J-S31033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE LAMAR COMPANIES                            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

BRAD ARIC, L.L.C., PRIME DIVERSIFIED
SERVICES, L.L.C. AND GLORY DAYS
INVESTMENTS, L.L.C.

                            Appellants              No. 1694 MDA 2014


             Appeal from the Order Entered on September 8, 2014
                In the Court of Common Pleas of Berks County
                        Civil Division at No.: 11-22196


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                          FILED AUGUST 07, 2015

       Prime Diversified Services, L.L.C., and Glory Days Investments, L.L.C.

(collectively, “PDS”),1 appeal the trial court’s September 8, 2014 order

granting summary judgment to Appellee Lamar Companies’ (“Lamar”) in its

claim for specific performance of a lease agreement (“the Lease”) granting


____________________________________________


1
       Although these parties are denominated separately, and in certain
particulars behaved as distinct parties in the trial court, they have the same
attorney and have acted in unison together before the trial court and this
Court in most particulars. As well, as the trial court relates and neither
appellant disputes, Prime Diversified and Glory Days “share a common
owner and/or common corporate officers and/or corporate directors
including a common corporate ‘President[.’]” See Trial Court Opinion,
11/26/2014, at 4 ¶ 8. Insofar as they appear in relevant part to have acted
in concert in connection with the events that precipitated this litigation and
brief their appeal as one, we treat them as one entity.
J-S31033-15



them the option to purchase a perpetual easement over a property upon

which they maintained a billboard (“the Property”).          The trial court

determined that, because PDS knew or should have known that Lamar was a

tenant in possession of the Property when PDS purchased all of the assets of

Brad Aric, L.L.C. (“Brad Aric”), including the Property, they were not bona-

fide purchasers for value with legal priority over Lamar.      Thus, Lamar’s

option under the Lease to purchase a perpetual easement upon the Property

from Brad Aric survived PDS’s acquisitions of Brad Aric’s assets, binding PDS

and entitling Lamar to the easement it sought as a matter of law.          We

affirm.

      The trial court presented the following facts as undisputed:

      1.    In March 2008 [Brad Aric] entered into a lease with
      [Lamar,] which granted Lamar’s right to access, maintain and
      update an already existing outdoor advertising billboard (“the
      [S]ign”) on [PDS’s] property for a period of ten (10) years. . . .

      2.    The [Sign] has an advertising sign surface of
      approximately two hundred forty[-]seven and a half (247.5)
      square feet in size in its current configuration. Included on the
      Sign is an advertising logo with Lamar’s name on it.

      3.    [Brad Aric] formerly did business at 1402 N. 9th Street,
      Reading, PA 19604 prior to the sale of all assets of Brad Aric to
      [PDS] on January 19, 2011. [Brad Aric] has no current business
      address, as [Brad Aric] has not done any business since the
      transfer of all its assets.

                                   ****

      5.     Mariano Sfameni and Peter Sfameni Jr[.] are the sole
      surviving members of the Brad Aric [sic]. Both were present at
      various times at the Property when the representatives of [PDS]
      visited the Property. [PDS], through their above-referenced
      representatives[,] were informed of the Lease . . . and they were


                                    -2-
J-S31033-15


       shown the billboard sign which Lamar has on the Property during
       the course of their visits/inspections.    Additionally, [PDS’s
       representative,] Chris Mahmood[,] had discussions with Peter
       Sfameni Jr. in which he stated that the lease payments from
       [Lamar] were inadequate and [PDS] were going to force Lamar
       to pay more for the [L]ease.

       6.   Brad Aric believes that Chris Mahmood, Edna Mahmood
       and Zia Mahmood visited, inspected, and/or examined the
       Property on behalf of [PDS] prior to January [1]9, 2011.[2]

       7.   [PDS] acquired ownership of the Property on January 19,
       2011 from Brad Aric.

                                         ****

       9.    No [w]ritten [n]otice of the pending sale, as required by
       the Lease, was provided [to Lamar].

       10. [PDS] admits that a sign was present on the [P]roperty at
       the time of the final closing.

       11. [PDS] did not contact [Lamar] concerning either the Sign
       or the Property prior to January 19, 2011.

       12. The first written notification Lamar receive[d] about the
       sale of the property [was] on March 2011 [sic] when their rent
       check [was] returned.

       13. [PDS] did not notify [Lamar] of the existence of [PDS’s]
       agreement to purchase the [P]roperty prior to March 30, 2011.

       14. [PDS] did not notify [Lamar] of the final closing and
       settlement on the conveyance of the [P]roperty to [PDS] prior to
       March 30, 2011.

       15. Subsequent to March 30, 2011[,] and prior to the
       commencement of this [l]awsuit, [PDS] notified [Lamar] that

____________________________________________


2
      The facts in paragraphs 5, 6, and elsewhere, which are cited as
“undisputed” by the trial court, are derived from discovery responses
provided by Brad Aric. Brad Aric declined to participate in this appeal. PDS
does dispute certain averments that the trial court erroneously characterized
as undisputed.



                                           -3-
J-S31033-15


     [PDS] considered the Lease to be entirely invalid and/or
     unenforceable against [PDS].

     16. On April 26, 2011 [PDS] received [Lamar’s] April 25, 2011
     correspondence notifying [PDS] of [Lamar’s] intention to
     exercise its option to purchase a perpetual easement pursuant to
     the terms of the Lease.

     17. The above notification to exercise their right to the
     purchase option was within 30 days [of the notice of sale] as
     required by the Lease.

     18. [PDS] received [Lamar’s] May 20, 2011 correspondence
     notifying [PDS] that settlement and closing on the transfer of the
     perpetual easement which is the subject of this lawsuit was
     scheduled to occur on May 25, 2011[,] and further notifying
     [PDS] of the location where the settlement and closing would
     occur.

     19. [Lamar] tendered a check for the amount of [the] 2011
     annual rental payment which was due and [owing] under the
     Lease to [PDS] prior to commencement of this [l]awsuit.

     20. [PDS] made an independent and voluntary decision not to
     cash or deposit the check tendered by [Lamar] . . . .

     21. [Lamar] timely tendered a check for the 2012 annual
     rental payment which may have been due and owing under the
     Lease to [PDS] subsequent to the commencement of this
     [l]awsuit.

     22. [PDS] made an independent and voluntary decision not to
     cash or deposit the check . . . .

     23. [Lamar] timely tendered a check for the 2013 annual
     rental payment . . . to [PDS] . . . .

     24. [PDS] made an independent and voluntary decision not to
     cash or deposit the check . . . .

                                  ****

     28. [PDS] did not notify [Lamar] of [PDS’s] acquisition of Brad
     Aric and/or any of Brad Aric’s assets prior to March 30, 2011.

     29. [PDS] admits that a sign was present on the Property[]
     prior to the execution of any agreement of sale for the
     [P]roperty and at the time of the final closing.

                                   -4-
J-S31033-15


                                         ****

       31. [PDS] refused and is continuing to refuse to convey a
       perpetual easement burdening the Property of the type and
       nature sought in [Lamar’s] [c]omplaint pursuant to the terms of
       the Lease notwithstanding [Lamar’s] written demand that [PDS
       convey such an easement.

Trial Court Opinion (“T.C.O.”), 11/26/2014, at 3-7 (unnumbered) (record

citations omitted).

       Based on these events, on September 28, 2011, Lamar filed the

complaint that commenced the instant litigation. Therein, Lamar sought, at

count I, declaratory judgment to establish that all of Lamar’s rights under

the Lease survived the transfer of the Property to PDS; at count II, specific

performance by compelling PDS to convey the easement sought by Lamar

pursuant to the Lease; at count III, in the alternative, rescission of the

transfer of the Property from Brad Aric to PDS; and, at counts IV and V,

breach of contract against all parties.          Thereafter, the parties commenced

and completed discovery.

       On March 13, 2014, Lamar filed the motion for partial summary

judgment at issue in this case.3 Therein, Lamar sought summary judgment

as to counts I, II, III, and IV, and an award of legal costs and fees, as

____________________________________________


3
      In fact, Lamar filed its first motion for partial summary judgment on
November 27, 2013. However, after a number of other procedural events,
including reassignment of the case to another judge and a change of counsel
for PDS, events that do not bear materially on this appeal, Lamar’s motion
ultimately was resubmitted on March 13, 2014, and it is the trial court’s
ruling upon that motion that concerns us presently.



                                           -5-
J-S31033-15



provided for under the Lease.             Based upon these findings of allegedly

undisputed fact, the trial court entered summary judgment in favor of

Lamar, directing, inter alia, PDS to provide Lamar with a perpetual

easement, as provided for by the Lease.

       PDS filed a timely notice of appeal of the trial court’s order.4 The trial

court directed PDS to file a concise statement of the errors complained of on

appeal, and PDS timely complied. The matter is now ripe for our review.

       PDS raises the following issues for our review:

       1.    Did the trial court err in granting [Lamar’s] Motion for
       Partial Summary Judgment where there exists a genuine issue of
       material fact as to whether [Brad Aric], the actual party to the
       lease agreement with [Lamar,] properly notified [Lamar] of the
       sale of the [P]roperty and [Lamar] chose not to exercise the
       option for a perpetual easement?

       2.    Did the trial court err in granting [Lamar’s] Motion for
       Partial Summary Judgment where there exists a genuine issue of
       material fact as to whether [Lamar was] a tenant in possession
       of the [P]roperty at the time of [PDS’s] purchase of the
       [P]roperty?

____________________________________________


4
       This Court has jurisdiction over immediate appeals of a trial court
order that “grants or denies, modifies or refuses to modify, continues or
refuses to continue, or dissolves or refuses to dissolve an injunction,” with
exceptions that are not relevant to the instant matter.                     See
Pa.R.A.P. 311(a)(4). Our Supreme Court has held that a trial court order
directing (or denying) specific performance of a real estate transaction is an
order granting (or denying) injunctive relief that is subject to immediate
appeal as of right under Rule 311. See Wynnewood Dev., Inc., v. Bank
& Trust Co. of Old York Rd., 711 A.2d 1003, 1005 (Pa. 1998) (citing
Petry v. Tanglwood Lakes, Inc., 522 A.2d 1053, 1055 n.3 (Pa. 1997)).
Thus, PDS has the right to appeal the trial court’s order granting relief in the
form of specific performance in the instant matter.



                                           -6-
J-S31033-15


      3.    Did the trial court err in granting [Lamar’s] Motion for
      Partial Summary Judgment where there exists a genuine issue of
      material fact as to whether [PDS was] aware of the existence of
      a written lease agreement between [Lamar] and [Brad Aric] in
      the matter prior to [PDS’s] purchase of the [P]roperty?

      4.    Did the trial court err in granting [Lamar’s] Motion for
      Partial Summary Judgment and ordering [PDS] to pay [Lamar’s]
      reasonable attorney’s fees, cost of suit and all other expenses
      reasonably incurred by [Lamar] pursuant to the terms of the
      [Lease] where [PDS is] not a party to the [Lease]?

Brief for PDS at 7.

      PDS’s first three issues directly implicate the trial court’s order

granting summary judgment to Lamar.          “Our scope of review of a trial

court’s order granting or denying summary judgment is plenary . . . .”

Krapf v. St. Luke’s Hosp., 4 A.3d 642, 649 (Pa. Super. 2010). We may

not disturb the order of the trial court unless it is established that the court

committed an error of law or abused its discretion.       Coleman v. Wyeth

Pharma., Inc., 6 A.3d 502 (Pa. Super. 2010).


      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non-moving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to his case and on which he bears the burden of proof
      establishes the entitlement of the moving party to judgment as
      a matter of law. Lastly, we will review the record in the light
      most favorable to the non-moving party, and all doubts as to
      the existence of a genuine issue of material fact must be
      resolved against the moving party.

                                     -7-
J-S31033-15



Id. at 509 (quoting ADP, Inc. v. Morrow Motors Inc., 969 A.2d 1244,

1246 (Pa. Super. 2009)). Summary judgment should be granted only when

the “party who will bear the burden of proof at trial has failed to produce

evidence of facts essential to the cause of action or defense which in a jury

trial would require the issues to be submitted to a jury.” Ertel v. Patriot

News Co., 674 A.2d 1038, 1041-42 (Pa. 1996).

      Lamar argues that PDS has waived the first issue it raises before this

Court. Specifically, Lamar contends that PDS did not assert that a question

of material fact existed regarding whether Brad Aric adequately notified

Lamar of his desire to sell the property to PDS in its opposition to Lamar’s

motion for summary judgment. Brief for Lamar at 13-15.

      It is axiomatic that issues not raised in the trial court in the first

instance are waived for purposes of appeal. See Pa.R.A.P. 302(a); Lincoln

Phila. Realty Assocs. I v. Bd. of Revision of Taxes of City & Cty. of

Phila., 758 A.2d 1178, 1186 (Pa. 2000).       “By requiring that an issue be

considered waived if raised for the first time on appeal, we ensure that the

trial court . . . that initially rules on such matters has had an opportunity to

consider the issue.” Lincoln Phila. Realty, 758 A.2d at 1186. In Walsh v.

Borczon, 881 A.2d 1 (Pa. Super. 2005), we held that defenses not raised in

responsive briefs to motions for summary judgment are waived for purposes

of appeal.    See id. at 4-6 (citing Devine v. Hutt, 863 A.2d 1160

(Pa. Super. 2004); Harber v. Phila. Ctr. City Office Ltd. v. LPCI Ltd.

P’ship, 764 A.2d 1100 (Pa. Super. 2000)).           Furthermore, we held in

                                     -8-
J-S31033-15



Harber, in the context of a motion for summary judgment, that “[a]

decision   to    pursue    one    argument     over   another   carries   the   certain

consequence of waiver for those arguments that could have been raised but

were not.”      Harber, 764 A.2d at 1105.         Consequently, before this Court,

PDS may challenge only the trial court’s rejection of defenses expressly

raised in their motion for summary judgment.5

       For the foregoing reasons, we must measure PDS’s arguments on

appeal against its pleadings as well as the averments and evidentiary

showing PDS submitted in opposition to Lamar’s motion for summary

judgment to determine whether any of PDS’s issues are waived. In PDS’s

response to Lamar’s motion, it raised only one overarching challenge to

Lamar’s motion.        Therein, it disputed Lamar’s contention that, because

Lamar clearly was a tenant in possession of at least a portion of the

Property, PDS was on constructive notice of Lamar’s potential claim to the

Property. PDS argues that a genuine question of material fact as to PDS’s
____________________________________________


5
      In its answer to Lamar’s complaint, PDS made a generalized denial
with regard to whether Brad Aric provided Lamar with due notice of its intent
to sell the Property. Compare Lamar’s Complaint at ¶ 19 with PDS’s
Answer at ¶ 19. However, this generalized denial, expressly attributed to a
lack of information to respond, cannot suffice to preserve the issue in light of
the fact that PDS stood silently on this point during summary judgment
proceedings, despite having the benefits of full discovery, and offered no
information sufficient to substantiate any such averment. See Coleman, 6
A.3d at 509 (“Failure of a non-moving party to adduce sufficient evidence on
an issue essential to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a matter of
law.”).



                                           -9-
J-S31033-15



constructive notice and obligation to inquire thus precluded the entry of

summary judgment. Consequently, there is no question that PDS’s second

issue, which raises this issue directly, was preserved for review.

       Conspicuously absent from PDS’s brief in opposition, however, is any

assertion regarding whether Brad Aric gave or did not give notice to Lamar

of its intent to sell, in writing or orally.6 Similarly, although PDS challenged

Lamar’s attempt to impute notice of Lamar’s possessory interest to PDS,

PDS did not specifically aver that it was unaware that the Lease existed

before it closed its acquisition of the Property.   Thus, PDS’s first issue is

waived.

       PDS’s fourth issue, which challenges the trial court’s award of

attorney’s fees, also is waived. Lamar’s claim for reimbursement was based

upon the facially unambiguous provision in the Lease providing that such

fees would be awarded under circumstances such as those presented in this

case. See Lease at 2 ¶ 10 (“LESSOR agrees to indemnify LESSEE from any

and all damages, liability, costs and expenses, including attorney’s fees,

____________________________________________


6
      PDS concedes that no written notice was provided, but contends
before this Court that a dispute exists as to whether Brad Aric provided
Lamar with oral notice and whether such notice would suffice to start the
clock on Lamar’s easement option, despite the Lease’s express requirement
of written notice. See Brief for PDS at 13 (citing Brad Aric’s Answer at
¶¶ 52-55, wherein Brad Aric asserted that a representative of Brad Aric
informed Lamar’s representative telephonically of Brad Aric’s intent to sell
and Lamar’s representative indicated that Lamar was not interested in
exercising its option, whereafter Brad Aric proceeded with the sale).



                                          - 10 -
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resulting from any inaccuracy in or nonfulfillment of any representation,

warranty or obligation of LESSOR herein.”). While PDS challenged the award

of summary judgment in the first instance, and, had it prevailed, would not

have faced a viable claim for fees unless and until Lamar prevailed at trial, it

nonetheless was foreseeable that the trial court could grant summary

judgment to Lamar.          Accordingly, in case the trial court were to grant

summary judgment to Lamar, as it did, the onus was on PDS to provide its

basis for opposing attorney’s fees at the first possible opportunity—i.e., in its

opposition to Lamar’s motion.          Only by doing so could PDS have ensured

that the trial court considered in the first instance PDS’s opposition to such

an award. Accordingly, this issue, too, is waived.

       As noted, supra, the substance PDS’s second issue lay at the heart of

its opposition to Lamar’s motion for summary judgment.             Furthermore

aspects of PDS’s third issue are intertwined with its second issue to the

extent that its awareness of the Lease arguably should be imputed due to

Lamar’s allegedly conspicuous tenancy in possession of the property.7 Thus,

____________________________________________


7
       PDS obviously shares our view, insofar as PDS presents just one
argument section under its headers for both issues. See Brief for PDS at 15.
This is a technical violation of Pa.R.A.P. 2119(a), which provides that “[t]he
argument shall be divided into as many parts as there are questions to be
argued.” However, for the reasons set forth above, we find that this
violation is de minimis relative to the substance of those interrelated issues.
Accordingly, there is no reason to sanction the violation except to note for
counsel’s benefit that he should more scrupulously adhere to our rules of
procedure in future submissions to this Court.



                                          - 11 -
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we will find the third issue preserved to the extent that it rests upon that

premise, despite the fact that PDS did not raise it as a distinct issue in its

brief in opposition to summary judgment.

      In PDS’s preserved argument, it contends that a genuine issue of

material fact exists concerning its awareness of Lamar’s tenancy upon, and

consequent possessory interest in, the Property. Pennsylvania law provides

as follows:

      Under Pennsylvania law, at the time of signing an unconditional
      agreement for the sale of land, the buyer acquires an equitable
      interest in the land.       Byrne v. Kanig, 332 A.2d 472
      (Pa. Super. 1975). This rule is consistent with the common law
      rule regarding unrecorded deeds and agreements of sale
      whereby a buyer acquires an equitable interest in the land. At
      common law, the first buyer’s deed was superior to subsequent
      deeds to the property conveyed by the same grantor, regardless
      of whether the first deed was without consideration and the
      subsequent deed was to a bona[-]fide[s] purchaser without
      notice. The Pennsylvania recording statute, however, protects
      subsequent purchasers by giving a subsequent bona[-]fide[s]
      purchaser for value without notice of a prior transaction priority
      over the equitable estate of the first owner. Lund v. Heinrich,
      189 A.2d 581 (Pa. 1963). However, in order to qualify as a
      bona[-]fide[s] purchaser, the subsequent buyer must be without
      notice of the prior equitable interests of others. Overly v.
      Hixson, 82 A.2d 573 (Pa. Super. 1951). If the subsequent
      purchaser has notice of the first agreement of sale or deed, he
      has no protection as a bona[-]fide[s] purchaser and his title is
      subject to the interest vested in the first purchaser. Either
      actual or constructive notice is sufficient to prevent the
      subsequent purchaser from acquiring the status of a bona[-
      ]fide[s] purchaser. Id. Because constructive notice is not
      limited to instruments of record, a subsequent purchaser may be
      bound by constructive notice of a prior unrecorded agreement.
      Id.; Smith v. Miller, 145 A. 901 (Pa. 1929). This is true
      because the subsequent purchaser could have learned of facts
      that may affect his title by inquiry of persons in possession or


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       others who the purchaser reasonably believes know such facts.
       Lund, supra ; Sidle v. Kaufman, 29 A.2d 77 (Pa. 1943).

Long     John      Silver's,     Inc.    v.    Fiore,   386   A.2d   569,   572-73

(Pa. Super. 1978).

       PDS takes aim at the trial court’s ruling principally by seeking to

distinguish the two cases upon which the trial court relied, Fiore, supra, and

McCannon v. Marston, 679 F.2d 13 (3d Cir. 1982), focusing primarily upon

the latter case.8 See Brief for PDS at 16-18. In McCannon, the appellant

entered into an agreement with a partnership doing business as The Drake

Hotel to purchase a condominium apartment and a percentage of the hotel’s

common areas. 679 F.2d at 14. The appellant paid a deposit and took up

residence in the apartment, where she continued to reside during the

litigation.   However, the sale never reached settlement and was never

recorded. Id.

       Later, Drake filed a Chapter 11 bankruptcy petition.          The appellant

subsequently filed a complaint seeking relief from the statutory bankruptcy

stay in the form of specific performance of the pending purchase agreement.

The bankruptcy court, interpreting a federal statute that appeared to vitiate

Pennsylvania law denying bona-fide purchaser status to subsequent parties

____________________________________________


8
      The decisions of the federal district courts and courts of appeal,
including those of the Third Circuit Court of Appeals, do not bind
Pennsylvania state courts. However, they may have persuasive authority.
See, e.g., Martin v. Hale Prods., Inc., 699 A.2d 1283, 1287
(Pa. Super. 1997).



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J-S31033-15



acquiring an interest in the property when the subsequent party had

constructive notice of the first party’s interest, denied relief.   The district

court affirmed. Id.

      The court of appeals began by reviewing the above-mentioned

principles of Pennsylvania state law, concluding that the appellant, as a

purchaser under a written agreement of sale for the apartment, was the

equitable owner of that apartment. Id. at 15. The court further noted that

a subsequent purchaser who has notice of the prior purchaser’s possession

of the property is obliged “to inquire into the possessor’s claimed interest,

equitable or legal, in that property.” Id. at 16 (citing Kinch v. Fluke, 166

A. 905 (Pa. 1933); Fiore, supra). The court of appeals held that the facially

contrary provision of federal bankruptcy law was not intended “to nullify all

state law protections of holders of equitable interests,” or “obliterate the

rights of equitable owners in possession of real property.”     Id. at 16, 17.

Thus, the court held as follows:

      Were the Pennsylvania Supreme Court asked to consider
      whether a subsequent purchaser of a condominium building had
      a duty to make inquiry as to the rights of persons in possession
      of apartments in that building, it would hold that such possession
      provides constructive notice, as a matter of law, no different
      than in the case of possession of a single[-]family home.

Id. at 17.

      PDS argues that McCannon is distinguishable because in that case the

appellant actually resided in the entire apartment, whereas, in this case,

Lamar “simply ha[d] a sign on one portion of the [P]roperty.” Brief for PDS

                                    - 14 -
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at 17. Given this difference, PDS maintains, “it is clear that [Lamar] is not a

tenant in possession and therefore [PDS was a bona-fide] purchaser[] of the

[P]roperty.” Id.

      The trial court found that PDS had constructive notice of Lamar’s

tenancy in possession for two reasons.         However, the first reason is

sufficient to support the trial court’s ruling, so we focus upon that finding.

The trial court observed that “the sign at issue has an advertising sign

surface of approximately two hundred forty[-]seven and a half (247.5)

square feet in size . . . .   Included on the [s]ign is an advertising logo

displaying [Lamar’s] name.” T.C.O. at 7. The trial court underscored PDS’s

admission that “the sign, displaying [Lamar’s] name[,] was present both

before the sale of the [P]roperty and at closing.” Id. at 8.

      PDS has not disputed either of these conclusions.        Instead, it relies

upon the proposition that, because Lamar’s sign occupied only a portion of

the Property, its presence did not constitute notice to PDS of Lamar’s

interest and therefore could not furnish a basis to deny PDS’s status as a

bona-fide purchaser whose priority interest in the Property was protected by

that status.

      PDS’s attempt to distinguish McCannon upon that basis necessarily

fails because it is not distinguishable in the particular ventured by PDS. The

appellant’s prior interest in the condominium in that case might have

pertained to the whole apartment in question, but that apartment was just

one among a number of such apartments and common areas. Insofar as the

                                    - 15 -
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property subject to the bankruptcy evidently was the entire building, not just

that apartment, the case is actually quite analogous to this case in which

Lamar possessed just a portion of the Property insofar as the McCannon

appellant’s apartment was only a fraction of the Drake property’s entirety.

     Notably, PDS does not suggest uncertainty as to whether the Sign,

which it does not deny being aware of at all relevant times, lay within the

Property or outside its boundaries.    PDS also does not contend that the

“Lamar” logo attached to the Sign was insufficient to establish Lamar’s

potential interest in the Property. Indeed, it is not clear that such a claim

would have traction in any event; the mere presence of such a large

appurtenance to the Property, even without an identifying sign, presumably

would put PDS on inquiry notice, just as the McCannon appellant’s

possessory interest arose from her occupancy of the apartment, not from

the debtor’s knowledge of the appellant’s identity. Furthermore, PDS does

not cite any legal authority requiring as a matter of law, or even suggesting,

that the prior possessor must dominate the entire property in question, and

it is unclear upon what basis such a distinction would harmonize with the

general imposition of an obligation upon a subsequent purchaser to

investigate any apparent possessory interest by a third party to the

purchase agreement.

     For the foregoing reasons, we conclude that the trial court did not err

in finding that no genuine issue of material fact existed concerning PDS’s

constructive knowledge of Lamar’s possessory interest in the Property.

                                    - 16 -
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Thus, the trial court did not err in concluding as a matter of law that PDS

was not a bona-fide purchaser of the Property, and accordingly could not

assert a priority interest over Lamar’s interest in the Property.        This

determination resolving the only issue preserved for our review, we find that

PDS is not entitled to relief from the trial court’s entry of summary judgment

in favor of Lamar.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2015




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