J.A30031/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


MICHAEL W. MILLER,                          :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
ADAMS OUTDOOR ADVERTISING                   :
LIMITED PARTNERSHIP,                        :
                                            :     No. 924 EDA 2015

                 Appeal from the Order Entered March 5, 2015
                In the Court of Common Pleas of Monroe County
                       Civil Division No(s): 8252 CV 2014

BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED December 24, 2015

        Appellant, Michael W. Miller, appeals from the order entered in the

Monroe County Court of Common Pleas granting Appellee’s, Adams Outdoor

Advertising Limited Partnership, demurrer to Appellant’s complaint and

dismissing the complaint.      Appellant claims the complaint, when read in

conjunction with the exhibits, would permit recovery. We affirm.

        On October 27, 2014, Appellant filed a complaint alleging that Appellee

breached the August 17, 2011 Lease Agreement, which provided that

Appellee would lease a billboard to Appellant with two digital billboard faces.

R.R. at 4a.1      Appellant avers that in breach of the Lease Agreement,



*
    Former Justice specially assigned to the Superior Court.
1
    For convenience, we refer to the reproduced record.
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Appellee has installed a digital billboard face on one side of the billboard.

Id.   On November 13, 2013, Appellee filed preliminary objections in the

nature of a demurrer, contending the Lease Agreement did not require it to

construct a sign with two digital billboard faces.      R.R. at 22a.     Oral

arguments were held on February 2, 2015.2       The trial court sustained the

demurrer and dismissed Appellant’s complaint. This timely appeal followed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.3     The trial court filed a statement pursuant to

Pa.R.A.P. 1925(a) relying upon its opinion granting the demurrer to

Appellant’s complaint.


2
  We note that there is no transcript of the oral arguments in the certified
record on appeal.
3
  Appellant’s Rule 1925(b) statement raised the following claim: “The [t]rial
[c]ourt erred as a matter of law and abused its discretion in granting
[Appellee’s] demurrer to the Complaint filed in the above captioned matter
and dismissing the Complaint filed in the above captioned matter.”
Appellant’s Concise Statement of Matters Complained of on Appeal, 4/28/15.
This Court has stated:

         “[T]he Rule 1925(b) statement must be specific enough for
         the trial court to identify and address the issue an
         appellant wishes to raise on appeal.” Further, this Court
         may find waiver where a concise statement is too vague.
         “When a court has to guess what issues an appellant is
         appealing, that is not enough for meaningful review.”

In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013) (citations omitted). The
statement does not specify with particularity the substance of the trial court
error complained of on appeal. Based upon our standard of review, we
decline to find waiver.




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        Appellant raises the following issue for our review: “Whether the trial

court erred as a matter of law and abused its discretion in granting

[Appellee’s] demurrer to the complaint and dismissing the complaint?”

Appellant’s Brief at 4.

        Appellant contends that the Lease Agreement, when read in context

with the exhibits, would state a cause of action and permit recovery.

Appellant avers that the court erred in relying upon the language in the

Addendum to the lease which provided that “[t]his Lease Agreement is for a

term of twenty (20) years commencing upon completion of the

structure with the digital face that is facing south.” Appellant’s Brief at

12; R.R. at 15a (emphasis added).           Appellant claims “[t]he language in

question, it is submitted, can be equally construed to mean that the north

facing side would also be digital, since the south facing side was only

established when the term of the lease commenced.”          Appellant’s Brief at

12.     Appellant argues that the letter dated July 5, 2013,4 providing that


4
    The letter states, in pertinent part:

           The agreement we entered into on (or about) August 1,
           2012, is for a twenty year term. This is a two phase
           development agreement.        [Appellee] installed a digital
           billboard face on one side of the structure in 2012 located
           on your property. [Appellee] intends to install a second
           digital face in third quarter of 2013. This will result in a
           “back to back,” 14’X48’, digital structure on your property
           for a twenty year period.

R.R. at 18a.



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Appellee intends to install a second digital face, clarified the ambiguity in the

Lease Agreement. Id. at 13.

      Our review is governed by the following principles:

         As a trial court’s decision to grant or deny a demurrer
         involves a matter of law, our standard for reviewing
         that decision is plenary. Preliminary objections in the
         nature of demurrers are proper when the law is clear that
         a plaintiff is not entitled to recovery based on the facts
         alleged in the complaint. Moreover, when considering a
         motion for a demurrer, the trial court must accept as true
         all well-pleaded material facts set forth in the complaint
         and all inferences fairly deducible from those facts.

                                   *    *    *

         Our standard of review of an order of the trial court
         overruling or granting preliminary objections is to
         determine whether the trial court committed an error of
         law. When considering the appropriateness of a ruling on
         preliminary objections, the appellate court must apply the
         same standard as the trial court.

         Preliminary objections in the nature of a demurrer test the
         legal sufficiency of the complaint. . . .            Preliminary
         objections which seek the dismissal of a cause of action
         should be sustained only in cases in which it is clear and
         free from doubt that the pleader will be unable to prove
         facts legally sufficient to establish the right to relief. If any
         doubt exists as to whether a demurrer should be
         sustained, it should be resolved in favor of overruling the
         preliminary objections.

Bargo v. Kuhns, 98 A.3d 686, 689 (Pa. Super. 2014) (emphases added and

citations omitted).    “A demurrer does not, however, admit the pleader’s

conclusions of law.” Hoffman v. Misericordia Hosp. of Phila., 267 A.2d

867, 868 (Pa. 1970).




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             A lease is in the nature of a contract and is controlled
         by principles of contract law. As such, a lease must be
         construed in accordance with the terms of the lease
         agreement as manifestly expressed, and [t]he accepted
         and plain meaning of the language used, rather than the
         silent intentions of the contracting parties, determines the
         construction to be given the agreement.


Heasley v. KSM Energy, Inc., 52 A.3d 341, 344 (Pa. Super. 2012)

(quotation marks and citation omitted).

             To give effect to the intent of the parties, we must start
         with the language used by the parties in the written
         contract. Generally, courts will not imply a contract that
         differs from the one to which the parties explicitly
         consented. We are not to assume that the language of the
         contract was chosen carelessly or in ignorance of its
         meaning.

            Where the language of the contract is clear            and
         unambiguous, a court is required to give effect to        that
         language. Contractual language is ambiguous “if          it is
         reasonably susceptible of different constructions         and
         capable of being understood in more than one sense.”

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citations omitted).

      Instantly, the trial court opined:

            Here, [Appellant] argues that the language in the
         written Lease Agreement was ambiguous, and that
         [Appellee’s] subsequent letter clarified the language.
         Alternatively, [Appellant] argues that it is a contract
         consisting of more than one written instrument. Upon
         review of the Agreement, neither is the case.

             The Agreement does not explicitly address whether the
         sign faces would be digital or static, except in the
         addendum where the term of the lease is discussed. There
         it states that the twenty year term of the lease commences
         “upon completion of the structure with the digital face that


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         is facing south.” Thus the parties agreed that the south-
         facing side of the billboard would be digital. However, the
         form of the north facing sign was not addressed in the
         lease. Paragraph 1 of the Agreement stated:

                  1. Demise. Lessor hereby leases and demises to
            Lessee the following described property (“Property”) for
            the purpose of erecting, operating, maintaining,
            repairing, modifying and reconstructing outdoor
            advertising structures, together with any advertising,
            equipment and accessories that [L]essee may desire to
            place thereon (“Structures”), and Lessor warrants to
            Lessee the quiet enjoyment of the Property during the
            term of this lease, and shall not enter into any
            agreement for or conditioned upon the removal of
            Lessee’s Structures . . .

            A fair reading of this paragraph of the lease is that
         [Appellee] would erect a billboard with any advertising,
         equipment and accessories that [Appellee] decided to
         place thereon.     This provision was modified by the
         Addendum that stated the south-facing sign would be
         digital and implied that it was a double-sided billboard.
         However, [Appellee] made no promise in the parties’
         Agreement that it would construct two digital signs.

            The letter of July 5, 2013 gave [Appellee’s] statement
         of intent to construct a second digital face on the sign.
         However, this statement of intent was not an amendment
         to the agreement, and there was no additional
         consideration given to make it one.

            The language of the agreement is not ambiguous;
         therefore, [Appellee’s] letter does not clarify language that
         is difficult to interpret.     Finally, the Agreement itself
         provides that both parties agreed to be bound only by the
         provisions set forth in their Agreement. . . .

Trial Ct. Op., 3/5/15, at 4-5.

      In the case sub judice, The Lease Agreement provided, in pertinent

part: “(n)either Lessor nor Lessee shall be bound by any terms, conditions or



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oral representations that are not set forth in this Lease Agreement. . . . This

Lease Agreement (and any addendum) represents the entire agreement of

Lessee and Lessor with respect to the Structures and the Property.” R.R. at

14a. The Addendum was attached to the Lease Agreement and incorporated

by reference.   Id.   The Addendum further provided as follows:       “IN THE

EVENT OF A CONFLICT between the Lease and this Addendum, the

provisions of the Addendum shall take priority; in all other respects, the

Lease remains unchanged.” Id. at 15a.

      We review a lease based upon contract principles. See Heasley, 52

A.3d at 344. The language in the Lease Agreement was clear, viz., that the

Lease Agreement was for a twenty year term which commenced upon

completion of the structure with the digital billboard face that is facing

south. See Goodwin, 68 A.3d at 349. The Lease Agreement provided that

it and the Addendum represented the entire agreement of the parties with

respect to the Structures and the Property.     See id.   Appellant’s reliance

upon the July 5, 2013 letter is unavailing. See id. Based on the facts as

alleged in the complaint, we find Appellant was not entitled to recover. See

Bargo, 98 A.3d at 689; see also Hoffman, 267 A.2d at 868. We discern

no error of law by the trial court. See Bargo, 98 A.3d at 689. Accordingly,

we affirm the order of the trial court granting Appellee’s demurrer to

Appellant’s complaint and dismissing the complaint.

      Order affirmed.



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     Judge Jenkins joins the memorandum.

     Judge Mundy notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/2015




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