J-A08042-17

                                   2018 PA Super 59

    GAMESA ENERGY USA, LLC AND                 :   IN THE SUPERIOR COURT OF
    GAMESA TECHNOLOGY                          :        PENNSYLVANIA
    CORPORATION INC.,                          :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TEN PENN CENTER ASSOCIATES,                :   No. 1635 EDA 2016
    L.P. AND SAP V TEN PENN CENTER             :
    NF G.P. L.L.C.                             :
                                               :
                       Appellant               :

                Appeal from the Judgment Entered May 20, 2016
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): March Term, 2013 No. 03678


BEFORE:      PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*

CONCURRING OPINION BY STEVENS, P.J.E.:                   FILED MARCH 19, 2018

        I join the Majority decision in full, and I agree that the trial court erred

in awarding inconsistent remedies.

        With respect to a litigant’s ability to pursue inconsistent remedies, this

Court has held that

        appellants may not maintain at the same time in separate counts
        of one action, or in two different suits claims for rescission of a
        contract and restitution on the one hand and for damages for
        breach of the same contract together with expectation interest,
        on the other hand. These remedies are essentially inconsistent.
        Pittsburgh Union Stockyards [Company] v. Pittsburgh Joint
        Stock Company, 309 Pa. 314, 163 A. 668 (1932); Emery v.
        Third National Bank of Pittsburgh, 308 Pa. 504, 162 A. 281
        (1932); Clement Martin Inc. v. Gussey, 191 Pa.Super. 464,
        157 A.2d 412 (1959).       One may not terminate contractual
        obligations and seek the return of his consideration based upon
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A08042-17


      the other party's promise through an action for rescission and
      restitution and at the same time seek the full benefits of that
      promise through an action for breach.

Umbelina v. Adams, 34 A.3d 151, 157 (Pa.Super. 2011) (quoting

Wedgewood Diner, Inc. v. Good, 534 A.2d 537, 538–39 (Pa.Super. 1987)

(quoting Raw v. Lehnert, 357 A.2d 574, 576 n. 3 (Pa.Super. 1976))).

      In Schwartz v. Rockey, 593 Pa. 536, 548-49, 932 A.2d 885, 892-93

(2007), the Supreme Court recognized that there are differing applications of

the election of remedies doctrine among state and federal jurisdictions,

pointing out that some courts permit the simultaneous pleading of inconsistent

claims for relief and require the litigant to elect between inconsistent remedies

at some point prior to the entry of final judgment. However, the Supreme

Court found that the facts of that case did not require it “to definitively

determine whether inconsistent remedies may be simultaneously pursued in

a civil action in Pennsylvania.” Id. at 549, 932 A.2d at 893.

      Therefore, while the Supreme Court may choose to address this

particular issue in a future appeal, the current state of the law as dictated by

the Superior Court requires the result reached by the majority in this case.




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