J-A14044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ILLONA, LLC D/B/A ATRIUM AT THE                 IN THE SUPERIOR COURT OF
CURTIS CENTER,                                        PENNSYLVANIA

                         Appellant

                    v.

CURTIS CENTER, TIC I, LLC, CURTIS
CENTER TIC II, LLC, HY’S CURTIS LLC,
KPG-MCG CURTIS TENANT, LLC,
KEYSTONE PROPERTY GROUP, L.P.,
MACK CALI REALTY CORPORATION,

                         Appellees                   No. 3236 EDA 2016


             Appeal from the Order Entered September 27, 2016
            In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): February Term, 2016 No. 000949


BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 25, 2017

      Illona, LLC d/b/a Atrium at the Curtis Center (“Illona”) appeals from

the September 27, 2016 order sustaining the preliminary objections (“POs”)

of Curtis Center TIC I, LLC, Curtis Center TIC II, LLC, HY’S Curtis LLC, KPG-

MCG Curtis Tenant, LLC, Keystone Property Group, L.P., Mack Cali Realty

Corporation (collectively, “Curtis Center”), and dismissing Illona’s fourth

amended complaint (the “Complaint”). We affirm.

      Pursuant to a ten-year agreement (the “Lease”) executed on April 1,

2008, with Curtis Center’s predecessor in interest, Curtis Partners, LP, Illona

leased space in the historic Curtis Center building on Washington Square in
J-A14044-17


Center City, Philadelphia. Pursuant to the Lease, Illona operated under an

exclusive license (the “License”) to use the Atrium and Dream Garden areas

of the building for weddings and banquets (“License Area”).       Additionally,

Illona leased two ancillary suites, L45 and L89, exclusively as support for its

use of the License Area.

      After years of Illona’s uninterrupted use of the License Area, Curtis

Center became successors to Curtis Partners, LP, in June of 2014 and

announced plans in January of 2015 to renovate the building, including the

License Area.   As of that announcement, Illona had ninety-two weddings

booked for 2015. Curtis Center informed Illona that its plans would affect

Illona’s use of the License Area due to the erection of scaffolding, major

construction, and the removal of key architectural features in the License

Area. Curtis Center assured Ilona that it intended to compensate Illona for

interference with Illona’s exclusive use of the License Area.

      Although Illona agreed not to book any weddings or events during the

proposed construction period, December 5, 2015, through March 5, 2016,

Curtis Center did not follow through on its assurances to Illona. Moreover,

in June of 2015—part of the most popular wedding season—Curtis Center

began removing key architectural features from the License Area.       Due to

construction delays, Curtis Center advised Illona that the renovation would

not begin until February of 2016 and would continue through early 2017,

during which period Illona had booked approximately 120 weddings.


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      Concerned that it would not be able to fulfill its upcoming contracts,

Illona filed suit on February 5, 2016. Following a volley of complaints and

POs, the Complaint set forth six counts. Curtis Center again filed POs, which

the trial court sustained on September 27, 2016.           This appeal followed.

Illona and the trial court complied with Pa.R.A.P. 1925.

      On   appeal,   Illona   presents   the   following    questions   for   our

consideration:

      1.    Whether the Trial Court failed to properly recognize the
            distinct property interest and rights of the irrevocable
            license Illona received for the Atrium area that it used for
            its actual event space – as opposed to the leasehold for
            the corollary preparation and storage suites – when:

            A.    The fundamental purpose of the License and
                  Lease   Agreement     was   to   secure   the
                  License/Event Area to hold weddings and other
                  events;

            B.    Illona invested significant sums in reliance
                  upon the grant of the [L]icense for the event
                  space;

            C.    The plain language of the License and Lease
                  Agreement does not provide that significant
                  construction and renovation to the Atrium and
                  Dream      Garden     area   are    permissible
                  irrespective of their impact on Illona’s license
                  rights and contrary to its exclusive right of
                  enjoyment of that irrevocable license;

            D.    Illona had enjoyed an eight year course of
                  dealing with the previous landlord recognizing
                  its exclusive right of enjoyment for its
                  License/Event Area;

            E.    The identification of the License/Event Area is
                  more specific than the generic definition of

                                     -3-
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                  Common Area in        the   License   and   Lease
                  Agreement; and,

            F.    The carve-out of rights in the License of limited
                  rights of ingress and egress demonstrates that
                  the License/Event Area was not a Common
                  Area and the Trial Court’s interpretation
                  rendered this language surplusage?

      2.    Whether, alternatively, under the License and Lease
            Agreement Illona licensed the “License/Event Area,”
            providing it with a right of quiet enjoyment that was
            infringed by the construction work[?]

      3.    Whether the Trial Court improperly ruled that Illona failed
            to plead a sustainable claim for tortious interference with
            contractual relations, as Illona maintained a separate claim
            against [Curtis Center] outside of their breach of contract
            claims?

      4.    Whether the Trial Court improperly dismissed Illona’s
            claims for gross negligence against [Curtis Center], as the
            actions of [Curtis Center] and their construction workers
            caused damage to the Tiffany Mosiac [sic] that was a
            critical component of the Licensed Event Area?

      5.    Whether the Trial Court improperly dismissed Illona’s
            claims for unjust enrichment at this early stage in [the]
            proceeding without any discovery on remaining factual
            issues?

Appellant’s Brief at 3–5.

             Our standard of review of an order of the trial
      court . . . [sustaining] preliminary objections is to determine
      whether the trial court committed an error of law.        When
      considering the appropriateness of a ruling on preliminary
      objections, the appellate court must apply the same standard as
      the trial court.

            Preliminary objections in the nature of a demurrer test the
      legal sufficiency of the complaint. When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably

                                     -4-
J-A14044-17


      deducible therefrom.     Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases
      in which it is clear and free from doubt that the pleader will be
      unable to prove facts legally sufficient to establish the right to
      relief. If any doubt exists as to whether a demurrer should be
      sustained, it should be resolved in favor of overruling the
      preliminary objections.

Khawaja v. RE/MAX Cent., 151 A.3d 626, 630 (Pa. Super. 2016) (quoting

Perelman v. Perelman, 125 A.3d 1259, 1263 (Pa. Super. 2015), appeal

denied, 141 A.3d 435 (Pa. 2016) (internal citations and quotation marks

omitted)).

      In its first issue, Illona complains that the trial court failed to recognize

the difference between an irrevocable license and a leasehold. According to

Illona, it “had an irrevocable License to use the License/Event Area based on

its significant, detrimental reliance on the ability to use that Area during the

term of the Agreement and as evidenced by its financial expenditures in

reliance upon that License.” Illona’s Brief at 30–32. Curtis Center counters

that “the Lease created the License and governs the parties’ rights pursuant

to the License, [therefore] Illona cannot establish that the License is

irrevocable or that equitable relief is proper.” Curtis Center’s Brief at 25.

      We reiterate:

      The Pennsylvania Supreme Court adopted the equitable doctrine
      of irrevocable license in the mid-nineteenth century stating that
      “a license to do something on the licensor’s land when followed
      by the expenditure of money on the faith of it, is irrevocable,
      and is to be treated as a binding contract.” Huff v. McCauley,
      53 Pa. 206, 208 (1866); Kovach v. General Telephone Co.,
      340 Pa.Super. 144, 489 A.2d 883, 885 (1985). The Court
      subsequently explained that such a license, while not strictly an

                                      -5-
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      easement, is in the nature of one. It is really a permission or
      license, express or implied, to use the property of another in a
      particular manner, or for a particular purpose. Where this
      permission has led the party to whom it has been given, to treat
      his own property in a way in which he would not otherwise have
      treated it...it cannot be recalled to his detriment. Harkins v.
      Zamichieli, 266 Pa.Super. 401, 405 A.2d 495, 498 (1979)
      (quoting Pierce v. Clelland, 133 Pa. 189, 19 A. 352 (1890)).
      Thus, the irrevocable license gives “absolute rights, and protects
      the licensee in the enjoyment of those rights.” Cole v. Ellwood,
      216 Pa. 283, 289, 65 A. 678, 680 (1907).                 Moreover,
      “successors-in-title take subject to an irrevocable license if they
      had notice of the license before the purchase.” Kovach, supra
      (quoting Harkins, supra at 498).

Morning Call, Inc. v. Bell Atl.-Pennsylvania, Inc., 761 A.2d 139, 144

(Pa. Super. 2000).    In contrast, a leasehold is “[a] tenant’s possessory

estate in land or premises” obtained through a lease in exchange for rent or

other consideration. Black’s Law Dictionary 972, 973 (9th ed. 2009). “As

such, a lease must be construed in accordance with the terms of the lease

agreement as manifestly expressed[;] and the accepted and plain meaning

of the language used, rather than the silent intentions of the contracting

parties, determines the construction to be given the agreement.”            T.W.

Phillips Gas & Oil Co. v. Jedlicka, 42 A.3d 261, 267 (Pa. 2012) (quoting

J.K. Willison v. Consol. Coal Co., 637 A.2d 979, 982 (Pa. 1994)) (internal

quotation marks omitted).

      Upon review, we find that the trial court clearly recognized the

distinction between Illona’s leasehold and the License:

            The terms of the subject lease are clear and can only be
      logically interpreted one way. The leased space encompasses


                                     -6-
J-A14044-17


       two suites within the Curtis Center building, and the Atrium is
       part of a “license area” granted to [Illona].

             Section 2.1 of the [Lease] is entitled “Grant of Premises,”
       and is divided into two subparts. Ex. B, Art. 2.1. The first
       subpart addresses the area leased to [Illona] and the second
       addresses the area licensed to [Illona]. Id.

             The first subpart states, “Landlord hereby leases the
       Premises to Tenant.” Id. (emphasis added). The Premises, as
       defined in Article 1, encompasses suites L45 and L89 of the
       building and not the Atrium. Id. art. 1. The second subpart
       states, “Provided no event of default has occurred . . . Tenant
       shall have the exclusive license to use the Atrium . . .” Id. art.
       2.1 (emphasis added).

Trial Court Opinion, 9/27/16, at 3.

       Moreover, we conclude that Illona’s specific arguments within its first

issue lack merit. The trial court recognized Illona’s two separate interests

under the Lease:       use of the License Area to the exclusion of other event

vendors and a leasehold of two suites in support of Illona’s events. Illona’s

investment of significant sums in support of the License (Illona’s Brief at 34–

37) does not trump the express terms of the Lease which include the License

Area as a common area.1           Accord Margolin v. Pennsylvania R.R. Co.,

____________________________________________


1
    “Common area” is defined as:

       All areas in the Property except those areas occupied by
       Landlord or leased to tenants or held for lease to tenants,
       including without limitation, parking areas, streets, driveways,
       aisles, sidewalks, curbs, delivery passages, loading areas (such
       as corridors, bathrooms and similar areas) on multi-tenant
       floors, other Building common areas and all other areas situated
       on or in the Property which are designated by Landlord from
(Footnote Continued Next Page)


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168 A.2d 320 (Pa. 1961) (holding that an irrevocable license does not exist

where a written agreement creates the license and governs the parties’

rights and obligations in relation to the license). Section 6.3 of the Lease

provides that alteration of the common area, and therefore the License Area,

is permissible, notwithstanding Illona’s exclusive right to use the License

Area for banquet events.2 As for Illona’s uninterrupted, eight-year course of

dealing with the previous landlord, that fact is irrelevant. Even though the


                       _______________________
(Footnote Continued)

       time to time, for use by, or for benefit of, all tenants or
       occupants of the Property in common.

Complaint, 7/14/16, at ¶ 22, Exhibit A at Article 1. The License Area was
not occupied by the Landlord or leased to tenants or held for lease to
tenants, and it was designated for the benefit of all tenants or occupants;
therefore, as the trial court found, the License Area falls within the definition
of common area. Trial Court Opinion, 9/27/16, at 3–4.
2
    Section 6.3 provides as follows:

             Landlord shall have the right to decorate and to make
       repairs, alterations, additions, changes or improvements,
       whether structural or otherwise, in, about or on the Property or
       any part thereof, and to change, alter, relocate, remove or
       replace service areas and/or Common Areas, to place, inspect,
       repair and replace in the premises (below floors, above ceilings
       or next to columns) utility lines, pipes and the like to serve other
       areas of the Property outside the Premises and to otherwise alter
       or modify the Property, and for such purposes to enter upon the
       Premises and, during the continuance of any such work, to take
       such measures for safety or for the expediting of such work as
       may be required, in Landlord’s judgment, all without affecting
       any of Tenant’s obligations hereunder.

Complaint, 7/14/16, at Exhibit A § 6.3.



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identity of Illona’s landlord changed, the terms of the Lease did not.     The

License remained subject to the Lease.

      Additionally, we agree with Curtis Center that Illona’s arguments

regarding the definitions of the License Area and common areas in the Lease

“are strained at best.”    Curtis Center’s Brief at 18.     As Curtis Center

illustrates, the Lease expressly defines both areas, the definitions are not in

conflict, and Illona’s supporting case law is inapposite. Id. at 18–21. We

further agree with Curtis Center that the “carve-out” language in the Lease

is not surplusage:

      The “carve-out” language provides:

            The forgoing license shall not affect the right of
            Landlord, Landlord’s tenants and invitees to use the
            Licensed Area for non banquet events at times when
            the License Area is not being used by Tenant
            pursuant to the terms herein, and the right of all
            tenants to use the License Area in the Atrium for
            ingress and egress to and from the Building.

      (emphasis added . . .). This language is not surplusage because
      it is necessary to define the scope of Illona’s License, which—
      contrary to Illona’s characterizations—is not without limits.

             The first part of the “carve-out” language makes it clear
      that Illona’s exclusive license is limited to banquet events only,
      but that other tenants may use the space for non-banquet
      events. The obvious purpose of this language is to ensure that
      no other company that produces and orchestrates weddings is
      permitted to use the License Area for such events. The second
      part of the “carve-out” language is included to ensure that Illona
      does not prohibit tenants from entering their leaseholds during
      Illona’s wedding events, and is necessary because the License
      Area is regularly used by tenants for ingress and egress. As
      such, this language is necessary to define the scope of Illona’s
      License.

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J-A14044-17


Id. at 21–22 (internal citations to reproduced record omitted).        Lastly, as

Curtis Center points out:

        [t]he terms of the Lease belie Illona’s assertions that the License
        is irrevocable. Most notably, the Lease has a definitive date of
        termination with no right of renewal. . . . In addition, the Lease
        provides that the Landlord may terminate the Lease and expel
        Illona in the event that Illona defaults under the Lease.

                                      * * *

        Significantly, none of the cases cited by Illona involved a written
        contract creating the license and governing the parties’ rights
        and obligations in relation to that license.

Id. at 24–25 (internal citations to reproduced record omitted). Based on the

foregoing, we conclude that Illona’s first issue does not warrant relief.

        In its second issue, Illona complains the trial court failed to recognize

that the Lease provided Illona with a right of quiet enjoyment of the License

Area.    Illona’s Brief at 44.   Curtis Center retorts—and we agree—that the

covenant of quiet enjoyment arises in the context of a lease, not a license.

Curtis Center’s Brief at 27–28 (citing Lichtenfels v. Bridgeview Coal Co.,

531 A.2d 22, 25 n.1 (Pa. Super. 1987), and Sparrow v. Airport Parking

Co. of Am., 289 A.2d 87, 91 (Pa. Super. 1972)).           Therefore, under the

Lease, Illona was entitled to quiet enjoyment of its leasehold, Suites L45 and

L89, not to the License Area.         The cases cited by Illona support this

conclusion in that they all involve the covenant of quiet enjoyment in the

context of a lease. Illona’s Brief at 48–50; Curtis Center’s Brief at 27 n.11.




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       Illona’s third issue involves its count for tortious interference with

contractual relations. Specifically, Illona argues that Curtis Center has taken

“purposeful and intentional steps that harm Illona’s third party contractual

relationships, without any privilege or justification on their part.”        Illona’s

Brief at 54. According to Illona, the Lease “does not contain any provision or

privilege which allows [Curtis Center] to remove the [License Area] from

Illona’s exclusive irrevocable license and as such, any attempt to remove the

[License Area] is improper.”         Id.    Illona further asserts that its claim for

tortious interference is not based upon any of the terms of the Lease and,

therefore, does not duplicate a breach of contract claim. Id. at 56.

       In response, Curtis Center endorses the trial court’s ruling that Illona’s

intentional-interference      claim is barred by the         gist-of-the-action and

economic-loss doctrine.3        Curtis Center’s Brief at 34–40.      The trial court

opined:

             [Illona] alleges that its wedding contracts were interfered
       with by [Curtis Center’s] construction project—the same project
       that was allegedly wrongful under the terms of the parties’ lease
       contract. As such, this claim is based in contract law, not tort
       law, and is barred by the gist of the action and economic loss
       doctrines.

             The gist of the action doctrine bars a party from converting
       a breach of contract claim into a tort claim. See Bruno v. Erie
       Ins. Co., 106 A.3d 48, 53 (Pa. 2014). The critical determination
____________________________________________


3
   Curtis Center submits that Illona has not addressed the economic-loss
doctrine in its opening brief and, therefore, has waived consideration of that
doctrine. Curtis Center’s Brief at 36–38 and n. 15. We agree.



                                           - 11 -
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      is whether the duty arose directly from terms of the contract or
      from a broader social duty owed to all individuals. Id. at 68.

            Here, the basis of [Illona’s] lawsuit is that [Curtis Center’s]
      conduct has deprived [Illona] of the contract’s benefits, and as
      such, lies in assumpsit.

Trial Court Opinion, 9/27/16, at 5–6.

      Upon review, we agree with the trial court’s analysis. The elements of

tortious interference are:   “(1) the existence of a contractual relationship

between the plaintiff and a third party; (2) purposeful action on the part of

the defendant intended to harm the relationship; (3) the absence of privilege

or justification on the part of the defendant; and (4) actual damages

resulting from defendant’s conduct.”     Hillis Adjustment Agency, Inc. v.

Graham Co., 911 A.2d 1008, 1012 (Pa. Super. 2006).

      Here, Illona averred that Curtis Center breached the Lease and that by

doing so, Curtis Center interfered with Illona’s third-party wedding/banquet

contracts.   Complaint, 7/14/16, at ¶¶ 167–172.       Even if Curtis Center did

interfere with Illona’s third-party contracts, Section 6.3 of the Lease

authorized Curtis Center to make alterations to common areas, including the

License Area. Moreover, Illona did not aver that Curtis Center engaged in

“purposeful action intended to harm” Illona’s contractual relationships.

Hillis Adjustment Agency, 911 A.2d at 1012 (emphasis supplied). Rather,

it averred that Curtis Center knew or should have known that its actions

would interfere with Illona’s wedding contracts.     Id. at ¶ 169.    Compare

Jeannette Paper Co. v. Longview Fibre Co., 548 A.2d 319 (Pa. Super.

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1988) (affirming judgment in favor of Jeannette where record established

“malicious, willful and egregious conduct by Longview that comprised both a

breach of contract and an intentional interference”).       Thus, Illona’s third

issue does not warrant relief.

      Next, Illona argues that the trial court erred in dismissing its gross

negligence count. According to Illona, “Section 7.5 of the [Lease] explicitly

allows for a claim of gross negligence against the Landlord.” Illona’s Brief at

57. Illona based this count on damage by construction workers to a unique

Tiffany mosaic in the Dream Garden area, which Illona claims was a critical

feature of the License Area. Id. at 58.

      Curtis Center argues that Illona’s gross negligence claim is a contract

claim brought under Section 7.5 of the Lease, not a tort claim.           Curtis

Center’s Brief at 30–33. According to Curtis Center, Section 7.5 “is not [a]

carte blanche for Illona to bring a claim for any conduct that it deems to be

‘gross negligence.’” Id. at 31. Additionally, Curtis Center contends that it

did not owe a duty to Illona with regard to the Tiffany mosaic for two

reasons:   (1) Illona did not own the mosaic and (2) the License Area

included the Dream Garden adjacent to the mosaic, not the mosaic itself.

Thus, Curtis Center concludes, “this claim fails.” Id. at 33.

      The trial court disposed of Illona’s fourth issue as follows:

           [Illona’s] next claim centers on the contention that [Curtis
      Center was] grossly negligent during the construction project,
      and that such negligence caused damage to the Tiffany Mosaic


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J-A14044-17


      that borders the [L]icense [A]rea where the wedding banquets
      are held. See Pl. Compl. ¶ 138.

             To support its position, [Illona] mistakenly relies on section
      7.5 of the [L]ease. [Illona] claims that article 7.5 allows it to
      hold [Curtis Center] liable for all damages resulting from [Curtis
      Center’s] gross negligence; however, to support this reading,
      [Illona] omits a key portion of the [L]ease’s language. See Pl.
      Compl. ¶ 137. Section 7.5, when read in its entirety, states that
      [Illona] may hold [Curtis Center] accountable if their gross
      negligence allows a third party to commit “. . . a burglary, theft,
      vandalism, malicious mischief or other illegal acts” on the
      premises and damage results to [Illona’]s property. Def. Mot.
      Ex. B, art. 7.5. Thus, because the damage did not result from
      any illegal third party act, [Illona’s] reliance on section 7.5 is
      misplaced and its gross negligence claim (Count II) is hereby
      dismissed.

Trial Court Opinion, 9/27/16, at 5.

      Section 7.5 provides as follows:

            Landlord shall not be liable to Tenant or to Tenant’s
      customers, employees, agents, guests or invitees, or to any
      other person whomever, for injury to persons or damage to
      property on or about the Premises or the Common Areas,
      including but not limited to, consequential damage, (1) caused
      by any act or omission of Tenant, its employees, subtenants,
      licensees and concessionaires or of any other person entering
      the Property or the Premises by express or implied invitation of
      Tenant, or (2) arising out of the use of the Premises or the
      Property by Tenant, its employees, subtenants, licensees,
      concessionaires or invites, or (3) arising out of any breach of
      default by Tenant in the performance of its obligations
      hereunder, or (4) caused by the improvements located in the
      Premises becoming out of repair or by defect in or failure of
      equipment, pipes, or wiring, or by broken glass, or by the
      backing up of drains, or by gas, water, steam, electricity or oil
      leaking, escaping or flowing into the Premises or property, or (5)
      arising out of the failure or cessation of any service provided by
      Landlord (including security service and devices). Tenant hereby
      agrees to indemnify Landlord and hold Landlord harmless from
      any liability, loss, expense or claim (including, but not limited to
      reasonable attorneys’ fees) (a) caused by any act or omission of

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      Tenant,     its    employees,     subtenants,    licensees    and
      concessionaires or of any other person entering the Property or
      the Premises by express or implied invitation of Tenant, or (b)
      arising out of the use of the Premises or the Property by Tenant,
      its employees, subtenants, licensees, concessionaires or invitees,
      or (c) arising out of any breach of default by Tenant in the
      performance of its obligations hereunder. Nor shall Landlord be
      liable to Tenant for any loss or damage that may be occasioned
      by or through the acts or omissions of other tenants of the
      Property or of any other persons whomsoever, excepting only
      duly authorize employees or agents of Landlord acting within the
      scope of their authority. Further, Tenant specifically agrees
      to be responsible for and indemnify and hold Landlord
      harmless from any and all damages or expenses of
      whatever kind arising out of or caused by a burglary,
      theft, vandalism, malicious mischief or other illegal acts
      performed in, at or from the Premises, except for
      damages or expenses resulting from Landlord’s, or
      Landlord’s agents’ employees’, officers’, or directors’
      gross negligence or willful misconduct.

Complaint, 7/14/16, at Exhibit A § 7.5 (emphasis supplied).

      The plain language of Section 7.5 is clear with regard to Illona’s

indemnification of Curtis Center and Curtis Center’s liability for its own gross

negligence. In light of that language, we agree that Section 7.5 does not

apply under the facts of this case.       Illona agreed to hold Curtis Center

harmless for damages arising out of an illegal act, except damages resulting

from Curtis Center’s gross negligence or willful misconduct in relation to the

illegal act. Here, the contractors did not commit an illegal act in allegedly

damaging the Tiffany mosaic.       Illona’s attempt to broaden the scope of

Section 7.5 to include any damages arising out of any gross negligence or

willful misconduct by Curtis Center is unavailing. Therefore, we agree with

the trial court’s analysis of this issue and adopt it as our own.

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      Finally, in its fifth issue, Illona complains that the trial court erred in

prematurely dismissing its count for unjust enrichment.          Initially, Illona

recognizes that “unjust enrichment is not generally found where a written or

express contract exists.” Illona’s Brief at 60. However, Illona continues, the

only defendant that is a party to the Lease is KPG-MCG; therefore, Illona

denies that the Lease “is a binding contractual agreement between [the

other defendants] and Illona.” Id. Arguing the lack of an agreement with

the other defendants, Illona bases its unjust enrichment claim on their

retention and appreciation of rents paid by Illona without payment of value

in return. Id. at 61.

      In disposing of this issue, the trial court acknowledged the existence of

“a dispute over which defendant is the landlord under the lease. See Def.

Motion., *4 fn. 2.” Trial Court Opinion, 9/27/16, at n.1. Nevertheless, the

trial court chose not to resolve the dispute because it found “that even the

landlord defendant is entitled to dismissal of the complaint.” Id. The trial

court further concluded:

      Because [Curtis Center’s] actions were specifically permitted
      under      the    [L]ease, this court   declines   to   grant
      [Illona] . . . damages under a theory of unjust enrichment
      (Count VI). See Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.
      Super. 1999) (“We may not make a finding of unjust
      enrichment . . . where a written or express contract between
      parties exists.”).

Id. at 4–5.




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      Upon review of the Complaint, we observe that “Count VI Unjust

Enrichment, In the Alternative” contains a smattering of myriad legal

concepts: equitable estoppel, inducement, misrepresentation, reasonable

reliance, and interference.   Complaint, 7/14/16, at ¶ 196–200.      However,

what Count VI does not include is fatal to Illona’s position.    Curtis Center

raises the critical point:

      Illona ignores the fact that the Trial Court’s dismissal of Count
      [VI] is based upon the Trial Court’s fair reading of the
      [Complaint], and all well-pleaded material facts set forth therein.
      If Illona truly believed that the Appellees, other than KPG-MCG,
      were not bound by the Lease, then they had ample opportunity
      to include those allegations in the [Complaint].

Curtis Center’s Brief at 40–41 (citation omitted). Indeed, Illona fails to aver

which defendants were not party to the Lease and, as such, how they were

unjustly enriched.      In light of the deficiency in Illona’s pleadings, we

conclude that the trial court’s substantive ruling is correct.   See Ruby v.

Abington Mem’l Hosp., 50 A.3d 128, 136 (Pa. Super. 2012) (citing

Lackner v. Glosser, 892 A.2d 21, 34 (Pa. Super. 2006) (“Appellant’s unjust

enrichment action cannot proceed in the face of fully-executed, express

contracts.”) and Mitchell, 729 A.2d 1200). Thus, Illona’s final issue does

not warrant relief.

      Order affirmed.




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J-A14044-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2017




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