J-A33008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER GUTTERIDGE AND                       IN THE SUPERIOR COURT OF
APPLIED ENERGY PARTNERS, LLC                           PENNSYLVANIA

                            Appellees

                       v.

J3 ENERGY GROUP, INC., T/D/B/A J3
ENERGY GROUP AND STEPHEN RUSSIAL

                            Appellants               No. 3397 EDA 2013


            Appeal from the Judgment Entered November 25, 2013
               In the Court of Common Pleas of Chester County
                    Civil Division at No(s): 2009-09160-CA


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

CONCURRING AND DISSENTING MEMORANDUM BY LAZARUS, J.:

FILED NOVEMBER 17, 2015

        I agree with analysis and the result reached by the majority with

respect to Appellants’ Issues 2, 3 4 and 6.     However, I disagree with the

majority’s conclusion that the trial court erred in determining that Russial

and Gutteridge were the parties to the failed business deal. I also disagree

with the majority’s conclusion that the judgment must be reduced to account

for commissions J3 paid to Porreca and Keaton.

        The trial court heard Gutteridge’s testimony that he was dealing with

Russial personally. The court also heard Gutteridge’s deposition testimony

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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in which he stated that he assumed he was dealing with Russial as president

of J3.1     The court specifically notes in its Pa.R.A.P. 1925(b) opinion that

“Gutteridge initially entered into the business relationship with . . . Russial.”

Trial Court Opinion, 6/11/14, at 4. Clearly, the court believed Gutteridge’s

testimony that he was dealing with Russial personally. The court states that

it “finds credible the testimony of . . . Gutteridge when considered against

that of . . . Russial.” Id. at 1.

       The court found further support for its conclusion of personal liability in

the   following    exchange      that   took     place   during   Gutteridge’s   cross-

examination:

       Q:    Would you admit that neither you nor your company AEP
       has a written contract with either J3 Energy Group, Inc. or Mr.
       Russial?

       A:     Formal written contract, no.

       Q:    In your dealings with J3 Energy Group, did J3 Energy
       Group make it clear several times to you that it wanted a written
       contract in order to continue a business relationship with AEP?

       A:     Yes, and I made the same representations in reverse.

       THE COURT:              Mr. Gutteridge, I thought I heard
       testimony earlier on direct examination that Mr. Russial said to
       you that there was no need to do this in written form, as long as
       the respective obligations of the parties were well defined?

       A:     Yes, your Honor.

____________________________________________


1
  “As the factfinder, it was the judge’s prerogative to believe part of a
witness’ testimony and find him mistaken as to the other part.” Miller v.
C.P. Centers, Inc., 483 A.2d 912, 915 (Pa. Super. 1984).



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      The Court:       So at what point in time in the process did the
      idea of having a written document come into being? Because
      apparently early on there wasn’t one, and it wasn’t being
      pursued.

      A:    No. You’re right. After, I guess, March or so of 2008, is
      when the issue came up of should we form a separate legal
      entity to run the Energy Buyers group.         And [counsel for
      Appellants’] advice at the time was we didn’t need that. But into
      the fall and the rest of the year 2009, the issue of how we
      should formalize the relationship came up a number of times
      over.

N.T. Trial, 6/13/12, at 10-11.

      Based on this testimony, the court concluded that once the parties

were unable to come to a written agreement with respect to the Group, it

was “perfectly reasonable for . . . Gutteridge to believe that the formation of

the sales and marketing relationship between himself and . . . Russial was

ongoing and continued despite their inability to formalize the creation of the

Energy Buyers Group.”       Trial Court Opinion, 6/11/14, at 4 (emphasis

added).

      “Assessments of credibility and conflicts in evidence are for the trial

court to resolve; this Court is not permitted to reexamine the weight and

credibility determinations or substitute our judgments for those of the

factfinder.”   Turney Media Fuel v. Toll Bros., 725 A.2d 836, 841 (Pa.

Super. 1999). “The test is not whether we would have reached the same

result on the evidence presented, but rather, after due consideration of the

evidence which the trial court found credible, whether the trial court could

have reasonably reached its conclusion.”          Terletsky v. Prudential



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Property and Cas. Ins. Co., 649 A.2d 680, 686 (Pa. Super. 1994) (citation

omitted).

      Here, the conclusion that Gutteridge was dealing with Russial

individually is supported by evidence that the trial court deemed credible.

Accordingly, we may not disturb that conclusion.     See Company Image

Knitwear,    supra;   Turney    Media   Fuel,   supra;   Terletsky,   supra.

      Mindful of our limited role as an appellate court, I dissent from the

majority’s decision to reverse the trial court’s decision to hold Russial

personally liable.

      With respect to the claim for unjust enrichment, I disagree with the

majority that the trial court erred by failing to take into account the

commissions from AEP that J3 paid the channel partners. Appellants have

produced no evidence that the channel partners have released Appellees

from their commission obligations. Therefore, had the trial court discounted

the damages award to offset the commissions Appellants paid to the channel

partners, Appellees would be left responsible for paying commissions without

having received full compensation.      Such an award would have been

contrary to the standards for promissory estoppel claims.     See Crouse v.

Cyclops Industries, 745 A.2d 606, 610 (Pa. 2000) (promissory estoppel

invoked to avoid injustice by making enforceable a promise when promisee

relies on the promise and changes his position to his detriment).




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     Accordingly, because I agree with the majority’s disposition of several

issues, I concur in part.   However, because I disagree with the majority’s

mandate to vacate the judgment, I dissent.




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