Fraport Pittsburgh v. Allegheny County Airport ( 2023 )

J-A08032-23
2023 PA Super 77FRAPORT PITTSBURGH, INC.; : IN THE SUPERIOR COURT OF
FORMERLY KNOWN AS AIRMALL : PENNSYLVANIA
PITTSBURGH, INC. :
:
Appellant :
:
:
v. :
: No. 974 WDA 2022
:
ALLEGHENY COUNTY AIRPORT :
AUTHORITY :
Appeal from the Order Entered August 17, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-22-007444
BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED: MAY 9, 2023
Fraport Pittsburgh Inc., f/n/a Airmall Pittsburgh, Inc. (Fraport)1 appeals
the order entered in the Court of Common Pleas of Allegheny County (trial
court) denying its motion for a preliminary injunction to enjoin the Allegheny
County Airport Authority (ACAA) from evicting it from leased premises and
otherwise interfering with its contractual rights under a Master Lease
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* Retired Senior Judge assigned to the Superior Court.
1Fraport is a wholly-owned subsidiary of Fraport USA, which has contracts
and leases at various airports in the United States. Fraport USA’s corporate
parent is Fraport AG, a German company. (See N.T. Hearing, 7/01/22, at 30,
32).
J-A08032-23
Agreement between the parties set to expire in December 2029 (Master
Lease).2 On appeal, Fraport challenges the trial court’s determination that it
failed to meet the standards necessary to obtain a preliminary injunction
because it could not show irreparable harm. We reverse and remand for
further proceedings.3
I.
The trial court aptly set forth the relevant facts and procedural history
of this case as follows:
This case arises out of a lease agreement between the
Defendant, Allegheny County Airport Authority (‘ACAA’), and
Plaintiff, Fraport Pittsburgh Inc. (‘Fraport’) at the Pittsburgh
International Airport (‘the Airport’). The ACAA is a municipal
authority of Allegheny County, which owns and operates the
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2 The complaint includes counts for Breach of Contract (Counts I-III), Breach
of Duty of Good Faith and Fair Dealing, Conversion, Intentional Interference
with Existing and Prospective Economic Advantages, and Declaratory
Judgment.
3 This interlocutory order denying injunctive relief is immediately appealable
as of right pursuant to Pa.R.A.P. 311(a)(4). Although ACAA maintains that
transfer of this case to the Commonwealth Court is warranted because it is a
“Commonwealth entity,” and the underlying substantive issues in this case
lend themselves to the Commonwealth Court’s expertise, we disagree. (See
ACAA’s Brief, at 3; citing 42 Pa.C.S. § 762(a)(1), (4)). While Section 762 of
the Judicial Code provides for the Commonwealth Court’s exclusive appellate
jurisdiction over civil cases “by the Commonwealth government,” municipal
and other local authorities such as ACAA are specifically excluded from the
definition of “Commonwealth government.” See 42 Pa.C.S. § 102 (prescribing
Definitions for purposes of Judicial Code). Regarding ACAA’s claim that the
underlying substantive issues in this case lend themselves to the
Commonwealth’s expertise, we find that transfer is unnecessary given that
the parties’ dispute centers on breach of their commercial lease agreement,
the examination of which is within our purview.
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Airport. Fraport is a business engaged in the operations and
management of retail and concessions at the Airport. Fraport
Pittsburgh is a subsidiary of Fraport USA and, as a business entity,
exists solely for the performance of its obligations under its lease
agreement with the ACAA. No other entity leases the Airport’s
commercial space from the ACAA, and Fraport serves no other
airport.
The Fourth Amended and Restated Master Lease,
Development and Concession Agreement (the ‘Lease’ or ‘Master
Lease’), which grants an exclusive lease in the Airport’s
commercial space to Fraport, was originally signed in 1991
between the ACAA and Fraport’s predecessor. The current lease
term, which was renewed on December 27, 2012, runs until
December 31, 2029. The Lease places Fraport in the role of the
Airport’s Master Concessionaire and Lessee, in charge of
subletting the Airport’s commercial spaces to restaurants, retail
businesses, and other concessions. Among Fraport’s duties as
Master Concessionaire are identifying and entering into subleases
with commercial subtenants, managing logistics of the commercial
spaces, collecting rent, and ensuring subtenant compliance with
safety guidelines and regulations. The Lease requires Fraport to
inspect subtenants ‘daily’ for compliance issues and to ensure that
the subtenant is properly stocked, staffed, and operating.
Although the Lease does not expressly impose a security duty
upon Fraport, responsibility generally for the safety and security
of the Airport is shared broadly among Fraport, the Transportation
Security Administration (‘TSA’), the ACAA, the Allegheny County
Police, and other Airport personnel. The Lease also requires
Fraport to pay rent to the ACAA each month, based upon rent
revenue received from subtenants during that month in the prior
year, but this amount may be adjusted upon agreement of the
parties. Fraport also retains a portion of the rent collected as part
of its revenue.
Section 12 of the Lease provides for the procedures whereby
the ACAA may terminate the Lease before expiration of the term.
The ACAA can terminate the Lease if it notifies Fraport in writing
of an Event of Default, which Event goes uncured for five days.
An Event of Default is itself established upon the ACAA’s written
notification to Fraport of a breach of the Lease agreement. If a
breach is left uncured for more than thirty days it becomes an
Event of Default. The current dispute between the parties
concerns whether and to what extent Fraport may have breached
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its duties under the Lease, whether Fraport successfully cured any
alleged breach, and whether the ACAA followed the proper
procedures in notifying Fraport of alleged breaches and ripening
those alleged breaches into Events of Default before terminating
the Lease.
In the summer of 2021, the ACAA approached Michael
Mullaney, the newly-appointed CEO of Fraport’s parent, Fraport
USA, to discuss the possibility of prematurely terminating the
Lease pursuant to a mutually agreeable arrangement. Namely,
the ACAA offered to buy Fraport out of the remainder of the lease
term for $5 million. Although Mr. Mullaney rejected the offer, he
indicated Fraport USA’s willingness to negotiate a higher price.
The ACAA, on the other hand, indicated it was not willing to
negotiate further. Prior to these events, the relationship between
the ACAA and Fraport was, to all appearances, cordial and
successful. Nevertheless, after Fraport’s refusal, the ACAA began
to find issues in the parties’ arrangement.
From September of 2021 through June of 2022, the ACAA
attempted to identify, in writing, several Events of Default of the
Lease agreement by Fraport. Among the Events of alleged Default
were Fraport’s failure to conduct ‘daily’ inspections, the
insufficiency of those inspections, the unilateral reduction in rent
paid by Fraport during the height of the COVID-19 pandemic, the
relaxation of certain safety regulations regarding access badges,
and the failure to report and/or cure security risks of varying types
in subtenant locations. Despite Fraport’s attempts to cure those
alleged Events of Default, the ACAA continued to find new ones.
This back-and-forth ultimately culminated in the ACAA summarily,
and without prior notice, terminating the Lease and removing
Fraport from the Airport premises on the morning of June 15,
2022. In addition to escorting Fraport’s employees off the
premises with police officers, the ACAA took possession of
personal property and confidential files that remained in Fraport’s
offices.
Because the merits of the underlying dispute are not at issue
in this appeal, this Court need not discuss these events at length.
Suffice it to say that the ACAA’s grounds for terminating the Lease
are dubious, given its desire to prematurely buy Fraport out of the
Lease, and the procedure by which it terminated the Lease seems,
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at first blush, to contravene the procedures for notice and cure in
Section 12 of the Lease.[4]
Fraport promptly filed motions for special and preliminary
injunctions. On June 16, this Court granted the special injunction
pending resolution of the motion for preliminary injunction.[5] The
special injunction returned Fraport and its employees to the
premises to conduct their business as usual. The personal
property and files were also returned to Fraport’s possession.
However, it remained clear that the injunction was untenable long
term, as Fraport’s employees were escorted nearly everywhere
and under constant supervision by ACAA personnel, hampering
the performance of their jobs and keeping tensions raised.
(Trial Court Opinion, 10/03/22, at 1-4).
Despite the findings by the trial court that ACAA’s grounds for
termination were “dubious,” its conduct was tantamount to harassment and
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4Section 12 of the Lease provides in relevant part as follows under Article XII,
“Termination of Lease by the [ACAA:]”
Section 12.02 Remedies of [ACAA] on Default. Notwithstanding
any other provision in this Agreement, the Lessee [Fraport] agrees
that after notice of the occurrence of any Event of Default and
expiration of a five (5) day period in which to cure such Event of
Default, [ACAA] may: (A) Terminate this Agreement without
discharging any of [Fraport’s] obligations hereunder and exclude
[Fraport] from the premises[.]”
(Lease, at 45-46 Section 12.02(A)).
5 The order granting a special injunction provided in relevant part: “(1)
[ACAA] is hereby enjoined from terminating the [Lease] and any further
contract or interference with [Fraport’s] subtenants; (2) [ACAA] shall restore
access to the landslide terminal at the Pittsburgh International Airport for any
employees, subtenants, agents, or contractors of [Fraport] and immediately
return all of [Fraport’s] property that was seized.” (Order, 6/16/22).
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its reasons for termination were essentially manufactured. The trial court,
after an evidentiary hearing, denied the preliminary injunction. While finding
that Fraport may successfully meet five of the six elements necessary for the
granting of a preliminary injunction, it found that Fraport failed to demonstrate
that issuance of a preliminary injunction is necessary to prevent irreparable
harm because any breach of the Master Lease is adequately compensable with
monetary damages.6 (See Trial Ct. Op., 8/17/22, at 3-4). It did so because,
despite the conveyance of a leasehold interest to Fraport, the trial court
characterized the Master Lease as predominately a services contract. (See
id. at 15).
To be sure, this Court does not presume that the Master
Lease is not a lease in any sense. The Master Lease clearly grants
a leasehold interest in the Airport’s commercial property to
Fraport, and it contains other characteristics of a lease, such as a
covenant of quiet enjoyment. However, there are other, more
predominant characteristics to the contract that can only be
characterized as the performance of personal services. These
include managing the Airport’s commercial space, collecting rent,
finding and entering into subleases with businesses, performing
inspections, and other related tasks. These obligations are
inextricably linked with the grant of the leasehold interest.
Fraport’s possession of the lease means nothing without the
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6 “To obtain a preliminary injunction, a petitioner must establish that: (1)
relief is necessary to prevent immediate and irreparable harm that cannot be
adequately compensated by money damages; (2) greater injury will occur
from refusing to grant the injunction than from granting it; (3) the injunction
will restore the parties to their status quo as it existed before the alleged
wrongful conduct; (4) the petitioner is likely to prevail on the merits; (5) the
injunction is reasonably suited to abate the offending activity; and (6) the
public interest will not be harmed if the injunction is granted.” Shepherd v.
Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1241 (Pa. Super. 2011).
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concurrent performance of these services for the benefit of the
ACAA. This Court could not enforce the quiet enjoyment of
Fraport’s leasehold without also mandating that the ACAA accept
Fraport’s performance under the lease. The alternative would
mean that Fraport employees could enter their office space, sit at
their desks, and idly walk through the Airport’s commercial space
free from interference, but without performing any of their
functions for the ACAA. This would be a fruitless exercise, and
even office space is easily replaceable and compensable with
expectation damages. Thus, the personal service nature of the
Lease overshadows the leasehold interest. In such cases, courts
have found damages to be an adequate remedy.
(Id. at 8-9).
Fraport timely appealed, and it and the trial court complied with Rule
1925. See Pa.R.A.P. 1925(a)-(b).7
II.
On appeal, Fraport contends that the trial court, in denying the
preliminary injunction, committed legal error for, among other reasons,
finding that the Master Lease was a service contract and not a lease, and that
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7 Our review of a ruling on a preliminary injunction:
is limited to determining whether there were any apparently
reasonable grounds for the action of the trial court. We will
interfere with the trial court’s decisions regarding a preliminary
injunction only if there exists no grounds in the record to support
the decree, or the rule of law relied upon was palpably erroneous
or misapplied. It must be stressed that our review of a decision
regarding a preliminary injunction does not reach the merits of
the controversy.
Anchel v. Shea, 762 A.2d 346, 351 (Pa. Super. 2000), appeal denied, 782
A.2d 541 (Pa. 2001) (citation omitted).
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its forcible eviction can be adequately compensated by money damages
because a “lease” is not a unique interest in land.
We begin with the observation that leases are in the nature of contracts
and are, thus, controlled by principles of contract law, including the well
settled rules of interpretation and construction. See Cusamano v. Anthony
M. DiLucia, Inc., 421 A.2d 1120, 1122–23 (Pa. Super. 1980). As in the case
of other written contracts, the purpose in interpreting a lease is to ascertain
the intention of the parties, and such intention is to be gleaned from the
language of the lease. See Philadelphia Hous. Auth. v. Barbour, 592 A.2d
47, 49–50 (Pa. Super. 1991), aff’d, 615 A.2d 339 (Pa. 1992). Such intention
is not to be determined merely by reference to a single word or phrase, but
rather by giving every part of the document its fair and legitimate meaning.
See Boyd v. Shell Oil Co., 311 A.2d 616, 618 (Pa. 1973); Marcinak v. S.E.
Greene School District, 544 A.2d 1025, 1027 (1988).
Although the trial court characterized the Master Lease as predominately
a services contract, the language of the agreement could not be more clear
that the agreement between Fraport and ACAA is what it says it is — a lease.
“A lease is defined as ‘[a] contract by which a rightful possessor of real
property conveys the right to use and occupy the property in question for
exchange of consideration, usu. rent.’ Black’s Law Dictionary 907 (8th ed.
2004). . . . A lease may be found where it is ‘the intention of one party
voluntarily to dispossess himself of the premises, for a consideration, and of
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the other to assume the possession for a prescribed period.’ Morrisville
Shopping Center, Inc. v. Sun Ray Drug Co., [] 112 A.2d 183, 186 (Pa.
1955).” Forest Glen Condominium Association v. Forest Green
Common Limited Partnership, 900 A.2d 859, 865 (Pa. Super. 2006).
The present agreement is an extension of the original “Master Lease,
Development and Concession Agreement” entered by Allegheny County and
Fraport, then named BAA Pittsburgh, Inc. in 1991. Allegheny County
subsequently assigned to ACAA all the County’s right, title and interest under
the Master Lease. This current extension runs through December 31, 2029.
(See Master Lease at 9, § 2.02). From the very inception in 1991, the parties
expressed their unambiguous intention that what was being entered into was
a lease stating, “the County granted Lessee a leasehold interest and other
rights in portions of the Midfield Terminal Complex used for food and
beverage, retail and service facilities[.]” (See id. at 1, ¶ B). These are two
sophisticated parties and if their primary intention was to craft a services
agreement, they would have labeled the document a “Master Service
Agreement” and not a Master Lease.
Moreover, there is nothing in the Master Lease to even give a whiff that
the ACCA and Fraport intended to do anything other than enter a lease. To
the contrary, they expressly stated in Section 14.06 of the Master Lease which
sets forth the “Relationship of the Parties” that “Nothing contained in this
Agreement is intended to create or establish any relationship other than that
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of lessor and lessee[.]” (Id. at 51, § 14.06) (emphasis added). Moreover,
the provisions of the Master Lease show that it is just that — a lease — which
is made clear throughout the agreement. For example:
 “The Authority does hereby lease and demise to the Lessee,
and the Lessee does hereby rent from the Authority, the premises”
(Master Lease, at 8 § 2.01(A)).
 Fraport is obligated to pay “Rent” for its leasehold interests.
(See id. at 17, §§ 4.01-4.02).
 Fraport is granted “Quiet Enjoyment of Premises” (Id. at
11, § 2.08).
 Article VI sets forth the terms and conditions under which
Fraport is permitted to enter “Leasehold Mortgages” (Id. at 22-
28).
 Section 8 requires Fraport to “design, construct, lease and
manage the Retail Premises in accordance” with the Master Lease.
(Id. at 29, § 8.01).
 The ACAA is not a party to any subleases and only has
limited authority to approve proposed subleases between Fraport
and potential subtenants. (See id. at 30, § 8.02(C)). The Master
Lease expressly provides that the ACAA’s “approval rights with
respect to subleases . . . shall not permit the [ACAA] to participate
in the negotiation of the terms of any sublease” and such
negotiations are “to be on a commercial basis between [Fraport]
and the Subtenant.” (Id. at § 8.02(E)).
 Fraport was required to undertake capital improvements to
the premises and, if the Master Lease terminated early, such
improvements were deemed part of the leased property and
became property of the ACAA as the lessor. (See id. at 12,
§ 3.01, 15 § 3.07, 16 § 3.08(B).
To the extent we understand the trial court’s reasoning, it seems to
arrive at the conclusion that the Master Lease was a services contract because
Fraport, in managing the Airport’s commercial space, its leasehold, collected
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rent from its subtenant, found and entered subleases with businesses, and
performed inspections and other related tasks, making it predominately a
contract for services. It then goes on to state that because Fraport’s
possession of the lease means nothing without the concurrent performance of
those services for the benefit of ACAA, it finds the necessary implication that
to enforce quiet enjoyment of Fraport’s leasehold would mandate that ACAA
accept Fraport’s performance under the lease.
Ignoring that the parties have defined their relationship as lessor and
lessee, the characteristics the trial court incorrectly identifies as services are
tied to Fraport’s utilizing its authority under its leasehold interest that allows
it to sublease space to tenants, collect the rent and so on, and not to provide
services to the ACCA but to act as the landlord to the subtenants.
Furthermore, if ACCA is dissatisfied with Fraport’s compliance with its
obligations under the Master Lease, it can avail itself of Section 12.02 of the
Master Lease to seek the “Remedies of the Authority on Default” as the parties
agreed.8
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8 Article 12 of the Master Lease sets forth the reasons for which procedures
by which ACAA can seek to terminate the Master Lease. Section 12.01 defines
the elements of an “Event of Default.” Only if an Event of Default has been
established under Section 12.01 of the Master Lease may ACAA seek the
“Remedies of the Authority on Default” provided in Section 12.02. (See
Master Lease, at 44-45).
Before an issue can become an Event of Default under Section 12.01(A), ACAA
must provide a notice alleging that Fraport has failed to pay “Rent” under the
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Now that we have determined that the trial court made an error of law
in characterizing the Master Lease as a services contract, we must determine
whether a preliminary injunction should have been issued.
III.
A.
The trial court found that evidence demonstrating all the elements of a
preliminary injunction was shown except for the first element requiring
“immediate and irreparable harm [defined as] injury for which damages can
only be estimated by conjecture and not by an accurate pecuniary standard
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Master Lease and demand that it be paid within five days of the notice or ACAA
will terminate the Master Lease. (See id. at 44). Similarly, before a non-
Rent issue can become an Event of Default under Section 12.01(J): 1) ACAA
must provide a written notice of Fraport’s failure to keep, perform, and
observe a material promise, covenant, or other provision of the Master Lease;
2) the notice must request that the issue be remedied and state the
Authority’s intention to terminate the Lessee’s rights if the failure is not
remedied and; 3) Fraport must fail to resolve the issue within thirty days after
receiving the notice, subject to the caveat that “any such failure which can be
remedied, but which cannot with due diligence be remedied within such thirty-
day period, shall not give rise to the Authority’s right to terminate this
Agreement if corrective action is instituted by the Lessee within the applicable
period and diligently pursued until the failure is remedied.” (Id. at 45, §
12.01(J)).
Prior to its right to seek any of the remedies found in Section 12.02 of the
Master Lease, ACAA must: 1) provide Fraport with notice of the occurrence
of the alleged Event of Default; and 2) afford Fraport a five-day period in
which to cure any such identified Event of Default. (See id. at 45-46, §12.02).
Absent compliance with Sections 12.01 and 12.02 of the Master Lease, the
Authority’s remedies for collection of Rents or other breach of the Master
Lease by Fraport are limited to those “available . . . at law or in equity.” (Id.
at 46, § 12.04).
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or cannot be adequately compensated by an award of monetary damages.”
City of Allentown v. Lehigh Cnty. Auth., 222 A.3d 1152, 1160 (Pa. Super.
2019) (citation omitted). “In order to meet this burden, a plaintiff must
present concrete evidence demonstrating actual proof of irreparable harm.”
Id. (citation omitted).
Where there is a real property interest, the loss of that interest
constitutes irreparable harm because each parcel of real estate is unique. See
Peters v. Davis, 231 A.2d 748 (Pa. 1967), stating:
The aggrieved property owner’s right is absolute. However
hard his acts might be regarded; he asks the court for the
enforcement of a legal right of a positive character with respect to
land which it is conceded was wrongfully taken from him. He is
entitled to a decree. The rule in such a case is founded on sound
reason. If damages may be substituted for the land, it will amount
to an open invitation to those so inclined to follow a similar course
and thus secure valuable property rights. The amount of land
involved does not change the situation. Here is a wrongful
invasion of a positive right to real property. If a property owner
deliberately and intentionally violates a valid express restriction
running with the land or intentionally ‘takes a chance’, the
appropriate remedy is a mandatory injunction to eradicate the
violation.
Id. at 752 (citation omitted).
Our Supreme Court has also held that, “In light of the unique and
intrinsic value of land, interference with the plaintiff’s contractual rights to
ownership of that land must be deemed irreparable harm.” New Eastwick
Corp. v. Philadelphia Builders Eastwick Corp., 241 A.2d 766, 770 (Pa.
1968). Additionally, regarding possession of a leasehold interest, “[t]here is
substantial common-law authority that the leasing of property is identical to
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the sale of the premises.” Com., by Creamer v. Monumental Properties,
Inc., 329 A.2d 812, 822 (Pa. 1974) (citation omitted).
In this case, ACAA approached Fraport with an offer to buy out its
leasehold interest and Fraport declined to accept it. Like the defendant in
Peters, ACAA interfered with Fraport’s property rights and effectively forced
the result it wanted. Based on the foregoing, we conclude that the harm to
Fraport is irreparable because a real property interest is unique, and the
extent of the injury to its property interest is inherently unascertainable
making the harm that it suffers incapable of being fully compensated by
money damages.
B.
Not only should a preliminary injunction be issued because money
damages cannot compensate Fraport for loss of its leasehold interest, but it
was also an error for the trial court not to issue a preliminary injunction due
to ACAA’s self-help by the improper use of the Allegheny County Police to
advance its commercial interests to evict Fraport.
Because a landlord/tenant relationship existed, ACAA was required to
utilize the procedures set forth in the Landlord Tenant Act of 19519 to lawfully
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9 68 P.S. §§ 250.101 to 399.18.
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evict10 Fraport. The Landlord Tenant Act is a comprehensive regulatory
scheme governing the landlord and tenant relationship. See Stonehedge
Square Ltd. P'ship v. Movie Merchants, Inc., 715 A.2d 1082, 1085 (Pa.
1998). It “sets up the procedure whereby a landlord may repossess [the]
premises if he has a right to evict the tenant.” Warren v. City of
Philadelphia, 115 A.2d 218, 221 (Pa. 1955). The Landlord Tenant Act states
that all other inconsistent acts are repealed and that “[i]t is intended that
this act shall furnish a complete and exclusive system in itself.” 68
P.S. § 250.602 (emphasis added).
After it complied with the default provisions contained in the Master
Lease to trigger a default, to comply with the Landlord Tenant Act, ACAA was
required to give a notice to quit. See 68 P.S. § 250.501(a). If the eviction is
not for failure to pay rent but for a breach of any other condition of the lease
and the lease is for more than one year, the notice to quit must give a
commercial tenant 30 days to leave voluntarily. See 68 P.S. § 250.501(b).
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10 “An eviction is an act by a landlord or a third person that interferes with a
tenant’s possessory right to the demised premises.” See Oakford v. Nixon,
35 A. 588, 589 (Pa. 1896); see also 49 Am. Jur.2d Landlord and Tenant § 300
(1970). If that act is wrongful, the tenant may sue for damages in trespass
or assumpsit. See Kelly v. Miller, 94 A. 1055, 1056–57 (Pa. 1915). “[T]here
is an implied covenant for the quiet enjoyment of the demised premises, and
it is settled in this State that any wrongful act of the landlord which results in
an interference of the tenant's possession, in whole or in part, is an eviction
for which the landlord is liable in damages to the tenant.” Kuriger v. Cramer,
498 A.2d 1331, 1338 (Pa. Super. 1985); see also Minnich v. Kauffman,
108 A. 597, 598 (Pa. 1919); Schienle v. Eckels, 76 A. 15, 16 (Pa. 1910).
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If the tenant does not voluntarily quit the premises within the time period
listed in the notice to quit, the landlord still cannot evict the tenant itself.
Instead, the landlord must file a legal action in court to obtain an eviction.
See 68 P.S. § 250.502. Once a writ of possession has been issued, a constable
or sheriff will enforce the writ of possession to evict the tenant. See 68 P.S.
§ 250.504.
Without complying with the Landlord Tenant Act or the Master Lease
provisions dealing with default, ACAA engaged in self-help to evict Fraport
from the premises. On June 15, 2022, ACAA’s Director of Security
accompanied by two armed Allegheny County Police Officers intercepted
Fraport’s personnel before they could enter Fraport’s offices and instructed
them to gather their personal belongings and depart the Airport under guard.
(See N.T. Hearing, 7/01/22, at 108; N.T. Hearing, 7/13/22 at 59-63). At the
same time that Fraport’s personnel was escorted off the premises, ACAA
emailed the subtenants — with whom ACAA had no contractual relationship —
and informed them that ACAA was now “managing” the concessionaire
program and that all aspects of the program, including financial matters
related to rent, would now be handled by ACAA. (See Joint Exhibit 20,
6/15/22 email memorandum to “Valued ACAA Concessions Partners” from
Bryan Dietz, SVP of Commercial Development at ACAA).
Regarding self-help, while the Landlord Tenant Act provides that it is the
“complete and exclusive system in itself” to obtain the eviction of
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tenants, surprisingly, no Pennsylvania appellate decision has addressed the
issue of the appropriateness of a landlord’s use of self-help, but the courts of
common pleas which have addressed this issue have consistently held self-
help is not available to evict a tenant. See e.g., O'Brien v. Jacob Engle
Foundation, Inc., 47 Pa. D. & C.3d 557, 558–59 (Cumberland Cty. 1987)
(noting that self-help should not be used where judicial procedures, like the
Landlord Tenant Act, are available); Lenair v. Campbell, 31 Pa. D. & C.3d
237, 241 (Philadelphia Cty. 1984) (“Upon reviewing the [Landlord Tenant Act]
in its entirety, it becomes apparent that self-help eviction is not a remedy
under any circumstances. . . . [T]he legislature clearly expressed its intention
that the Act be the sole source of rights, remedies and procedures governing
the landlord/tenant relationship.”); Wofford v. Vavreck, 22 Pa. D. & C. 3d
444, 453 (Crawford Cty. 1981) (“A landlord desirous of seeking repossession
of his leased premises from his tenant for nonpayment of rent must do so
either by bringing an action under the Landlord and Tenant Act [], and the
related Pennsylvania Rules of Civil Procedure for Justices of the Peace, or by
bringing an action in ejectment.”); Williams v. Guzzardi, 875 F.2d 46, 52 n.
13 (3d Cir. 1989) (analyzing pertinent Pennsylvania law). Moreover, under
the Master Lease, the ACCA limited itself to seeking only remedies at law and
equity and not to engage in self-help, even if it was permissible. See Master
Lease at 46, § 12.04).
In this case, ACAA employed self-help by using Allegheny County Police,
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who are at the Airport to protect the public safety, to advance instead its
commercial interests to forcibly remove Fraport personnel from the property.
By doing so, the ACCA’s actions were contrary to both the Landlord Tenant
Act as well as the terms of the Master Lease limiting its remedies to only those
available in law and equity, and constituted irreparable injury as a matter of
law. ACAA’s conduct was a seizure of Fraport’s real and personal property,
including the leases it had with its subtenants. “It cannot be gainsaid that
appellants had a right to insist that the police not seize their property without
due process of law. . . . Thus, the interest to be protected here, which can
never be compensated for in damages, extends beyond the instant appellants
to the community at large.” Berman v. City of Philadelphia, 228 A.2d 189,
191 (Pa. 1967). Our Supreme Court went on to state, “the failure of the court
below to insist that the police resort to the available legal machinery rather
than forcibly evicting appellants [by denying the motion for preliminary
injunction], thereby ensuring the dignity of the legal process, did amount to
an abuse of discretion.” Id.Accordingly, for the foregoing reasons, the order of the trial court
denying Fraport’s request for a preliminary injunction is reversed and the case
is remanded for it to enter a preliminary injunction restoring Fraport’s rights
in accordance with the Master Lease.
Order reversed. Case remanded for further proceedings consistent with
this Opinion. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2023
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