J-A26021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SBA TOWERS II LLC                        :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 WIRELESS HOLDINGS, LLC AND               :    No. 325 WDA 2018
 JEFF MACALARNEY                          :

              Appeal from the Order Entered February 8, 2018
    In the Court of Common Pleas of Blair County Civil Division at No(s):
                              2016 GN 01215

BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

CONCURRING & DISSENTING MEMORANDUM BY MURRAY, J.:

                                                     FILED MARCH 19, 2019

      I agree with the Majority that Appellant’s appeal is properly before this

Court pursuant to Pa.R.A.P. 311(a)(4). However, I respectfully disagree with

the Majority’s conclusion that the parties’ lease terms, regarding Appellant’s

access to the property, were ambiguous. Accordingly, I concur and dissent.

      I note the relevant standards of review:

      Appellate courts review a trial court order refusing or granting a
      preliminary injunction for an abuse of discretion. This standard is
      applied as follows:

          [O]n an appeal from the grant or denial of a preliminary
          injunction, we do not inquire into the merits of the
          controversy, but only examine the record to determine if
          there were any apparently reasonable grounds for the
          action of the court below. Only if it is plain that no grounds
          exist to support the decree or that the rule of law relied
          upon was palpably erroneous or misapplied will we
          interfere with the decision of the Chancellor.
J-A26021-18



See Brayman Constr. Corp. v. DOT, 13 A.3d 925, 935-936 (Pa. 2011)

(citations omitted).

      With respect to contract interpretation:

      “The interpretation of a contract is a matter of law and, as such,
      we need not defer to the trial court’s reading of the [a]greement.”

          It is also well[-]established that under the law of
          contracts, in interpreting an agreement, the court must
          ascertain the intent of the parties.

          In the cases of a written contract, the intent of the parties
          is the writing itself. If left undefined, the words of a
          contract are to be given their ordinary meaning. When
          the terms of a contract are clear and unambiguous, the
          intent of the parties is to be ascertained from the
          document itself. . . .

      With specific reference to what constitutes “ambiguity” in the
      context of contract interpretation, our Supreme Court has opined
      as follows:

          Contractual language is ambiguous “if it is reasonably
          susceptible of different constructions and capable of
          being understood in more than one sense.” This is not a
          question to be resolved in a vacuum. Rather, contractual
          terms are ambiguous if they are subject to more than
          one reasonable interpretation when applied to a
          particular set of facts. We will not, however, distort the
          meaning of the language or resort to a strained
          contrivance in order to find an ambiguity.

Lenau v. Co-Exprise, Inc., 102 A.3d 423, 429-430 (Pa. Super. 2014)

(citations omitted).

      There are two types of contract ambiguity:

      “[A] latent ambiguity arises from extraneous or collateral facts
      which make the meaning of a written agreement uncertain
      although the language thereof, on its face, appears clear and

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J-A26021-18


     unambiguous.” . . . “A patent ambiguity is that which appears on
     the face of the instrument, and arises from the defective, obscure,
     or insensible language used.”

Betz v. Erie Ins. Exch., 957 A.2d 1244, 1254 n.2 (Pa. Super. 2008) (citations

and parentheses omitted).

     A contract may be deemed ambiguous “[i]f, and only if, it is
     reasonably or fairly susceptible of different constructions and is
     capable of being understood in more senses than one and is
     obscure in meaning through indefiniteness of expression or has a
     double meaning.” [Contract] language is not rendered ambiguous
     “if the court can determine its meaning without any guide other
     than a knowledge of the simple facts on which, from the nature of
     the language in general, its meaning depends[.]”             Mere
     disagreement between the parties on the meaning of language or
     the proper construction of contract terms does not constitute
     ambiguity.

Id. at 1253-1254 (citations omitted).

     Further, our Supreme Court

     long ago emphasized that ‘[t]he parties [have] the right to make
     their own contract, and it is not the function of this Court to re-
     write it, or to give it a construction in conflict with . . . the accepted
     and plain meaning of the language used.’ “‘It is not the province
     of the court to alter a contract by construction or to make a new
     contract for the parties; its duty is confined to the interpretation
     of the one which they have made for themselves, without regard
     to its wisdom or folly.’” In 17A C.J.S. Contracts § 296(3), appears
     the following:

          The court may not rewrite the contract for the purpose
          of accomplishing that which, in its opinion, may appear
          proper, or, on general principles of abstract justice . . .
          make for [the parties] a better contract than they chose,
          or saw fit, to make for themselves, or remake a contract,
          under the guise of construction, because it later appears
          that a different agreement should have been
          consummated in the first instance . . . .

Steuart v. McChesney, 444 A.2d 659, 662 (Pa. 1982) (citations omitted).

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      Instantly, the pertinent paragraph in the parties’ lease states:

           18. Access to Leased Space/Premises. [Appellant] shall
      have at all times during the initial term or renewal term the right
      of access to and from the Leased Space and all utility installations
      servicing the Leased Space on a 24 hours per day/7 days per week
      basis, on foot or by motor vehicle, including trucks, and for the
      installation and maintenance of utility wires, cables, conduits and
      pipes over, under and along the right-of-way extending from the
      nearest accessible public right-of-way.

Appellant’s Motion for Temporary Injunction, 4/15/16, Exhibit B (Land Lease,

12/21/09, at 4) (Paragraph 18).

      I agree with Appellant that the language of Paragraph 18 is clear. See

Lenau, 102 A.3d at 429; Appellant’s Brief at 12-13. In providing Appellant

“the right of access” to the property and all utility installations servicing the

leased space, Paragraph 18 delineates the hours of access (“on a 24 hours per

day/7 days per week basis”) and the manner of access (“on foot or by motor

vehicle, including trucks”).   Paragraph 18 also states that Appellant may

access the property to install and maintain utility equipment.           Notably,

Paragraph 18 does not set forth any restrictions on Appellant’s access to the

property, and it is silent as to whether Appellees may, in the future, impose

any restrictions. While the Majority interprets this silence as an ambiguity as

to whether Appellant’s access may be restricted, the silence, in my view,

clearly evinces the parties’ intent not to restrict Appellant’s access. Thus, I

would conclude that Paragraph 18 is free of any latent or patent ambiguity.

See Betz, 957 A.2d at 1254 n.2.

      That Appellees may have become concerned about security — however

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J-A26021-18


reasonable a concern — is not relevant.1 See Lenau, 102 A.3d at 429 (“When

the terms of a contract are clear and unambiguous, the intent of the parties

is to be ascertained from the document itself.”). Appellant keeps expensive

equipment and property on the leased premises, and the parties, both of

whom are sophisticated business entities, could have included in the lease

terms allowing Appellees to impose security procedures. See Newman Dev.

Group of Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645,

659 (Pa. Super. 2014) (en banc) (finding no error in trial court’s decision not

to reduce landlord’s verdict for future damages to present value, where

commercial contract was negotiated by sophisticated business people who had

the ability to control, decide and design remedies for breach). However, in

this case, the parties included no such provision in the lease, and neither the

trial court nor the Majority should rewrite that which the “parties have made

for themselves, without regard to its wisdom or folly.” See Steuart, 444 A.2d

at 662.

      Further, the Majority’s rationale — that a contract term is ambiguous

because it did not specify whether there were any restrictions or caveats —

would allow a party to alter its rights or contractual obligations, or the rights




1 Appellees’ dual arguments — that (1) its “check-in procedures” did not
interfere with Appellant’s “24/7 access” and (2) the lease was ambiguous
because it did not define “24/7 access” — are in conflict. See Appellees’ Brief
at 5, 9-10, 15. Under the former rationale, Appellees argue that it complied
with the lease terms (which presumably are clear), whereas in the latter, they
aver that the lease terms are not clear.

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J-A26021-18


or obligations of the other party, by arguing that the contract was silent as to

whether that alteration was permissible. This Court’s prior findings of contract

ambiguity have generally arisen from an existing contract term that could be

interpreted in more than one way. See, e.g., Int'l Diamond Imps., Ltd. v.

Singularity Clark, L.P., 40 A.3d 1261, 1278 (Pa. Super. 2011) (lease

provision, which permitted tenant to assign the lease to sub-letter, was

ambiguous because it could be interpreted to have two meanings: that

“assignment without [the landlord’s] permission required the” tenant to show

the sub-letter’s creditworthiness, and that a showing of creditworthiness was

“required only to relieve the [tenant] of liability under the lease following

assignment;” this Court further noted “[m]uch hinges on the use of the

semicolon at the end of the first clause, and the immediately following clause

beginning ‘provided.’”); Betz, 957 A.2d at 1252 (insurance policy term, “the

action of water on limestone or similar rock formations,” was a patent

ambiguity because “similar rock formations” was reasonably susceptible of

different construction, where the “policy language fails to describe in what

manner rock formations other than limestone must be ‘similar’ to limestone

and further, fails to name any type of rock other than limestone”); Metzger

v. Clifford Realty Corp., 476 A.2d 1, 7 (Pa. Super. 1984) (contract had a

patent ambiguity because the phrase, “the purchaser’s right to ‘terminate the

operation of the business’ can refer to either liquidation of the business by the

purchaser, or sale of the business by the purchaser, or both”); Z & L Lumber


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J-A26021-18


Co. v. Nordquist, 502 A.2d 697, 699-701 (Pa. Super. 1985) (contract term

where the defendant “agrees to provide all the materials as specified and to

perform all the labor shown on the working drawings and described in the

specifications,” was a latent ambiguity where defendant “contended that the

specifications were limited to the schematic drawings (sketches two through

six) . . . ” but additional defendant argued “that the specifications included all

of the materials and labor necessary to construct the home as it appeared in

the ‘elevations’ (drawings seven and eight)”).

      In sum, although an ambiguity could, in another scenario, arise from

the silence in a contract as to a particular term, Appellees in this case have

failed to articulate a basis for finding ambiguity in Paragraph 18 of the lease,

e.g., unclear wording or punctuation, the impossibility of enforcement of the

contract term as written, or language in another paragraph that would make

Paragraph 18 confusing or unworkable.2




2 Because I would conclude that Paragraph 18 clearly conveys the parties’
intent, I would not consider the terms of Paragraph 15 (“the Hold Harmless
Clause”) for context or guidance as to the interpretation of Paragraph 18. See
Majority Memorandum at 10-11. However, even if Paragraph 15 would be
considered, I would opine that its terms, which define the circumstances in
which Appellees could be held liable for damages, is not relevant to the
question of what actions Appellees could take to better protect themselves
from liability.


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J-A26021-18


      For the foregoing reasons, I would reverse in part the order of the trial

court.3




3 Like the Majority, I would affirm the portion of the trial court’s order
prohibiting Appellees from physically blocking Appellant’s access to the
property. See Majority Memorandum at 3.

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