J-A02037-19

                               2019 PA Super 279

 KARDEN CONSTRUCTION SERVICES,           :   IN THE SUPERIOR COURT OF
 INC.                                    :        PENNSYLVANIA
                                         :
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :   No. 286 MDA 2018
 BRIAN D'AMICO                           :

             Appeal from the Judgment Entered April 4, 2018
   In the Court of Common Pleas of Berks County Civil Division at No(s):
                                09-6787


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY NICHOLS, J.:                       FILED SEPTEMBER 13, 2019

      Appellant Karden Construction Services, Inc. appeals from the judgment

entered in favor of Appellee Brian D’Amico following a new trial on damages

from Appellant’s claim of unjust enrichment. Appellant argues that the trial

court erred in finding that Appellant failed to prove damages. We affirm.

      This Court previously summarized the background of this appeal as

follows:

      On June 2, 2009, [Appellant] filed a complaint against Appellee,
      alleging breach of contract and, alternatively, unjust enrichment.
      [Appellant] alleged that, on January 4, 2007, [Appellee] entered
      into an oral agreement with [Appellant] for the provision of
      professional services to assist with litigation and construction
      management. Specifically, [Appellant] alleged that [Appellee]
      engaged [Appellant] as an expert to assist [Appellee] in a lawsuit
      [Appellee] had filed against a contractor and a home inspector in
      connection with the construction of [Appellee]’s new home.
      [Appellant] further alleged that it rendered approximately one
      hundred thirteen (113) hours of professional services to
      [Appellee] from January 4, 2007 until December 8, 2008, valued
      at $21,338.70 when combined with out-of-pocket expenses.
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     [Appellant] alleged that [Appellee] failed to pay [Appellant] for the
     professional services and, as a result, breached the oral
     agreement. Alternatively, [Appellant] alleged that [Appellee]
     unjustly enriched himself by retaining the benefits of the services
     provided to him.

     This matter proceeded to a non-jury trial, at which both parties
     presented testimony. The trial court summarized the evidence as
     follows:

        Dennis Link has been the president and sole employee of
        [Appellant] since 1999. [Appellant] is a corporation that
        provides construction representation, including consulting,
        and project management representation throughout the
        construction of buildings, and expert reports and testimony
        for arbitrations and court hearings. [Mr. Link] works for
        owners, contractors, and counsel. His projects include
        commercial, industrial, institutional, governmental, and
        residential construction.

        [Appellant] was originally hired by [Appellee’s] former law
        firm for its lawsuit against a contractor. Mr. Link testified
        that he first met [Appellee] in January 2007 at [Appellee’s]
        home. Osmer Deming, Esquire, gave the necessary contact
        information to both parties. [Appellee] needed [Appellant’s]
        services for a new home which he was building. The
        meeting took several hours, and afterwards Mr. Link went
        to the job site. Mr. Link testified that during the meeting he
        had discussed his costs as an expert witness. He had said
        that the expenses would probably be $15,000.00 or possibly
        $20,000.00.

        Mr. Link further testified that his contracts are typically
        verbal because the clients can hire or fire him at any time.
        In the instant case, he did a site assessment to determine
        what was done and if [the construction] was in conformance
        with codes. He gave the information to [Appellee’s] former
        attorneys to prepare a complaint against [Appellee’s]
        contractor and home inspector and to execute a certificate
        of merit. Mr. Link also stated that he communicated
        regularly with [Appellee] via e-mails and telephone
        conversations. Mr. Link claimed that his work for [Appellee]
        evolved into a considerable amount of construction
        management. [Appellee] also asked him about designs.



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       By letter dated July 25, 2008 . . ., [Appellant] attached a
       [$3,000.00] retainer invoice with the fee schedule discussed
       between the parties in January 2007. Mr. Link testified that
       he had sent this letter because he had been informed by
       [Appellee’s] law firm that [Appellee] had not been paying it
       for its services to [Appellee]. There is no place on the letter
       for [Appellee] to sign and return it to [Appellant]. The first
       page of the letter states: “Note: A retainer is required on
       every engagement. The retainer is applied to the final
       billing and any balance is returned at the conclusion of the
       engagement.” [Appellant] did not receive any payments
       from [Appellee] after the letter had been sent to him.

       In January 2009 or February 2009, at the conclusion of its
       services, [Appellant] sent its first invoice to [Appellee]. Mr.
       Link testified that he usually does not receive any payment
       until there is a negotiated settlement or a trial verdict. He
       normally expects to be paid from the settlement. He does
       not usually bill clients unless they request bills because he
       does not want them to be forced to accept an undesirable
       settlement in order to pay [Appellant’s] bill. [Appellee’s]
       case is still pending. Mr. Link does not think [Appellee]
       terminated his services officially, but, at some point,
       [Appellee] stopped asking [Appellant] to work for him.

       [Attorney Deming] is [Appellee’s] present attorney for his
       construction litigation. He had been an associate at the law
       firm which initiated [Appellee’s] lawsuit. He started his own
       practice, and [Appellee] is now his client. Attorney Deming
       testified that there had been no agreement by his former
       law firm to pay [Appellant] for his work for [Appellee]. He
       did not remember getting any bill from [Appellant].

       [Appellee] testified that his attorneys at the law firm, Kevin
       Moore, Esquire, and Eden Bucher, Esquire, facilitated the
       meeting between him and Mr. Link. He did not know
       anything about Mr. Link before the meeting. When he had
       received the invoice, he had not believed that he had owed
       [Appellant] any money because he had not entered into a
       written or verbal contract with [Appellant]. It was his
       understanding that Mr. Moore and Ms. Bucher were paying
       [Appellant].

       [Appellee] further testified that no meeting between Mr.
       Link and him had ever occurred at his residence. He first


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J-A02037-19


          met Mr. Link at the law firm. There had been no discussion
          regarding [Appellee’s] payment or a request for a retainer
          at that meeting. Following the first meeting, it had been
          [Appellee’s] understanding that Mr. Link would offer support
          as an expert witness for the purpose of the litigation against
          [Appellee’s] contractor and the inspector. Mr. Moore, Ms.
          Bucher, and Mr. Deming instructed [Appellee] to work with
          [Mr. Link] so he could help in the litigation concerning the
          house construction.

          Upon receipt of the letter of February 5, 2009, [Appellee]
          sent an e-mail to [Appellant] stating that it was his
          understanding that [Appellant] was being paid by the law
          firm and, at the current time, [Appellee] did not wish to hire
          [Appellant] personally. Mr. Moore and Ms. Bucher had told
          [Appellee] that [Appellant] had been on retainer. Mr. Link
          had met with the two attorneys and had talked to them by
          telephone about three or four times prior to [Appellee’s] first
          meeting with Mr. Link. The litigation against the contractor
          and home inspector is still pending.

Karden Const. Servs., Inc. v. D’Amico, 1351 MDA 2015 at 1-2 (Pa. Super.

filed May 25, 2016) (unpublished mem.) (citation omitted).

       Following a non-jury trial, the trial court found in favor of Appellee on

all   counts   and   denied   Appellant’s    post-trial   motions   for   judgment

notwithstanding the verdict. Id. at 4. On appeal, a prior panel of this Court

affirmed in part, reversed in part, and remanded this matter. Id. at 10.

       Of relevance to this appeal, the prior panel concluded that Appellee was

unjustly enriched by Appellant’s construction services. Id. at 9-10. As to the

provision of construction services, the prior panel focused on Mr. Link’s

testimony that Appellant provided Appellee with the following construction

services:

       Frequently, [Appellee] would ask me questions about designs that
       were done, whether they were appropriate or not, whether there

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J-A02037-19


       was alternatives to it. Early—when—because it’s problems with
       the builder. We discussed going out and getting additional
       estimates so that we had support for damages that were going to
       go into the—into the legal process. And so a lot of activity
       associated with construction management was involved.

Id. at 9 (record citation omitted). Additionally, the prior panel emphasized

Mr. Link’s testimony that once Appellee filed a complaint, he continued to

communicate with Appellee “both from the standpoint—a local standpoint,

dispute    resolution    standpoint,      and    also   standpoint   of   construction

management.” Id. at 10 (record citation omitted).

       The prior panel concluded that Appellant was entitled to judgment

notwithstanding the verdict on its claim for unjust enrichment for Appellant’s

“expertise in managing the construction of [Appellee]’s dwelling.” 1 Id. at 10.

The panel remanded for a determination of the reasonable value of the

construction management services, as opposed to the litigation services,

Appellant provided to Appellee. Id. at 10. Specifically, the panel concluded:

       Given    the    uncontradicted    evidence,      [Appellee]   clearly
       appreciated, accepted and retained the benefit of [Appellant]’s
       expertise in managing the construction of [Appellee]’s dwelling.
       Differently put, [Appellee] unjustly enriched himself from the
       provision of construction management services. As a result, we
       remand this matter to the trial court to determine the reasonable
       value of [Appellant]’s construction management services.
       Accordingly, we affirm the trial court’s judgment to the extent it
       held that no agreement existed between the parties and
       [Appellee] did not benefit from the litigation support services. We,
____________________________________________


1 The prior panel distinguished Appellant’s provision of “litigation services”
noting that Appellant failed to establish Appellee benefitted from such services
and because “the lawsuit for which [Appellee’s] former law firm engaged the
expert service of [Appellant was] still pending.” Karden Const. Servs., Inc.,
1351 MDA 2015 at 9 & n.2.

                                           -5-
J-A02037-19


       however, reverse the trial court’s judgment to the extent it held
       that [Appellee] was not unjustly enriched from the provision of
       construction management services and remand this matter for
       determination of the reasonable value of such services.

Id. at 10. The prior panel further suggested that the parties and the trial

court would need to analyze Appellant’s Exhibit 2 (Exhibit P-2), which

“detail[ed] services performed by [Appellant] both in the context of litigation

support and construction management.” Id. at 10 n.3.

       On remand, the trial court conducted a new trial limited to the issue of

damages.2 At the new trial, Mr. Link testified. Through Mr. Link, Appellant’s

counsel admitted into evidence Exhibit 4 (Exhibit P-4), which Mr. Link

prepared in anticipation of the new damages trial. Testifying about Exhibit P-

4, Mr. Link asserted that he spent a total of 113.27 hours on Appellee’s

project, of which 99.57 hours were for construction management services.

Mr. Link valued the construction management services at $17,343.30.

       Appellee also testified at the new trial. Appellee asserted that Appellant

provided no construction management services and that he used none of

Appellant’s services when finishing the construction of his home.

       At the conclusion of testimony, the parties requested an opportunity to

file proposed findings of fact and conclusions of law, which the trial court

granted. Appellant did not move for a directed verdict.

____________________________________________


2 The initial trial in this matter was heard by Judge Jeffrey K. Sprecher. Judge
Sprecher recused himself after this Court remanded the case for further
proceedings. Judge James M. Lillis presided over the new trial following
remand.

                                           -6-
J-A02037-19



       On January 9, 2018, the trial court issued its decision finding against

Appellant and awarding zero damages. Appellant filed post-trial motions on

January 17, 2018, seeking judgment notwithstanding the verdict, which the

trial court denied on February 6, 2018.

       Appellant filed a notice of appeal on February 8, 2018, and complied

with the trial court’s order to file and serve a Pa.R.A.P. 1925(b) statement.

On March 29, 2018, Appellant filed a praecipe for judgment, and the

Prothonotary of the Court of Common Pleas entered judgment on April 4,

2018.3 The trial court filed a Rule 1925(a) opinion on May 17, 2018.

       In its Rule 1925(a) opinion, the trial court concluded that Appellant

failed to demonstrate damages associated with its claim of unjust enrichment

for construction management services. Trial Ct. Op., 5/17/18, at 6. The trial

court reviewed the evidence presented at the first trial, which was

incorporated into the record in the second trial, as well as the evidence

presented in the second trial. See id. at 2-5. The trial court refused to afford

any weight to Mr. Link’s testimony, or Exhibit P-4, regarding the purposes of

his engagement        with    Appellee    and the   time   spent on construction

management.        See id. at 2 (concluding that “[u]nfortunately, [Appellant]

failed to provide any reliable evidence as to which services were provided for

construction purposes and which were performed primarily for purposes of
____________________________________________


3 Although Appellant filed its appeal before the entry of the judgment, a formal
judgment was entered on Appellant’s praecipe for entry of judgment.
Therefore, we will not quash this appeal. See Krishnan v. Cutler Grp., Inc.,
171 A.3d 856, 862 (Pa. Super. 2017).

                                           -7-
J-A02037-19



litigation”). Specifically, the trial court noted that Appellant’s assertion that

only 13.70 hours were for litigation services was belied by his prior testimony

that he initially was hired to provide litigation services. Id. at 3-5. The trial

court further noted that Appellee testified at the new trial that Appellant did

not provide any services related to finishing or improving his home. Id.

       The trial court concluded that Appellant’s evidence at the new trial was

a self-serving attempt to recast the majority of the services he provided as

construction services. See id. at 5. Moreover, the trial court concluded that

Appellant failed to demonstrate that any of the construction services he

provided resulted in a benefit to Appellee.4 Id.

       On appeal, Appellant presents the following questions:

       1. Did the trial court err in returning a verdict in favor of . . .
       Appellee as the credible evidence of record presented at trial,
       specifically the testimony and the written exhibits submitted into
       evidence by the Appellant was sufficient to establish that the
       reasonable value of the construction management services
       provided by [Appellant] to [Appellee] was in the amount of
       $17,343.30 plus costs of $739.87?

       2. Did the trial court err in returning a verdict in favor of . . .
       Appellee as the trial court’s finding that “[Appellant] failed to
       sustain its burden of proof to establish the value attributable to
       any construction management services provided by [Appellant] as
____________________________________________


4 We acknowledge that a party must move for a directed verdict in order to
preserve a claim that it was entitled to judgment notwithstanding the verdict
in a post-trial motion. However, this Court has declined to find waiver when
a party presents a request for judgment notwithstanding the verdict in a post-
trial motion, and the trial court denies the post-trial motion on its merits. See
Capital Care Corp. v. Hunt, 847 A.2d 75, 84 n.4 (Pa. Super. 2004). Here,
the trial court denied Appellant’s post-trial motion for judgment
notwithstanding the verdict and explained, in its Rule 1925(a) opinion, that it
did so on the merits. Therefore, we decline to find waiver. See id.

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J-A02037-19


      may have benefitted or enriched [Appellee] to any appreciable or
      measurable degree” ignored the language of the Opinion and
      Order of the Superior Court of May 25, 2016, which specified that
      . . . Appellee had in fact been unjustly enriched from . . .
      Appellant’s provision of construction management services and
      that the [trial c]ourt was to analyze the exhibit submitted into
      evidence during the non-jury trial on June 30, 2015, to determine
      the reasonable value of said construction management services
      thus clearly confirming there was value to said services?

Appellant’s Brief at 9.

      We summarize Appellant’s arguments together, although in a different

order than presented in its brief.    Appellant contends that the trial court’s

determination was inconsistent with this Court’s prior remand order, which

held that Appellee was unjustly enriched by the provision of construction

services. Id. at 19-21. Appellant contends that the trial court ignored the

prior panel’s determination that Appellee was unjustly enriched by suggesting

that Appellant failed to establish that he conferred a specific benefit related to

construction management services for Appellee’s home. Id. at 20-21.

      Appellant also claims that it provided credible and unrefuted evidence

that Appellee was unjustly enriched by receiving construction services.

Specifically, Appellant contends that it presented Exhibit P-4, which showed

“the breakdown between services provided for construction management and

services provided for litigation.” Id. at 13.

      Appellant further contends that the trial court erred in affording Exhibit

P-4 no weight. Appellant criticizes the trial court for finding inconsistencies

between Mr. Link’s prior testimony and his testimony at the new trial. Id. at

15-18.    Appellant contends that Mr. Link consistently testified that he

                                      -9-
J-A02037-19



expended substantial time on construction management, which was not

inconsistent with his testimony at the new trial or the substance of Exhibit P-

4. Moreover, Appellant asserts that Mr. Link’s evidence regarding the time

spent on various services Appellant provided stood unrebutted. Id. Appellant

concludes that it is entitled to a reversal of the trial court’s decision and the

entry of a judgment in its favor.5

       Our review is governed by the following well-settled principles:

       [a] judgment notwithstanding the verdict can be entered upon two
       bases: (1) where the movant is entitled to judgment as a matter
       of law; and/or, (2) the evidence was such that no two reasonable
       minds could disagree that the verdict should have been rendered
       for the movant. When reviewing a trial court’s denial of a motion
       for judgment notwithstanding the verdict, we must consider all of
       the evidence admitted to decide if there was sufficient competent
       evidence to sustain the verdict. In so doing, we must also view
       this evidence in the light most favorable to the verdict winner,
       giving the victorious party the benefit of every reasonable
       inference arising from the evidence and rejecting all unfavorable
       testimony and inference. Concerning any questions of law, our
       scope of review is plenary. Concerning questions of credibility and
       weight accorded the evidence at trial, we will not substitute our
       judgment for that of the finder of fact. If any basis exists upon
       which the [trial] court could have properly made its award, then
       we must affirm the trial court’s denial of the motion for judgment
       notwithstanding the verdict. A judgment notwithstanding the
       verdict should be entered only in a clear case.

Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 609 (Pa. Super. 2014)

(citation and internal alterations omitted).


____________________________________________


5We note that Appellant did not seek a new trial in its post-trial motion.
Additionally, Appellant does not argue that any of the specific construction
management services listed in Exhibit 4 provided a benefit to Appellee.

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J-A02037-19



      Moreover,

      [t]he factfinder is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses. The trial court
      may award a judgment notwithstanding the verdict or a new trial
      only when the jury’s verdict is so contrary to the evidence as to
      shock one’s sense of justice.          In determining whether this
      standard has been met, appellate review is limited to whether the
      trial judge’s discretion was properly exercised, and relief will only
      be granted where the facts and inferences of record disclose a
      palpable abuse of discretion.

Brown v. Trinidad, 111 A.3d 765, 770 (Pa. Super. 2015) (citations and

quotation marks omitted).

      The Pennsylvania Supreme Court has recently reiterated that a

judgment notwithstanding the verdict

      should only be entered in a clear case with any doubts resolved in
      favor of the verdict winner. An appellate court “stands on a
      different plane” than a trial court, and it is the trial court that has
      the benefit of an “on-the-scene evaluation of the evidence.” As
      such, while the appellate court may disagree with a verdict, it may
      not grant a motion for [judgment notwithstanding the verdict]
      simply because it would have come to a different conclusion.
      Indeed, the verdict must stand unless there is no legal basis for
      it.

Menkowitz v. Peerless Publications, Inc., 211 A.3d 797, 804 (Pa. 2019).

      The prior panel of this Court stated the law to be applied on remand as

follows:

      [u]njust enrichment is an equitable doctrine, whose elements we
      have described as “[(1)] benefits conferred on defendant by
      plaintiff, [(2)] appreciation of such benefits by defendant, and
      [(3)] acceptance and retention of such benefits under such
      circumstances that it would be inequitable for defendant to retain
      the benefit without payment of value.” Schenck v. K.E. David,
      Ltd., 666 A.2d 327, 328 (Pa. Super. 1995) . . . . The critical inquiry

                                      - 11 -
J-A02037-19


      in the application of this doctrine is whether a defendant has been
      unjustly enriched. Id. “Where unjust enrichment is found, the law
      implies a contract, referred to as either a quasi contract or a
      contract implied in law, which requires that the defendant pay to
      plaintiff the value of the benefit conferred.”

Karden Const. Servs., Inc., 1351 MDA 2015 at 7. In assessing damages

for unjust enrichment, however, “[e]nrichment is ‘measured by the value of

the benefit to the owner, not by the value of the invoice submitted by the

subcontractor.’”   Ira G. Steffy & Son, Inc. v. Citizens Bank of

Pennsylvania, 7 A.3d 278, 283 (Pa. Super. 2010) (citations and footnote

omitted); see also D.A. Hill Co. v. Clevetrust Realty Inv'rs, 573 A.2d

1005, 1010 (Pa. 1990) (reiterating that damages for unjust enrichment

required consideration of “the value of the benefit conferred”).

      Having reviewed the evidence in the light most favorable to the verdict

winner, we find that substantial evidence supported the trial court’s

determination that Mr. Link failed to demonstrate damages for construction

management services as was contemplated by the prior panel. See Karden

Const. Servs., Inc., 1351 MDA 2015 at 10 (discussing Appellee’s retention

of the benefits of Appellant’s expertise in managing the construction of

Appellee’s dwelling). The trial court noted that Mr. Link testified at the new

trial that he performed several construction management services. See Trial

Ct. Op. at 3; N.T., 8/8/17, at 10. However, there were discrepancies in Mr.

Link’s testimony. See Trial Ct. Op. at 3-5. As the trial court discussed, Mr.

Link previously conceded that he initially intended to perform litigation

services. See N.T., 6/30/15, at 9 (indicating that Mr. Link’s initial objective

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J-A02037-19



was to provide Appellee’s counsel with the kinds of information they needed

to prepare a complaint); see also N.T., 8/8/17, at 14 (noting that Mr. Link’s

litigation support included providing information relative to defects that he

learned about during construction management). Therefore, we discern no

basis to disturb the trial court’s determination. See Menkowitz, 211 A.3d at

804.

       Furthermore, as to Appellant’s claim that it provided unrefuted

testimony as to damages for construction management services, our review

of the record reveals no basis for this Court to intrude on the trial court’s

credibility determinations. See Prieto Corp., 100 A.3d at 609. The trial court

was entitled to reject all, part, or none of the evidence presented, and the

record supported the trial court’s determination that Mr. Link’s testimony was

inconsistent. See Brown, 111 A.3d at 770. Therefore, the trial court did not

abuse its discretion when rejecting all of Appellant’s evidence at the new trial

based on a credibility determination. See id.

       In sum, having reviewed the record in light of our standard of review,

we have no basis to conclude that Appellant was entitled to judgment as a

matter of law. See Menkowitz, 211 A.3d at 804; Prieto Corp., 100 A.3d at

609. Accordingly, no relief is due.




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     Judgment affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




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