility” and possibly others, “to use

portions of the Tower for radio, television, microwave, or wireless or other

communication transmission and receiving equipment without paying [the

Philipses] rent in violation of [Section 10 of] the Lease Agreement.”

Complaint, at 4/15/2016, at 10.

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New Cingular filed preliminary objections, which were overruled by the

trial court on December 7, 2016.4 On May 4, 2018, New Cingular filed a

motion for summary judgment, arguing the following:

[During the process when the Lease was transferred from
New Cingular to CCATT as part of a larger transaction between
their parent companies,] a misunderstanding arose that lead [the
Philipses] to believe, and to allege as the sole basis of this lawsuit,
that an entity other than New Cingular has been operating cellular
equipment on the Tower on [the Philipses’] property. This is the
sole basis on which [the Philipses] seek relief and it has been
proven through discovery to be incorrect.

…

11. By way of background and not material to the grounds of [the
Philipses’] lawsuit (i.e., that an entity other than New Cingular
operates on the Tower), [the Philipses’] confusion regarding the
entity operating on the Tower arose when AT&T Inc. and its
subsidiaries (collectively, “AT&T”) decided to transfer over 9,000
of their cellular tower sites, including [the Philipses’] site, to Crown
Castle International Corp. and its subsidiaries.

12. Crown Castle International Corp. and its subsidiaries
(collectively, “Crown Castle”) only manage cellular towers; Crown
Castle is not a cellular service provider and does not transmit or
receive cellular signals.

13. Thus, AT&T transferred the management of its cellular towers
over to Crown Castle, but AT&T retained the existing rights of its
subsidiaries to have equipment on those towers (hereinafter,
“AT&T -Crown Transaction”).

14. In the AT&T -Crown Transaction, New Cingular’s rights and
obligations under the Lease were transferred to CCATT, including
the Tower and the obligation to pay ground rent to [the Philipses].

____________________________________________

4 New Cingular also filed an answer, new matter, and counterclaim on
February 3, 2017.

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15. But New Cingular retained its right to operate its cellular
equipment on the Tower.

16. After the AT&T -Crown Transaction was consummated, AT&T
and Crown Castle informed [the Philipses] of the Transaction and
that CCATT was the new tenant under the Lease. Crown Castle
also informed [the Philipses] that:

AT&T is the only carrier operating equipment on the tower.
No tower or ground space has been sublet to any third
parties for collocation of equipment as a result of this
transaction. AT&T remains the anchor tenant under the
Lease. The payment of ground rent under Section 7 of the
Lease entitles an AT&T entity to operate its equipment at
Site as the anchor tenant. Consequently, no revenue share
is due for AT&T’s continued operation of the site.

17. Apparently, after this letter, [the Philipses] got the mistaken
impression that AT&T Mobility is a separate entity with cellular
equipment on the Tower.

18. The confusion may have arisen because New Cingular does
business as AT&T Mobility in Pennsylvania, which is a fictitious
name and not a separate corporate entity.

…

34. It is undisputed that from January 7, 2011 (the execution
date of the Lease) to the present, New Cingular is the only entity
operating cellular equipment on the Tower.

35. AT&T Mobility is a fictitious name for New Cingular and is not
a separate entity operating any cellular equipment on the Tower.

36. Further, no third-party nor any affiliate of New Cingular or
CCATT is operating any cellular equipment on Tower.

37. As a result, there [wa]s no breach of the Lease.

Defendants New Cingular Wireless PCS, LLC, NCWPCS Tower Newco, LLC,

CCATT Holdings LLC and CCATT LLC’s Motion for Summary Judgment,

5/4/2018, at 2-5, 8 (citations and footnote omitted). New Cingular also

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claimed they were entitled to specific performance and attorneys’ fees. Id. at

10-12.

The Philipses filed a response to the motion for summary judgment on

June 8, 2018. They averred:

New Cingular acknowledges that it was the tenant from January
7, 2011 until January 21, 2014. After January 21, 2014, CCATT
became the tenant under the Lease. However, the discovery
responses reveal that after CCATT became the tenant under the
Lease (i.e., after January 21, 2014), New Cingular Wireless used
portions of the Tower to transmit or receive radio, television,
microwave or other communications.

…

Thus, due to the fact that CCATT is now the tenant under the
Lease, New Cingular Wireless is a collocator on the Tower because
New Cingular Wireless, not CCATT, is the owner/operator of the
equipment on the Tower and therefore the rents and proceeds for
such use are to be shared equally by both landlord (Plaintiffs) and
tenant (CCATT) pursuant to the Collocation Clause. This obligation
to share rents under applies even when the collocator is an affiliate
of the tenant.

Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for

Summary Judgment, 6/8/2018, at 4-5 (citations and footnote omitted; italics

added). Furthermore, the Philipses contend that because the meaning of

“collocator” is not clearly defined in the Lease,

the Court may want to hear testimony regarding: 1) The
circumstances surrounding the execution of the Lease to resolve
any ambiguity regarding the meaning of “collocator”; 2) The
testimony of plaintiff, John Philips, regarding such meaning; 3)
The testimony of [New Cingular’s] witnesses regarding such
meaning; 4) The testimony of [New Cingular’s] witnesses to
explain why New Cingular Wireless is defined as the “AT&T
Collocator” in both the Site Location Agreement and First
Amendment but has taken the position that it not a “collocator”

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for the purposes of the Lease and; 5) Whether the parties
intended the Collocation Clause obligations to be triggered when
the owner and operator of equipment on the Tower (i.e., New
Cingular Wireless) is different than the tenant (i.e., CCATT) under
the Lease.

Id. at 8-9 (emphasis in original; some italics added). Lastly, the Philipses

argued New Cingular’s request for specific performance should be denied and

they are not entitled to attorneys’ fees.

Oral argument on the summary judgment motion was held on July 18,

2018. On July 25, 2018, the court entered an order granting New Cingular’s

motion. The court stated:

The parties agree that the central question before the court is
whether New Cingular Wireless is a collocator under the Lease’s
Collocation Clause such that CCATT is obligated to share equally
with [the Philipses] all rent it receives from New Cingular Wireless
for its use of the Tower. [New Cingular] argue that summary
judgment is appropriate because New Cingular Wireless has been
the only entity operating cellular equipment on the Tower from
January 7, 2011 (the execution date of the Lease) to the present.
[The Philipses] argue in opposition that when the Lease
assignment was effectuated, the owner of the equipment on the
Tower became an entity other than the “tenant” thereby triggering
the terms of the Collocation Clause which entitles [the Philipses]
to half of the rent received by CCATT from New Cingular Wireless.
In the alternative, [the Philipses] argue that the meaning of
“collocator” is not defined clearly in the Lease, making the term
ambiguous and precluding the entry of summary judgment.

Order, 7/25/2018, at unnumbered 3-4 n.1. The court then found the

following: (1) the Philipses’ breach of contract and eviction claims failed

because New Cingular is the only entity operating cellular equipment on the

tower; (2) the Philipses’ unjust enrichment claim failed because there was a

written contract between the parties; and (3) New Cingular was entitled to

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specific performance because there was no breach of contract on their part.

Additionally, the court determined that pursuant to Section 11.4.1 of the

Lease, New Cingular was entitled to recover attorneys’ fees for a breach of

contract. The court stated it “shall determine the amount of attorneys’ fees

to which CCATT is entitled as a result of the prosecution of its counterclaim

following submission of such fees to the court for its consideration.” Order,

7/25/2018, at unnumbered 6, n.1.

The Philipses filed a praecipe to enter judgment, and judgment was

entered on August 23, 2018, in favor of New Cingular and against the

Philipses. The following day, the Philipses filed a notice of appeal.5

On September 28, 2018, this Court issued a rule to show cause why this

appeal should not be quashed as interlocutory based on the outstanding

attorneys’ fees issue. The Philipses filed a response on October 8, 2018. The

rule to show cause was subsequently discharged.

We will first address the issue of whether this appeal is interlocutory and

therefore, not reviewable, based on the outstanding attorneys’ fees issue.

Philipses’ Brief at 13. The Philipses state the July 25, 2018, order disposed all

of its claims and awarded equitable relief to New Cingular. Id. at 14.

____________________________________________

5 On August 27, 2018, the trial court ordered the Philipses to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Philipses filed a concise statement on September 17, 2018. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 23, 2018, which
incorporated its analysis from its July 25, 2018, order.

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Moreover, relying on Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1

(Pa. 2011), cert. denied, 567 U.S. 935 (2012), they allege, “The [t]rial

[c]ourt’s determination of the amount of attorney’s fees is ancillary to the

appeal from the summary judgment decision, and does not deprive [this

Court] of jurisdiction over this appeal.” Philipses’ Brief at 14. We agree.

Whether this Court has jurisdiction to entertain this appeal
presents a threshold issue. Burger v. School Bd. of McGuffey
School Dist., 592 Pa. 194, 923 A.2d 1155, 1161 (Pa. 2007).
Such an issue raises a question of law; accordingly, our standard
of review is de novo, and our scope of review is plenary. See
Com., Dep't of Envtl. Prot. v. Cromwell Twp., Huntingdon
Cty., 613 Pa. 1, 32 A.3d 639, 646 (Pa. 2011) (“The question
whether a court has jurisdiction is de novo, and the scope of
review is plenary.”).

Generally speaking, appellate courts have jurisdiction to entertain
appeals from final orders entered at the trial court level.
Commonwealth v. Scarborough, 619 Pa. 353, 64 A.3d 602,
608 (Pa. 2013). Ordinarily, a final order disposes of all claims and
of all parties. Pa.R.A.P. 341(b)(1).

Pa. Manufacturers’ Ass’n Ins. Co. v. Johnson Matthey, Inc., 188 A.3d

396, 398-399 (Pa. 2018).

In Samuel-Bassett, the Pennsylvania Supreme Court provided:

[Pennsylvania Rule of Appellate Procedure] 1701 provides that
“[e]xcept as otherwise prescribed by these rules, after an appeal
is taken . . . the trial court . . . may no longer proceed further in
the matter.” Pa.R.A.P. 1701(a). But, after an appeal is taken, the
trial court may take other action “ancillary to the appeal.”
Pa.R.A.P. 1701(b)(1). In Pennsylvania, the trial court’s action on
a petition for counsel fees has been deemed to be ancillary to the
appeal from the judgment on the merits. [Miller Elec. Co. v.
DeWeese, 907 A.2d 1051, 1057 (Pa. 2006)]. Therefore, if the
petition for counsel fees is timely filed, the trial court is
empowered to act on it after an appeal was taken.

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Samuel-Bassett, 34 A.3d at 48. Accordingly, we may proceed to address

the merits of this appeal as the issue of attorneys’ fees is ancillary to the

matter at hand.

When considering an order disposing of a motion for summary

judgment,

[o]ur scope of review ... is plenary. [W]e apply the same standard
as the trial court, reviewing all the evidence of record to determine
whether there exists a genuine issue of material fact. We view
the record in the light most favorable to the non-moving party,
and all doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party. Only where there
is no genuine issue as to any material fact and it is clear that the
moving party is entitled to a judgment as a matter of law will
summary judgment be entered.

Motions for summary judgment necessarily and directly implicate
the plaintiff’s proof of the elements of [its] cause of action.
Summary judgment is proper “if, after the completion of discovery
relevant to the motion, including the production of expert reports,
an adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of action
or defense which in a jury trial would require the issues to be
submitted to a jury.” Pa.R.C.P. 1035.2. Thus, a record that
supports summary judgment will either (1) show the material
facts are undisputed or (2) contain insufficient evidence of facts
to make out a prima facie cause of action or defense and,
therefore, there is no issue to be submitted to the jury. Upon
appellate review, we are not bound by the trial court’s conclusions
of law, but may reach our own conclusions. The appellate [c]ourt
may disturb the trial court’s order only upon an error of law or an
abuse of discretion.

Nat’l Cas. Co. v. Kinney, 90 A.3d 747, 752-753 (Pa. Super. 2014) (some

internal citations, quotation marks, and original brackets omitted).

In the Philipses’ first argument, they contend the trial court erred in

granting New Cingular’s motion for summary judgment because the facts

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established that following “assignment of the Lease by New Cingular to CCATT,

New Cingular became a ‘collocator’ under the Lease, and the new Tenant,

CCATT, became obligated to pay additional rent to the [l]andlord, Philips,

pursuant to the provision of sections 10 and 17of the Lease.” Philipses’ Brief

at 15. They cite to Sections 10.1 and 17 of the Lease, which provide as

follows:

10. Co-Locate

10.1 Landlord and Tenant shall each have the right to
permit additional collocators (“Collocators”) to use portions of
the Tower for radio, television, microwave, or wireless or other
communication transmission and receiving equipment (each, a
“Communication Device”), provided that (i) such proposed
user’s Communications Device will not interfere with the
receipt or transmission of wireless communication signals
by Tenant, Landlord, or another then current user of the
Tower and (ii) such proposed user has obtained all licenses and
permits necessary for the lawful operation of the Communication
Device on the Tower and (iii) all Collocators shall follow Tenant’s
Collocation Process prior to the installation of any Communications
Device…. All rents and proceeds resulting from use by other
users of the Tower pursuant to this Subsection 10.1 shall be
shared equally by Landlord and Tenant regardless of which party
procured such other user.

…

17. Assignment. Tenant will have the right to assign, sell or
transfer its interest under this Lease without the approval
or consent of Landlord, to Tenant’s Affiliate or to any entity which
acquires all or substantially all of the Tenant’s assets in the market
defined by the Federal Communications Commission in which the
Property is located by reason of a merger, acquisition, or other
business reorganization. Upon notification to Landlord of such
assignment, transfer or sale, and upon the assignee’s,
transferee’s or purchaser’s assumption of Tenant’s obligations
hereunder, Tenant will be relieved of all future performance,
liabilities and obligations under this Lease provision. Tenant shall

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not have the right to sublease the Leased Premises or any portion
thereof, without Landlord’s consent to be rendered or withheld by
it in its sole discretion. Tenant may not otherwise assign this
Lease without Landlord’s consent, Landlord’s consent not to be
unreasonably withheld, conditioned or delayed. Nothing
contained herein shall be construed to negate Landlord’s right to
fifty percent (50%) of the rental proceeds payable in connection
with a Collocation. Landlord may assign this Lease provide said
assignee will assume, recognize and also become responsible to
Tenant for the performance of all of the terms and conditions to
be performed by such party under this Lease arising on or after
the date of said assignment and thereupon Landlord will be
relieved of all future performance, liabilities and obligations under
this Lease.

Complaint, 4/15/2016, Exhibit A (“Lease”), at 5, 11 (emphasis added).

The Philipses state:

At lease inception[,] New Cingular was a user of the Tower as
permitted by its status as “Tenant”. New Cingular was not an
“other user” or “collocator” as contemplated by Section 10 since
its right to use the Tower flowed from its status as “Tenant”.

The Trial Court’s focus upon the language in section 10.1
referencing “additional collocators (“Collocators”)” misreads that
paragraph, and, perhaps most significantly, renders meaningless
the last sentence thereof, which states that “All rents and
proceeds resulting from use by other users of the Tower pursuant
to this subsection 10.1 shall be shared equally by Landlord and
Tenant, regardless of which party procured such other user”. The
term “other users” in the last sentence of Section 10.1 can only
be read to mean users other than Landlord and Tenant. The Trial
Court’s conclusion that “the original party using the Tower – in
this case, New Cingular - was already considered a “collocator”
under the Lease terms” is illogical, and contrary to the plain
language of Section 10.1. New Cingular could not be both
“Tenant” and a “Collocator” under the terms of Section 10.1. New
Cingular (the only entity operating equipment on the Tower at
lease inception) was the “Tenant”, only. There was no “other
user” operating equipment on the Tower under these undisputed
facts; the Trial Court’s determination that New Cingular was
“collocator” under the Lease, when it was the Tenant, is error.

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Moreover, as the identity of Tenant changed with the
assignment of Tenant’s rights in 2014, so did the status of New
Cingular (i.e., an owner of equipment being operated on the
leased premises) once it was no longer Tenant, but nevertheless
continued to operate property on the Tower. It became (vis-a-vis
the Landlord and Tenant) an “other user” as referenced in the last
sentence of Section 10.1. Upon assignment of the Lease, New
Cingular was relieved of all obligations under the Lease (as
"Tenant") pursuant to Section 17[.]

Philipses’ Brief at 17-19 (citation omitted).

Our standard of review for these issues is as follows:

“[T]he interpretation of the terms of a contract is a question of
law for which our standard of review is de novo, and our scope of
review is plenary.” McMullen v. Kutz, 603 Pa. 602, 985 A.2d
769, 773 (2009) (citation omitted). Furthermore, it is well
established that:

[w]hen the parties have reduced their agreement to writing,
the writing is to be taken to be the final expression of their
intention. Where the contract evidences care in its
preparation, it will be presumed that its words were
employed deliberately and with intention. In determining
what the parties intended by their contract, the law must
look to what they clearly expressed. Courts in interpreting
a contract do not assume that its language was chosen
carelessly. Neither can it be assumed that the parties were
ignorant of the meaning of the language employed.

Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 662 (1982)
(citations and quotation marks omitted).

Andrews v. Cross Atlantic Capital Partners, Inc., 158 A.3d 123, 131 (Pa.

Super. 2017).

Further, “[i]t is well-established that three elements are necessary to

plead a cause of action for breach of contract: (1) the existence of a contract,

including its essential terms, (2) a breach of the contract; and, (3) resultant

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damages.” Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law

Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016) (citation

omitted).

As noted above, the Philipses alleged the following regarding their

breach of contract claim:

47. It is believed and therefore averred that since the
Commencement Date of the Lease Agreement, [New Cingular
Wireless, Tower Newco, CCATT Holdings, and CCATT] permitted
AT&T Mobility (and possibly others to use portions of the Tower
for radio, television, microwave, or wireless or other
communication transmission and receiving equipment without
paying [the Philipses] rent in violation of the Lease Agreement.

48. At this time, it is unclear whether [New Cingular Wireless,
Tower Newco, CCATT Holdings, and CCATT] permitted other
collocators to use portions of the Tower for radio, television,
microwave, or wireless or other communication transmission and
receiving equipment without paying [the Philipses] rent in
violation of the Lease Agreement.

49. [New Cingular Wireless, Tower Newco, CCATT Holdings, and
CCATT] breached the Lease Agreement by inter alia, failing to pay
[the Philipses] for rent for AT&T Mobility’s (and possibly others)
use of the Tower.

50. [New Cingular Wireless, Tower Newco, CCATT Holdings, and
CCATT] breached inter alia, paragraph 10 of the Lease Agreement
by permitting collocators, to use portions of the Tower without
paying compensation to the [Philipses].

Complaint, 4/15/2016, at 10-11 (emphasis added).

Here, the court found the following:

First, the breach as alleged by [the Philipses] is that [New
Cingular] “breached the Lease Agreement by inter alia, failing to
pay [the Philipses] for rent for AT&T Mobility’s (and possibly
others) use of the Tower.” It is undisputed, however, that from
January 7, 2011 (the execution date of the Lease) to the present,

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New Cingular has been the only entity operating cellular
equipment on the Tower. Further, no third-party or any affiliate
of New Cingular or CCATT is operating any cellular equipment on
Tower.

Second, the court is not persuaded by [the Philipses’]
suggestion that following the Lease assignment, New Cingular,
who has remained the operator of the cellular equipment on the
tower since the inception of the Lease, became a collocator in
violation of Section 10 of the Lease. The plain language of Section
10 allows the contracting to parties to permit “additional
collocators” to use portions of the Tower. Thus, the original party
using the Tower - in this case New Cingular - was already
considered a “collocator” under the Lease terms. The additional
rent terms []would only be triggered by an “additional” collocator
- one other than the existing collocator. Given this Lease
language, the use of this same term “collocator” in the Site
Location Agreement, which [the Philipses] singularly rely upon in
support of their assertions that New Cingular is now an “additional
collocator” pursuant to Section 10 of the Lease does not
undermine [New Cingular’s] position.

In sum, [New Cingular] did not breach the Lease because
the only entity operating cellular equipment on the Tower has
been and continues to be New Cingular. [The Philipses’] Count I
- Breach of Lease Agreement and Count III - Eviction, which are
both premised on this purported breach, therefore, fail as a matter
of law.

Order, 7/25/2018, at unnumbered 4-5, n.1 (citations omitted; emphasis in

original).

We agree with the trial court’s conclusion. In their complaint, the

Philipses averred that New Cingular permitted AT&T Mobility to use the tower

without splitting rent payments with them, which constituted the breach.

However, New Cingular established that it does business in Pennsylvania as

“AT&T Mobility,” a fictitious name and not a separate corporate entity. See

Defendants New Cingular Wireless PCS, LLC, NCWPCS Tower Newco, LLC,

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CCATT Holdings LLC and CCATT LLC’s Motion for Summary Judgment,

5/4/2018, at Exhibit “B-4” (AT&T Mobility’s Application for Registration of

Fictitious Name, 3/29/2007). Accordingly, the Philipses’ cause of action for

breach of contract plainly fails as New Cingular and AT&T Mobility were one in

the same.

Moreover, to extent the Philipses now argue that New Cingular is no

longer a tenant and was not contemplated as a “collocator” or “other user”

under the terms of the Lease because New Cingular transferred the Lease to

CCATT, LLC, as a part of a larger transaction between their parents companies,

AT&T Inc. and Crown Castle, respectively, we find this argument unavailing.

The Philipses attempt to introduce non-salient facts with respect to the

classification of New Cingular. However, the undisputed facts are: (1) the

Philipses and New Cingular entered into a lease agreement; (2) New Cingular

was purchased, ultimately, by CCATT who became responsible for the

obligations under the Lease; and (3) throughout this entire time, New Cingular

continued to be the only entity using the tower.6 The evidence demonstrated

____________________________________________

6 New Cingular presented evidence that Crown Castle managed cellular towers
and was not a cellular service provider. See Defendants New Cingular
Wireless PCS, LLC, NCWPCS Tower Newco, LLC, CCATT Holdings LLC and
CCATT LLC’s Motion for Summary Judgment, 5/4/2018, at Exhibit “A”
(Affidavit of Jaime Kloin). Moreover, New Cingular demonstrated it retained
its right to operate the cellular equipment on the tower at issue. See
Defendants New Cingular Wireless PCS, LLC, NCWPCS Tower Newco, LLC,
CCATT Holdings LLC and CCATT LLC’s Motion for Summary Judgment,
5/4/2018, at Exhibit “A-5” (“AT&T Internal Transfers Agreement”); see also

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there were no third-parties or other subsidiaries of CCATT using the tower.

Indeed, regardless of the corporate merger and re-structuring, there remains

only one entity using the tower – New Cingular. Accordingly, we conclude the

trial court properly determined New Cingular was not an “other user” pursuant

to the Lease, and CCATT was not obligated, following transfer of the Lease, to

share rental income that it received from New Cingular with the Philipses.7

Next, the Philipses contend the trial court erred in granting summary

judgment with respect to New Cingular’s claim for specific performance based

____________________________________________

Complaint, 4/15/2016, Exhibit A (“Lease”), at 2 (“4. Use of Leased Premises.
The Leased Premises are to be used solely for the operation and maintenance
of wireless communication transmission and receiving equipment along with
associated other electronic equipment for wireless telecommunication
services.”).

7 In a related argument, the Philipses argue the use of different terms,
“collocators” and “other users”, in Section 10.1 of the Lease is “confusing” and
“raises the question of whether the terms are synonymous, or, were intended
to create different categories of users of the Tower.” Philipses’ Brief at 21.
Additionally, they stated

[T]he definitions, and scheme pertaining to “other users” set forth
in paragraph 10, had the effect of making New Cingular a
“collocator” or “other user” of the Tower, once it was no longer
Tenant. The [t]rial [c]ourt’s conclusion that New Cingular was an
“additional collocator” at Lease commencement presumes that a
“collocator” is different from an “other user”.

Id. at 21-22. However, based on our disposition and agreement with the trial
court that New Cingular was the only entity using the tower, we need not
reach a determination as to whether the terms, “additional collocator” and
“other user,” were ambiguous.

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J-A10021-19

on its allegation that CCATT refused to share rental income it received from

New Cingular. Philipses’ Brief at 23-24. Specifically, they state:

[New Cingular’s] breach of the Lease prior to [New Cingular’s]
demand for a Letter of Authorization precludes summary
judgment in favor of [New Cingular]. [New Cingular] requested
that [the Philipses] execute the Letter of Authorization (required
by Township authorities for issuance of a building permit) in
September of 2016. At that time, [the Philipses] did not know
who was using and/or operating equipment on the Tower despite
making several attempts to obtain such information from [New
Cingular]. It was later established, and it is undisputed, that when
CCATT became the tenant under the Lease (i.e., after the 2014
assignment), New Cingular Wireless used portions of the Tower to
transmit or receive radio, television, microwave or other
communications. Thus, by operation of Sections 10.1 (“Co-
locate”) and 13 (“Assignment”) of the Lease, CCATT became
obligated to share (with [the] Philips[es]) rents received from New
Cingular’s use of the Tower after March, 2014. CCATT has failed
and refused to share the rents it receives from New Cingular,
giving rise to the claims set forth in the Complaint.

…

[The Philipses’] obligations were excused due to Tenant’s breach
of the Collocation Clause and failure to share collocation rent
following Lease assignment in March 2014, failure to disclose the
identity of the actual tenant, and refusal to share information
regarding potential collocators on the Tower until after discovery
in the litigation was exchanged.

Id. at 23-24 (citation omitted).

We are guided by the following:

Specific performance is an equitable remedy that permits
the court “to compel performance of a contract when there exists
in the contract an agreement between the parties as to the nature
of the performance.” “Specific performance should only be
granted where the facts clearly establish the [party]’s right
thereto, where no adequate remedy at law exists, and where
justice requires it.” Further, a [party] will not be successful in an
action for specific performance if the evidence is so uncertain,

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inadequate, equivocal, ambiguous, or contradictory as to render
findings or legitimate inferences therefrom mere conjecture. It
also is inarguable that when performance under a contract is
uncertain, the court will not write the contract for the parties.

Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super. 2006) (citations omitted).

Here, the trial court found:

According to [New Cingular], under the Lease, [the Philipses] are
required to sign a letter of authorization allowing maintenance and
repair work to be performed on the cellular tower, but have failed
to honor their Lease obligations.… [The Philipses] acknowledge
they are required to sign the requested letter under the terms of
the Lease and admit they have failed to do so. [The Philipses]
contend instead that New Cingular and/or CCATT have no rights
to enforce the terms of the Lease because they are themselves in
default of the Lease terms. In essence, [the Philipses] argue [New
Cingular] breached first.

The court, having concluded that there has been no breach
on the part of defendants, shall require Plaintiffs to sign the Letter
of Authorization and undertake any other action necessary to
allow the maintenance and repairs to be performed.

Order, 7/25/2018, at unnumbered 5 n. 1.

We agree with the court’s conclusion. The Philipses, again, base their

argument on the premise that New Cingular breached the contract after

CCATT took over the Lease. Because we previously determined the trial court

properly found New Cingular did not breach the contract, the Philipses’ specific

performance argument is without merit. New Cingular was entitled to specific

performance with respect to requiring the Philipses to sign a letter of

authorization allowing maintenance and repair work to be performed on the

cellular tower in accordance with the Lease.

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J-A10021-19

Lastly, the Philipses argue the issuance of attorneys’ fees was not

appropriate because there were genuine issues of material fact regarding their

claim that New Cingular had breached the Lease. See Philipses’ Brief at 23.

They state, “Assuming, arguendo, that there was a default by [the Philipses]

in failing to execute the Letter of Authorization, there is no language contained

in the Default Clause that provides any party with the right to recovery of

attorney’s fees.” Id. at 24. They point to Section 11.4.1 of the Lease, which

provides:

11. Insurance; Indemnification: and Liability Limitation.

…

11.4. Indemnification.

11.4.1 Landlord covenants and agrees to indemnify,
defend, and hold harmless the Tenant and its affiliates,
partners, shareholders, officers, directors, agents, and
employees, from and against any and all claims, demands,
costs, expenses (including without limitation attorneys’
fees, court costs, and expert witness fees), losses, liabilities;
suits, and damages resulting from or arising out of the
negligence or willful misconduct of or breach of this Lease by
the Landlord, its affiliates, partners, shareholders, officers,
directors, agents, and employees, except to the extent such
claims or damages may be due to or caused by the negligence or
willful misconduct of, or breach of this Lease by the Tenant, its
Vendors, affiliates, partners, shareholders, officers, directors,
agents, employees, and/or Tenant’s Authorized Personnel.

Complaint, 4/15/2016, Exhibit A (“Lease”), at 9 (emphasis added).

The Philipses further assert:

It is submitted that this indemnification clause applies to third
party claims that may affect the parties. The Default and
Remedies available for breach of the Lease are expressly

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contained at paragraph 20 of the Lease. In such paragraph, there
is no express right or agreement of the parties for the recovery of
attorneys’ fees for a breach of the Lease. In the absence of a clear
agreement between the parties in the Default Section for the
recovery of attorney’s fees, it was error for the Court to conclude
that such fees are awardable in this matter against Landlord for
default.

Philipses’ Brief at 25.

As an initial matter, it merits emphasis that contrary to the Philipses’

allegation, the trial court has not awarded any attorneys’ fees to New Cingular.

See also Trial Court Opinion, 10/23/2018, at unnumbered 1. As noted above,

the issue was not decided in the court’s order regarding the motion for

summary judgment, but was to be addressed at a subsequent date. However,

the Philipses filed their notice of appeal, which stayed any proceeding or

further determination on the matter. Second, as the trial court correctly

found:

[The Philipses’] suggestion, that their conduct amounted to a
default and not a breach and therefore relieves them of any
obligation to pay attorneys’ fees, ignores the plain language of the
lease agreement. Under the terms of the lease agreement, a
failure of landlord (i.e. [the Philipses]) to provide access to the
leased premises or to perform any term for a period of 45 days
“shall be deemed . . . a breach” of the lease agreement. ([Lease]
Agreement, at ¶20.1). Thus, the language allowing attorneys’ fee
in cases of a breach by landlord is applicable. Second, the
language at issue does not limit recovery of attorneys’ fees to a
narrow category of circumstances. The language chosen by the
parties is broad and all-encompassing in identifying the
[Philipses’] obligation to indemnify and hold harmless [New
Cingular] against “any and all” claims arising out of the [Philipses’]
breach of the contract. The parties’ contractual language did not
limit such claims to third-party claims as argued by [the Philipses].
Finally, the lease agreement is specific in identifying as
recoverable expenses, “without limitation”, attorneys’ fees.

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Id. at unnumbered 2.

Indeed, the Philipses misinterpret Section 20.1 of the Lease in their

argument, which provided New Cingular with an express right if the Philipses

defaulted on the Lease, thereby causing a breach of contract. Likewise, a

review of Section 11.4.1 of the contract does not pertain only to the third

parties as the Philipses suggest. Rather, it specifically provided New Cingular

with the right to seek attorneys’ fees if the Philipses breached the Lease.

Accordingly, the Philipses’ final argument also fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/19

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