J-E03005-15

                              2016 PA Super 5

RICHARD VAUTAR, AS ATTORNEY-IN-               IN THE SUPERIOR COURT OF
FACT FOR BERTHA VAUTAR                              PENNSYLVANIA
                    Appellee
                v.

FIRST NATIONAL BANK OF
PENNSYLVANIA

                   v.

THE ESTATE OF FRANCES SAKMAR, AND
MICHAEL SAKMAR AND EDWARD
SAKMAR, CO-EXECUTORS OF THE
ESTATE OF FRANCES SAKMAR

                   v.

MICHAEL SAKMAR, EDWARD SAKMAR,
AND EILEEN ATWOOD, INDIVIDUALLY

                        Appellants                 No. 161 WDA 2014


          Appeal from the Judgment Entered December 30, 2013
            In the Court of Common Pleas of Cambria County
                    Civil Division at No(s): 2009-01615


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.

OPINION BY LAZARUS, J.:                         FILED JANUARY 06, 2016

     Michael Sakmar, Edward Sakmar and Eileen Atwood (“Appellants”)

appeal from the amended/supplemental verdict of the Court of Common

Pleas of Cambria County, holding them liable to First National Bank of

Pennsylvania (“FNB”) in the amount of $69,188.80, plus interest, under a

theory of unjust enrichment. Upon careful review, we affirm.
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       Appellants are the children of Frances Sakmar (“Frances”).     Frances

had two sisters, Jean Sojak (“Sojak”) and Bertha Vautar (“Vautar”).       On

January 12, 2005, Sojak renewed four certificates of deposit at FNB and

titled them as follows:        “Jean Sojak in trust for Frances Sakmar/Bertha

Vautar.” At some point thereafter, a misunderstanding arose regarding the

beneficiary designation on the CDs, leading Frances to believe that Sojak

had again retitled the CDs in trust for Frances alone.1

       Following Sojak’s death, Frances attempted to redeem the CDs.

However, as Frances was not in possession of the original CDs, FNB required

Frances to sign four “Indemnity Bonds for Lost Instruments” (“Indemnity

Bonds”), pursuant to which Frances represented that she was entitled to the

proceeds of each CD, that the CDs had been lost, mislaid, stolen or

destroyed, and that she agreed to hold FNB harmless against any and all

claims against the CDs. Once Frances executed the Indemnity Bonds, FNB

released the entire proceeds of all four CDs to her.




____________________________________________


1
  Correspondence from FNB contributed to the confusion over the life of the
CDs by addressing related correspondence to Sojak as “Jean Sojak in trust
for Frances Sakmar.” This apparently resulted from a lack of space in the
section where title was designated in certain of FNB’s computer forms.
Vauter’s name was, however, included in a “Miscellaneous Addenda” section,
which appeared in a subsequent screen of FNB’s account information
computer program. Moreover, following Sojak’s death, FNB compounded the
confusion by furnishing her estate’s attorneys with a letter stating that
Frances was the sole beneficiary of all four accounts.



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        Vautar subsequently demanded payment from FNB of her half of the

proceeds of the CDs (“Disputed Funds”), ultimately filing a civil action

(“Vautar Action”) to recover the funds. FNB demanded reimbursement from

Frances, who declined to repay the Disputed Funds.              Frances placed the

funds in an Oppenheimer Funds account and, after her death, the Disputed

Funds went, in equal shares, to the three Appellants pursuant to the

Oppenheimer account’s beneficiary designation.             Michael Sakmar and

Edward Sakmar placed their shares in Allianz investment accounts, while

Eileen Atwood used her portion to make payments on a home equity line of

credit and educational loans.

        FNB filed a third-party complaint to join Frances to the Vautar Action.

Frances died thereafter and her estate2 became a party to the action. On

August 16, 2010, FNB filed an amended third-party complaint to join

Appellants to the Vautar Action, due to their receipt of the Disputed Funds

from their mother’s Oppenheimer account. The causes of action pled by FNB

in its third-party complaints included declaratory relief, breach of contract

(Frances), intentional misrepresentation (Frances and Appellants), negligent

misrepresentation          (Frances        and   Appellants),        and    unjust

enrichment/constructive trust (Frances and Appellants).

        After a nonjury trial, the court entered a verdict finding


____________________________________________


2
    Michael Sakmar and Edward Sakmar are the co-executors of Frances’ will.



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      for FNB and against the Estate of Frances Sakmar and Michael
      Sakmar and Edward Sakmar, co-executors of the Estate of
      Frances Sakmar, in the amount of $69,188.80 plus interest from
      June 26, 2007.

Trial Court Verdict, 9/5/13.

      FNB filed a motion for post-trial relief, asserting that, because the

court determined that Frances never had legal title to the Disputed Funds,

and because Frances’ beneficiary designation transferred the Disputed Funds

directly to the Appellants upon her death, the court should have imposed a

constructive trust on the funds held by the Appellants.          On December 16,

2013, the trial court entered an “Amended/Supplemental Verdict” finding

against both Frances’ estate and the Appellants and concluding that

Appellants were unjustly enriched by their receipt of the Disputed Funds.

The court further indicated that it would “consider the imposition of the

constructive trust requested by FNB upon Praecipe by FNB should the

requested    trust    become    necessary    for    collection   of   this    Verdict.”

Amended/Supplemental Verdict, 12/16/13, at 2.

      Appellants filed a timely notice of appeal on January 15, 2014,

followed    by   a   court-ordered   Pa.R.A.P.     1925(b)   statement       of   errors

complained of on appeal.       FNB filed a motion to quash the appeal due to

Appellants’ failure to file post-trial motions in response to the trial court’s

amended/supplemental verdict. By memorandum filed February 27, 2015,

this Court granted FNB’s motion and quashed the appeal. See Vautar v.

First Nat’l Bank of Pa., No. 161 WDA 2014 (Pa. Super. filed Feb. 27, 2015)

(unpublished memorandum).            On March 14, 2015, Appellants filed an

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application for reargument, which was granted by order filed on May 7,

2015. Appellants raise the following issues for our review:

       1. May a party recover on an unjust enrichment theory when
       adequate legal remedies are sought and, in fact, pursued and
       obtained at trial?

       2. May non-parties to a contract who benefit from the breach of
       the contract, but who commit no malfeasance, be held liable to a
       contracting party on an unjust enrichment theory?

Substitute Brief of Appellants, at 2.

       Prior to addressing the claims raised by the Appellants, we must

determine if they have preserved their claims on appeal.                 Pursuant to

Pa.R.C.P. 227.1(c):

       (c) Post-trial motions shall be filed within ten days after

       (1) verdict, discharge of the jury because of inability to agree, or
       nonsuit in the case of a jury trial; or

       (2) notice of nonsuit or the filing of the decision in the case of a
       trial without jury.

Id. If an issue has not been raised in a post-trial motion, it is waived for

appeal purposes. Chalkey v. Roush, 757 A.2d 972, 975 (Pa. Super. 2000).

       FNB asserts that Appellants have waived all issues due to their failure

to   file   post-trial   motions   following   the   trial   court’s   entry   of   the

amended/supplemental verdict.         FNB argues that the original verdict was

incomplete because it failed to “dispose of all claims for relief” pursuant to

Pa.R.C.P. 1038(b).       Specifically, the original verdict only addressed FNB’s

claim against Frances’ estate and was silent as to the equitable claims

against the Appellants. FNB also cites to Pa.R.A.P. 341, which provides that

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a final order is any order that “disposes of all claims and of all parties.” FNB

asserts    that   there    was    no    “final   order”   until   the   entry   of   the

amended/supplemental verdict, because all claims of all parties were not

disposed of that time.          As such, post-trial motions were necessary to

preserve Appellants’ issues on appeal.

        Appellants assert that, pursuant to the decision of our Supreme Court

in Newman Dev. Group of Pottstown, LLC v. Genuardi’s Family Mkts.,

Inc., 52 A.3d 1233 (Pa. 2012), certain post-trial proceedings do not require

a party to file post-trial motions because the proceedings do not amount to a

“trial”3 such that Rule 227.1 applies. For the reasons that follow, we agree

with Appellants that, due to the unique circumstances of this case, they were

not obligated to file post-trial motions to the amended/supplemental verdict

in order to preserve their appellate claims.

        The requirement that parties preserve their claims through the filing of

post-trial motions is grounded in the salutary purpose of providing the trial

court with an opportunity to correct any errors that the parties bring to its

____________________________________________


3
    The note to Rule 227.1(c) provides as follows:

        A motion for post-trial relief may be filed following a trial by jury
        or a trial by a judge without a jury pursuant to Rule 1038. A
        motion for post-trial relief may not be filed to orders disposing of
        preliminary objections, motions for judgment on the pleadings or
        for summary judgment, motions relating to discovery or other
        proceedings which do not constitute a trial.

Pa.R.C.P. 227.1(c), note (emphasis added).



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attention, thereby, ideally, reducing the number of appeals as well as the

burdens and costs associated therewith.     See id. at 1248.    However, our

Supreme Court has noted that

      [t]o warrant the heavy consequence of waiver, in a rules
      schemata designed to “secure the just, speedy and inexpensive
      determination” of disputes, the applicability of the Rule should
      be apparent upon its face or, failing that, in clear decisional law
      construing the Rule.

Id. at 1247. A key factor cited by the Court is whether the rule provides

“sufficient predictability to practicing attorneys regarding when post-trial

motions must be filed, such that a colorable argument can be made that

more could be required of litigants . . . than the plain language of the Rule

demands.” Id. at 1249.

      The Supreme Court’s decision in Newman, supra, provides us

guidance in this matter.   There, this Court remanded the case to the trial

court for a recalculation of damages.         On remand, the parties filed

memoranda of law and presented oral argument, but the court received no

additional evidence.   Thereafter, the trial court recalculated damages and

entered a molded judgment.      On appeal from the molded judgment, this

Court quashed, finding that the appellants had waived all issues by failing to

file new post-trial motions.

      The Supreme Court granted review to consider the question of

whether quashal was appropriate where the appeal was from a recalculation

of damages in accordance with a remand order, where no additional

evidence was received. The Court concluded that the remand proceedings in

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that case, where the court merely reached a new damage calculation based

on facts already in the record, did not constitute a “trial” mandating

compliance with Rule 227.1.    The Court focused on the fairness of finding

waiver where the rule is unclear:

      Obviously, if an appellate court remands for a new trial, the civil
      trial rules apply again, and in full force. But, the circumstance
      here – not an uncommon scenario – involves a gray area, where
      there are to be further proceedings below, but the proceedings
      do not amount to a trial.

Id. at 1246-47.

      When a court finds waiver in a novel situation in which
      reasonable counsel would not have known of the requirement
      that gave rise to the waiver, the salutary purposes of waiver are
      not served at all. In such a circumstance, there is no benefit to
      the judicial process, only a trap that denies merits review to
      those who, despite diligence, make a choice an appellate court
      later decides was wrong.

Id. at 1244.

      Here, FNB filed post-trial motions to the trial court’s original verdict,

asserting that judgment should also have been entered against the

Appellants. Although the parties submitted briefs and the court heard oral

argument, no new testimony was taken or evidence received.                  The

proceedings clearly did not “amount to a trial.” Rather, the trial court issued

its amended/supplemental verdict based solely on its reevaluation of the

existing record, augmented only by the parties’ legal arguments. Notably,

the issues Appellants raise on appeal are the same ones argued on post-trial

motions, i.e., whether Appellants are liable to FNB on a theory of unjust

enrichment. Thus, requiring Appellants to initiate a second round of post-

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trial motions, raising the identical issue the trial court had just decided in

favor of FNB, would have been fruitless, a waste of judicial resources, and

would not have furthered the underlying purpose of Rule 227.1.

      Finally, we note that FNB’s argument regarding the lack of finality of

the original verdict is misplaced. As this Court has previously stated,

      Under Rule 227.1, a party must file post-trial motions at the
      conclusion of a trial in any type of action in order to preserve
      claims that the party wishes to raise on appeal. In other words,
      a trial court's order at the conclusion of a trial, whether the
      action is one at law or in equity, simply cannot become final for
      purposes of filing an appeal until the court decides any timely
      post-trial motions.

Chalkey, 757 A.2d at 496 (emphasis added). Accordingly, even if the trial

court had explicitly found that Appellants were not liable to FNB in the

original verdict, the order would not have been considered a final appealable

order until the court had disposed of post-trial motions.

      For the foregoing reasons, we conclude that Appellants were not

required to file post-trial motions to the trial court’s amended/supplemental

verdict in order to preserve their claims on appeal.        Accordingly, we will

consider the merits of their appeal.

      We begin by noting that:

      [A]ppellate review of equity matters is limited to a determination
      of whether the chancellor committed an error of law or abused
      his discretion. The scope of review of a final decree in equity is
      limited and will not be disturbed unless it is unsupported by the
      evidence or demonstrably capricious.




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First Capital Life Insurance Company v. Schneider, Inc., 608 A.2d

1082 (Pa. Super. 1992) (citations omitted).

      Appellants assert that the trial court erred in holding them liable under

the equitable theory of unjust enrichment.         Appellants claim that, under

Pennsylvania law, equitable relief is unavailable where an adequate legal

remedy exists.     As FNB sought and obtained adequate legal remedies

against Frances’ estate, Appellants assert that the court erred by also

granting equitable relief.   Appellants also argue that they cannot be held

liable under a theory of unjust enrichment because they did not engage in

any misconduct or mislead FNB to enter into the indemnity agreements with

Frances. For the following reasons, we disagree.

      It is well established that “a court of equity has jurisdiction and,
      in furtherance of justice, will afford relief if the statutory or legal
      remedy is inadequate, or if equitable relief is necessary to
      prevent irreparable harm.” Martino v. Transport Workers'
      Union of Philadelphia, 505 Pa. 391, 396, 480 A.2d 242, 244-
      245 (1984). See also: Wood v. Goldvarg, 365 Pa. 92, 95, 74
      A.2d 100, 101-102 (1950) (“in order to oust equity jurisdiction,
      there must be a legal remedy that is adequate and complete.”);
      Chartiers Valley School District v. Virginia Mansions
      Apartments, 340 Pa.Super. 285, 294, 489 A.2d 1381, 1386
      (1985); South Coventry Township v. Philadelphia Electric
      Company, 94 Pa.Cmwlth. 289, 299, 504 A.2d 368, 373 (1986).
      Moreover, “a court of equity has the power to afford relief
      despite the existence of a legal remedy when, from the nature
      and complications of a given case, justice can best be reached
      by means of equity’s flexible machinery.” Hill v. Nationwide
      Insurance Co., 391 Pa.Super. 184, 188, 570 A.2d 574, 576
      (1990), quoting Peitzman v. Seidman, 285 Pa.Super. 228, 234
      n. 4, 427 A.2d 196, 199 n. 4 (1981). The Hill court discussed
      the concept of an adequate and complete remedy at law in
      greater detail[:]


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        To induce equity to refuse its aid to a suitor, it is not
        sufficient that he may have some remedy at law. An
        existing remedy at law to induce equity to decline the
        exercise of its jurisdiction in favor of a suitor must be an
        adequate and complete one. And when from the nature
        and complications of a given case, its justice can best be
        reached, by means of the flexible machinery of a court of
        equity, in short where a full, perfect and complete remedy
        cannot be afforded at law, equity extends it jurisdiction in
        furtherance of justice.

     Id., quoting Pennsylvania State Chamber of Commerce v.
     Torquato, 386 Pa. 306, 329, 125 A.2d 755, 766 (1956), cert.
     denied sub. nom. Bowman v. Pennsylvania State Chamber
     of Commerce, 352 U.S. 1024, 77 S.Ct. 589, 1 L.Ed.2d 596
     (1957).

First Capital, 608 A.2d at 1084.

     Moreover,

     [e]quitable relief “depends not so much on the want of a
     common-law remedy, as upon its inadequacy and its exercise is
     a matter which often rests within the discretion of the court; in
     other words the court may take upon itself to say whether the
     common-law remedy is, under all the circumstances and in view
     of the conduct of the parties, sufficient for the purpose of
     complete justice[.]” Cohen v. Pelagatti, 342 Pa.Super. 626,
     634-635, 493 A.2d 767, 771 (1985), quoting Penn. Iron Co.,
     Ltd. v. City of Lancaster, 25 Pa.Super. 478, 483 (1904).

First Capital, 608 A.2d at 1086.

     In the instant matter, FNB was originally awarded judgment against

Frances’ estate alone.     However, because Frances’ estate contained

approximately only $30,000, the remedy awarded by the court was an

incomplete one, given that the court determined that FNB was entitled to the

sum of $69,188.80.    Because, under the particular circumstances of this

case, a full and complete remedy at law was not available to FNB, the trial



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court properly invoked equity to provide a just result.        See id. at 1084

(“where a full, perfect and complete remedy cannot be afforded at law,

equity extends it jurisdiction in furtherance of justice.”).

       The trial court also acted in accordance with the law in concluding that

Appellants were liable under the theory of unjust enrichment due to their

receipt of the Disputed Funds. Contrary to Appellants’ assertion, FNB was

not required to demonstrate wrongdoing on the part of the Appellants to

prove unjust enrichment.

       To sustain a claim of unjust enrichment, a claimant must show
       that the party against whom recovery is sought either wrongfully
       secured or passively received a benefit that it would be
       unconscionable for her to retain. In order to recover, there must
       be both (1) an enrichment, and (2) an injustice resulting if
       recovery for the enrichment is denied. A showing of knowledge
       or wrongful intent on the part of the benefited party is not
       necessary in order to show unjust enrichment. Rather, the focus
       is on the resultant unjust enrichment, not on the party’s
       intention.

Torchia ex rel. Torchia v. Torchia, 499 A.2d 581, 582-83 (Pa. Super.

1985) (internal citations and punctuation omitted) (emphasis added). 4
____________________________________________


4
  The facts of Torchia are strikingly similar to those of the instant matter.
In that case, father agreed as part of a divorce settlement to maintain his
three children as beneficiaries of his life insurance policies. Following his
remarriage, father changed the beneficiary designations, naming his new
wife as primary beneficiary. Following father’s death, his widow received the
proceeds of the policies and the children’s mother commenced an action in
equity against her, asserting that the widow had been unjustly enriched.
This Court affirmed the trial court’s finding in favor of the children, quoting
with approval the following language from a decision of the Court of Appeals
of New York:

(Footnote Continued Next Page)


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      Thus, FNB was not required to demonstrate that Appellants engaged in

misleading or wrongful conduct in receiving and retaining the Disputed

Funds.   Rather, it merely needed to show that retention of the money by

Appellants would result in an injustice.            Given Frances’ breach of the

indemnity agreements, FNB’s right to the Disputed Funds was superior to

that of the Appellants, who merely received a gratuitous benefit upon

Frances’ death.        As such, the trial court did not err in entering judgment

against them.

      Order affirmed.

      President Judge Emeritus Bender, Judge Bowes, Judge Panella, Judge

Shogan, Judge Ott, Judge Stabile, Judge Jenkins, join the majority.

President Judge Gantman concurs in the result.




                       _______________________
(Footnote Continued)

      Defendant, having furnished no consideration for the receipt of
      the proceeds of the life insurance policy, has received a
      gratuitous benefit and would be unjustly enriched in the eyes of
      the law were she to retain those proceeds against the claims of
      the children for breach by their father of his agreement to
      continue them as beneficiaries of the policy. That the children
      might also have a breach of contract claim against their father’s
      estate is of no moment so far as the liability of defendant to the
      children is concerned[.]

Torchia, 499 A.2d at 583-84, quoting Markwica v. Davis, 473 N.E.2d 750,

752 (N.Y. 1984).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2016




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