J-A29030-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VIOLA’S FOOD STORES, INC.,                     IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

V3 YOGA & PILATES, LLC, A
PENNSYLVANIA LIMITED LIABILITY
COMPANY, TRADING AND DOING
BUSINESS AS TAKE YOGA, A
REGISTERED FICTITIOUS NAME OF V3
YOGA & PILATES, LLC, AND ALSO
TRADING AND DOING BUSINESS AS,
CROSSFIT NORTH PARK, AN
UNREGISTERED FICTITIOUS NAME,

                            Appellee                No. 1930 WDA 2014


                    Appeal from the Order October 28, 2014
              In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD 14-001816


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                         FILED JANUARY 12, 2016

       Viola’s Food Stores, Inc. (“Viola’s”) appeals the October 28, 2014

order denying it a preliminary injunction.1 We affirm.

       On February 6, 2014, Viola’s instituted this action seeking an

injunction, ejectment, and damages against Appellee, V3 Yoga & Pilates,

LLC, a Pennsylvania limited liability company, trading and doing business as
____________________________________________


1
  An order denying a preliminary injunction is appealable pursuant to
Pa.R.A.P. 311(a)(4).
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Take Yoga, a registered fictitious name of V3 Yoga & Pilates, LLC, and also

trading and doing business as Crossfit North Park, an unregistered fictitious

name (“V3”).        Viola’s owned Duncan Manor Shopping Center (“Duncan

Manor”), which is located at 1701 Duncan Avenue, McCandless Township.

On November 20, 2012, Viola’s executed a ten-year lease with V3 for Suites

15 and 16 of Duncan Manor. The lease contemplated that V3 would build

and operate a fitness center at that location.    Thereafter, V3 expended in

excess of $500,000 to build the facility. There was an addendum executed

to the lease after V3 assumed occupancy of the two suites.

       Viola’s claimed that V3 was in material breach of the lease, and it

sought injunctive relief in the form of the immediate removal of V3 from

Duncan Manor. To obtain the injunction, Viola’s raised allegations that V3

violated the lease in three respects: 1) V3 was creating noise that disturbed

other tenants; 2) V3 had deliberately opened a gap in a demising wall in

order to steal heat from another tenant and that gap created a highly

hazardous condition; and 3) the building permit that V3 used to construct its

fitness center was invalid.2 Demising walls separate one tenant’s space from

that of another tenant, in contrast to interior walls built to create the space

necessary for a business to operate.

____________________________________________


2
  In the complaint, there was an allegation that V3 breached the lease by
complaining about a lack of heat to its facility. That averment was not
advanced at the hearing.



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      The question of whether Viola’s was entitled to the requested

injunctive relief, i.e., V3’s immediate removal from its suites at Duncan

Manor, proceeded to a hearing on March 28, 2014. The following evidence

was adduced as to Viola’s position that V3 breached the lease by conducting

loud activities. On January 29, 2014, Viola’s received a grievance from V3’s

adjacent tenant, a PennDot Drivers Licensing Center, (“PennDot”), that its

customers could hear loud music and vulgar language emanating from V3.

      The fact that V3’s customers and music could be heard by PennDot

breached a section of the lease entitled “Use of Premises.”        Therein, V3

agreed to prevent the “premises from being used in any way which . . . may

be a nuisance, annoyance, inconvenience or damage to the other tenants of

such building or of the neighborhood, including, without limiting the

generality of the forgoing, noise.” Complaint, 2/6/14, at Exhibit 1.

      Viola’s immediately transmitted notice of the lease violation to V3. On

January 30, 2014, the day after being notified about PennDot’s complaint,

Paul J. Stugart, V3’s founder and chief executive officer, responded that it

would adjust the music level and notify its customers to refrain from using

vulgar language. Thereafter, Viola’s did not receive any further complaints

from PennDot as to noise.

      Relevant herein is the fact that the lease gave V3 thirty days to cure

any breach of its provisions before Viola’s could terminate V3’s tenancy. It

set forth at Article XXI that, if any lease default “shall continue for a period


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of more than thirty (30) days after notice therefore given in writing to

Lessee by Lessor then the Lessee does hereby authorize and fully empower

said Lessor, to cancel and annul this Lease at once[.]" Id.

     Viola’s second breach allegation concerned the demising wall that

separated V3 from PennDot, which had a three to four inch gap between the

top of the wall and the ceiling.     Viola’s suggested that the lease and

addendum required V3 to not only build the interior walls creating the

contours of the fitness center, but also mandated that V3 construct and

maintain any demising wall between V3’s fitness facility and the space

occupied by any adjoining tenant.

     Viola’s further claimed that there was not a gap in any demising wall

separating V3’s suites from other tenants when V3 started to occupy the

premises and that the wall was sealed to the ceiling as of July 13, 2013. It

accused V3 of deliberately opening the space in the demising wall to pirate

heat from the adjacent tenant. Viola’s suggestion that the gap was created

after V3 occupied the suites was premised upon one fact, which was that V3

obtained an occupancy permit on October 15, 2013, after it assumed control

over the two suites.   Viola’s maintained that, since a demising wall gap

constituted a violation of the applicable building and fire codes, the

occupancy permit would not have been issued if there had been a gap in a

demising wall.   Finally, Viola’s argued that the hole in the demising wall

created such an extremely hazardous condition that V3’s thirty-day ability to


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cure the defect was obviated and required V3’s immediate removal from

Duncan Manor.

       As to the demising wall, V3 first countered that it was not responsible

under the lease for fixing any gap in the demising wall. It relied upon Article

X of the lease, which provided that Viola’s was responsible for maintaining

the “slab and foundation” and was required to “make structural repairs in

the interior of the premises.” Further, the lease outlined that V3 only was to

perform interior drywall work in the suites that it leased; demising walls

were not mentioned as part of V3’s obligations under the lease.

       V3 also presented evidence that it did not create the gap in the

demising walls surrounding its premises and, instead, that the opening

between the ceiling and top of the demising wall was in existence when it

assumed occupancy of the premises.           McCandless Township Fire Marshal,

Dan Stack, testified at the hearing that the gap in the wall was an existing

condition, was not a violation of the fire code, and was minor.            V3 also

presented as a witness a McCandless Township building inspector, Jeff

Frazier, who confirmed that the gap in the demising wall between PennDot

and V3 was minor and would not have affected the issuance of an occupancy

permit.

       Viola’s final position was that V3 breached the lease because the

building permit that it procured to improve the suites was void. Specifically,

it   claimed   that   the   permit   was   invalid   because   Flynn   Construction


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Management (“Flynn”) was listed as the general contractor on the building

permit, but Mr. Stugart, rather than Flynn, operated as general contractor

for the work.

      V3 responded with testimony from James Gordon, the Director of

Business Development for Flynn. Mr. Gordon reported that Flynn allowed its

name to be submitted by owners for building permits even prior to executing

a contract and also allowed its name to be used even if it did not ultimately

serve as general contractor on the project.     V3 also offered proof that its

architect contacted Flynn so that a building permit could be secured and that

a Flynn employee gave the architect Flynn’s information so that a permit

could be obtained.    Mr. Frazier told the court that it is not unusual for an

owner to change the name of the contractor listed on the building permit

application after the application was issued.    Mr. Frazier stated that V3's

building permit was valid.

      There are two additional facts pertinent herein.      First, Mr. Stugart

testified that V3 had expended in excess of $500,000 to improve Suites 15

and 16 and that, if forced to vacate those premises, V3 would go bankrupt.

Additionally, Viola’s was negotiating to lease space to an entity that was a

direct competitor of V3.     Article VIII of the lease prohibited Viola’s from

renting any space within Duncan Manor to any business that was similar to

the business of V3.




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      After the hearing, the trial court specifically credited the witnesses

presented by V3, and it denied the injunction. The court found that Viola’s

was not likely to prevail on its claims that V3 was in breach of the lease, that

Viola’s had failed to prove that it would sustain any type of harm from V3’s

continuing occupancy of its fitness center, and that V3 would suffer more

harm from the grant of an injunction immediately removing it from Duncan

Manor than Viola’s would suffer if V3 was permitted to stay.         This latter

finding was premised upon V3’s expenditure of a vast sum to improve the

suites and the fact that it would go bankrupt if it could not use them.

      In this appeal, Viola’s presents these issues:

      1. Did the Court err when it held that Viola had presented no
      evidence of any V3 conduct that breached the lease, when Viola
      proved that V3 stole the identity, workers compensation and
      taxpayer     identification  number    of   Flynn    Construction
      Management in order to secure the building permit for the
      tenant's work in the premises, and as the result of V3's failure to
      use a qualified general contractor, V3 left the fire partition
      unsealed, in violation of V3's duty under the lease to construct
      the walls in the premised in compliance with applicable law?

      2. Did the Court err in holding that Viola proved no evidence of
      any harm when Viola proved that V3 left the fire partition
      unsealed, which Viola proved is a life safety hazard to Viola and
      its tenants?

Appellant’s brief at 4.

      Initially, we set forth our standard of review:

      [Appellate] review of a trial court's order granting or denying
      preliminary injunctive relief is “highly deferential.” Summit
      Towne Centre, Inc. v. Shoe Show of Rocky Mount Inc., 573
      Pa. 637, 828 A.2d 995, 1000 (2003). This “highly deferential”
      standard of review states that in reviewing the grant or denial of

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       a preliminary injunction, an appellate court is directed to
       “examine the record to determine if there were any apparently
       reasonable grounds for the action of the court below.” Id. We
       will find that a trial court had “apparently reasonable grounds”
       for its denial of injunctive relief where the trial court has properly
       found “that any one of the following ‘essential prerequisites' for a
       preliminary injunction is not satisfied.” Id. at 1002.

Warehime v. Warehime, 860 A.2d 41, 46 (Pa. 2004) (footnotes omitted).

       A preliminary injunction will not be granted unless the party seeking

the injunction establishes six essential elements. Id. Specifically, that party

has the burden of proving

       1) that the injunction is necessary to prevent immediate and
       irreparable harm that cannot be adequately compensated by
       damages; 2) 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; 3) that a preliminary
       injunction will properly restore the parties to their status as it
       existed immediately prior to the alleged wrongful conduct; 4)
       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; 5) that the
       injunction it seeks is reasonably suited to abate the offending
       activity”; and, 6) that a preliminary injunction will not adversely
       affect the public interest.

Id. at 46-47 (quotation marks and citation omitted).

       Viola’s first position is that the building permit was fraudulent.3       It

notes that V3 placed Flynn on the permit as the proposed general contractor

____________________________________________


3
  We note that Viola’s overreaches by suggesting that the permit was forged.
Appellant’s brief at 13 (“Forgery related to a building permit falls within the
felony three class of writings” under the Crimes Code.); Id. at 15. The
permit was not forged. V3’s architect asked Flynn for its information to
(Footnote Continued Next Page)


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and argues that, since Flynn did not perform the construction work, the

“actual construction violated the building permit.” Appellant’s brief at 13-14.

It suggests, “Thus, the Trial Court should have granted injunctive relief [to]

remedy the illegal construction installed by V3.” Appellant’s brief at 14.

      The first flaw in this position is the trial court credited V3’s proof that

the building permit was valid.4 The second fatal defect in Viola’s position is

that it has failed to present any argument as to the existence of harm to it

as result of the use of Flynn’s name on the permit. Viola’s simply suffered no

injury due to the construction work performed by V3 pursuant to the

building permit.

      The cases upon which Viola’s relies remedies the issuance of an invalid

permit by enjoining the work performed pursuant to it.        Upper Moreland

Twp. v. Meade, 218 A.2d 271 (Pa. 1966) (upholding an order enjoining

construction that was being performed in violation of the plans upon which a

building permit was issued); City of Philadelphia v. Wyszynski, 112 A.2d

327 (Pa. 1955) (affirming issuance of injunction sought by municipality


                       _______________________
(Footnote Continued)

obtain a building permit, and one of Flynn’s employees, who no longer
worked for the company when the hearing transpired, gave the architect the
information for that purpose. There was no proof of forgery.
4
   Evidence concerning the validity of the building permit was presented to
the trial court and briefed in connection with the request for issuance of the
preliminary injunction. Hence, we do not believe that this position is waived,
as suggested by V3.



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against business that was being operating in violation of zoning law where

false statements were made to secure permit to operate business).

         Herein, Viola’s never sought that type of injunctive relief in the trial

court; it never sought removal of the improvements made with the building

permit. On appeal, Viola’s does not cite a lease provision that was breached

due to the use of Flynn’s name. Viola’s does so now, arguing that the “only

remedy for illegal construction is for this Honorable Court to enjoin the

construction, and, in effect, to revoke both the false building permit and the

occupancy permit.” Appellant’s brief at 18.     In the trial court, Viola’s sought

to have V3 removed as a tenant based upon breach of the lease as opposed

to having the construction enjoined and revocation of the permits in

question. Hence, this request for relief is waived. Pa.R.A.P. 302(a) (issues

not raised in the trial court are waived for purposes of appeal).

         In its second issue, Viola’s attempts to prove the existence of harm to

it by suggesting that the gap in the demising wall created a hazardous

condition on its premises.      It insists that it “proved that V3 left the fire

partition unsealed” and that the condition was “a life safety hazard” to it and

its tenants.     Appellant’s brief at 16.   In this respect, Viola’s completely

ignores the trial court’s findings, which were firmly premised upon V3’s

proof.     Specifically, the gap was in the demising wall existed when V3

assumed occupancy of the premises and that the lease did not require V3

to fix the problem.      Instead, the lease placed the obligation for internal


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structural repairs on Viola’s. Thus, even though V3’s architectural plans for

its construction project did provide for the gap to be patched, V3 was not in

violation of the provisions of the lease due to the existence of the gap.

      Additionally, Viola’s overlooks the fact that, even if V3 was required

under the lease to fix the opening in the demising wall, the lease required

Viola’s to give notice to V3 of this defect and to offer V3 thirty days to cure

the breach by fixing the gap in the demising wall.         Additionally, Viola’s

completely disregards the proof, which was credited by the trial court, that

the hole in the demising wall was a minor problem that did not create an

extremely hazardous safety condition. Thus, Viola’s second position fails.

      We also observe the following.     At no point in its brief does Viola’s

address the trial court’s finding that V3 would suffer greater harm from

issuance of the injunction than Viola’s would suffer if the injunction was

denied. This finding was firmly premised upon proof that V3 expended over

$500,000 to create the fitness facility and that it would go bankrupt if

removed from the premises.          That finding, standing alone, provides

apparently reasonable grounds for denial of the injunction and requires us to

affirm. Wareheimer, supra.

      Finally, we note that Viola’s utterly failed to establish an essential

prerequisite for grant of injunctive relief: that it is likely to prevail on the

merits.   Viola’s sought to cancel its ten-year lease with V3 and the

immediate ejectment of its tenant based on three purported breaches of the


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lease: the noise, the gap in the demising wall, and the building permit’s

erroneous listing of Flynn as general contractor.    The noise was abated

within the thirty days permitted under the lease. Viola’s failed to establish

that V3 had to repair the demising wall under the terms of the lease, and it

failed to offer V3 thirty days to remedy the opening in the demising wall, to

the extent V3 had that responsibility Violas cannot, under the clear terms of

the lease, cancel that document without proffering V3 an opportunity to cure

a breach.   Viola’s does not point to any language in the lease that would

warrant a finding that the document was breached by the fact that the

general contractor listed in the building permit did not operate as such. For

that additional reason, we also affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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