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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                                     -2-
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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.

                                           -3-
J-A10021-19


      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.




                                     -4-
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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.

                                           -5-
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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”

                                      -7-
J-A10021-19


      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

                                     -8-
J-A10021-19


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

                                     - 11 -
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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

                                     - 12 -
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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.


                                    - 13 -
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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


                                     - 14 -
J-A10021-19


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,

                                   - 15 -
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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,

                                    - 16 -
J-A10021-19


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



                                          - 17 -
J-A10021-19


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.

                                          - 18 -
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,

                                     - 19 -
J-A10021-19


      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.




                                     - 20 -
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

                                      - 21 -
J-A10021-19


      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.

                                     - 22 -
J-A10021-19



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




                                     - 23 -
