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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 JEFF           :   No. 325 WDA 2018
 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.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 19, 2019

      SBA Towers II LLC (“SBA” or “Appellant”) appeals from the trial court’s

order granting in part and denying in part Appellant’s motion for an injunction

against Wireless Holdings, LLC, and Jeff MacAlarney (collectively “Appellees”).

After careful review, we affirm.

      The instant case involves a lease (“the Lease”), wherein Appellees

leased a portion of their premises to Appellant in December of 2009. The

subject property contains a cellular tower and related communication facilities.

Appellant is one of several tenants at the site, some of whom are storing

equipment there worth millions of dollars. Paragraph 18 of the lease contains

the following language:

      [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 Lease Space on a 24 hours
      per day/7 days per week basis, on foot or by motor vehicle,
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      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 nearest accessible public right-of-way.

Lease, 12/21/09, at 4, ¶18.

      Prior to filing for injunctive relief, Appellant had 24/7 access to the site

via lock box. Appellees changed the procedure and instead instituted a call-

in system, whereby Appellant could seek access during non-regular business

hours by calling Appellees, and one of Appellees’ representatives would meet

Appellant at the property in less than one hour and provide access. Appellees

also began to require that Appellant’s employees check in before entering the

premises   and   required   background      checks   for   some   of   Appellant’s

subcontractor’s employees. On April 15, 2016, Appellant filed a motion for

injunctive relief, seeking to enjoin Appellees from interfering with Appellant’s

24/7 access to the property.      Motion for Temporary Injunction, 4/15/16.

Specifically, Appellant sought to enjoin Appellees from blocking physical

access to certain parts of the property and requiring individuals who worked

for Appellant to provide a photo identification and criminal background check

before allowing access to the site. Id. The trial court granted Appellant’s

motion and issued a preliminary injunction enjoining Appellees from “engaging

in any conduct that in any way interferes with or obstructs [Appellant], its

tenants, any contractors, or subcontractors access to the leased premises….”

Order of Court, 4/15/16.




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      The trial court held a hearing on May 8, 2017. Following the hearing,

and after the submission of briefs on the matter, the trial court issued its

opinion and order. Opinion, 2/8/18. In it, the court noted that the Lease did

not specifically provide whether Appellant’s access to the property was to be

unrestricted, as Appellant argued, or subject to reasonable restrictions, as

Appellees argued. Id. at 6. Ultimately, the trial court found the Lease to be

ambiguous and susceptible to differing interpretations. Id. at 7. Noting that

the interpretation of a contract is a question of law, the trial court interpreted

the Lease as allowing for reasonable security.       Id. at 8.    The trial court

affirmed the preliminary injunction’s prohibition against Appellees physically

blocking Appellant’s access to the property. However, the court refused to

enjoin Appellees from requiring the following: that visitors check in at the main

office, that Appellant use a call-in system as opposed to a lock box for after-

hours access, that Appellant’s employees show their identification badges

before gaining access, and that certain subcontractors provide background

checks. Id. at 8–9.

       Before we reach the merits of the appeal, we must address Appellant’s

failure to file post-trial motions pursuant to Pa.R.C.P. 227.1(c)(2), which

states that “[p]ost-trial motions shall be filed within ten days . . . after the

decision in the case of a trial without jury.” A party must file post-motions in

order to preserve issues on appeal. The failure to raise an issue in a post-trial

motion results in waiver for purposes of the appeal.           See, e.g., Lane


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Enterprises v. L.B. Foster Co., 710 A.2d 54 (Pa. 1998). Given the above,

this Court entered a per curiam order, directing Appellant to show cause, in

the form of a letter to the Prothonotary, why its appeal should not be

dismissed. Order, 4/5/18.

      In its response, Appellant cited to Pa.R.A.P. 311(a)(4)(ii), relating to

interlocutory appeals. That rule states in relevant part,

      (a)   General Rule.—An appeal may be taken as of right and
            without reference to Pa.R.A.P. 341(c) 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:

                  (i)    Pursuant     to     23        Pa.C.S.
                         §§ 3323(f), 3505(a); or

                  (ii)   After a trial but before entry of the
                         final order.        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)(i–ii). Appellant also cited to this Court’s recent opinion in

TA Robinson v. Bioni, 178 A.3d 839 (Pa. Super. 2017).             In Bioni, the

appellants, relying on Pa.R.A.P. 311(a)(4)(ii), filed an immediate appeal,

without filing post-trial motions, from an order granting permanent injunctive


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relief and a prescriptive easement in favor of the appellees. Bioni, 178 A.3d

at 840. The appellees commenced the action after the appellants erected a

steel post on the edge of their property, which obstructed a portion of an

easement/road that appellees believed they had a right to use. Id. at 841.

The trial court issued an order requiring appellants to show cause why the

appeal should not be dismissed for failure to file post-trial motions, pursuant

to Pa.R.C.P. 227.1, and the appellees filed a motion to quash.1 The Bioni

Court discharged the order to show cause and deferred the appellees’ motion

to quash to the Court’s merits panel. Bioni, 178 A.3d at 843.

        Ultimately, the Bioni Court found that the appeal was properly before

it, despite the appellant’s failure to file post-trial motions. Specifically, we

found that under Pa.R.A.P. 311(a)(4)(ii), “an appeal may be taken from an

order that (because a final judgment has not 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. In Bioni,


____________________________________________


1   Pa.R.C.P. 227.1(c) states in relevant part:

(c) Post-trial motions shall be filed within ten days after

        (1)   verdict, discharge of the jury because of inability to agree,
              or nonsuit in the case of a jury trial; or

        (2)   notice of nonsuit or the filing of the decision in the case of a
              trial without jury.


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neither party moved to have the trial court direct the entry of judgment in

favor of any party, pursuant to Pa.R.C.P. 227.1(a)(2); thus, this Court found

that no final judgment had been entered.         Id. at 846.    Moreover, as the

permanent injunction changed the status quo by prohibiting conduct that had

not been previously enjoined, this Court found that the appeal was properly

before the Court because the trial court’s order was appealable without the

need for post-trial motions. Id. at 848.

      In the instant case, we find the appeal is properly before us because the

two prongs of the test set forth in Bioni are satisfied. First, neither party filed

a post-trial motion seeking entry of a final judgment, and the injunction took

effect before the entry of a final judgment. Second, the order, which granted

Appellant’s request for injunctive relief in part and denied it in part, constitutes

a departure from the status quo.        Pursuant to the preliminary injunction,

Appellees were enjoined from utilizing any additional security measures.

Under the terms of the permanent injunction, Appellees were not enjoined

from utilizing reasonable security measures.        Therefore, Appellant did not

need to file post-trial motions, and the case is properly before us.

      Appellant presents the following questions for our review:

      1. Whether the [t]rial [c]ourt erred in failing to grant the
         injunctive relief requested by [Appellant?]

      2. Whether the [t]rial [c]ourt improperly mandated changes to
         the parties’ lease when no Petition or Bond was posted by
         [Appellees] seeking such equitable relief and [Appellant] was
         not put on notice of the potential that such injunctive relief
         could be issued[?]

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J-A26021-18



Appellant’s Brief at 2.

       In support of its first issue, Appellant argues that the trial court erred

when it failed to issue a permanent injunction.        Appellant’s Brief at 11.

Appellant alleges that the trial court erred when it found the Lease’s language

relating to Appellant’s 24/7 access to the property ambiguous. Id. Appellant

further argues that even if the language in the Lease was ambiguous, the trial

court erred in failing to consider the parties’ course of performance. Id. at

14.

       The grant or denial of a permanent injunction is a question of law.

Bioni, 178 A.3d at 844. “Regarding the trial court’s legal determination, our

standard of review is de novo, and our scope of review is plenary.” Id. at

843.   “As in all equity matters, however, we must accept the trial court’s

factual findings and give them the weight of a jury verdict when they are

supported by competent evidence.” Id. Further, it is well established that a

lease is a contract and should be interpreted according to contract principles.

Hutchinson v. Sunbeam Coal Co., 519 A.2d 385, 389 (Pa. 1986).                  A

contract is ambiguous where “it is reasonably susceptible of different

constructions and capable of being understood in more than once sense.” Id.

at 390. “To determine whether there is an ambiguity, it is proper for a court

to hear evidence from both parties and then decide whether there are

objective indications that the terms of the contract are subject to different

meanings.” Nicholas v. Hoffman, 158 A.3d 675, 693 (Pa. Super. 2017).

The mere fact that the parties disagree as to the terms of a contract does not

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J-A26021-18



render it ambiguous. Id. Where a lease is ambiguous, “it is sound policy to

adopt an interpretation which does not impose on land undue restrictions

tending to deprive the owner of the customary rights, privileges and incidents

of ownership.” Clearfield Volunteer Fire Dept. v. BP Oil, Inc., 602 A.2d

877, 880 (Pa. Super. 1992).

       In its opinion, the trial court found that the Lease does not specify

whether Appellant’s access is restricted or unrestricted. Trial Court Opinion,

2/8/18, at 6. Given this fact, the trial court determined that the language is

susceptible to more than one meaning and does not specifically support

Appellant’s contention that it should have unfettered access to the property.

Similarly, it does not support Appellees’ contention that access is subject to

reasonable restrictions essential to Appellees’ duty to provide security for the

premises.    Id.    After determining that the Lease was ambiguous, the trial

court looked to the fact that multiple companies, including Appellant, were

storing millions of dollars worth of equipment on the premises and found a

need for reasonable security. Id. at 8.2 We agree.



____________________________________________


2 In finding that 24/7 access allows for reasonable restrictions, the trial court
noted that Paragraph 15, the Hold Harmless Clause in the Lease, stated that
Appellees would be liable for damages caused by misconduct or negligence of
Appellees, “or any of [Appellees’] agents, servants, employees, licensees, or
invitees.” Lease, 12/21/09, at 3, ¶ 15. The court noted that because the
police had been involved in several incidents involving individuals trying to
access the premises, Appellees were required to take action to improve
security. Id. at 9.

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J-A26021-18


      As the trial court noted, the Lease does not specify whether Appellant’s

access to the leased space, which as per the terms of the Lease allows

Appellant access on “a 24 hours per day/7 days per week basis,” is restricted

or unrestricted. Lease, 12/21/19, ¶ 18. Appellant argues that “the Lease

clearly established [Appellant] had the right to access the property on a ‘24/7’

basis, without any caveats, limits or other restrictions provided in the Lease.”

Appellant’s Brief at 13.   Appellees contend Appellant’s 24/7 access to the

property is “not in any way hampered” by the security restrictions Appellees

have put in place. Appellees’ Brief at 15. Therefore, as the trial court found,

the Lease does not state whether Appellant’s access is unfettered or subject

to security measures, and we agree that the terms of paragraph 18 of the

Lease are ambiguous.

      Appellant next argues that even if the Lease is ambiguous, the trial court

erred because it failed to consider the parties’ course of performance.

Appellant’s Brief at 14. Specifically, Appellant argues that the parties’ course

of performance over the first seven years of the Lease establishes that

Appellant’s right to the property was unrestricted. Id. at 14–15.

      This Court has reviewed the transcript from the May 8, 2017 hearing on

the preliminary injunction. We note that the trial court heard testimony from

both Appellant and Appellees regarding Appellant’s ability to access the

property via lock box, in an unrestricted manner, until Appellees introduced

the security measures at issue. N.T. (Preliminary Injunction hearing), 5/8/17,


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J-A26021-18


at 11, 12, 54. However, Appellant’s argument fails to take into consideration

the security breaches that occurred at the subject property, which

necessitated the implementation of reasonable security measures.         When

determining whether the Lease was ambiguous, the trial court looked to the

testimony of Appellee, Jeff MacAlarney. It noted that Mr. MacAlarney testified

that the additional security measures became necessary following multiple

security concerns, including one break-in, and the disappearance of a key from

the lock box. Trial Court Opinion, 2/8/18, at 4. The trial court also viewed

the subject premises and noted that the location is generally accessible to the

public and sits directly across from a Motel 6. The court ultimately found that

“there is a legitimate security concern which fairly suggests a need for some

additional security.” Id.

      Further, in interpreting the terms of the Lease, the trial court

underscored another provision in the Lease, the Hold Harmless Clause, which

states:

      Lessor will be held harmless by Lessee from any liability for
      damages to any person or any property in or upon the Leased
      Space at Lessee’s invitation, or for any damages to person or
      property resulting from the actions of the Lessee (including
      damages caused by or resulting from the existence of the
      Structures) on the Lease Space, unless the damages are
      caused by, or are the result of, the misconduct or
      negligence of Lessor or any of Lessor’s agents, servants,
      employees, licensees, or invitees.

Lease, 12/21/09, at 3, ¶ 15 (emphasis added). The trial court noted that

because Appellees were aware of unauthorized individuals “hanging around”


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J-A26021-18


the property and security breaches that required police involvement, the

Lease required that Appellees take action to insure that the property remained

secure. Trial Court Opinion, 2/8/18, at 9. The trial court further found that

although the criminal background check for subcontractors who are not

Verizon or SBA employees was required by another tenant at the property,

specifically the County 911 Center, that requirement was not unreasonable

and not subject to injunctive relief. Id.

      Ultimately, the trial court reached the following conclusions:

      1) the [L]ease is ambiguous; 2) there is evidence to suggest the
      property of the tenants (again including [Appellant]) might be at
      risk; and 3) the [Appellees have] an affirmative obligation to
      reasonably protect [Appellant’s] property (especially where they
      are on notice of recent attempts to intrude on the premises by
      strangers). Under those circumstances, we resolve the ambiguity
      in favor of reasonable security and decline to conclude the actions
      taken are per se unreasonable.

Id. at 9–10. Given our finding that the Lease is ambiguous as to the right to

restricted or unrestricted access, we conclude that the trial court did not err

when it found that Appellees have an affirmative obligation to protect the

property of both Appellant and Appellees’ other tenants, and that it correctly

resolved the ambiguity in favor of reasonable security measures.

      In support of its second issue, Appellant posits that the trial court erred

when it inserted “new and onerous terms” into the Lease, although Appellees

did not request any such equitable relief. Appellant’s Brief at 15. Specifically,

Appellant avers that although Appellees opposed equitable relief sought by

Appellant, Appellees failed to seek any equitable relief, as “neither requested

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J-A26021-18


the [t]rial [c]ourt to equitably reform the Lease, nor did either of them seek

to enjoin [Appellant] from exercising its right to access when the Lease

provides for no such restrictions.” Appellant’s Brief at 16. In what appears

to be an attempt to re-argue that the Lease in this case was not ambiguous,

Appellant asserts that the trial court erred by “reform[ing] the parties’ Lease

by allowing [Appellees] to limit [Appellant’s] access to the Subject Property,

in contravention of the clear terms of the Lease and the parties’ course of

performance thereunder.” Appellant’s Brief at 17.3

       In support of this issue, Appellant relies on Bioni, 178 A.3d 839. In

Bioni, this Court vacated a portion of the trial court’s order that granted the

general public an easement across the appellant’s property after finding that

the neither party sought a public easement, nor did the township or any other

public body intervene seeking to establish that such an easement existed. Id.

at 851. In vacating that portion of the trial court’s order, this Court noted

that there was a “dearth of facts in support of a prescriptive public easement,”

and also noted that there was little testimony regarding who used the

easement at issue, other than the parties to the dispute. Id.

       In contrast, in the instant case, Appellant sought a permanent injunction

allowing it unfettered access to the subject property, alleging that the Lease


____________________________________________


3   Although Appellant asserts that the Lease provides for no security
restrictions, that statement is directly contradicted by the trial court’s opinion
and order in which it found the Lease was ambiguous regarding whether
Appellant’s access was restricted or unrestricted.

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J-A26021-18


was unambiguous and allowed for such access.          Although the trial court

granted Appellant a preliminary injunction, following a hearing and briefing

from the parties, the court found the Lease was ambiguous. It resolved the

ambiguity in favor of reasonable security measures and denied Appellant’s

request that Appellees be enjoined from implementing them.         Trial Court

Opinion, 2/8/18, at 10. The trial court did not, as Appellant argues, reform

the parties’ lease “in contravention of the clear terms of the Lease.”

Appellant’s Brief at 17. Thus, Appellant is due no relief.

      Order affirmed.

      P.J.E. Bender joins the Memorandum.

      Judge Murray files a Concurring & Dissenting Memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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