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                                2020 PA Super 86


 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: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J.,
        DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J.

OPINION BY MURRAY, J.:                                 FILED APRIL 6, 2020

      SBA Towers II LLC (Appellant) appeals from the order granting in part

and denying in part Appellant’s motion for a permanent injunction. We first

conclude that, pursuant to Pa.R.A.P. 311(a)(4), this appeal is properly before

this Court despite Appellant’s failure to file a post-trial motion. Upon careful

review, we further hold that the trial court erred in finding a contract

ambiguity. We thus affirm in part and reverse in part.

      The notes of testimony from the May 8, 2017 evidentiary hearing reveal

that on December 18, 2009, Appellant executed a lease with Appellee,

Wireless Holdings (Wireless Holdings), to rent an outdoor cellular tower and

an indoor “shelter” in Altoona, Pennsylvania. N.T., 5/8/17, at 2. Appellant

sub-leased the outdoor tower to cell phone carriers, including Verizon, as well

as to the State Police, the Federal Bureau of Investigation, and the Bureau of
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Alcohol, Tobacco, Firearms and Explosives (ATF). Id. at 14, 23. The shelter

was located on the second floor of Wireless Holding’s building, and it housed

Verizon equipment that enabled cellular communications through the tower.

Id. at 26.

      Pertinently, Paragraph 18 of the parties’ lease stated:

      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.

Lease, 12/18/09, at 4.

      For six years, Appellant accessed the shelter via a lockbox, located on

the outside of the building.   N.T., 5/8/17, at 11.     Meanwhile, Appellant’s

tenants and their subcontractors could access the property by calling

Appellant’s “knock center” or signing into an “app.” Id. at 25. According to

Appellant, it, as well as its tenants, required 24-hour access to the leased

premises to perform any necessary repairs. Id. at 14.

      In approximately 2016, Wireless Holdings became concerned with

possible theft and equipment damage, arising from: the disappearance of a

key from the lockbox; the presence, in the building, of “millions of dollars of

inventory” owned by Wireless Holding’s sister company, ComPros; the

presence of Blair County’s 911 call system as another tenant; the presence of

an unidentified individual in the building, which involved a response from the

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Logan Township Police; another individual who “stalk[ed]” a Wireless Holdings

employee and was detained by the police; and the presence of a nearby hotel

that was “a magnet for crime.” See N.T., 5/8/17, at 35, 54, 67, 80. Wireless

Holdings thus removed the lockbox and imposed the following regulations:

Appellant, its tenants, and their contractors were to check-in upon entering

the building; Appellant’s tenants and contractors were to submit to criminal

background checks in order to enter the building; and for access to the

property outside regular business hours, Appellant was to call Wireless

Holdings and a representative would meet at the property to allow entry. See

id. at 14, 34, 37-38, 67-68.

      On April 15, 2016, Appellant filed the underlying motion for a temporary

injunction against both Wireless Holdings and Jeff MacAlarney, an employee

of Wireless Holdings.1   The motion averred that the parties’ lease did not

permit Wireless Holdings to enforce the new check-in or criminal background

conditions. The motion further averred that Wireless Holdings was physically

blocking Appellant’s access to the tower by storing cable and debris in front

of a gate, and requested an injunction prohibiting such interference. The trial

court issued a preliminary injunction, temporarily granting the requested

relief. Wireless Holdings filed preliminary objections, which did not address




1While the parties’ 2009 lease identified Mr. MacAlarney as the president of
Wireless Holdings, the May 8, 2017 hearing transcript did not identify his
position.


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whether its conduct was permissible under the terms of the lease.2

      The trial court conducted an evidentiary hearing on May 8, 2017.

Appellant called its regional operations manager, James Dellavalle, who

testified that he managed 270 cell towers throughout central and western

Pennsylvania, and Appellant had “24/7 access” at all but one of these towers

and Wireless Holdings’ building.     N.T., 5/8/17, at 8-9, 11.     Appellant’s

employees, carriers, maintenance workers, and utility companies all need

access to the cell towers in order to repair equipment as quickly as possible.

Id. at 9, 13-14. On separate occasions, one of Appellant’s contractors and a

Verizon employee were denied access to the property, and in November of

2016, Mr. Dellavalle himself was told by Mr. MacAlarney that Mr. Dellavalle

could not be there because he had not signed in. Id. at 12, 16-17, 27. Finally,

Wireless Holdings placed bags of salt, debris, and spools of cable in such a

way as to block both Appellant’s and Verizon’s access to the property. Id. at

18, 20, 22, 31-32.

      Appellant also called as a witness Mr. MacAlarney, who testified about

Wireless Holdings’ security concerns, as outlined above. N.T., 5/8/17, at 54,




2 Instead, the preliminary objections averred that Appellant failed to file a
complaint; failed to establish that Mr. MacAlarney was a properly-named
defendant; and failed to plead any facts justifying an injunction. Wireless
Holdings further argued that an injunction was unnecessary because any
person wishing to access the shelter could “easily obtain the necessary
criminal background” check.     Wireless Holdings’ Preliminary Objections,
4/15/16, at 3.


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59. He stated that Wireless Holdings merely wanted individuals visiting the

property to be accompanied by Appellant’s or Verizon’s employees, and if they

were not, to check in or, if they were a regular visitor, to establish

“credentials.” Id. at 63, 77-79. Mr. MacAlarney estimated that over a year,

a subcontractor will visit the shelter once or twice, and Verizon employees

may visit once or twice a month.     Id. at 81.   Mr. MacAlarney denied that

Wireless Holdings ever blocked access, because anyone wishing to visit could

comply with the conditions. Id. at 65. With respect to the after-hours call-in

procedure, Mr. MacAlarney stated that Wireless Holdings has “technicians on

call 24/7” and they could typically arrive at the property within 15 to 20

minutes. Id. at 66, 82.

      Additionally, Mr. MacAlarney stated that criminal background checks for

building visitors was a condition imposed on Wireless Holdings by another

tenant, the Blair County 911 call center. N.T., 5/8/17, at 61-62, 68; see also

Trial Court Opinion, 2/8/18, at 5. Mr. MacAlarney conceded, however, that

Wireless Holdings’ lease with Appellant did not provide for criminal background

checks, and Appellant’s lease preceded Wireless Holdings’ lease with the Blair

County 911 call center. Id. at 60-63, 68, 84. Finally, Mr. MacAlarney denied

that any equipment was blocking Appellant’s access to the property. Id. at

47, 75.

      Wireless Holdings did not present any evidence, and made no argument

that the lease was ambiguous.        Instead, on cross-examination of Mr.


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Dellavalle, Wireless Holdings suggested that it was reasonable to require

individuals to check-in when entering the building, where ComPros had stored

“millions of dollars worth of inventory” and individuals in the building “could

sabotage the 911 system of Blair County and cause great harm.” N.T., 5/8/17,

at 34-35. Wireless Holdings also argued that security issues had “changed”

from 2009, when the lease was executed.3 Id. at 35-36.


3   The relevant exchange was:

              [Wireless Holdings:] And are you aware that people within
        that building have access to millions of dollars worth of inventory
        from ComPros?

              [Mr. Dellavalle:] Don’t know.

              Q. That they have direct access where they could sabotage
        the 911 system of Blair County and cause great harm?

              A. When we purchased [sic] the tower why wasn’t this put
        in place as soon as we purchased [sic] the tower?

               [Wireless Holdings:] Would you acknowledge that the issue
        of security has changed over time and that the things we found to
        be silly in 2000 we don’t find to be silly now?

              A. No.

              [Appellant’s counsel:] Objection, Your Honor.

             BY THE COURT: Well he clearly doesn’t have any knowledge
        of what else might be going on in the building and has said that.
        ....

             [Wireless Holdings’ counsel:] The point being is that things
        between when the lease originally was done and now have
        changed. . . .

N.T., 5/8/17, at 35-36.

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      Following the hearing, the parties submitted briefs. Appellant requested

that the trial court permanently enjoin Wireless Holdings’ various restrictions

because they were not authorized by the lease terms allowing Appellant free

ingress and egress. Meanwhile, Wireless Holdings averred, for the first time,

both that nothing in the lease prohibited “reasonable procedures” for access

to the property, and the language allowing “24/7” access was ambiguous.

Wireless Holdings’ Trial Brief, 7/27/17, at 7-8 (unpaginated).

      On February 8, 2018, the trial court issued an opinion and the underlying

order. It granted in part Appellant’s request for a permanent injunction by

barring Wireless Holdings from physically blocking Appellant’s access to the

property with equipment. However, the court denied the request in part by

permitting Wireless Holdings to enforce its check-in, after-hours call-in, and

criminal background check procedures.      The court observed that whereas

Appellant would add the word “unrestricted” just before the provision

providing “24 hours per day/7 days per week” access, Wireless Holdings would

add the phrase “reasonably restricted.” Trial Court Opinion, 2/8/18, at 7. The

court thus found an ambiguity “because the lease specifically supports neither

position.” Id.

      The court then resolved the perceived ambiguity in Wireless Holdings’

favor, finding that the lease should be interpreted to allow “reasonable

restrictions essential to [Wireless Holdings’] duty to provide security for the

premises.”   Trial Court Opinion, 2/8/18, at 8.   In support, the court cited


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another portion of the lease, which it termed the “Hold Harmless Clause,” and

which stated:

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

Id. at 8, quoting Lease, 12/18/09, at 3 (emphasis added).

      Appellant did not file a motion for reconsideration, but filed a timely

notice of appeal.    The trial court did not issue a Pa.R.A.P. 1925(b) order

directing Appellant to file a concise statement of matters complained of on

appeal.

      At the outset, we consider whether this appeal is properly before us,

where Appellant did not file a post-trial motion. This Court issued a per curiam

order directing Appellant to show cause why this appeal should not be

dismissed on this basis pursuant to Pa.R.Civ.P. 227.1(c)(2).             Appellant

responded that the appeal was proper pursuant to Pa.R.A.P. 311 and Thomas

A. Robinson Family, Ltd. v. Bioni, 178 A.3d 839 (Pa. Super. 2017) (Bioni).

This Court discharged the rule to show cause, but advised that the merits

panel may revisit this issue.

      Pennsylvania Rule of Civil Procedure 227.1(c)(2) provides: “Post-trial

motions shall be filed within ten days after . . . the filing of the decision in the


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case of a trial without jury.” Pa.R.Civ.P. 227.1(c)(2) (emphasis added).

      In Bioni, the trial court granted a preliminary injunction, which

prohibited the defendants from interfering with the plaintiffs’ access to a strip

of land. Bioni, 178 A.3d at 841. Following a hearing, the court granted a

permanent injunction, which barred the defendants from interfering with not

only the plaintiffs’ access, but also the public’s access. Id. at 842. On appeal

by the defendants, this Court considered whether to quash, where the

defendants had not filed a post-trial motion. Id. at 843. We noted that under

Rule 227.1,

      a party must file post-trial motions at the conclusion of a trial in
      any type of action in order to preserve claims that the party
      wishes to raise on appeal. In other words, a trial court’s order at
      the conclusion of a trial, whether the action is one at law or in
      equity, simply cannot become final for purposes of filing an appeal
      until the court decides any timely post-trial motions.

Id. at 844 (emphasis in original), quoting Chalkey v. Roush, 805 A.2d 491,

496 (Pa. 2002).

      However, this Court also considered Pa.R.A.P. 311(a)(4), which provides

that an interlocutory appeal may be taken as of right from:

            (4) Injunctions.—An order that grants or denies, modifies
      or refuses to modify, continues or refuses to continue, or dissolves
      or refuses to dissolve an injunction unless the order was entered:

                                   *    *    *

                    (ii) After a trial but before entry of the final order.
              Such order is immediately appealable, however, if the order
              enjoins conduct previously permitted or mandated or
              permits or mandates conduct not previously mandated or
              permitted, and is effective before entry of the final order.

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Pa.R.A.P. 311(a)(4)(ii). Generally, “it is improper to file a motion for post-

trial relief when appealing pursuant to Rule 311.” Bioni, 178 A.3d at 846,

quoting Nevyas v. Morgan, 921 A.2d 8, 13 (Pa. Super. 2006). The Bioni

Court reasoned,

      an appeal may be taken from an order that (because a final
      judgment has not yet been entered) is not otherwise appealable
      under Rule 311(a)(4)(ii) if (1) the order enjoins conduct
      previously allowed or allows conduct previously prohibited, and
      (2) the injunction takes effect before entry of a final judgment.

Id. at 847.

      Applying this rationale to the facts before it, the Bioni Court observed

that the order granting permanent injunctive relief took immediate effect, was

not contingent upon entry of a final judgment, and imposed different terms

from those under the preliminary injunction (barring interference with the

plaintiffs’ access, versus barring interference with the plaintiffs’ and the

public’s access).   Bioni, 178 A.3d at 847.   This Court concluded that the

permanent injunction was an interlocutory order immediately appealable as

of right under Rule 311(a)(4)(ii), and thus the defendants were not required

to file a post-trial motion before taking an appeal. Id. at 847-848.

      Applying Bioni, we note that in the present case, final judgment was

not entered. However, the trial court’s permanent injunction took immediate

effect, and allowed conduct that was prohibited under the preliminary

injunction — namely, that Wireless Holdings could impose conditions affecting

Appellant’s access to the property.      Accordingly, pursuant to Pa.R.A.P.

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311(a)(4)(ii) and the reasoning set forth in Bioni, we conclude that this appeal

is properly before us. See Pa.R.A.P. 311(a)(4)(ii); Bioni, 178 A.3d at 847-

848.

       Appellant presents two issues for our review:

       [1.] Whether the Trial Court erred in failing to grant the injunctive
       relief requested by [Appellant]?

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

Appellant’s Brief at 2.

       In its first issue, Appellant avers that the trial court erred in finding that

Paragraph 18 of the parties’ lease was ambiguous. Appellant’s Brief at 14.

Appellant maintains that the plain language and express terms of Paragraph

18 clearly granted it “24/7” access to the property, and nothing in the lease

restricted or modified this access.     Id. at 11-13.     Appellant contends that

Wireless Holding did not point to any conflicting terms in the lease, but rather

“simply advanced a novel argument that the Lease is somehow ambiguous

because it did not include the terms ‘restricted’ or ‘unrestricted.’” Id. at 14.

Appellant asserts that the trial court erred in reading “an ambiguity into an

agreement that could easily have been addressed by parties within its express

terms.” Id. at 15-16, citing Wert v. Manorcare of Carlisle PA, LLC, 124

A.3d 1248 (Pa. 2015).       Appellant concludes that the trial court effectively

reformed the parties’ lease to allow Wireless Holdings to impose restrictions

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on Appellant’s right of access, in contravention of the clear terms of the lease.

We agree.

      We first recite the law regarding appellate review: “The grant or denial

of a permanent injunction is a question of law. Regarding the trial court’s

legal determination, our standard of review is de novo, and our scope of

review is plenary.” Bioni, 178 A.3d at 843 (citation omitted).

      “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).


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      [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.

Betz v. Erie Ins. Exch., 957 A.2d 1244, 1253-1254 (Pa. Super. 2008)

(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 unambiguous.” Betz, 957 A.2d at 1254 n.2 (citation and parentheses

omitted). “The usual instance of a latent ambiguity is one in which a writing

refers to a particular person or thing and is thus apparently clear on its face,

but upon application to external objects is found to fit two or more of them

equally.” Steuart v. McChesney, 444 A.2d 659, 663 (Pa. 1982) (citations

omitted). On the other hand, a “patent ambiguity is that which appears on

the face of the instrument, and arises from the defective, obscure, or

insensible language used.”        Betz, 957 A.2d at 1254 n.2 (citation and

parentheses omitted).

      Finally, 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

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      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, 444 A.2d at 662 (citations omitted).

      As stated above, the parties’ lease provides:

           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.

Lease, 12/18/09, at 4.

      We agree with Appellant that the language of Paragraph 18 is not

ambiguous. See Lenau, 102 A.3d at 429. In granting Appellant “the right of

access” to the property and all utility installations servicing the leased space,

Paragraph 18 delineated 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”). See Lease, 12/18/09, at 4. Paragraph 18 also stated that

Appellant may access the property to install and maintain utility equipment.

Notably, Paragraph 18 did not impose any restrictions on Appellant’s access

to the property, and it was silent as to whether Wireless Holdings may, in the

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future, impose any restrictions. While the trial court interpreted this silence

as an ambiguity, we conclude that the lack of any restriction, or provision for

future modification, evinced the parties’ intent not to restrict Appellant’s

access.

      Neither the trial court nor Wireless Holdings addressed whether the

alleged ambiguity was patent or latent.4 See Betz, 957 A.2d at 1254 n.2. As

the court did not identify any “defective, obscure, or insensible language”

appearing on the face of the lease, we infer that it did not find a patent

ambiguity. See id.

      Although a latent ambiguity may arise “from extraneous or collateral

facts which make the meaning of a written agreement uncertain although the

language thereof, on its face, appears clear and unambiguous,” we conclude

that the trial court’s reliance on Wireless Holdings’ post-lease security

concerns was misplaced. See Betz, 957 A.2d at 1254 n.2. This Court’s prior

findings of a latent ambiguity have generally arisen from the parties’ dispute

over the meaning of a term present in the contract, not the absence of

language specifying prospective concerns.

      For example, in In re Estate of Schultheis, 747 A.2d 918 (Pa. Super.


4 We note that Wireless Holdings’ dual arguments on appeal — 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 Wireless Holdings’ Brief at 17, 19. Under the former rationale,
Wireless Holdings argues 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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2000), the testator’s will bequeathed “my shares of stock” to nine devisees,

listing the specific amounts of shares, which totaled 2,045, to each devisee.

Id. at 920. The will also gave the residuary estate to the appellants. Id. at

919.   After the testator’s death, however, the executrix learned that the

testator in fact owned 3,288 shares of stock. Id. The appellants argued that

the additional 1,243 shares were a part of the residuary estate, and thus

should be given to them. Id. This Court concluded that the testamentary

term, “my shares of stock,” was a latent ambiguity because it was unclear

whether the term referred only to the 2,045 shares of stock that the testator

believed he owned, or to all of the stock he in fact owned. Id. at 923, 926.

       Further, in Z & L Lumber Co. v. Nordquist, 502 A.2d 697 (Pa. Super.

1985), a contract stated that a builder was “to perform all the labor shown on

the working drawings and described in the specifications.” Id. at 698. “The

working drawings and specifications consisted of a series of ten documents[.]”

Id.    This Court concluded that the term “specifications” was a latent

ambiguity, where the parties ascribed different meanings: the contractor

contended that the “specifications” were limited to the second through sixth

drawings, whereas the defendant argued the “specifications” consisted of the

seventh and eighth drawings. Id. at 700-701.

       In the present case, our review reveals that the evidence did not

establish — and the trial court did not find — that when Appellant and Wireless

Holdings executed the lease, they ascribed different meanings to any of the


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existing terms in Paragraph 18.          In this regard, we emphasize Mr.

MacAlarney’s testimony conceding that the lease did not provide for criminal

background checks. N.T., 5/8/17, at 60. Instead, as discussed above, the

trial court found ambiguity based on the absence, within the detailed

paragraph prescribing Appellant’s access to the property, of any further

specification as to whether the access may be “restricted.” This perceived

absence of an additional term or condition did not create a latent ambiguity.

See Steuart, 444 A.2d at 663; Betz, 957 A.2d at 1254 n.2. The trial court’s

rationale would allow a party to modify its contractual rights or obligations, or

the other party’s rights or obligations, by simply arguing that the contract was

silent as to whether that alteration was permissible.

      That Wireless Holdings may have become concerned following the

execution of the lease about security — however reasonable a concern — is

not relevant. 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 kept expensive equipment and property on

the leased premises, and the parties, both sophisticated business entities,

could have included in the lease, terms allowing Wireless Holdings 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


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by sophisticated business people who had the ability to control, decide and

design remedies for breach).        Instantly, the parties included no such

provisions in the lease, and the trial court may not alter that which the “parties

have made for themselves, without regard to its wisdom or folly.”            See

Steuart, 444 A.2d at 662. Although an ambiguity could, in another scenario,

arise from the silence in a contract as to a particular term, Wireless Holdings

in this case 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.

      Finally, we note that it was undisputed that Wireless Holdings’

requirement for criminal background checks was implemented due to the

condition being imposed by the Blair County 911 call center.           See N.T.,

5/8/17, at 61-62, 68; Trial Court Opinion, 2/8/18, at 5 (“Apparently, the

criminal background checks became policy based on the requirements of

another tenant at the site (the County 911 Center) which also has millions of

dollars of equipment on the property.”). The subsequent demands of another

tenant do not support the unilateral alteration of the parties’ existing Lease.

For the reasons discussed above, we reverse the portion of the trial court’s

order denying in part Appellant’s motion for a permanent injunction.

      As to Appellant’s second issue, Appellant argues that even if the trial

court correctly concluded that the lease was ambiguous, the court “improperly


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mandated changes to the parties’ lease” and erred in not considering the

parties’ course of performance over the first seven years of the lease. In light

of our disposition of Appellant’s first issue, we need not address this claim.

      In sum, and in light of the foregoing, we affirm the trial court’s order to

the extent it enjoined Wireless Holdings from physically obstructing

Appellant’s access to the premises. However, we reverse the order to the

extent it permitted Wireless Holdings to impose restrictions on Appellant’s

contractual “24/7” access, i.e. by requiring check-ins, after-hours call-ins, and

criminal background checks.

      Order affirmed in part and reversed in part.            Case remanded.

Jurisdiction relinquished.

      Judge Bowes, Judge Lazarus, Judge Olson, Judge Dubow, Judge

Kunselman, and Judge Nichols join the opinion.

      Judge Stabile files a concurring and dissenting opinion in which Judge

Shogan joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2020




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