J-S24038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN P. SENATORE,                        :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
JOHN HAZAKIS, PAUL HAZAKIS AND           :
GEORGE MIHOS,
                                         :
                 Appellants              :           No. 3247 EDA 2014

           Appeal from the Judgment entered on January 2, 2015
             in the Court of Common Pleas of Delaware County,
                        Civil Division, No. 2009-8319

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED APRIL 29, 2015

     John Hazakis (“John”), Paul Hazakis (“Paul”) and George Mihos

(“Mihos”) (collectively, “Defendants”) appeal from the Judgment entered

against them and in favor of John P. Senatore (“Senatore”). We affirm.

     In June 2009, Senatore filed a breach of contract action against

Defendants, seeking payment for services rendered in the construction and

renovation of a diner. According to Senatore’s Complaint, Defendants were

partners in a business called Hot Spot II, “a restaurant to be constructed by

private contractors retained by Defendants” in Springfield, Pennsylvania.

Complaint at ¶ 3. Senatore asserted that on or about February 26, 2006,

Defendants retained Senatore’s services as a project manager “of the

construction to be done at Hot Spot II.” Id. at ¶ 4. According to Senatore,

the parties agreed that he was to be paid $5,000 per month until the end of
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construction, which was estimated to last four months. Id. at ¶ 5. Senatore

accepted the offer.       Id. at ¶ 6.   Construction began around 2006, but,

according to the Complaint, lasted longer than anticipated. Id. at ¶¶ 7-8.

Finally, in February 2007, Defendants stopped construction.        Id. at ¶ 10.

Senatore filed the instant breach of contract action claiming that Defendants

failed to pay him $65,000, in accordance with their agreement. Id. at ¶¶

11-13.

        Defendants filed an Answer, New Matter and Cross-Claim. Defendants

averred that initially, only John was involved in the project.          Second

Amended Answer, New Matter and Counterclaim at ¶ 4.                According to

Defendants, they were principals in a corporation known as Hot Spot Diner

II. Id. at ¶ 3. Defendants averred they filed the Articles of Incorporation on

February 23, 2006, and never acted in their individual capacities.          Id.

Defendants further averred that Senatore agreed to construct and renovate

the diner for $80,000, and that Senatore agreed to a fee at the discretion of

John.    Id. at ¶ 5.    Defendants claimed that Senatore represented to John

that the project would take only three months.          Id. Defendants filed

counter-claims         against   Senatore     for   breach    of      contract,

fraud/misrepresentation, and for counsel fees pursuant to 42 Pa.C.S.A.

§ 2503(9).

        On December 8, 2011, the trial court entered judgment on the

pleadings in favor of Senatore. On appeal, this Court reversed. Senatore



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v. Hazakis, 60 A.3d 861 (Pa. Super. 2012) (unpublished memorandum).

This Court concluded that there existed disputed issues of fact as to whether

Defendants    acted   in   an    individual   or   representative   capacity   when

contracting with Senatore. Id. (unpublished memorandum at 1).

      On remand, the case proceeded to a jury trial.          Ultimately, the jury

rendered its verdict, finding that (1) there was an agreement between

Senatore and Defendants; (2) the oral agreement was not between Senatore

and Defendants as principals in their corporate capacity; (3) the oral

agreement was between Senatore and Defendants acting in their individual

capacities; and (4) each of the Defendants breached their agreement with

Senatore. N.T., 4/30/14, at 96-97. The jury found each of the Defendants

100% liable for $39,600 in damages to Senatore.            Id. at 98. Finally, the

jury found in favor of Senatore and against Defendants on Defendants’

counterclaims.   Id. at 99-101.      Defendants filed Post-Trial Motions, which

the trial court denied. Thereafter, Defendants filed a Notice of Appeal, and

on January 2, 2015, at the direction of this Court, final judgment was

entered on the jury’s verdict.

      Defendants now present the following claims for our review:

      1. Is it error for a judge to confirm a verdict that found
         individuals jointly and severally liable for a performance
         contract when there is no evidence of any contractual
         relationship between the parties?

      2. Is it error for [] a judge to confirm a verdict that assumed a
         partnership when there is real evidence a partnership existed



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         or that there [sic] any conformity           with   the   Uniform
         Partnership Act of 1915, as amended?

      3. Can a piercing of the corporate veil be successful where a
         corporation is formed prior to the beginning of the contractual
         work just because a negotiation with a contractor by a
         principal was successfully done prior to the forming of the
         corporation?

Brief for Appellants at 5.

      Defendants first claim that there is no evidence to support the verdict

against Paul and Mihos, as they were not present at the time the contract

was formed.     Id. at 18.     Defendants point out evidence that Senatore

initially met with John and a former defendant, Vasilios Kyramararios

(“Kyramararios”). Id. Defendants argue that “[n]owhere in this record is

there any testimony that [Senatore] had any meeting with Paul [] and []

Mihos.” Id. Defendants assert there is no evidence supporting a finding of

individual liability against Paul and Mihos.    Id.     Thus, Defendant seek

judgment notwithstanding the verdict.

      In reviewing a trial court’s decision granting or denying judgment

notwithstanding the verdict,

      we must consider the evidence, together with all favorable
      inferences drawn therefrom, in a light most favorable to the
      verdict winner. … We will reverse a trial court’s grant or denial
      of a judgment notwithstanding the verdict only when we find an
      abuse of discretion or an error of law that controlled the
      outcome of the case. Further, the standard of review for an
      appellate court is the same as that for a trial court.

            There are two bases upon which a judgment N.O.V. can be
      entered: one, the movant is entitled to judgment as a matter of
      law and/or two, the evidence is such that no two reasonable


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      minds could disagree that the outcome should have been
      rendered in favor of the movant. With the first, the court
      reviews the record and concludes that even with all factual
      inferences decided adverse to the movant the law nonetheless
      requires a verdict in his favor, whereas with the second, the
      court reviews the evidentiary record and concludes that the
      evidence was such that a verdict for the movant was beyond
      peradventure.

Ty-Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa.

Super. 2002) (citation omitted).     “Concerning any questions of law, our

scope of review is plenary.   Concerning questions of credibility and weight

accorded evidence at trial, we will not substitute our judgment for that of the

finder of fact.” Van Zandt v. Holy Redeemer Hosp., 806 A.2d 879, 886

(Pa. Super. 2002) (citation omitted).

      To prove a breach of contract, a plaintiff must prove that a contract

existed, it was breached, and damages resulting from the breach. Liss &

Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 665 (Pa.

2009). In order for an enforceable agreement to exist,

      there must be a “meeting of the minds,” whereby both parties
      mutually assent to the same thing, as evidenced by an offer and
      its acceptance. It is equally well established that an offer may
      be accepted by conduct and what the parties do pursuant to the
      offer is germane to show whether the offer is accepted. In cases
      involving contracts wholly or partially composed of oral
      communications, the precise content of which are not of record,
      courts must look to the surrounding circumstances and course of
      dealing between the parties in order to ascertain their intent.
      We must, therefore, look to the parties’ course of conduct to
      ascertain the presence of a contract.

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

2014) (citation omitted).


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     The evidence, viewed in a light most favorable to Senatore, reflects

that Senatore first met John and Kyramararios at a diner owned by John.

N.T., 4/28/14, at 47, 48. At the diner, Kyramararios approached Senatore

about the construction of the Hot Spot II.    Id. at 49.   Senatore met with

John and Kyramararios about the Hot Spot II construction project in

December 2005.      Id. at 51.   At that meeting John and Kyramararios

explained that they wanted to open the Hot Spot II within four months. Id.

at 52.   Senatore offered to provide equipment and “[a]ll my expertise on

how to save them money to be able to get the job done” for “$5,000 per

month for four months.” Id. at 53. Senatore also stated that he would wait

until the diner opened to get paid.    Id.   According to Senatore, he knew

three partners were involved with the project: Kyramararios, Paul and John.

Id. at 51. Senatore never was told that a corporation was involved, or that

he would be an employee of a corporation. Id. at 54, 101.

     Senatore testified that John accepted his offer to perform the work, for

four months, for a total of $20,000. Id. at 55. When the work extended

beyond four months, John asked Senatore to continue with the project. Id.

at 73. Senatore began work in February 2006, and completed the work in

February 2007.   Id. at 91.   Finally, upon completion, Senatore was never

paid for his work. Id.

     Kyramararios testified that when planning began for the Hot Spot II,

he, John and Paul were partners. Id. at 153. Kyramararios confirmed that



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the partners decided to engage Senatore for the project.               Id. at 154-55.

Kyramararios stated that Mihos joined the partnership because of cost

overruns. Id.      Kyramararios testified that Senatore offered to perform the

work request for four months, for a total of $20,000.                    Id. at 157.

Kyramararios explained that Senatore provided tools and equipment that

saved the partnership rental fees. Id. at 166. Kyramararios confirmed that

the partners accepted Senatore’s offer. Id. at 157-58.

     Paul testified that he was involved with the business prior to the

formation of a corporation. N.T., 4/29/14, at 114. Mihos testified that John

approached him for money after construction on the Hot Spot II began. Id.

at 116. Mihos expressly confirmed that he was a partner in the business.

Id. at 120.

     The      evidence,   viewed   in   a   light   most   favorable    to   Senatore,

established the existence of an agreement with all three Defendants, breach

of the agreement, and damages. We discern no abuse of discretion or error

by the trial court by its denial of judgment notwithstanding the verdict.

Accordingly, we cannot grant Defendants relief on this claim.

     Defendants next claim that a partnership cannot be presumed without

evidence of its formation. Brief for Appellants at 19. Defendants assert that

they could only be found liable if there existed a legal partnership, formed

pursuant to Pennsylvania’s Uniform Partnership Act, 15 Pa.C.S.A. §§ 8301 et




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seq. Brief for Appellant at 19-20. According to Defendants, Senatore failed

to establish the legal requirements of a partnership. Id. at 21, 22.

      Initially, we observe that Kyramararios and Mihos expressly testified

regarding the existence of a partnership, as summarized above.         Further,

Defendants did not challenge the sufficiency of the evidence establishing a

legal partnership in their Post-Trial Motions.     Accordingly, that claim is

waived.1 See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the

first time on appeal).

      Finally, Defendants claim that the trial court improperly permitted

Senatore to “pierce the corporate veil.”         Brief for Appellants at 25.

Defendants argue that Senatore deliberately decided not to name the

corporation in his pleadings. Id. According to Defendants, they formed a

corporation “immediately prior to the effective lease for the facility—the

property for which [Senatore] was hired to supervise construction.”        Id.

Nevertheless, Defendants assert that Senatore pierced the corporate veil,

without naming the corporation as a party. Id.

      In their Post-Trial Motions, Defendants raised no claim related to the

legal existence of a corporation, or improper piercing of the corporate veil.

Accordingly, this claim is waived. See Pa.R.A.P. 302(a).

      Judgment affirmed.


1
  In their Post-Trial Motions, Defendants challenged the sufficiency of the
evidence establishing the existence of an oral contract. Post-Trial Motions,
¶¶ 1-2.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015




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