J-S73015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PITTSBURGH LOGISTICS SYSTEMS,              :   IN THE SUPERIOR COURT OF
    INC.                                       :         PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                v.                             :
                                               :
    THE ASSET STORE, LLC                       :
                                               :
                       Appellee                :       No. 887 WDA 2018

                 Appeal from the Judgment Entered July 3, 2018
                 In the Court of Common Pleas of Butler County
                      Civil Division at No(s): A.D. 16-10748


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JANUARY 11, 2019

       Appellant, Pittsburgh Logistics Systems, Inc., appeals from the

judgment entered in the Butler County Court of Common Pleas, following the

denial of Appellant’s post-trial motion to remove a compulsory nonsuit and

grant a new trial.1 We affirm.

       The relevant facts and procedural history of this case are as follows.

Appellant and Appellee, The Asset Store, LLC, had a business relationship for

____________________________________________


1 Appellant purports to appeal from the trial court’s denial of its post-trial
motion to remove nonsuit. “[I]n a case where nonsuit was entered, the appeal
properly lies from the judgment entered after denial of a motion to remove
nonsuit.” Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa.Super. 2004). In the
present action, Appellant filed its notice of appeal on June 15, 2018. Judgment
on the verdict, however, was not entered until July 3, 2018. Thus, Appellant’s
notice of appeal relates forward to July 3, 2018, the date judgment was
entered and copies of the judgment were distributed to the appropriate
parties. See Pa.R.A.P. 905(a).
J-S73015-18


the coordination of the transportation of hotel furniture and fixtures. In all

circumstances, the communications between the parties regarding the

business arrangements were predominantly oral only.        In some instances,

Appellee agreed to pay for shipments on the occasions when the goods were

shipped to a warehouse facility owned by Appellee.        In other instances,

Appellee simply referred its customers to Appellant as an option to coordinate

shipments.    In the latter instances, Appellant and Appellee’s customer

understood Appellee was only referring the customer to Appellant and the

customer, not Appellee, was responsible for paying shipping costs. Appellee

makes no money from the shipping or logistics services, and Appellee’s

customers are free to make their own arrangements for shipping services.

      On September 15, 2016, Appellant sued Appellee for breach of

contract/unjust enrichment for non-payment of certain invoices in the amount

of $63,973.05.    The court held a bench trial on April 10, 2018.       At the

conclusion of Appellant’s case in chief, Appellee moved for a compulsory

nonsuit, because Appellant had failed to establish an evidentiary basis for the

breach of contract action or for an implied or quasi-contract between Appellant

and Appellee regarding the invoices in question.       The court granted the

compulsory nonsuit in favor of Appellee, with the exception of $960.00 that

Appellee stipulated was due and owing to Appellant.       On April 20, 2018,

Appellant filed a post-trial motion to remove the compulsory nonsuit and grant

a new trial. The court denied Appellant’s post-trial motion on June 7, 2018,


                                     -2-
J-S73015-18


and Appellant filed a notice of appeal on June 15, 2018. On June 18, 2018,

the court ordered Appellant to file a concise statement of errors complained

of on appeal, pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on

July 9, 2018. The court entered a final judgment on July 3, 2018.

      On appeal, Appellant presents three issues for our review:

         WHETHER THE TRIAL COURT ERRED BY FAILING TO FIND
         BUSINESS RECORDS, ADMITTED AS AN EXCEPTION TO THE
         RULE AGAINST HEARSAY, PRESUMPTIVELY TRUSTWORTHY
         ABSENT ANY EVIDENCE TO THE CONTRARY?

         WHETHER THE TRIAL COURT ERRED BY ENTERING
         COMPULSORY NONSUIT AS TO BREACH OF CONTRACT
         DESPITE  CLEAR   AND   OVERWHELMING     EVIDENCE
         SUPPORTING A CONTRACT IMPLIED IN FACT AND BREACH
         THEREOF?

         WHETHER THE TRIAL COURT ERRED BY ENTERING
         COMPULSORY NONSUIT AS TO UNJUST ENRICHMENT
         DESPITE  CLEAR   AND   OVERWHELMING  EVIDENCE
         SUPPORTING QUASI−CONTRACT BETWEEN THE PARTIES
         AND UNJUST ENRICHMENT BY TAS?

(Appellant’s Brief at 4).

      Our standard of review following the denial of a motion to remove a

nonsuit is as follows: “This Court will reverse an order denying a motion to

remove a nonsuit only if the trial court abused its discretion or made an error

of law.” Brinich v. Jencka, 757 A.2d 388, 402 (Pa.Super. 2000), appeal

denied, 565 Pa. 634, 771 A.2d 1276 (2001) (citing Emge v. Hagosky, 712

A.2d 315, 317 (Pa.Super. 1998)).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its

                                     -3-
J-S73015-18


         discretion if, in resolving the issue for decision, it misapplies
         the law or exercises its discretion in a manner lacking
         reason.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal

citations omitted). The grant of a compulsory nonsuit is proper when, having

viewed all the evidence in the plaintiff’s favor, the court determines plaintiff

has not established the elements of the cause of action. Brinich, supra.

      In its issues combined, Appellant contends that despite admitting

Appellant’s invoices into evidence as exhibits, the trial court erroneously failed

to accept them as an evidentiary basis for a contract between Appellant and

Appellee. Appellant insists the invoices provided the court with trustworthy

business records and prima facie evidence of a contract. Appellant maintains

the trial court erred when it found Appellant had failed to establish the

existence of a contract with Appellee, based on those invoices.          Appellant

further alleges the evidence showed an implied contract between Appellant

and Appellee, based on those invoices, and Appellee breached that implied

contract. Appellant also claims the evidence showed a quasi-contract existed

between Appellant and Appellee, regarding those invoices, and Appellee was

unjustly enriched as a result of non-payment of the invoices.            Appellant

concludes this Court should set aside the compulsory nonsuit and order a new

trial. We disagree.

      Pennsylvania Rule of Evidence 803(6) sets forth the business records

exception to the hearsay rule, as follows:


                                       -4-
J-S73015-18


         Rule 803. Exceptions to the Rule Against Hearsay—
              Regardless of Whether the Declarant Is
              Available as a Witness

         The following are not excluded by the rule against hearsay,
         regardless of whether the declarant is available as a
         witness:

                                  *    *    *

         (6) Records of regularly conducted activity. A record
         (which includes a memorandum, report, or data compilation
         in any form) of an act, event or condition if:

         (A) the record was made at or near the time by—or from
         information transmitted by—someone with knowledge;

         (B) the record was kept in the course of a regularly
         conducted activity of a “business,” which term includes
         business, institution, association, profession, occupation,
         and calling of every kind, whether or not conducted for
         profit;

         (C) making the record was a regular practice of that
         activity;

         (D) all these conditions are shown by the testimony of the
         custodian or another qualified witness, or by a certification
         that complies with Rule 901(11) or (12) or with a statue
         permitting certification; and

         (E) the opponent does not show that the source of
         information or other circumstances indicate lack of
         trustworthiness.

Pa.R.E. 803(6). The Uniform Business Records as Evidence Act provides in

pertinent part:


         § 6108. Business records

                                  *    *    *



                                      -5-
J-S73015-18


         (b) General Rule.―A record of an act, condition or event
         shall, insofar as relevant, be competent evidence if the
         custodian or other qualified witness testifies to its identity
         and the mode of its preparation, and if it was made in the
         regular course of business at or near the time of the act,
         condition or event, and if, in the opinion of the tribunal, the
         sources of information, method and time of preparation
         were such as to justify its admission.

42 Pa.C.S.A. § 6108(b). “As long as the authenticating witness can provide

sufficient information relating to the preparation and maintenance of the

records to justify a presumption of trustworthiness of the business records of

a company, a sufficient basis is provided to offset the hearsay character of the

evidence.” Commonwealth v. McEnany, 732 A.2d 1263, 1272 (Pa.Super.

1999), appeal granted, 562 Pa. 667, 753 A.2d 816 (2000) (quoting Boyle v.

Steiman, 631 A.2d 1025, 1032-33 (Pa.Super. 1993), appeal denied, 538 Pa.

663, 649 A.2d 666 (1994)).

      “To maintain a cause of action in breach of contract, a plaintiff must

establish: (1) the existence of a contract, including its essential terms; (2) a

breach of a duty imposed by the contract; and (3) resulting damages.”

Lackner v. Glosser, 892 A.2d 21, 30 (Pa.Super. 2006) (citing Gorski v.

Smith, 812 A.2d 683, 692 (Pa.Super. 2002), appeal denied, 579 Pa. 692, 856

A.2d 834 (2004)). “For a contract to be enforceable, the nature and extent

of the mutual obligations must be certain, and the parties must have agreed

on the material and necessary details of their bargain.”       Lackner, supra

(citing Peck v. Delaware County Board of Prison Inspectors, 572 Pa.

249, 260, 814 A.2d 185, 191 (2002)).        “An enforceable contract requires,

                                      -6-
J-S73015-18


among other things, that the terms of the bargain be set forth with sufficient

clarity.”   Lackner, supra at 30-31 (citing Biddle v. Johnsonbaugh, 664

A.2d 159, 163 (Pa.Super. 1995)). Clarity is particularly important where an

oral contract is alleged. Snaith v. Snaith, 422 A.2d 1379, 1382 (Pa.Super.

1980).

      There must be a “meeting of the minds” for an agreement to exist.

Accu-Weather, Inc. v. Thomas Broadcasting Co., 625 A.2d 75, 78

(Pa.Super. 1993).

            [T]he very essence of an agreement is that the parties
            mutually assent to the same thing…. Without such assent
            there can be no [enforceable] agreement…. The principle
            that a contract is not binding unless there is an offer and an
            acceptance is to ensure that there will be mutual assent….

            [I]t is equally well-established that an offer may be
            accepted by conduct and what the parties do pursuant to
            the offer is germane to show whether the offer is accepted.

            With these precepts in mind, we look to the parties’ “course
            of conduct” to assess the presence of a contract.

Id. (internal citations and quotation marks omitted).         “In cases involving

contracts wholly or partially composed of oral communications, the precise

content of which are not of record, courts must look to surrounding

circumstances and course of dealing between the parties in order to ascertain

their intent.” Boyle, supra at 1033 (holding prior course of dealings between

parties supported appellees’ claim of contract formation between parties).

Additionally:

            A contract implied in fact can be found by looking to the

                                        -7-
J-S73015-18


          surrounding facts of the parties’ dealings.7   Offer and
          acceptance need not be identifiable and the moment of
          formation need not be pinpointed. Implied contracts…arise
          under circumstances which, according to the ordinary
          course of dealing and the common understanding of
          [people], show a mutual intention to contract.

            7 A contract implied in fact has the same legal effect
            as any other contract. It differs from an express
            contract only in the manner of its formation. An
            express contract is formed by either written or verbal
            communication. The intent of the parties to an
            implied in fact contract is inferred from their acts in
            light of the surrounding circumstances.

Ingrassia Const. Co., Inc. v. Walsh, 486 A.2d 478, 483 (Pa.Super. 1984)

(internal citations and quotation marks omitted).

     A claim for unjust enrichment generally arises only where a written or

express contract does not govern the relationship between the parties.

Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc., 933

A.2d 664, 669 (Pa.Super. 2007), appeal denied, 596 Pa. 755, 947 A.2d 737

(2008).

          [U]njust enrichment arises from a quasi-contract. A quasi-
          contract imposes a duty, not as a result of any agreement,
          whether express or implied, but in spite of the absence of
          an agreement, when one party receives unjust enrichment
          at the expense of another.

            The elements of unjust enrichment are benefits
            conferred on defendant by plaintiff, appreciation of
            such benefits by defendant, and acceptance and
            retention of such benefits under such circumstances
            that it would be inequitable for defendant to retain the
            benefit without payment of value.        Whether the
            doctrine applies depends on the unique factual
            circumstances of each case. In determining if the
            doctrine applies, we focus not on the intention of the

                                     -8-
J-S73015-18


            parties, but rather on whether the defendant has been
            unjustly enriched.

            Moreover, the most significant element of the doctrine
            is whether the enrichment of the defendant is unjust.
            The doctrine does not apply simply because the
            defendant may have benefited as a result of the
            actions of the plaintiff.

Stoeckinger v. Presidential Financial Corp. of Delaware Valley, 948

A.2d 828, 833 (Pa.Super. 2008) (internal citation and quotations omitted)

(emphasis in original).

      Instantly, the court admitted the invoices in question as legitimate. The

court overruled Appellee’s hearsay objections to the invoices, finding them to

have a sufficiently trustworthy basis to overcome their hearsay character.

Nevertheless, just because the court admitted the invoices does not mean the

invoices automatically provided an adequate evidentiary ground to prove

Appellant’s cause of action. To the contrary, the court reasoned:

         As to the invoices at issue in this case, [Appellant] presented
         no evidence of any agreement or course of dealing that
         [Appellee] paid for [Appellant’s] services rendered for the
         benefit of [Appellee’s] customers. [Appellant] offered no
         evidence to obligate [Appellee] to pay for the other invoices.
         The invoices only reflect deliveries and charges. They do
         not establish that [Appellee] ever expressly agreed to, or,
         by course of dealing, implied to pay for, said deliveries. As
         regards [Appellant’s] third assignment of error, involving
         the unjust enrichment claim, [Appellant] did not provide
         evidence to establish that the services, rendered to
         [Appellee’s] customers, provided a benefit to [Appellee].
         The evidence provided by [Appellant], through [Appellee’s]
         agent, was that the deliveries were for [Appellee’s]
         customers, to be paid for by said customers, and that
         [Appellee] as merely coordinating with [Appellant] for the
         customers. As regards [Appellant’s] [complaint] about

                                      -9-
J-S73015-18


         payments for shipping, [Appellee’s] agent testified that
         [Appellee] did contract for certain shipments and that they
         agreed to pay, and did pay, for those shipments, except for
         one $960.00 invoiced shipment.           This unpaid invoice
         supported the $960.00 judgment that was entered against
         [Appellee]. There was no evidence to obligate [Appellee] to
         pay for any of the remaining contested invoices. As regards
         [Appellant’s] [complaint], there was no evidence to
         establish that [Appellee] agreed to pay for the invoiced
         shipments at issue in this case.          Finally, as regards
         [Appellant’s] [complaint], the record and exhibits
         established that [Appellee] arranged for, and agreed to pay
         for, certain shipments of [Appellee’s] goods for [Appellee’s]
         benefit. However, for the contested invoices at issue,
         [Appellant] did not present evidence to support any legal
         basis, contractual or equitable, to obligate [Appellee] to pay.
         The invoices, exhibits, and [Appellee’s] agent’s testimony
         did not provide sufficient evidence of any agreement or duty
         to pay for the contested invoices. Absent evidence of an
         agreement or a basis for finding a benefit to [Appellee] to
         support unjust enrichment, [Appellant] did not meet its
         burden. Thus, this [c]ourt granted Compulsory Non-suit in
         favor of [Appellee] and against [Appellant] for all invoices
         except for the $960.00 invoice. As regards said invoice,
         Judgment was entered in favor of [Appellant] and against
         [Appellee] in the amount of $960.00.

(Trial Court Opinion, entered July 20, 2018, at 2-4). The record makes clear

the court entered a compulsory nonsuit in favor of Appellee when, having

viewed all the evidence in Appellant’s favor, the court determined that

Appellant had not established the elements of its cause of action for breach of

contract or unjust enrichment. See Brinich, supra. Thus, the court properly

denied Appellant’s motion to set aside the compulsory nonsuit.             See id.

Accordingly, we affirm.

      Judgment affirmed.




                                     - 10 -
J-S73015-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2019




                          - 11 -
