J-A21042-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P. 65.37

PSC ASSOCIATES, LLC, T/A AND           :    IN THE SUPERIOR COURT OF
GENERAL PARTNER OF PSC                 :          PENNSYLVANIA
ASSOCIATES, LP,                        :
                                       :
                          Appellant    :
                                       :
                     v.                :
                                       :
SIMON PROPERTY GROUP, INC., AND        :
KING OF PRUSSIA ASSOCIATES,            :
                                       :
                          Appellees    :    No. 81 EDA 2014

             Appeal from the Order Entered December 11, 2013,
            in the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): 2013-14729

BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:              FILED SEPTEMBER 17, 2014

     PSC Associates, LLC, t/a and general partner of PSC Associates, LP

(PSC), appeals from an order denying its request for a preliminary

injunction. We affirm.

     The trial court aptly summarized the background underlying this

matter as follows.

          The King of Prussia Mall Complex is located in Upper
     Merion Township and presently consists of three separate units:




     multi-tenant lifestyle center. The Court and The Pavilion are
     physically connected to one another.

          [PSC] is the owner of The Pavilion, located adjacent to
     Dekalb Pike/Route 202 and Allendale Road. PSC currently leases


* Retired Senior Judge assigned to the Superior Court.
J-A21042-14

     space in The Pavilion to multiple retail stores and restaurants.


     directly or through affiliated entities[,] owns 96.1% of the
     partnership interests in KPA.

           On April 17, 1980, KPA (as developer), R.H. Macy & Co.,
     Inc. (as the proposed owner of part of the land), and Federated
     (as the proposed owner of other parts of the land) signed a
     Construction, Operation, and Reciprocal Easement Agreement
                                            , PSC is a successor and
     or/assign of Federated Stores, Inc. under the COREA. Simon, as
     the 96.1% owner of KPA, is the successor to the original
     Developer, as that term is defined under the COREA.1

        1
                                                                   ,

        Stores, Inc. under the COREA.


     operate a unified and integrated shopping center and imposes,
     inter alia, restrictions on what parties can do within the

     The Court and The Pavilion, together with the associated parking
     and access/egress aisles[,] are located within the boundaries of
     the Developer Site.

            On November 14, 2012, the Upper Merion Township

     Land Development Plan in regard to the proposed construction of
     The Container Store. Then, on December 6, 2012, the Upper

     Development Plan for The Container Store project. In addition,
     The Pennsylvania Department of Transportation approved the
     relocation of a traffic signal eighty (80) feet south on Route 202
     as part of this development.

           On May 20, 2013, Simon, d/b/a KPA, recorded a
     Preliminary/Final Amended Land Development Plan for the

     within an area depicted as parking on The Court Development
     Plan. At the time of the hearings on this matter, The Container
     Store was being constructed within the Developer Site, as that
     term is defined in the COREA. Construction of The Container


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J-A21042-14

      Store required the relocation eighty (80) feet south along Route
      202 of the existing entrance drive.

            The parties stipulated that Simon did not seek consent
      from PSC to (1) construct The Container Store within the
      Developer Site, (2) alter and relocate the existing entrance drive
      within the Developer Site, or (3) alter the parking configuration
      within the Developer Site.

             On June 8, 2013, after construction of The Container Store
      had commenced, [PSC] filed a Complaint and a Motion for a
      Special and Preliminary Injunction against [Simon and KPA
      (collectively referred to as Appellees)], alleging that [Appellees]
      violated the COREA by constructing The Container Store. On
      July 22, 2013, [the trial court] denied a request for an Interim
      Special Injunction and Temporary Restraining Order to halt
      construction of The Container Store. Thereafter, [the court] held
      eight (8) days of hearings on the Motion for a Preliminary
      Injunction which sought to demolish The Container Store
      building in mid-construction. On December [11], 2013, [the

      preliminary injunction. [PSC] now [timely] appeals from [that]
      determination.[1]

Trial Court Opinion, 3/17/2014, at 1-3 (citation omitted).

      In its brief to this Court, PSC asks us to consider the questions that

follow.

      1.   Whether the Lower Court committed an error of law by


      preliminary injunction by requiring PSC to conclusively prove its
      case on the merits?

      2. Whether the Lower Court committed an error of law by not
      upholding   the   unambiguous    language       of  the   COREA
      demonstrating that the COREA is still in effect and has not been
      terminated?

1

Pa.R.A.P. 2111(a)(1) and 2114. This Court, however, does have jurisdiction
to review the denial of a request for an injunction. Pa.R.A.P. 311(a)(4).


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J-A21042-14

      3. Whether Simon violated the COREA where the clear language

      construction of      The    Container     Store   and   where      it    was
      undsipusted [sic

      4. Whether the Lower Court erred by concluding that the
      construction of The Container Store did not result in the addition
      of floor area to the Mall so that consent from PSC was not
      required to build The Container Store?

      5.    Whether    Simon     illegally   modified   the   recorded        Court


      6. Whether the Lower Court committed an error of law by
      concluding that PSC will not suffer irreparable harm as a result of
      the construction of The Container Store where the testimony
      demonstrated that Simon acted intentionally in violation of the
      COREA or at least took a risk that the COREA was violated?



      The manner in which we must review the trial cour

settled.

      [I]n general, appellate courts review a trial court order refusing
      or granting a preliminary injunction for an abuse of discretion.
      We have explained that this standard of review is to be applied
      within the realm of preliminary injunctions as follows:

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

      This Court set out the reasons for this highly deferential
      standard of review almost a hundred years ago:

           It is somewhat embarrassing to an appellate court to
           discuss the reasons for or against a preliminary decree,


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J-A21042-14

        because generally in such an issue we are not in full
        possession of the case either as to the law or testimony
        hence our almost invariable rule is to simply affirm the
        decree, or if we reverse it to give only a brief outline of our
        reasons, reserving further discussion until appeal, should
        there be one, from final judgment or decree in law or
        equity.

     Thus, in general, appellate inquiry is limited to a determination


     disposition of the preliminary injunction request.

           In ruling on a preliminary injunction request, a trial court


                                                                    . First,
     a party seeking a preliminary injunction must show that an
     injunction is necessary to prevent immediate and irreparable
     harm that cannot be adequately compensated by damages.
     Second, the party must show that greater injury would result
     from refusing an injunction than from granting it, and,
     concomitantly, that issuance of an injunction will not
     substantially harm other interested parties in the proceedings.
     Third, the party must show that a preliminary injunction will
     properly restore the parties to their status as it existed
     immediately prior to the alleged wrongful conduct. Fourth, the
     party seeking an injunction must show that the activity it seeks
     to restrain is actionable, that its right to relief is clear, and that
     the wrong is manifest, or, in other words, must show that it is
     likely to prevail on the merits. Fifth, the party must show that
     the injunction it seeks is reasonably suited to abate the
     offending activity.    Sixth and finally, the party seeking an
     injunction must show that a preliminary injunction will not
     adversely affect the public interest.

Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828

A.2d 995, 1000-01 (Pa. 2003) (citations and footnote omitted).

     The trial court addressed the first essential prerequisite as follows.

     [PSC] did not establish any alleged harm from construction of
     The Container Store that could not be readily cured with


                                      -5-
J-A21042-14

      monetary compensation.         [Appellees] offered the expert
      testimony of Joseph Pasquarella, a licensed real estate appraiser
      with over forty (40) years of experience in appraising shopping
      malls. Pasquarella opined that, based upon generally accepted
      appraisal methodologies, any harm that the construction of The
      Container Store may cause to The Pavilion can be readily
      calculated monetarily.      This [c]ourt found this testimony
      credible. Accordingly, if [PSC] is able to establish its case at the
      time of trial, then money damages would be an adequate
      remedy and a preliminary injunction would not be appropriate.

Trial Court Opinion, 3/17/2014, at 8-

supported by the record. N.T., 11/21/2013, at 16-31.

      We observe the following legal principles applicable to the first

prerequisite of the preliminary injunction standard.

      In general, an injury is regarded as irreparable if it will cause
      damages which can be estimated only by conjecture and not by
      any accurate pecuniary standard.         An injury is deemed
      irreparable if it cannot be adequately compensated by an award
      of damages. For harm to be irreparable, moreover, it must be
      irreversible.

Boehm v. University of Pennsylvania School of Veterinary Medicine,

573 A.2d 575, 586 (Pa. Super. 1990) (citations and quotation marks

omitted).

      Here, Appellees presented expert testimony from Joseph Pasquarella.

Mr. Pasquarella testified that, based upon generally accepted appraisal

methodologies, The Pavilion can be appraised in its condition before and

after the construction of The Container Store.         N.T., 11/21/2013, at 19.

When Appellees




                                     -6-
J-A21042-14




          Id. at 25. As we noted above, the trial court credited this testimony.

       Thus, an examination of the record reveals that the trial court had an



injunction insomuch as the court concluded that any harm suffered by PSC

due to the construction of The Container Store can be adequately

compensated by monetary damages.2 For these reasons, we hold that the

trial court did not abuse its discretion by denying this request.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2014




2

issues.


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