J-A26011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHARON C. WILSON,                                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                            Appellee

                     v.

TERRI LEVINE, THE COACHING
INSTITUTE AND COMPREHENSIVE
COACHING U, INC.,

                            Appellants                    No. 1896 WDA 2017


            Appeal from the Judgment Entered January 23, 2018
              In the Court of Common Pleas of Butler County
               Civil Division at No(s): A.D. No. 2006-10892


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JANUARY 30, 2019

      Appellants,   Terri    Levine,     the   Coaching    Institute   (“CI”),   and

Comprehensive Coaching U, Inc. (“CCU”), appeal from the judgment entered

in favor of Appellee, Sharon C. Wilson, in the amount of $94,866.77.             We

affirm.

      The trial court summarized the factual background and procedural

history of this case as follows:
      This case arises out of [Wilson’s] Complaint filed on or about
      December 4, 2006, alleging monetary damages as a result of a
      failed life coaching business venture between Wilson and Levine,
      though it is noted that the parties to said business venture were
      contested throughout the underlying proceedings up until, and
      including at[,] the time of trial.

      Wilson and Levine began their work together in or about 1999, on
      an unrelated business venture, when they launched Explode Your
      Business and Income. At that time, the women agreed to an equal
J-A26011-18


     fifty percent (50%) split of net income, with each being
     responsible for fifty (50%) of the expenses. Eventually, Explode
     Your Business and Income reached a natural end. Throughout
     this time, both Wilson and Levine maintained their separate online
     life coaching businesses.

     Wilson and Levine entered into the business venture that is the
     subject of the underlying litigation, in or around December[] 2004,
     when they began operations to launch [CI] where they would use
     each of their independently developed approaches to teach their
     clients how to become successful life coaches. At that time,
     Wilson and Levine agreed to a fifty percent (50%) monthly split
     of the net income derived from CI. Payments in this regard were
     made from Levine’s wholly owned corporation, [CCU], to Wilson’s
     wholly owned limited liability corporation, Coaching From Spirit,
     LLC [(“CFS”)]. Yearly, Wilson received a 1099.

     The parties operated in this manner through September[] 2005,
     when Levine notified Wilson that she would be adjusting the
     parties[’] profit splitting structure such that Wilson would receive
     thirty percent (30%) of the monthly net income generated from
     CI, and Levine would receive seventy percent (70%) of the
     monthly net income generated from CI.

     In conveying this change in compensation to Wilson, Levine made
     it clear that if Wilson did not accept the adjustment in
     compensation, Levine would terminate Wilson’s services.
     Although Wilson disagreed with the adjustment, and tried a
     number of times to change Levine’s mind on the subject, even
     suggesting that the agreement between the parties be
     memorialized in writing, Wilson accepted Levine’s terms moving
     forward. The business operated at a thirty-seventy (30-70)
     monthly split of net income from October 1, 2005[] through June
     14, 2006.

     It was in June[] 2006, that Levine sent an electronic
     communication to the CI staff indicating that Wilson was
     terminated such that she was no longer a part of CI, and as a
     result, should not be permitted access to any of the materials or
     clients associated with CI.

     As a result, [Wilson] commenced this action on or about June 16,
     2006, by filing a Praecipe for Writ of Summons. Subsequently,
     [Wilson’s] Complaint was amended three times, resulting in this
     matter proceeding under [Wilson’s] Third Amended [C]omplaint,
     filed on or about May 11, 2009.

                                    -2-
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       The remaining pre-trial procedural history from 2009 to the
       present is voluminous, and generally inessential to the issues
       raised by Appellants in this appeal, other than to note that upon
       this [c]ourt’s consideration and denial of Appellants’ Motion for
       Summary Judgment, this matter proceeded to a [j]ury [t]rial from
       July 17, 2017[] through July 21, 2017, resulting in a [v]erdict in
       favor of [Wilson] in the amount of Eighty Two Thousand Two
       Hundred and Fifty-Eight Dollar and Sixty-Six Cents ($82,258.66).

       Subsequently, [Wilson] filed a Post-Trial Motion to Mold Verdict to
       Include Pre-Verdict Interest, and Appellants filed a Motion for
       Post-Trial Relief, requesting that this [c]ourt [s]et aside the [j]ury
       [v]erdict in favor o[f] [Wilson]. Having heard argument on said
       [m]otions on November 28, 2017, this [c]ourt granted [Wilson’s]
       Post-Trial Motion to Mold Verdict to Include Pre-Verdict Interest,
       and denied Appellants’ Motion for Post-Trial Relief.[1]

       Appellants subsequently filed a Notice of Appeal on or about
       December 22, 2017, with respect to the [o]rder of [c]ourt under
       date of November 28, 2017, denying Appellants’ Motion for Post-
       Trial Relief.

       Upon receipt of said Notice of Appeal, on or about December 27,
       2017, in accordance with Rule 1925(b) of the Pennsylvania Rules
       of Appellate Procedure, this [c]ourt entered an [o]rder of [c]ourt
       wherein … Appellants were directed to file of record and serve
       upon the undersigned trial judge a [Rule 1925(b)] Concise
       Statement of the Matters Complained of on Appeal no later than
       twenty-one (21) days from the date of the [o]rder of [c]ourt.

       On or about January 12, 2018, … Appellants … filed their Concise
       Statement of Matters [C]omplain[ed] of on Appeal, pursuant to …
       Rule 1925(b).

Trial Court Opinion (“TCO”), 1/29/2018, at 1-4 (unnecessary emphasis

omitted).

       Subsequently, because Appellants had appealed from the trial court’s

order denying their post-trial motions, this Court issued an order on January

____________________________________________


1After the trial court molded the verdict to include pre-verdict interest,
Wilson’s award amounted to a total of $94,866.77.

                                           -3-
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16, 2018, directing Appellants to praecipe the trial court’s prothonotary to

enter judgment on the trial court’s decision.   See Zitney v. Appalachian

Timber Products, Inc., 72 A.3d 281, 285 (Pa. Super. 2013) (“An appeal

from an order denying post-trial motions is interlocutory. An appeal to this

Court can only lie from judgments entered subsequent to the trial court’s

disposition of post-verdict motions, not from the order denying post-trial

motions.”) (citations omitted). Appellants complied with our instruction, and

judgment was entered on January 23, 2018.         We therefore consider this

appeal as taken from the January 23, 2018 entry of judgment.            See id.

(“[T]here are some instances wherein a party has failed to enter judgment

and our appellate courts may regard as done that which ought to have been

done.”) (internal quotation marks and citations omitted).

     Presently, Appellants raise the following issues for our review:
     A. Was it an error of law for the jury to render a verdict for
     [Wilson] and against [CCU] under a theory of unjust enrichment,
     where Wilson provided services pursuant to an express
     contractual agreement (the “Agreement”) and received all
     compensation to which she was entitled under that Agreement?

     B. Was it an error of law for the jury to render a verdict in favor
     of Wilson and against CCU without making a finding regarding the
     parties to the Agreement, as an unjust enrichment claim would be
     precluded by (i) a finding that Wilson was in privity with CCU,
     and/or (ii) a finding that Wilson’s company, [CFS], … provided
     Wilson’s services instead of Wilson directly?

     C. Assuming that the parties to the Agreement were Wilson and
     [Levine], was it an error of law for the jury to render a verdict in
     favor of Wilson and against CCU for unjust enrichment in the
     absence of evidence that CCU misled Wilson into providing
     services by promising compensation in excess of the
     compensation that Levine was willing to provide?


                                    -4-
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     D. Is Wilson estopped as a matter of law from seeking to recover
     fifty percent (50%) of the net income from [CI’s] program for the
     period October 1, 2005 through June 14, 2006, where, inter alia,
     (i) Wilson expressly stated that she would accept 30 percent of
     net revenues and did so without protest for eight months, and (ii)
     CCU detrimentally and reasonably relied on Wilson’s agreement to
     accept thirty percent (30%) of CI’s net income by continuing to
     engage Wilson’s services, and CCU expressly communicated to
     Wilson that it would have terminated her services absent such
     agreement?

     E. Did Wilson, as a matter of law, waive any right to recover fifty
     percent (50%) of CI’s net income after October 1, 2005[,] by,
     inter alia, expressly communicating to Levine that she was willing
     to provide services to CI for thirty percent (30%) of net income,
     acknowledging that agreement multiple times in writing, and
     performing in accordance with those terms from October 1, 2005
     through June 14, 2006[,] without protest?

     F. Was CCU entitled to judgment notwithstanding the verdict on
     Wilson’s unjust enrichment claim, where the evidence
     unequivocally established, inter alia, (i) that Levine took full
     managerial control of CI after October 1, 2005, while Wilson
     focused primarily on sales and fulfillment, and (ii) Levine
     developed successful marketing initiatives and reduced CI’s
     operating expenses, such that Wilson’s average monthly
     compensation increased by more than $3,700 during the period
     October 1, 2005 through June 14, 2006 in exchange for a reduced
     level of services?

     G. Whether the [t]rial [c]ourt erred in:

        1. Denying [Appellants’] Motion for Summary Judgment,
        supported by their Brief in Support of Motion for Summary
        Judgment and Reply in Further Support of [Appellants’]
        Motion for Summary Judgment;

        2. Denying [Appellants’] Motion in Limine to Preclude
        Damages Claim for Fifty-Percent of Net Income;

        3. Denying [Appellant’s] Motion in Limine to Preclude All
        Claims by Sharon C. Wilson in Her Individual Capacity and
        Against Terri Levine in Her Individual Capacity;

        4. Rejecting [Appellants’] Proposed Jury Verdict Slip;



                                    -5-
J-A26011-18


          5. Modifying [Appellants’] Proposed Points for Charge;

          6. Overruling [Appellants’] objections to [Wilson’s] Proposed
          Jury Instructions, including without limitation [Wilson’s]
          proposed Jury Instructions Nos. 18, 22[,] and 23;

          7. Denying [Appellants’] Motion for Directed Verdict; and

          8. Denying [Appellants’] Motion for Post-Trial Relief?

Appellants’ Brief at 7-11.

       At the outset, we observe that Appellants raise seven issues, including

one with eight subparts, in their statement of questions involved.2 Appellants,

however, do not divide their brief into corresponding parts.3 Consequently,

we admonish Appellants for their lack of compliance with Pa.R.A.P. 2119(a)

(“The argument shall be divided into as many parts as there are questions to

be argued; and shall have at the head of each part—in distinctive type or in

type distinctively displayed—the particular point treated therein, followed by

such discussion and citation of authorities as are deemed pertinent.”). See

also Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 99 n.9 (Pa. Super.

2016) (determining that the appellant failed to comply with Rule 2119(a)

where the appellant’s brief did not “present and develop eight arguments in

support of the eight questions raised”).

____________________________________________


2 We remind Appellants that “[t]he effectiveness of appellate advocacy may
suffer when counsel raises numerous issues, to the point where a presumption
arises that there is no merit to any of them.” See Commonwealth v.
Snyder, 870 A.2d 336, 340 (Pa. Super. 2005) (citations omitted).

3 Namely, Appellants do not present an argument section for their last
question and its various subparts, set forth supra.



                                           -6-
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       Because      Appellants      advance      seven   discernible   issues   with

accompanying analysis in their argument section, we limit our review to those

claims.4,   5   In their first issue, Appellants contend that “Wilson’s unjust

enrichment claim must fail as a matter of law because she has received all of

the compensation to which she was contractually entitled.” Appellant’s Brief

at 41 (unnecessary capitalization and emphasis omitted). They argue:
       Wilson testified repeatedly and unequivocally that she provided
       services to CI pursuant to an express oral agreement, first entered
       into in 1999, to collaborate with Levine on marketing programs
       and split the net revenues equally (the “Agreement”). Wilson
       contended that the Agreement was a partnership, which could not
       be modified without her consent, while Levine asserted that
       Wilson was an independent contractor, and that the Agreement
____________________________________________


4 We deem all other issues raised in Appellants’ statement of questions
involved — including any subparts of questions — waived to the extent they
do not overlap with the seven main arguments presented and developed by
Appellants in their argument section. See PHH Mortg. Corp v. Powell, 100
A.3d 611, 615 (Pa. Super. 2014) (“Because the ‘Argument’ section of the
Powells’ appellate brief sufficiently identifies two issues and provides legal
argument in support of them, however, we will address these two issues
herein. The other nine issues set forth in the ‘Statement of Questions
Involved’ are waived, as the above-referenced failures to comply with our
appellate rules preclude our ability to conduct meaningful appellate review of
these issues.”).

5 We also note that the trial court’s Pa.R.A.P. 1925(a) opinion does not
specifically address each of the numerous issues raised in Appellants’ Rule
1925(b) statement. Nevertheless, we are able to glean from the trial court’s
opinion its reasons for denying Appellants relief. See Cordes v. Associates
of Internal Medicine, 87 A.3d 829, 833 n.1 (Pa. Super. 2014) (“[W]e have
what we need to review the merits of [the a]ppellant’s issues.”);
Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005) (proceeding
to the merits of the appellant’s claims where this Court was adequately
apprised of the trial court’s reasoning in relation to the issues raised on appeal,
despite the lack of a Rule 1925(a) opinion).



                                           -7-
J-A26011-18


       could be modified or terminated at will. The jury found that the
       Agreement was not a partnership, and that Levine did not breach
       the Agreement by modifying Wilson's compensation.[6] Moreover,
       Wilson testified that CCU fully complied with the modified
       agreement by paying CFS 50 percent of net revenues from CI
       through September 2005 and 30 percent of net revenues from CI
       from October 2005 through May 2006.

       Since Wilson received all of the compensation to which she was
       entitled pursuant to the Agreement, it was error for the jury to
       award Wilson additional compensation under a quasi-contractual
       theory of unjust enrichment.

Appellants’ Brief at 41-42 (internal citations omitted).     Thus, Appellants

maintain that “[t]he express Agreement governing Wilson’s services to CI

defines the compensation to which she is entitled, and she cannot circumvent

that Agreement by implying a different contract with CCU.” Id. at 42.

       We apply the following standard of review:
       [T]he standard of review for an order granting or denying [JNOV]
       is whether there was sufficient competent evidence to sustain the
       verdict. We must view the evidence in the light most favorable to
       the verdict winner and give him or her the benefit of every
       reasonable inference arising therefrom while rejecting all
       unfavorable testimony and inferences. Furthermore, [JNOV]
       should be entered only in a clear case, where the evidence is such
       that no reasonable minds could disagree that the moving party is
       entitled to relief. Review of the denial of [JNOV] has two parts,
       one factual and one legal:
          Concerning any questions of law, our scope of review is
          plenary. Concerning questions of credibility and weight
____________________________________________


6 We consider this assertion somewhat misleading. Despite Appellants’
contention, the jury did not find that Levine did not breach any agreement by
modifying Wilson’s compensation. As the jury found that there was no
partnership agreement to begin with, it never reached the question of breach.
See Wilson’s Brief at 3 (“The jury did not find that there was a partnership
agreement. The jury certainly did not go further to find that Levine did not
breach the partnership agreement by modifying Wilson’s compensation.”)
(emphasis in original).

                                           -8-
J-A26011-18


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

Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa. Super.

2008) (citation omitted).

       We further observe that “[t]he doctrine of unjust enrichment is clearly

inapplicable when the relationship between the parties is founded on a written

agreement or express contract.”                Roman Mosaic & Tile Co., Inc. v.

Vollrath, 313 A.2d 305, 307 (Pa. Super. 1973) (citations and internal

quotation mark omitted).7 Instead,
       [a] claim for unjust enrichment arises from a quasi-contract. A
       quasi-contract imposes a duty, not as a result of any agreement,
       whether express or implied, but in spite of the absence of an
       agreement, when one party receives unjust enrichment at the
       expense of another.

       The elements of unjust enrichment are benefits conferred on
       defendant by plaintiff, appreciation of such benefits by defendant,
       and acceptance and retention of such benefits under such
       circumstances that it would be inequitable for defendant to retain
       the benefit without payment of value. Whether the doctrine
       applies depends on the unique factual circumstances of each case.
       In determining if the doctrine applies, we focus not on the
       intention of the parties, but rather on whether the defendant has
       been unjustly enriched.

       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. The application of the doctrine
       depends on the particular factual circumstances of the case at
       issue. In determining if the doctrine applies, our focus is not on
____________________________________________


7 We note that, “claims [for] breach of contract may be pleaded alternatively
with a claim of unjust enrichment, although recovery may not be had for both
unjust enrichment and the other claims.” Lugo v. Farmers Pride, Inc., 967
A.2d 963, 970 (Pa. Super. 2009) (citations omitted); see also Wilson’s Brief
at 2.

                                           -9-
J-A26011-18


       the intention of the parties, but rather the most critical element of
       this equitable doctrine, which is whether the enrichment of the
       defendant is unjust. The doctrine does not apply simply because
       the defendant may have benefited as a result of the actions of the
       plaintiff.

Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 916-17 (Pa. Super.

2017) (internal citations and quotation marks omitted).

       No relief is due on this basis. The jury did not find that any express

contract existed between any of the parties and, consequently, Wilson could

not have received all of the compensation to which she was contractually

entitled. Indeed, at trial, Wilson argued before the jury, “if you find that there

wasn’t an agreement between these ladies individually then alternatively we

are asking that you find that [Wilson] unjustly enriched [CCU]….” N.T. Trial,

7/21/2017, at 68. The jury did so, and its verdict reflects that it found no

express contract present in this case. Specifically, the jury explicitly found

that no partnership agreement existed and, by way of its unjust enrichment

verdict, it implicitly rejected Appellants’ contention that Wilson agreed to serve

as an independent contractor whose compensation could be modified at

Levine’s will.8 We will not substitute our judgment for that of the finder of

fact. See Underwood, supra. Accordingly, we reject Appellants’ first claim.
____________________________________________


8 In Appellants’ reply brief, they contend that “[b]y rejecting Wilson’s claim
that the Agreement was a partnership, the jury necessarily found that the
Agreement was terminable at-will and denied Wilson any recovery for breach
of contract.” Appellants’ Reply Brief at 6-7. We disagree. If that were the
case, the jury would not have rendered an unjust enrichment verdict, finding
that it would be inequitable for CCU to retain the value of the benefit bestowed
on it by Wilson. Thus, it seems more likely that the jury determined that



                                          - 10 -
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       Second, Appellants claim that “Wilson could not assert an unjust

enrichment claim against CCU if she was in contractual privity with CCU.”

Appellants’ Brief at 43 (unnecessary capitalization and emphasis omitted).

They argue that, “[i]f Wilson contracted with CCU, the existence of that

contract bars Wilson from asserting a claim against CCU for unjust

enrichment.” Id. at 43-44 (footnote omitted). The jury, however, did not

find that Wilson was in contractual privity with CCU, as discussed supra. Once

again, we will not substitute our judgment for that of the factfinder.    See

Underwood, supra. Consequently, we also reject this claim.

       Third, Appellants state that “[i]f the agreement was between Wilson and

Levine, Wilson’s unjust enrichment claim must fail as a matter of law because

there is no evidence that CCU misled Wilson into providing services.”

Appellants’ Brief at 45 (unnecessary capitalization and emphasis omitted).

They insist that, “even if Wilson were entitled to pursue extra-contractual

compensation from CCU under a theory of unjust enrichment, Pennsylvania

law would require Wilson to prove that CCU misled her into providing services

in order to prevail on an unjust enrichment claim.”      Id. at 46 (citations

omitted).
____________________________________________


“Wilson and Levine or Wilson and CCU [never] reached a meeting of the
minds. Again, Wilson believed she was an equal 50/50 partner in [CI] and
Levine believed she owned [CI] and that Wilson was an independent
contractor whose terms could be modified at any time by Levine without
consequence.” Wilson’s Brief at 5-6. In other words, no agreement was
reached. Further, we note that the verdict slip did not ask the jury to
determine explicitly if any express contract other than a partnership
agreement existed between any of the parties.

                                          - 11 -
J-A26011-18



      The Pennsylvania law on which Appellants rely to support their argument

explains that:
      The Restatement of Restitution sets forth various rules for the
      determination of whether the retention of a particular enrichment
      is unjust. Section 110 deals with the situation where a third
      party benefits from a contract entered into between two
      other parties. It provides that, in the absence of some
      misleading by the third party, the mere failure of
      performance by one of the contracting parties does not give
      rise to a right of restitution against the third party. The
      Restatement gives as an example of this principle the situation
      where A purchases a ring from C, a jeweler, for his fiancée B and
      then defaults in the payments. The Restatement states that C
      cannot recover the ring or its value from B. (Footnote omitted)

Kemp v. Majestic Amusement Co., 234 A.2d 846, 848 (Pa. 1967)

(emphasis added). In order for this principle to apply, however, a contract

must have been entered into between two parties.       Thus, in the case sub

judice, before evidence of CCU’s misleading actions (or lack thereof) becomes

relevant, a contract between Levine and Wilson is required. The jury, though,

did not make a finding that an express contract existed between Levine and

Wilson. We reiterate that this Court will not substitute our judgment for that

of the factfinder. See Underwood, supra. Accordingly, we conclude that

this argument has no merit.

      Fourth, Appellants claim that “[i]t was error for the jury to render an

unjust enrichment verdict against CCU without making a finding regarding the

parties to the agreement.” Appellants’ Brief at 53 (unnecessary capitalization

and emphasis omitted). They argue:
      The [v]erdict [s]lip devised by the trial court did not require a
      finding regarding the parties to the Agreement by which Wilson


                                    - 12 -
J-A26011-18


       provided services to CI. If the jury found in response to Question
       1 that there was a partnership agreement, the jury was directed
       to proceed to Question 5, which simply asked whether CCU was
       unjustly enriched by Wilson.

       Question 2 asked the jury to find whether the parties to the
       Agreement were (i) Wilson and Levine, or (ii) CFS and CCU.
       However, because the jury found in response to Question 1 that
       there was no partnership agreement, it did not answer Question
       2. Moreover, even if the jury answered Question 2 and found that
       the parties were CFS and CCU, they would have been directed to
       proceed to Question 5 despite the existence of a direct contractual
       relationship with CCU governing Wilson’s services.

       The absence of a finding regarding the parties to the Agreement
       requires reversal. If CCU was a party to the Agreement to provide
       Wilson’s services, any claim for compensation must be brought as
       a claim for breach of contract. Since the jury found that the
       Agreement was not breached, any such claim would fail.[9]
       Finally, any finding that CFS was a party to the Agreement would
       preclude a claim for compensation, since it was CFS — not Wilson
       — who provided the services, and CFS is not a plaintiff.

Appellants’ Brief at 53-54.

       We deem this claim waived. Our review of the record does not indicate

that Appellants objected to the trial court’s verdict slip on this basis.

Specifically, it does not appear to us that Appellants objected because the trial

court’s verdict slip did not ask the jury to render a finding regarding the parties

to any agreement by which Wilson provided services to CI. See N.T. Trial,

7/20/2017, at 133-34, 150-51. Moreover, Appellants do not pinpoint in their

brief where they objected to this particular aspect of the trial court’s verdict

slip either. Instead, Appellants identify that they generally objected to the

verdict slip’s being drafted in the alternative with respect to Wilson’s contract
____________________________________________


9We reiterate that the jury did not explicitly find that the Agreement was not
breached. See footnote 6, supra.

                                          - 13 -
J-A26011-18



and unjust enrichment claims, which is a separate issue from requiring the

jury to determine who the parties were to any agreement. See Appellants’

Brief at 36 (citing N.T. Trial, 7/20/2017, at 133-34); see also Appellants’

Supplemental Statement Regarding the Preservation of Issues for Appeal,

11/16/2018, at 1 (listing “the many places in the record where Appellants

objected to [Wilson’s] simultaneously pursuing the same compensation under

theories of breach of contract and unjust enrichment”).10 Thus, Appellants

have not preserved this issue for our review. See Stapas v. Giant Eagle,

Inc., -- A.3d --, 2018 WL 6070787, at *7 (Pa. filed Nov. 21, 2018) (“[P]ost-

trial relief cannot be granted if the basis for the post-trial motion related to a

verdict arose during the trial proceedings and the party seeking relief did not

raise a contemporaneous objection.”) (citations omitted).

       Nevertheless, even if not waived, Wilson persuasively argues that “[t]he

jury did not have to find any agreement to render a verdict. It was able to

render a verdict despite finding that there was no agreement between any of

the parties.” Wilson’s Brief at 6; see also Gutteridge, supra (“[A] claim for

unjust enrichment arises from a quasi-contract. A quasi-contract imposes a

duty, not as a result of any agreement, whether express or implied, but in

spite of the absence of an agreement, when one party receives unjust

enrichment at the expense of another.”). Wilson claims that “[t]he jury simply

____________________________________________


10Likewise, Appellants did not object to the trial court’s verdict slip on the
basis that it did not ask if any express contract — aside from the partnership
agreement — existed in the matter.

                                          - 14 -
J-A26011-18



did not believe that Wilson and Levine or Wilson and CCU ever reached a

meeting of the minds. Again, Wilson believed she was an equal 50/50 partner

in [CI,] and Levine believed she owned [CI] and that Wilson was an

independent contractor whose terms could be modified at any time by Levine

without consequence.” Wilson’s Brief at 5-6. Accordingly, Appellants would

not have convinced us that a finding of the parties to any agreement was

required, as the jury seemingly determined that there was no express

agreement in the first place.

      Fifth, Appellants advance that, “[a]s a matter of law, Wilson is estopped

from recovering 50% of the net revenues of CI after October 1, 2005.”

Appellants’ Brief at 54 (unnecessary emphasis and capitalization omitted).

Appellants claim that, “[i]f the Court determines that Wilson was permitted to

seek compensation for her services beyond that specified by the Agreement,

she was estopped from doing so as a matter of law because (i) Wilson misled

Levine into believing that she would accept 30 percent of CI’s net revenues

for her services, and (ii) Levine detrimentally relied upon Wilson’s statements

by continuing to engage her services, rather than terminating their

relationship, as Levine was entitled to do.” Id.

      Our Supreme Court has stated:
      Equitable estoppel is a doctrine that prevents one from doing an
      act differently than the manner in which another was induced by
      word or deed to expect. A doctrine sounding in equity, equitable
      estoppel recognizes that an informal promise implied by one’s
      words, deeds or representations which leads another to rely
      justifiably thereon to his own injury or detriment may be enforced
      in equity.

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Kreutzer v. Monterey County Herald Co., 747 A.2d 358, 361 (Pa. 2000)

(citation omitted).

      We acknowledge that “[w]hether equitable estoppel exists in a given

case is a question of law for the court to decide. When reviewing questions

of law, the trial court’s conclusions of law are not binding on this [C]ourt,

whose duty is to determine whether there was a proper application of the law

to the facts by the trial court.” Stonehedge Square Ltd. Partnership v.

Movie Merchants, Inc., 685 A.2d 1019, 1023-24 (Pa. Super. 1996)

(citations and footnote omitted); see also Nesbitt v. Erie Coach Co., 204

A.2d 473, 477 (Pa. 1964) (“It is for the jury to say whether alleged remarks

were made, but it is for the court to decide whether they are susceptible of

the inferences attributed to them.    That statements should give rise to an

estoppel they must be clear and reasonably certain in their intendment.”)

(citations and internal quotation marks omitted). Equitable estoppel may be

applied,
      where the party asserting estoppel established by clear, precise
      and unequivocal evidence (1) that the party against whom the
      doctrine is sought to be asserted intentionally or negligently
      misrepresented a material fact, knowing or with reason to know
      that the other party would justifiably rely on the
      misrepresentation, (2) that the other party acted to his or her
      detriment by justifiably relying on the misrepresentation, and (3)
      that there was no duty of inquiry on the party seeking to assert
      estoppel. The doctrine is one of “fundamental fairness” and its
      application will depend on the facts in each case.

Stonehedge, 685 A.2d at 1024 (citations omitted).




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      We determine that equitable estoppel does not apply here. Appellants

claim that “Wilson’s words and conduct both induced Levine to believe that

Wilson would accept 30[%] of the net revenues of CI in exchange for her

services.” Appellants’ Brief at 57. However, as the trial court ascertained, “it

seems that Wilson made it very clear that she objected to the new terms of

payment.    Likewise, it also appears to this [c]ourt that given Levine’s

ultimatum that Wilson either accept the payment adjustment at [30%] of

monthly net income, or Wilson would be shut out of CI, Wilson had no viable

other option than to ‘accept,’ the [30%] of monthly net income as her new

terms of payment.” TCO at 8. We agree.

      Indeed, Appellants concede that, on the day Levine informed Wilson of

the new arrangement, Wilson “wrote two e-mails to Levine…, trying to

convince Levine to ‘maintain the agreement that we had since Explode’ and

continue to operate under a 50/50 split of net income from CI.” Appellants’

Brief at 23 (citations omitted). Appellants explain that, a few weeks later,

Wilson wrote another email to Levine, asking Levine “to ‘go back to the original

agreement,’ including a 50 percent split of net revenues from CI.” Id. at 27

(citations omitted). According to Appellants, around that time, Wilson also

“asked Levine whether she would ‘still be paid 50[%] after expenses for any

sales in September since you told me at the end of September about this

change from our original agreement.’”         Id. at 29 (citations omitted).

Subsequently, Appellants observe that “Wilson sent an e-mail to Levine asking

her for ‘a written agreement to our new agreement[,]’” but never provided a

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J-A26011-18



written response when Levine sent her an agreement representing that Wilson

would be an independent contractor and would receive 30% of the net

revenues from CI. See id. at 29-30. While Appellants emphasize Wilson’s

testimony that she “was going forward” with the new arrangement, in the

same line of questioning, Wilson testified: “I mentioned a number of times in

conversations that we had, and then [e]-mails prior, in October, and even in

January, trying to get [Levine] to go back to the original agreement [sic]. It

was obvious I was not happy about it. We communicated that I wasn’t, and

she just maintained her position.”    See Appellants’ Brief at 57 (citing N.T.

Trial, 7/19/2017, at 10); see also N.T. Trial, 7/19/2017, at 9. Thus, there is

evidence that Wilson made objections to the new arrangement.           Further,

based on the jury’s unjust enrichment verdict, the jury seemed to accept that

Wilson did not agree to the compensation change. As a result, the evidence

does not clearly, precisely, or unequivocally show that Wilson misrepresented

to Levine that she accepted the reduced compensation.          Thus, equitable

estoppel does not apply.

      In their sixth issue, Appellants insist that, for similar reasons, “[a]s a

matter of law, Wilson waived any right to receive 50% of the net revenues of

CI after October 1, 2005.” Appellants’ Brief at 61 (unnecessary capitalization

and emphasis omitted). They explain that “[w]aiver requires that the other

party knowingly gave up the right and acted clearly, unequivocally, and

decisively to relinquish it.” Id. (citations omitted). For the same reasons we

conclude that equitable estoppel does not apply, we determine that waiver

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J-A26011-18



also does not apply, as the evidence shows Wilson did not clearly,

unequivocally, and decisively relinquish any right she had to 50% of the net

revenues of CI after October 1, 2005.

      Finally, in their seventh issue, Appellants claim that “CCU was not

unjustly enriched by Wilson’s services after October 1, 2005[,] where Wilson

provided fewer services and received greater compensation.” Appellants’ Brief

at 65 (unnecessary capitalization and emphasis omitted). They aver that “the

jury verdict in favor of Wilson for unjust enrichment is improper because it is

based on the exact same compensation that Wilson sought in her breach of

contract claim.” Id. Specifically, they argue that “Wilson’s unjust enrichment

claim is fundamentally a way to nullify modification of the Agreement and

should be reversed on that basis.” Id. In addition, they contend that “the

award is … logically flawed because it is based on two factual assumptions

contrary to the evidence: (i) that Wilson provided the same services after

October 1, 2005[,] as she provided before that date, and (ii) CCU paid less for

those services than it paid previously.” Id.

      The trial court discerned that “it was well within the purview of the jury

to determine that Wilson did in fact do work worth fifty (50%) of net revenues

from CI” after the compensation reduction. TCO at 14. Indeed, our review of

the record shows that Wilson testified that, after the compensation reduction,

she did not cut back on her time. See N.T. Trial, 7/17/2017, at 172-73. While

Appellants contend that Wilson did not provide the same services after

October 1, 2005, the jury apparently found that Wilson did work worth half of

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CI’s net revenues.   See also Wilson’s Brief at 9-10 (discussing Wilson’s

testimony versus Levine’s testimony and determining that “the jury believed

Wilson and did not believe Levine”). Further, Wilson points out that “[t]he

jury decided that the correct measure of damages was represented by the

difference between the 50% net monthly revenues and the 30% net monthly

revenues after October 1, 2005.   That amount was $82,258.66.      The jury

determined that was the amount that Wilson unjustly enriched CCU….” Id. at

10. Accordingly, we reject Appellants’ last argument, and affirm the January

23, 2018 judgment.

     Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2019




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