J-E02003-19


                                   2020 PA Super 86

    SBA TOWERS II LLC                                 IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellant

                        v.

    WIRELESS HOLDINGS, LLC AND JEFF
    MACALARNEY

                             Appellee                   No. 325 WDA 2018


                Appeal from the Order Entered February 8, 2018
                 In the Court of Common Pleas of Blair County
                       Civil Division at No: 216 GN 01215


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

CONCURRING AND DISSENTING OPINION BY STABILE, J.:


FILED: April 6, 2020

        A party seeking a permanent injunction must establish its clear right to

relief. Buffalo Twp. v. Jones, 813 A.2d 659, 663 (Pa. 2002). We review to

determine whether the trial court committed an error of law. Id. I would

affirm the trial court because I discern no error of law in its finding that

Appellant, SBA Towers II LLC, failed to establish a clear right to permanent

injunctive relief on any of the bases at issue in this appeal.1


____________________________________________


1   I agree that our jurisdiction is proper under Pa.R.A.P. 311(4)(ii), as
interpreted in Thomas A. Robinson Family Ltd. P’ship v. Bioni, 178 A.3d
839 (Pa. Super. 2017), appeal denied, 194 A.3d 560 (Pa. 2018). There, this
J-E02003-19


       As the Majority notes, the parties Land Lease grants “Lessee the right

of access to and from the Leased Space […] on a 24 hours per day/7 days per

week basis […].” Land Lease, 12/18/09, at ¶ 18. Appellant is the Lessee. Id.

at 1, opening paragraph. Appellant has the right to sublease its leased space

(Id. at ¶ 8), and Appellant has referred to Verizon as a “subtenant” (Motion

for Temporary Injunction, 4/14/16, at ¶ 6).        Appellee does not dispute

Verizon’s right of access under the Land Lease.      The Land Lease does not

expressly grant access to Appellant’s contractors, subcontractors, or other

third parties.

       The record indicates that Appellee always secured the leased space.

From the inception of the Land Lease, Appellant had 24/7 access via a lockbox.

Appellee apparently did not monitor who gained access via that lockbox, be it

Appellant’s personnel or a contractor that Appellant hired to perform a service.

Subsequently, Appellee implemented new security measures that gave rise to

this lawsuit.    Appellee required that personnel from Appellant and Verizon

check in at Appellee’s main office during regular business hours. After hours,


____________________________________________


Court reasoned that Rule 311(4)(ii) applied because the “terms of the
permanent injunction are different from those under the trial court’s
preliminary injunction, in that it enjoins [conduct not prohibited under the
preliminary injunction.]” Id. at 847. Under Bioni, therefore, where the trial
court has entered preliminary and permanent injunctions, the injunctions are
the points of reference for applying Rule 311(4)(ii). Here, the interlocutory
appeal is permissible under Rule 311(4)(ii) and Bioni because the trial court’s
permanent injunction permitted conduct that the preliminary injunction
prohibited.


                                           -2-
J-E02003-19


Appellee required Appellant and Verizon to call Appellee for access. Appellee

had personnel on call 24/7 to grant access at any time. Persons not employed

by Appellant or Verizon who wished to gain access unaccompanied by

personnel from Appellant or Verizon were required to undergo a criminal

background check and then present identification to gain entry. To prevail in

this case, Appellant needed to show a clear right, under the Land Lease, to be

free of these restrictions.

             In interpreting the terms of a contract, the cardinal rule
      followed by courts is to ascertain the intent of the contracting
      parties. If the contractual terms are clear and unambiguous on
      their face, then such terms are deemed to be the best reflection
      of the intent of the parties. If, however, the contractual terms are
      ambiguous, then resort to extrinsic evidence to ascertain their
      meaning is proper. A contract’s terms are considered ambiguous
      if they are subject to more than one reasonable interpretation
      when applied to a particular set of facts.

Commonwealth by Shapiro v. UPMC, 208 A.3d 898, 909–10 (Pa. 2019)

(internal citations and quotation marks omitted)

      I agree with the trial court that Paragraph 18 of the Land Lease is

ambiguous because it is unclear whether Appellant’s access was to be

completely unfettered or subject to reasonable restrictions. I also agree with

the court’s conclusion that the hold harmless clause supports the need for

some measure of security so that Appellee could not be considered negligent

for allowing somebody to access to the facility and damage Appellant’s

equipment. Land Lease, 12/21/09, at ¶ 15. No part of the Lease, including




                                     -3-
J-E02003-19


the hold harmless clause, answers the precise question before us: how much

security was permissible under the Land Lease?

      In my view, the Land Lease does not forbid any security measure

Appellee wishes to employ, so long as Appellant retains the promised 24/7

access. Thus, I would look to the extrinsic evidence to determine whether

Appellant still has 24/7 access. As noted, during business hours, credentialed

personnel of Appellant and Verizon can gain access by simply checking in at

Appellee’s main desk. That is not a denial of access. After hours, Appellee

has personnel on call at all times to grant access to credentialed personnel of

Appellant and Verizon. Jeff MacAlarney of Appellee testified that Appellee’s

personnel could arrive on site prior to Appellant’s or Verizon’s in the event of

an after-hours call.   N.T. 5/8/17, at 65. There is no evidence that any of

Appellant’s or Verizon’s personnel were ever delayed in gaining access to

Appellee’s facility upon requesting after-hours access. Further, Appellant does

not argue that a short wait, even if it occurred, would support injunctive relief.

      The most onerous restrictions apply to persons who do not have a

credential from Appellant or Verizon and who wish to gain access to Appellee’s

facility unaccompanied by a credentialed employee of Appellant or Verizon.

Appellee requires a criminal background check for these people, and then they

must provide suitable identification prior to gaining entry. Appellant argues,

and the Majority concludes, that Appellee has no right under the Land Lease

to impose these requirements. My view, on the contrary, is that Appellant has


                                      -4-
J-E02003-19


failed to establish that unidentified third parties have a right of access under

the Land Lease. As I explained above, Paragraph 18 of the Land Lease grants

“Lessee” 24/7 access, and the opening paragraph defines Lessee only as

Appellant. Appellant describes Verizon as a subtenant, and Appellee does not

dispute Verizon’s right of access under the Land Lease. But Appellant fails to

explain how paragraph 18 of the Land Lease requires Appellee to grant

unfettered access to anyone—unidentified and unaccompanied by personnel

from Verizon or Appellant—who claims to be on site to perform a service for

Appellant and/or Verizon. This would be an extraordinarily broad construction

of the right of access under paragraph 18, and I find no support for it in the

plain language of that paragraph or anywhere else in Land Lease.             Jason

DellaValle of Appellant admitted that it is not unreasonable for a company to

want to know who is in its building. N.T. 5/8/17, at 39. MacAlarney testified

that Appellee denied access only to people who lacked a right of access under

the Land Lease, i.e., those who failed to produce a credential from Appellant

or Verizon.   Id. at 64, 75-79.      I would conclude that the Land Lease is

unambiguous in granting access to Appellant, its sub-lessees, and no other

entity or individual.   Nothing in the Land Lease required Appellee to grant

unfettered 24/7 access to unidentified third parties unaccompanied by

credentialed personnel from Appellant and/or Verizon.

      For all of the foregoing reasons, I believe Appellant has failed to

establish a clear right to injunctive relief on any ground at issue in this appeal.


                                       -5-
J-E02003-19


I therefore join the Majority insofar as it affirms the trial court’s order and

respectfully dissent insofar as it reverses.

      Judge Shogan joins the concurring and dissenting opinion.




                                      -6-
