J-A26021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SBA TOWERS II LLC

Appellant

v.

WIRELESS HOLDINGS, LLC AND

JEFF MACALARNEY

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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(s):

2016 GN 01215

BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

CONCURRING & DISSENTING MEMORANDUM BY MURRAY, J.:

FILED MARCH 19, 2019

I agree with the Majority that Appellant’s appeal is properly before this

Court pursuant to Pa.R.A.P. 311(a)(4). However, I respectfully disagree with

the Majority’s conclusion that the parties’ lease terms, regarding Appellant’s

access to the property, were ambiguous. Accordingly, I concur and dissent.

I note the relevant standards of review:

Appellate courts review a trial court order refusing or granting a

preliminary injunction for an abuse of discretion. This standard is

applied as follows:

[O]n 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 Chancellor.
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See Brayman Constr. Corp. v. DOT, 13 A.3d 925, 935-936 (Pa. 2011)

(citations omitted).

With respect to contract interpretation: “The interpretation of a contract is a matter of law and, as such,

we need not defer to the trial court’s reading of the [a]greement.”

It is also well[-]established that under the law of

contracts, in interpreting an agreement, the court must

ascertain the intent of the parties.

In the cases of a written contract, the intent of the parties

is the writing itself. If left undefined, the words of a

contract are to be given their ordinary meaning. When

the terms of a contract are clear and unambiguous, the

intent of the parties is to be ascertained from the

document itself. . . . With specific reference to what constitutes “ambiguity” in the

context of contract interpretation, our Supreme Court has opined

as follows:

Contractual language is ambiguous “if it is reasonably

susceptible of different constructions and capable of

being understood in more than one sense.” This is not a

question to be resolved in a vacuum. Rather, contractual

terms are ambiguous if they are subject to more than

one reasonable interpretation when applied to a

particular set of facts. We will not, however, distort the

meaning of the language or resort to a strained

contrivance in order to find an ambiguity.

Lenau v. Co-Exprise, Inc., 102 A.3d 423, 429-430 (Pa. Super. 2014)

(citations omitted).

There are two types of contract ambiguity: “[A] latent ambiguity arises from extraneous or collateral facts

which make the meaning of a written agreement uncertain

although the language thereof, on its face, appears clear and
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unambiguous.” . . . “A patent ambiguity is that which appears on

the face of the instrument, and arises from the defective, obscure,

or insensible language used.” Betz v. Erie Ins. Exch., 957 A.2d 1244, 1254 n.2 (Pa. Super. 2008) (citations

and parentheses omitted). A contract may be deemed ambiguous “[i]f, and only if, it is

reasonably or fairly susceptible of different constructions and is

capable of being understood in more senses than one and is

obscure in meaning through indefiniteness of expression or has a

double meaning.” [Contract] language is not rendered ambiguous

“if the court can determine its meaning without any guide other

than a knowledge of the simple facts on which, from the nature of

the language in general, its meaning depends[.]” Mere

disagreement between the parties on the meaning of language or

the proper construction of contract terms does not constitute

ambiguity.

Id. at 1253-1254 (citations omitted). Further, our Supreme Court

long ago emphasized that ‘[t]he parties [have] the right to make

their own contract, and it is not the function of this Court to re- write it, or to give it a construction in conflict with . . . the accepted

and plain meaning of the language used.’ “‘It is not the province

of the court to alter a contract by construction or to make a new

contract for the parties; its duty is confined to the interpretation

of the one which they have made for themselves, without regard

to its wisdom or folly.’” In 17A C.J.S. Contracts § 296(3), appears

the following:

The court may not rewrite the contract for the purpose

of accomplishing that which, in its opinion, may appear

proper, or, on general principles of abstract justice . . .

make for [the parties] a better contract than they chose,

or saw fit, to make for themselves, or remake a contract,

under the guise of construction, because it later appears

that a different agreement should have been

consummated in the first instance . . . .

Steuart v. McChesney, 444 A.2d 659, 662 (Pa. 1982) (citations omitted).
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Instantly, the pertinent paragraph in the parties’ lease states:

18. Access to Leased Space/Premises. [Appellant] shall

have at all times during the initial term or renewal term the right

of access to and from the Leased Space and all utility installations

servicing the Leased Space on a 24 hours per day/7 days per week

basis, on foot or by motor vehicle, including trucks, and for the

installation and maintenance of utility wires, cables, conduits and

pipes over, under and along the right-of-way extending from the

nearest accessible public right-of-way.

Appellant’s Motion for Temporary Injunction, 4/15/16, Exhibit B (Land Lease,

12/21/09, at 4) (Paragraph 18). I agree with Appellant that the language of Paragraph 18 is clear. See

Lenau, 102 A.3d at 429; Appellant’s Brief at 12-13. In providing Appellant

“the right of access” to the property and all utility installations servicing the

leased space, Paragraph 18 delineates the hours of access (“on a 24 hours per

day/7 days per week basis”) and the manner of access (“on foot or by motor

vehicle, including trucks”). Paragraph 18 also states that Appellant may

access the property to install and maintain utility equipment. Notably,

Paragraph 18 does not set forth any restrictions on Appellant’s access to the

property, and it is silent as to whether Appellees may, in the future, impose

any restrictions. While the Majority interprets this silence as an ambiguity as

to whether Appellant’s access may be restricted, the silence, in my view,

clearly evinces the parties’ intent not to restrict Appellant’s access. Thus, I

would conclude that Paragraph 18 is free of any latent or patent ambiguity. See Betz, 957 A.2d at 1254 n.2.

That Appellees may have become concerned about security — however
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reasonable a concern — is not relevant.1 See Lenau, 102 A.3d at 429 (“When

the terms of a contract are clear and unambiguous, the intent of the parties

is to be ascertained from the document itself.”). Appellant keeps expensive

equipment and property on the leased premises, and the parties, both of

whom are sophisticated business entities, could have included in the lease

terms allowing Appellees to impose security procedures. See Newman Dev.

Group of Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645, 659 (Pa. Super. 2014) (en banc) (finding no error in trial court’s decision not

to reduce landlord’s verdict for future damages to present value, where

commercial contract was negotiated by sophisticated business people who had

the ability to control, decide and design remedies for breach). However, in

this case, the parties included no such provision in the lease, and neither the

trial court nor the Majority should rewrite that which the “parties have made

for themselves, without regard to its wisdom or folly.” See Steuart, 444 A.2d

at 662.Further, the Majority’s rationale — that a contract term is ambiguous

because it did not specify whether there were any restrictions or caveats —

would allow a party to alter its rights or contractual obligations, or the rights

1 Appellees’ dual arguments — that (1) its “check-in procedures” did not

interfere with Appellant’s “24/7 access” and (2) the lease was ambiguous

because it did not define “24/7 access” — are in conflict. See Appellees’ Brief

at 5, 9-10, 15. Under the former rationale, Appellees argue that it complied

with the lease terms (which presumably are clear), whereas in the latter, they

aver that the lease terms are not clear.
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or obligations of the other party, by arguing that the contract was silent as to

whether that alteration was permissible. This Court’s prior findings of contract

ambiguity have generally arisen from an existing contract term that could be

interpreted in more than one way. See, e.g., Int'l Diamond Imps., Ltd. v.

Singularity Clark, L.P., 40 A.3d 1261, 1278 (Pa. Super. 2011) (lease

provision, which permitted tenant to assign the lease to sub-letter, was

ambiguous because it could be interpreted to have two meanings: that “assignment without [the landlord’s] permission required the” tenant to show

the sub-letter’s creditworthiness, and that a showing of creditworthiness was

“required only to relieve the [tenant] of liability under the lease following

assignment;” this Court further noted “[m]uch hinges on the use of the

semicolon at the end of the first clause, and the immediately following clause

beginning ‘provided.’”); Betz, 957 A.2d at 1252 (insurance policy term, “the

action of water on limestone or similar rock formations,” was a patent

ambiguity because “similar rock formations” was reasonably susceptible of

different construction, where the “policy language fails to describe in what

manner rock formations other than limestone must be ‘similar’ to limestone

and further, fails to name any type of rock other than limestone”); Metzger

v. Clifford Realty Corp., 476 A.2d 1, 7 (Pa. Super. 1984) (contract had a

patent ambiguity because the phrase, “the purchaser’s right to ‘terminate the

operation of the business’ can refer to either liquidation of the business by the

purchaser, or sale of the business by the purchaser, or both”); Z & L Lumber
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Co. v. Nordquist, 502 A.2d 697, 699-701 (Pa. Super. 1985) (contract term

where the defendant “agrees to provide all the materials as specified and to

perform all the labor shown on the working drawings and described in the

specifications,” was a latent ambiguity where defendant “contended that the

specifications were limited to the schematic drawings (sketches two through

six) . . . ” but additional defendant argued “that the specifications included all

of the materials and labor necessary to construct the home as it appeared in

the ‘elevations’ (drawings seven and eight)”). In sum, although an ambiguity could, in another scenario, arise from

the silence in a contract as to a particular term, Appellees in this case have

failed to articulate a basis for finding ambiguity in Paragraph 18 of the lease, e.g., unclear wording or punctuation, the impossibility of enforcement of the

contract term as written, or language in another paragraph that would make

Paragraph 18 confusing or unworkable.2

2 Because I would conclude that Paragraph 18 clearly conveys the parties’

intent, I would not consider the terms of Paragraph 15 (“the Hold Harmless

Clause”) for context or guidance as to the interpretation of Paragraph 18. See

Majority Memorandum at 10-11. However, even if Paragraph 15 would be

considered, I would opine that its terms, which define the circumstances in

which Appellees could be held liable for damages, is not relevant to the

question of what actions Appellees could take to better protect themselves

from liability.
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For the foregoing reasons, I would reverse in part the order of the trial

court.3

3 Like the Majority, I would affirm the portion of the trial court’s order

prohibiting Appellees from physically blocking Appellant’s access to the

property. See Majority Memorandum at 3.