J-A19021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 TOP OF THE HILL PLAZA PARTNERS,        :   IN THE SUPERIOR COURT OF
 LP                                     :        PENNSYLVANIA
                                        :
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :   No. 3034 EDA 2018
 HAYDEN HOLDINGS, LTD., SPA             :
 ELYSIUM, LTD., PARK 55, LLC,           :
 WENDY FELDMAN AND FRANCIS              :
 HAYDEN                                 :


            Appeal from the Judgment Dated, August 30, 2018,
           in the Court of Common Pleas of Philadelphia County,
            Civil Division at No(s): May Term, 2014, No. 00147.


 TOP OF THE HILL PLAZA PARTNERS,        :   IN THE SUPERIOR COURT OF
 LP                                     :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 HAYDEN HOLDINGS, LTD., ET AL.,         :
                                        :   No. 3073 EDA 2018
                   Appellant.           :


           Appeal from the Judgment Entered, August 30, 2018,
           in the Court of Common Pleas of Philadelphia County,
                  Civil Division at No(s): No. 140500147.


BEFORE:   PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                    FILED APRIL 28, 2020




____________________________________
* Former Justice specially assigned to the Superior Court.
J-A19021-19



      This lawsuit began when neighboring property owners could no longer

agree to operate a joint commercial shopping center and parking lot in the

Chesnut Hill area of Philadelphia. The shopping center consists of three lots.

Currently, Top of the Hill Plaza Partners, LLC (TOH) owns two of them, "Lots

A and B". Hayden Holdings, LTD’s (Hayden) owns the third, "Lot C". The trial

court entered judgment declaring that TOH had an easement to use Lot for

ingress/egress and parking, and enjoining Hayden from blocking TOH’s use

and access to that lot. Both parties appealed this decision and other equitable

relief the trial court granted. TOH also appeals the amount of damages the

trial court awarded to Hayden for use of this lot.    After careful review, we

affirm in part and reverse in part.

      Ownership history of these properties, dating back to the 1950s,

together with various agreements of the parties and their predecessors is

important to understand and resolve the issues in this.

      The original 1950 deed conveyed Lot C to a predecessor of Hayden and

contained the following language:

      TOGETHER with the right, liberty and privilege of using
      passageways to the Northeast and Southwest and a parking area
      in the rear of the premises hereinbefore described as follows:
      [Metes and Bounds description] as and for a PARKING AREA,
      PASSAGEWAYS and DRIVEWAYS for the mutual use and
      accommodation of the owners, tenants and occupiers of the
      premises hereinbefore described and/or others to whom the
      use thereof may be granted by the said Grantors for
      ingress, egress and regress to and from Bethlehem Pike to
      said parking area; PROVIDED, however that said passageways
      or driveways shall be kept free and clear of all parked vehicles,
      and/or any other obstruction, which might prevent free access to


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J-A19021-19


       the Parking Area from Bethlehem Pike; SUBJECT, however, to the
       proportionate part of the expense of the maintenance and upkeep
       of said passages and parking area at all times, hereafter, forever.

Plaintiff's Ex. 2-A. (emphasis added).

       At the time of the original 1950 deed, all of the lots were used as

commercial property. However, from 1950 to 1973, Lots A and B had separate

parking and ingress/egress from Lot C.

       In 1973, the owner of Lot C, (a trust with Bert Levy acting as trustee

“Bert Levy, Trustee”), began a plan to develop all three lots into a unified

shopping center. The trustee eventually brought in Top of the Hill Associates

(TOH Associates) to develop the properties. TOH Associates entered into a

“Lease” with the trust, which granted it the managing rights over Lot C to

develop a single commercial complex using all three lots.             Although TOH

Associates’ management and development rights regarding Lot C were

secured by the Lease, the Lease had certain conditions to be satisfied before

it became effective. The Lease did not convey an easement over Lot C, as

potentially contemplated by the original 1950 deed.

       To achieve the joint operation of the three lots as one commercial

complex, the lot owners and developer worked together to obtain the

necessary variances from the local zoning hearing board.              Although they

initially   filed   separate   applications,   they   eventually   consolidated   the

applications and submitted a joint plan that showed the three lots merged into

one shared lot.        The building plans also showed one entrance and exit

originating at Bethlehem Pike. This driveway connected to designated parking



                                         -3-
J-A19021-19



areas on both Lots A and C (shared parking lot); there was no parking on Lot

B. The separate, existing access to Lots A and B was eliminated.

      After the new commercial complex was built on Lots A and B, the shared

lot was used by all of the lots’ owners, tenants, employees, customers, and

guests. Two one-way lanes were used for vehicular traffic to enter and exit

the shared parking lot from the single point on Bethlehem Pike.         At some

point, the parking lot manager placed a toll booth between the two lanes to

charge for parking on the shared lot.

      Since 1974, all drivers visiting the shopping center entered the shared

parking lot via a single lane, which was entirely on Lot C; drivers exited the

shared parking lot using a single lane that straddled Lots A and C. However,

the evidence clearly indicated that drivers used that single entrance and exit

point, without incident and with knowledge of all property owners, since the

1970's.

      The following diagram presented at trial shows these lots as they existed

in 1974 after construction of the new complex. See Exhibit 41. Lot B is the

far left lot; Lot A is the center lot; and Lot C is the far right lot. The single

entrance and exit points are depicted with arrows on the bottom of the

diagram.




                                      -4-
J-A19021-19




     TOH acquired Lots A and B on July 31, 2007. Following difficulties with

its role as manager under the Lease, TOH elected to terminate the Lease on

December 2, 2010, and consented to having the owner of Lot C, then the Bert

O. Levy Living Trust (Living Trust), manage the shared parking lot.

     A few weeks later, Hayden acquired Lot C from the Living Trust on

December 17, 2010.     For several years, both parties continued to use the

single point of entrance and exit from Bethlehem Pike and the shared parking

lot in the same manner as all their predecessors since the shopping center

was built in the 1970's without any agreement.


                                    -5-
J-A19021-19




         Sometime in 2014, however, Hayden unilaterally attempted to separate

the shared parking lot into two distinct areas and blocked TOH’s access from

Bethlehem Pike via Lot C. This configuration made ingress/egress unsafe for

drivers and pedestrians.    Visitors to Lots A and B were forced into tighter

lanes. Also, parking spaces situated on the property line were roped-off and

no longer accessible. Visitors to Lots A and B did not have use of the Lot C

parking spots. Additionally, Hayden moved the toll booth onto its property,

Lot C.




                                      -6-
J-A19021-19



      The   following   diagram   illustrates   the   changes   from   the   prior

configuration.




      After Hayden changed the shared lot configuration, TOH filed this

lawsuit. Following a bench trial, the court concluded that TOH had an express

easement to use the driveway on Bethlehem Pike and parking area on Lot C

for the benefit of Lots A and B. As a result, it issued a permanent injunction

enjoining Hayden from interfering with TOH’s rights to use the driveway and

parking area on Lot C and permanently ordered Hayden to return the property


                                     -7-
J-A19021-19



to the configuration that existed in April 2014 as showed on the first diagram

above.

      The trial court also directed the parties to hire a third party to implement

the permanent injunction and manage the operation of the parking areas on

Lots A and C, with costs to be shared equally by Hayden and TOH. Judgment

Order, 8/29/18, at 1-3. Additionally, the trial court required TOH and Hayden

to share equally in the future expenses for upkeep and maintenance of the

driveway and parking area on Lot C and the toll booth. However, the trial

court found TOH solely responsible for all expenses associated with Lot A.

Trial Court Findings of Fact/Conclusions of Law, 6/30/17, at 21; but see

Judgment Order, 8/29/18, at 1-3, and discussion infra (the shared parking

area on Lot A).

      Finally, the trial court granted TOH’s request for an accounting of the

expenses incurred since January 2014 for maintenance of the driveway and

parking area on Lot C to determine TOH’s proportionate share as required

under the easement. Following a separate hearing, the trial court determined

that TOH owed Hayden $81,895.45, to be paid from funds TOH escrowed

pending resolution of this issue. Id. at 2.

      The parties timely filed cross-appeals.

      TOH raises four issues for our review:

      1. Whether the trial court erred in rejecting TOH's claim for an
         easement by estoppel and/or irrevocable license over Lot C?




                                      -8-
J-A19021-19


         2. Whether the trial court erred in unilaterally allowing Hayden's
            owners, tenant[s], employees, customer[s] and guests use of
            the driveway and parking area on Lot A without compensation?

         3. Whether the trial court erred in awarding Hayden [] an amount
            for the expense of operating a commercial parking operation?

         4. Whether the trial court erred in awarding Hayden [] an
            amount for expenses during the period that TOH was excluded
            from the use of Lot C?

TOH’s Brief at 7.

         Hayden raises two issues for our review:

         1. Whether the trial court erred in finding TOH has an easement
            by grant over the Lot C parking areas, passageways and
            driveways?

         2. Whether the trial court erred in granting injunctive relief
            against Hayden Holdings?

Hayden’s Brief at 5.

         In their first issue, both parties challenge TOH’s claim to a property right

for the use of Lot C. TOH claims the trial court should have found that it had

an irrevocable license. Hayden claims that the trial court erred in finding that

TOH had an express easement.

         The following principles guide our review of both TOH and Hayden’s first

issue.

         Our standard of review in a declaratory judgment action is narrow.
         We review the decision of the trial court as we would a decree in
         equity and set aside factual conclusions only where they are not
         supported by adequate evidence. We give plenary review,
         however, to the trial court’s legal conclusions.

         In reviewing a declaratory judgment action, we are limited to
         determining whether the trial court clearly abused its discretion or
         committed an error of law. Judicial discretion requires action in

                                         -9-
J-A19021-19


      conformity with law on facts and circumstances before the trial
      court after hearing and consideration. Consequently, the court
      abuses its discretion if, in resolving the issue for decision, it
      misapplies the law or exercises its discretion in a manner lacking
      reason.

Jarl Investments, L.P. v. Fleck, 937 A.2d 1113, 1121 (Pa. Super. 2007)

(internal citations and quotations omitted).

      In its first issue, TOH argues that the trial court erred in concluding that

it had an easement by express grant rather than an irrevocable license.

Specifically, TOH argues that it presented clear and convincing evidence that

TOH’s predecessor detrimentally relied upon the promise that it could use Lot

C for ingress/egress and parking to develop and construct the commercial

complex on Lots A and B at substantial cost. TOH’s Brief at 39-40.

      Conversely, in Hayden’s first issue, Hayden argues that the trial court

erred in finding that TOH had an express easement by grant, and similarly

challenges any finding of an irrevocable license. According to Hayden, TOH

did not have an easement or any other property right for ingress/egress or

parking on Lot C. Instead, TOH’s use of Lot C was secured by the long term

Lease executed in 1974. When TOH terminated this Lease and entered into a

settlement agreement relating to its outstanding obligations under the Lease,

Hayden argues TOH relinquished it rights to use the driveway and parking on

Lot C. Hayden’s Brief at 34, 47, 55.

      In concluding that TOH had an easement by express grant, the trial

court relied upon the language contained in the 1950 deed, and similar

language   contained    in   subsequent   deeds,   notably,   the   1973    deed.

                                     - 10 -
J-A19021-19



Specifically, the trial court found that the right to use Lot C was given to

“others.” The court concluded this meant any person or entity that had not

already been granted use of the parking, passageways, and driveways, i.e.,

an owner, tenant, or occupant of Lot C. Trial Court Opinion, 7/3/18, at 9. The

trial court opined that this language included an adjacent landowner, namely,

owners of Lots A and B, as they were not an “owner, tenant, or occupant” of

Lot C.

         In reaching this decision, the trial court relied upon the February 12,

1974 letter submitted to the Zoning Hearing Board on behalf of Bert Levy,

Trustee and TOH Associates. In that letter, their counsel assured the zoning

board that the “combined sites have adequate space for at least sixty-five

parking spaces, together with all needed access to the parking spaces and

buildings.”    The trial court opined that this reflected Bert Levy, Trustee’s

decision to grant public use of Lot C for the development of a commercial

complex on all three lots as proposed in the zoning applications. Trial Court

Opinion, 7/3/18, at 10 n. 46.

         The trial court also concluded that TOH did not have an irrevocable

license. Initially, the trial court reasoned that, because no one spent money

to alter Lot C during the construction project to prevent it from being returned

to the way it was in 1974, no irrevocable license was created. Findings of

Fact/Conclusions of Law, 6/30/17, at 18. However, in its opinion following

TOH’s post-trial motion on this issue, inter alia, the trial court modified its

rationale and explained that TOH did not acquire an irrevocable license,

                                      - 11 -
J-A19021-19



because such a license was not assignable. The court further reasoned that

Lot A’s previous owners made changes to the property and expended money

in pursuit of the shopping complex development itself and not on the promise

to use Lot C. Trial Court Opinion, 7/3/18, at 12.

       Upon a thorough review, we are constrained to disagree with the trial

court’s conclusions that TOH obtained an easement by express grant and did

not acquire an irrevocable license. As we explain below, the deeds did not

convey an easement.          Instead, TOH, as owner of Lots A and B, has an

irrevocable license for the use of Lot C to enter and exit the properties from

Bethlehem Pike and for parking. Hayden, as owner of Lot C, likewise has a

right to use Lot A for parking and egress. Our rationale follows.

       An easement is an interest in land that is in the possession of another.

Restatement (First) of Property § 450 (1944). Notably, “[t]he law is jealous

of a claim to an easement, and the burden is on the party asserting such a

claim to prove it clearly.”      Mann-Hoff v. Boyer, 604 A.2d 703, 706 (Pa.

Super. 1992) (quoting Becker v. Rittenhouse, 147 A. 51 (Pa. 1929)). An

easement may be created by express agreement in compliance with the

statute of frauds, or by implication, necessity, or prescription.1 Morning

Call, Inc. v. Bell Atl.-Pennsylvania, Inc., 761 A.2d 139, 142 (Pa. Super.

2000) (emphasis added). In particular, easements by express grant are to be

____________________________________________


1Although TOH also claimed to have obtained an easement by implication or
necessity, only the trial court’s decision regarding an easement by express
grant is before us on appeal.

                                          - 12 -
J-A19021-19



construed in accordance with the intentions of the parties, as determined from

examining the agreement as a whole. Owens v. Holzheid, 484 A.2d 107,

109 (Pa. Super. 1984).     “[T]he same rules of construction apply to deeds

granting easements as to contracts generally.” Bito Bucks in Potter, Inc. v.

Nat. Fuel Gas Supply Corp., 449 A.2d 652, 653 (Pa. Super. 1982). Our

Supreme Court stated that:

      In construing a deed or a contract, certain general principles must
      be kept in mind. First, it is the intention of the parties at the time
      of entering in thereto that governs, and such intention is to
      be gathered from a reading of the entire contract. In addition,
      “Contracts must receive a reasonable interpretation, according to
      the intention of the parties at the time of executing them, if
      that intention can be ascertained from their language.... ”

Wilkes-Barre Twp. Sch. Dist. v. Corgan, 170 A.2d 97, 98 (Pa. 1961)

(citations omitted) (other emphasis added). Based upon our review of the

original 1950 deed conveying Lot C (from Leona and Syl Levy (the Levys) to

Charles Henry) and considering the parties’ intentions at that time, we

conclude that Hayden’s predecessor did not create an easement by express

grant to the owners of Lots A and B or to any other individual or entity.

      The original 1950 deed conveyed Lot C to Charles Henry, along with the

right of the owner, tenants, and occupiers to use the “parking area,

passageways, and driveways.”           Additionally,   the Levy’s reserved to

themselves the ability to grant or convey to “others” the right to use the

“parking area, passageways, and driveways . . . for ingress/egress and regress

to and from Bethlehem Pike to the parking area” on Lot C.             “Others” is



                                     - 13 -
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undefined in the deed.        And, while we agree with the trial court that the

language was intended to allow someone or some entity other than the

“owner, tenant, or occupier” to use Lot C, the Levys did not specifically give

that right to anyone or any entity at that time. The deed made no reference

to the owners of adjacent lots A and B, any other individual, entity, or the

general public of Chestnut Hill.

       Instead, the 1950 deed referred to rights in “others to whom the use

thereof may be granted”. From this language, it is evident that the Levys

merely contemplated that while Henry owned Lot C, the Levys could, if they

chose, allow “others” to use the parking area, passageways and driveways on

Lot C. Conceivably, that could have included the owners of Lots A and B or

some other individual or entity in the future.       However, the Levys did not

convey any interest at that time.2

       We reach the same conclusion with respect to the 1973 deed, which was

executed shortly before the start of the development on the three lots. This

deed conveyed Lot C from the Levy Executors to the Levy Trustees, and

referenced the original 1950 deed and language allowing the grantor (now the

Levy Executors) to give “others” the right to use Lot C’s “parking area,

passageways, and driveways.”             However, it too did not give this right

specifically to anyone or any entity, in particular the owners of Lots A and B,

TOH Associates, or any other individual or entity, as “others” remained
____________________________________________


2 We note that shortly after the Levys conveyed Lot C to Charles Henry, the
property was conveyed back to the Levys.

                                          - 14 -
J-A19021-19



undefined. Instead, it also merely reserved to the grantor the ability to give

“others” the right to use Lot C, as described, in the future, if they chose.

Therefore, as of early 1973, no express easement was granted.

        We note, however, that these early deeds evince the Levys’ and their

successors’ recognition of the importance of Lot C, their desire to make

beneficial use of it, and their desire, potentially, to grant its use to others.

Consequently, we consider whether, at some other point in time, Hayden’s

predecessor impliedly granted some right to use Lot C’s “parking area,

passageways, and driveways,”             by    easement or otherwise, to    TOH’s

predecessor as TOH claims. If so, we must consider the nature and extent of

that right. In particular, we consider, as the trial court did, what transpired

when the parties’ predecessors sought to develop an integrated commercial

complex on all three lots.

        Significantly, in 1973, Bert Levy, Trustee, the then owner of Lot C,

decided to develop Lots A, B, and C into a contiguous commercial and

residential complex.3      It initially hired an affiliated entity, LETR, was hired

initially to be the developer on the project. Levy and LETR applied to the

zoning board for approval of the project initially in October 1973. The planning

of this project, in conjunction with the Chestnut Hill Community Association,

had been ongoing for many months. The goal was to revitalize Lots A and B




____________________________________________


3   The residential component of this project was later dropped.

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which had become run down and make good use of all three properties for the

benefit of the Chestnut Hill Community.

      Sometime thereafter, early in 1974, TOH’s predecessor, TOH Associates

took over as the developer and filed a separate application for approval of the

project. Ultimately, two zoning applications of the property owners/developer

were consolidated and a joint building plan was submitted showing the three

lots as one shared lot.    The plan specifically contemplated parking and

exclusive access on Lot C in connection with the new development on Lots A

and B.

      On February 22, 1974, the zoning hearing board approved the

development conditioned on compliance with the assurances contained in the

February 12, 1974 letter from counsel. Specifically, the permit to develop the

complex on Lots A and B was contingent upon there being at least 75 parking

spaces (mostly located on Lot C) for use by the combined sites and access to

the parking spaces and buildings. The plans, as submitted to and approved

by the board, showed a single point of ingress/egress from Bethlehem Pike

which connected to the parking areas on Lots A and C. The other then-existing

access to Lots A and B was eliminated.

      Based upon these facts, the trial court concluded that, through the

zoning process, Bert Levy, Trustee agreed to allow ingress/egress and parking

on Lot C for use by Lots A and B, which was consistent with his vision to

develop the three lots into a large, commercial complex and enhance the

Chestnut Hill Community. See Trial Court Opinion, 7/3/18, at 4. This promise

                                    - 16 -
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was evident as early as October 1973 when Bert Levy, Trustee applied for a

zoning permit.

     However, contrary to the trial court’s opinion, we conclude as a matter

of law that, Bert Levy, Trustee’s promise did not establish an express

easement because the statute of frauds requires an easement to be in writing.

At that time, there was no writing conveying an interest in Lot C to TOH

Associates or anyone else or any other entity.

For the reasons set forth below, we reject Hayden’s contention that the Lease

was the source of TOH’s right to use Lot C. Instead, we conclude that, at the

time of the zoning proceedings, Bert Levy, Trustee impliedly granted a license

to use Lot C for parking and ingress/egress from Bethlehem Pike in connection

with the commercial complex to be developed on Lots A and B.

     With respect to licenses, generally, this Court has stated:

     Licenses are often compared to easements. In general, a license
     is a mere personal or revocable privilege to perform an act or
     series of acts on the land of another, which conveys no interest or
     estate. A license is distinguishable from an easement because it
     is usually created orally, is revocable at the will of the licensor,
     and is automatically revoked by the sale of the burdened property.

Morning Call, Inc. v. Bell Atl.-Pennsylvania, Inc., 761 A.2d 139, 144 (Pa.

Super. 2000) (citations omitted).   However, though generally revocable, a

license may become irrevocable under the rules of estoppel.          In those

circumstances, as we have explained, it is similar to an easement.

     The Pennsylvania Supreme Court adopted the equitable doctrine
     of irrevocable license in the mid-nineteenth century stating that a
     license to do something on the licensor's land when followed by

                                    - 17 -
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     the expenditure of money on the faith of it, is irrevocable, and is
     to be treated as a binding contract. The Court subsequently
     explained that such a license, while not strictly an easement, is in
     the nature of one. It is really a permission or license, express or
     implied, to use the property of another in a particular manner, or
     for a particular purpose. Where this permission has led the party
     to whom it has been given, to treat his own property in a way in
     which he would not otherwise have treated it ... it cannot be
     recalled to his detriment. Thus, the irrevocable license gives
     absolute rights, and protects the licensee in the enjoyment of
     those rights. Moreover, successors-in-title take subject to an
     irrevocable license if they had notice of the license before the
     purchase.

Morning Call, Inc. v. Bell Atl.–Pennsylvania, Inc., 761 A.2d 139, 144 (Pa.

Super. 2000) (citations, footnotes, and quotation marks omitted).

     In concluding that TOH did not have an irrevocable license, the trial

court focused on what transpired in 2007 when TOH acquired the property

from TOH Associates. We agree with the trial court that no irrevocable license

was created at that time; no promises were made to TOH, and TOH did not

make changes to or spend significant money on Lots A and B. However, based

upon our review of the record, we conclude that the license Bert Levy, Trustee

granted in 1973 became irrevocable when TOH’s predecessor proceeded to

develop all three lots as an integrated commercial complex as represented to

the zoning board.

     Following approval from the zoning hearing board in 1974, TOH

Associates acquired Lots A and B for the project.     TOH then proceeded to

construct a new commercial complex on Lots A and B in accordance with the

plans presented to the zoning board. The improvements required the use of

Lot C for parking as well as ingress/egress from Bethlehem Pike. By design

                                    - 18 -
J-A19021-19



and permission of the zoning board, there was no access to this complex from

Germantown Avenue; the Top of the Hill Shopping Center was designed and

built in a way that cut off access to Lots A and B from Germantown Avenue.

Findings of Fact/Conclusions of Law, 6/30/17, at 17. Instead, the only access

to the complex was from Bethlehem Pike through Lot C. Without the access

on Lot C for ingress/egress to Lot A, there was insufficient space for a safe

and zoning compliant two lane driveway on Lot A. Similar issues existed on

Lot C.   The new layout of the properties further limited the availability of

parking on Lots A and B themselves.

      From these circumstances, one can infer that TOH Associates relied on

Bert Levy, Trustee’s promise that Lot C could be used in connection with the

development of Lots A and B as jointly represented to the zoning board.

Furthermore, although no evidence was presented at trial to show how much

was spent on this project, this development obviously was a significant

undertaking, not just for the parties’ predecessors, but also the community of

Chestnut Hill. It is further apparent, that returning Lots A and B to their prior

condition, likewise, would be a substantial undertaking and a detriment to the

Chestnut Hill Community.

      Finally, contrary to the trial court’s conclusion, an irrevocable license

may be transferred if the subsequent purchaser has notice of the license

before the purchase.     See Morning Call, supra.        From our review, we

conclude that there was sufficient constructive notice for the owners of Lots A

and B to have purchased those properties subject to an irrevocable license

                                     - 19 -
J-A19021-19



over Lot C. Wendy Feldman, the president of Hayden testified that, when

Hayden purchased Lot C, she did not know that Lot C was subject to any

license. She knew that TOH’s Lease for Lot C was terminated because she

had been a tenant on Lot C for 11 years prior to Hayden purchasing it.

However, Feldman had been in the Chestnut Hill Community for over 30 years.

During that time period, the properties were used in connection with one

another. As such, she had constructive notice of the license when Hayden

purchased Lot C.

       Additionally, although TOH did not know the legal basis for its use of Lot

C, it was evident that, when TOH took over Lots A and B from TOH Associates,

the properties were being used in conjunction with one another as one

integrated lot. Thus, TOH also had constructive notice of the license.

       Based on these facts, we conclude that the owner of Lots A and B, TOH,

has an irrevocable license to use the parking area and ingress/egress from

Bethlehem Pike to access the parking areas on both Lots A and C as

represented to and approved by the zoning board in 1974 and as it has existed

for more than 40 years.4

       We reach this conclusion despite Hayden’s argument that only the Lease

controlled TOH’s right to use Lot C. As the trial court found, the Lease did not
____________________________________________


4We note that our conclusion is limited to the particular circumstances of this
case. Whether an irrevocable license exists must be examined on a case-by-
case basis as this determination is equitable in nature. Contrary to Hayden’s
contention, where a developer secures temporary rights in neighboring
property, those rights will not necessarily become permanent in all cases as
Hayden suggests. See Hayden’s Brief at 37.

                                          - 20 -
J-A19021-19



take effect until August 6, 1975, once all of the conditions had been fulfilled.

Trial Court Opinion, 7/3/18, at 10. As discussed above, by that point, use of

Lot C already had been promised for the development of Lots A and B.

      Furthermore, the purpose of the Lease was not to grant the use of Lot

C for ingress/egress and parking in connection with Lots A and B even though

it may have been used to convince the zoning hearing board to approve this

project. Generally, a lease entitles a lessee to more rights than typically

held by a licensee. Dailey's Chevrolet, Inc. v. Worster Realties, Inc., 458

A.2d 956, 960 (Pa. 1983).       Here, the Lease gave greater rights to TOH

Associates than those afforded under the license granted in connection with

the development of Lots A and B.      For example, the Lease gave exclusive

possession of all of Lot C to TOH Associates.      This interest was far more

significant than that granted under the license. Additionally, as the trial court

observed, the Lease covered more than just permitting the use of Lot C for

the benefit of Lots A and B. Findings of Fact/Conclusions of Law, 6/30/17, at

17. While the Lease granted the Lessee use of the parking area and driveway,

it also included use of the building situated thereon and its leased spaces.

Significantly, the Lease obligated TOH Associates to manage the property,

including the building and to oversee the tenants. Consequently, the Lease

enabled TOH Associates, and later TOH, to operate the three lots as an

integrated, commercial complex as contemplated by Bert Levy, Trustee. The

Lease gave TOH exclusive control over Lot C; without the lease, Bert Levy

could have allowed others to use the property, notably the parking area and

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driveway.     As such, the original license to use part of Lot C did not change,

but the Lease granted additional rights and obligations to TOH.

        Moreover, contrary to Hayden’s argument, because the Lease was not

the source of TOH’s right to use part of Lot C, the termination thereof did not

affect the license previously granted. Instead, the termination of the Lease

only ended the additional rights and obligations provided for therein, i.e.,

TOH’s exclusive possession of Lot C. In fact, consistent with this conclusion,

after termination of the Lease, TOH continued to use Lot C access and parking

as the prior owners of Lots A and B did for 40 years. This continued for almost

fourt year following the termination of the Lease in 2010.        Thus, no one

intended for this right to end when the Lease terminated.

        In sum, we conclude that TOH’s predecessor acquired an irrevocable

license to use Lot C for ingress/egress and parking in connection with its

shopping center. The license was passed to TOH upon its acquisition of the

properties. The termination of the Lease did not terminate the license, and

consequently, the license continues to give TOH the right to use Lot C as

discussed. Although the basis for its decision was incorrect (because it found

an easement, not an irrevocable license), the trial court properly granted

TOH’s request for a permanent injunction.

        We now turn to the parties’ issues regarding the trial court’s award of

other equitable relief. In relation to each of TOH and Hayden’s second issues,

both of which challenge the court’s ability to order other equitable relief, we

note:

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      [A]ppellate review of equity matters is limited to a determination
      of whether the chancellor committed an error of law or abused his
      discretion. The scope of review of a final decree in equity is limited
      and will not be disturbed unless it is unsupported by the evidence
      or demonstrably capricious.

Vautar v. First Nat. Bank of Pennsylvania, 133 A.3d 6, 12 (Pa. Super.

2016)(quoting First Capital Life Insurance Company v. Schneider, Inc.,

608 A.2d 1082 (Pa. Super. 1992)) (citations omitted).

      “Courts sitting in equity hold broad powers to grant relief that will result

in an equitable resolution of a dispute.” Williams Twp. Bd. of Supervisors

v. Williams Twp Emergency Co., Inc., 986 A.2d 914, 921 (Pa. Cmwlth.

2009).   “[A] decree which accords with the equities of the cause may be

shaped and rendered; the court may grant any appropriate relief that

conforms to the case made by the pleadings although it is not exactly the

relief which has been asked for by the special prayer.”       Lower Frederick

Twp. v. Clemmer, 543 A.2d 502, 512 (Pa. 1988). However, “a trial court

must formulate an equitable remedy that is consistent with the relief

requested;” thus, “while a chancellor in equity may fashion a remedy that is

narrower than the relief requested, he or she may not grant relief that exceeds

the relief requested.” Williams Twp., supra.

      In its second issue, Hayden claims that any equitable relief should be

limited. Specifically, Hayden argues that the trial court’s requirement that the

parties hire a third-party manager to implement the permanent injunction and

manage the parking areas on Lots A and C was improper. Hayden contends




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that neither party requested such relief; and it should be allowed to manage

its own property. Hayden’s Brief at 82-83.

       Significant to the trial court’s appointment of a third-party manager here

was that, in 1974, Lots A, B and C were designed and developed to be an

integrated complex. To ensure that TOH could continue to use Lot C as so

intended, the trial court prohibited Hayden from blocking TOH’s use thereof.

The trial court believed that this could not be done without assistance from a

third-party manager.

       The parties’ inability to resolve the issues confronting them and

cooperate for the good of the community, as their predecessors had done,

necessitated the use of a third-party manager. Moreover, a third party had

managed the parking area for years without incident. In fact, the problems

arose between the parties once the third-party manager ended its services.

       As noted above, a court sitting in equity has broad authority to fashion

an appropriate remedy. Although neither party requested this specific form

of relief, in its prayer for relief, TOH asked for “all other relief as the court may

deem just.” The relief granted is consistent with maintaining TOH’s right to

use Lot C, and ensuring the continued operation of the parking areas as a

shared lot. We, therefore, conclude that the trial court did not commit an

error of law or abuse its discretion in granting this relief.5

____________________________________________


5 Certainly, if the parties jointly agree and are able to administer the lots
without a third party, they may agree to do away with this position, provided
such agreement is approved by all parties and the trial court.

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         In its second issue, TOH similarly claims that the trial court erred in

crafting its equitable remedy to grant Hayden, as the owner of Lot C, a

reciprocal license to use Lot A. Specifically, TOH claims that the trial court

should not have granted this relief when Hayden did not request it.

Alternatively, if such relief was permitted, then the trial court should have

required Hayden to pay a portion of the expenses relating to use of Lot A, as

it did for TOH’s use of Lot C. TOH’s Brief at 43.

         Hayden argues that the trial court properly granted Hayden the use of

Lot A at no charge because TOH did not seek to preclude Hayden’s access to

Lot A or charge Hayden for its use of this lot at any time during the litigation.

Moreover, no documentation required Hayden to share in the expenses for Lot

A, unlike the original 1950 deed required for the use of Lot C. Hayden’s Brief

at 58.

         We first consider the trial court’s grant of the right to use Lot A to

Hayden. The trial court ordered, inter alia, that the parties were to be restored

to the status quo before Hayden disrupted the parking lot and ingress/egres

configuration that existed for many years. Judgement Order, 8/30/18, at 2.

Specifically, the trial court directed that the parking areas on Lots A and C

operate as a fully integrated, shared parking lot as they had done previously.

Thus, the trial court authorized Hayden, its tenants, employees, customers,

and guests to use the parking area on Lot A as well as the driveway that

straddled Lots A and C to exit the shopping center onto Bethlehem Pike. Id.

at 3.

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J-A19021-19



      The jurisprudence of this Commonwealth has long recognized important

principles of equity. Nearly a century ago, our Supreme Court held that when

one requests equity from the court, he must do equity. Smith v. Yellow Cab

Co., 135 A. 858, 860 (Pa. 1927) (“he who would have equity must do equity.”)

An equitable decree in one’s favor must not harm those who are, or may be,

affected thereby.   Id.   Consequently, when a party invokes the equitable

powers of a court, equity may do justice for all of the litigants and vindicate

their legal rights simultaneously. See Ezy Parks v. Larson, 454 A.2d 928,

936 (Pa. 1982). “[A] court of equity has the power to afford relief despite the

existence of a legal remedy when, from the nature and complications of a

given case, justice can best be reached by means of equity's flexible

machinery.” Hill v. Nationwide Insurance Co., 570 A.2d 574, 576 (Pa.

Super. 1990)(quoting Peitzman v. Seidman, 427 A.2d 196, 199 n. 4 (Pa.

Super. 1981)).

      In granting TOH the equitable relief it sought, the trial court was

empowered to return both parties to the positions they previously occupied.

At the time of the zoning proceedings, Bert Levy, Trustee was promised that,

reciprocally, Lot A’s parking and egress could be used for the benefit of C, in

order to make the project happen. By doing so, Bert Levy, Trustee changed

the use of Lot C’s parking and driveway from one that was for the sole use of

Lot C owners, tenants and occupiers, to one that was shared with Lots A and

B for the benefit of the integrated commercial complex both property owners

sought to develop. In doing so, Bert Levy, Trustee he relied upon the promise

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J-A19021-19



made for the continued, future use of Lot A.       Because the court used its

equitable powers and granted a benefit to TOH, as owners of Lots A and B,

(i.e., the irrevocable license to use Lot C), under these particular

circumstances, the trial court, similarly, granted a benefit to Hayden (i.e., the

right to use Lot A for parking and egress from the shared parking area). Based

upon well-established principles of equity, we conclude that the trial court did

not commit an error of law or abuse its discretion in granting Hayden the right

to use Lot A.

      Next, we consider the trial court’s directive that Hayden share in certain

expenses associated with Lot A. In its findings of fact and conclusions of law,

dated 6/30/17, the trial court concluded that:

      29. [TOH] and Hayden are each responsible for proportionate
      payment in the amount of one half for maintenance, expense and
      upkeep of the toll booth, passageways, driveways and parking
      area on Lot C.

      30. [TOH] as owner of Lot A is solely responsible for all expenses
      on Lot A other [than] those that may relate to any part of the toll
      booth that stands over Lot A land.

Findings of Fact/Conclusions of Law, 6/30/17, at 21.

      In its judgment order, dated August 29, 2018, the trial court reiterated

its conclusion regarding Lot C. However, with respect to Lot A, it stated:

      7. [TOH], as owner of Lot A is solely responsible for all expense
      on Lot A other [than] those that may relate to any part of the
      toll booth that stands over Lot A land, and the shared parking
      area on Lot A land.

                                      ***



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J-A19021-19


      9. The Parking Area on Lots A, B, and C shall operate as a fully
      integrated, shared parking lot.

Judgment Order, 8/29/18, at 3 (emphasis added).

      The trial court’s directives in these documents are ambiguous regarding

who should pay for expenses on Lot A.          In the trial court’s findings of facts

and conclusions of law, TOH is solely responsible for everything on Lot A,

except the toll both, which the trial court required the parties to share in

equally. However, in its judgment order, the trial court directed that TOH is

solely responsible for everything on Lot A, except the toll booth and the shared

parking area on Lot A. Although this ambiguity is unfortunate, we conclude

the order best represents the trial court’s intention.        Considering the trial

court’s entire disposition, it is clear that it intended for all parties to share in

any cost associated with the shared parking lot. As such, it ordered Hayden

to contribute to the costs associated with the parking area on Lot A. This is

consistent with the trial court’s directive that the parking areas on the different

lots operate as an integrated parking area and consistent with the court’s

overall structure of its equitable relief. Equity requires that Hayden share in

the expenses for what it uses. We therefore conclude that the trial court did

not commit an error of law or abuse its discretion in ordering this relief.

      However, because Hayden has a right to use Lot A for parking and

egress from the shared lot to Bethlehem Pike, it is likewise equitable that

Hayden pay for upkeep and maintenance of the driveway on Lot A. We discern

no logical reason to exclude this shared portion of Lot A from Hayden’s



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J-A19021-19



obligation to share expenses associated with Lot A. We therefore conclude

that the trial court erred in not including this expense, and modify the court’s

order to direct Hayden to share in this expense as well.

         In sum, regarding the trial court’s award of other equitable relief, we

conclude that the trial court did not err in requiring the parties to hire a third-

party manager. Additionally, the trial court did not err in granting Hayden the

right to continue using Lot A for parking and egress as its predecessor had for

40 plus years. Furthermore, the trial court did not err in requiring Hayden to

share in the expenses associated with upkeep and maintenance for the

parking area on Lot A as stated in its judgment order. Likewise, Hayden must

share in the future expenses for upkeep and maintenance of the driveway on

Lot A.

         We now address TOH’s issues regarding the trial court’s award of

damages to Hayden for TOH’s use of its property since 2014, the point at

which the parties could not agree on expenses and TOH’s respective

contribution. When reviewing these issues, we are mindful of the following:

         The duty of assessing damages is for the fact-finder, whose
         decision should not be disturbed on appeal unless the record
         clearly shows that the amount awarded was the result of caprice,
         partiality, prejudice, corruption, or some other improper influence.
         In reviewing the award of damages, the appellate courts should
         give deference to the decisions of the trier of fact who is usually
         in a superior position to appraise and weigh the evidence. The
         damage calculation need not be determined with complete
         accuracy, but it must be founded on a reasonable factual basis,
         not conjecture.




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J-A19021-19



Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 328 (Pa. Super. 2015)

(citations and quotations omitted) (quoting Lesoon v. Metropolitan Life

Ins. Co., 898 A.2d 620, 628 (Pa. Super. 2006)).

       First, TOH argues that the trial court’s calculation of damages, through

its accounting, improperly included costs associated with Hayden’s commercial

operation of the parking area on Lot C as expenses for “maintenance and

upkeep.”    According to TOH, the phrase “maintenance and upkeep” does not

contemplate expenses associated with the operation of a commercial parking

lot.   In particular, it argues the trial court should not have included

expenditures for payroll, staffing costs, book keeping, and real-estate taxes

in the amount TOH must pay. TOH’s Brief at 45. TOH further claims that

Hayden padded the expenses and shifted expenses from the business of

Wendy Feldman (general partner of Hayden) to the expenses for the parking

area. According to TOH, very little maintenance and upkeep was done to the

parking lot. Id. at 45-46. It therefore asks this Court to remand this matter,

so the trial court can recalculate expenses excluding these amounts and direct

that they be excluded from future determinations of expenses. Id. at 46.

       The trial court concluded that, because TOH had a right to use Lot C for

ingress/egress and parking, TOH likewise had an obligation to pay 50% of

expenses for “upkeep and maintenance” of those areas.          The trial court

directed Hayden and its parking-management company provide an accounting

of the costs associated with those areas since January 2014.




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J-A19021-19



      Following a hearing, the trial court found that the nature of the expenses

submitted   by   Hayden    and   the    parking-management     company    were

appropriate, including those to which TOH took exception as noted above.

Additionally, the trial court found the amount of the expenses presented by

Hayden to be reasonable and rejected TOH’s exceptions to Hayden’s

accounting. Trial Court Opinion, 7/3/18, at 14-16.

      The largest expense over approximately a 4-year period was for staffing.

The trial court agreed that, as explained by Hayden, staffing was necessary to

maintain the parking lot. Use of staff to keep and maintain the parking area

on Lots A and C included manning the toll booth, cleaning the lot, assisting

people with parking, excluding people who were not permitted to park there,

and striping. Recognizing the importance of these activities, the trial court

authorized the third-party manager in its discretion to consider the need for

staffing of the lot. Payroll and bookkeeping are overhead costs associated

with staffing and maintaining the parking lots. All of these expenses were

documented.

      Moreover, as Hayden argues, TOH presented no evidence to suggest

that any of the expenses were associated with any operations other than the

shared parking lot or that they were inflated. The trial court found that Ms.

Feldman reasonably explained the changes in costs from years past.

      Thus, based upon our review of the record, we do not find that the trial

court assessed damages against TOH based upon an improper influence. We

therefore will not disturb the trial court’s determination that Hayden’s

                                       - 31 -
J-A19021-19



expenses were reasonable and that TOH should be responsible for its

proportionate share.

      Lastly, TOH argues that the trial court erred in imposing expenses on

TOH for the period it was excluded from parking on Lot C. TOH was excluded

from any use of Lot C for ingress/egress and parking from August 2014 until

the trial court entered its Memorandum Opinion dated July 3, 2018. TOH’s

Brief at 46-47. TOH therefore asks the Court to reverse the trial court’s order

imposing expenses on TOH for this period. Id. at 47.

      The trial court imposed a proportionate share of expense for “upkeep

and maintenance” on TOH premised upon TOH’s right to use Lot C for

ingress/egress and parking. From November 2014 to July 2018, TOH was

precluded from using Lot C in conjunction with its commercial complex.

Although some patrons of the businesses on Lots A and Lot B may have parked

on Lot C, this was beyond TOH’s control.         Rather, Hayden and its parking

management company had the ability to control who parked on Lot C.

Moreover, Hayden was not harmed by having patrons of Lots A and B parking

there since it benefitted by collecting a fee.

      Consequently, we conclude that the trial court erred in requiring TOH to

share in the expenses associated with Lot C’s ingress/egress and parking area

during the time which TOH was precluded from using it. Therefore, we remand

for the trial court to recalculate the amount TOH owes to Hayden, excluding

expenses associated with this time period.




                                      - 32 -
J-A19021-19



      In sum, regarding the trial court’s award of damages, we conclude that

the trial court’s assessment of damages against TOH to Hayden that included

various expenses as discussed above, was not based on some improper

influence, but rather was based on the evidence presented. As such, we affirm

this portion of the award. However, the trial court erred in its assessment of

damages against TOH to Hayden that required TOH to pay expenses for its

use of Lot C during the time period Hayden barred it from using it.         We

therefore vacate that portion of the award and remand for the trial court to

recalculate those damages. In all other aspects, the trial court’s decision on

damages is affirmed.

      In conclusion, we disagree with the trial court that TOH acquired an

express easement. However, based upon our review, we conclude that TOH

acquired an irrevocable license.      We therefore affirm the trial court’s

imposition of an injunction against Hayden to prohibit it from denying TOH’s

use of Lot C.

      Additionally, we affirm the trial court’s award of other equitable relief,

including the parties’ use a third-party administrator to manage the shared

parking lot and Hayden’s right to use Lot A for parking and egress to

Bethlehem Pike as it previously did. Because the trial court afforded Hayden

this right, Hayden was granted a reciprocal right to use Lot A, but must share

equally in the expenses associated with the upkeep and maintenance of both

the parking area and driveway on Lot A.




                                    - 33 -
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      Finally, we affirm, in part, the trial court’s award of damages to Hayden

and against TOH. TOH shall pay its equal share of expenses for upkeep and

maintenance of the parking area and entrance of Lot C since 2014 as

determined by the trial court except for the time period that Hayden prohibited

TOH from using the lot.    On that limited issue, we vacate the trial court’s

award of damages to Hayden, and direct the trial court to recalculate this

award.

      Judgment affirmed in part and reversed in part. Case remanded for

proceedings in accordance with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2020




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