                             [J-5-2019][M.O. - Dougherty, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                   EASTERN DISTRICT


GAMESA ENERGY USA, LLC AND                   :   No. 28 EAP 2018
GAMESA TECHNOLOGY                            :
CORPORATION INC.,                            :   Appeal from the Judgment of Superior
                                             :   Court entered on 3/19/18 at No. 1635
                      Appellants             :   EDA 2016 affirming in part and
                                             :   reversing in part the order entered on
                                             :   5/20/16 in the Court of Common Pleas,
                 v.                          :   Philadelphia County, Civil Division at
                                             :   No. 03678 March Term, 2013
                                             :
TEN PENN CENTER ASSOCIATES, L.P.             :
AND SAP V TEN PENN CENTER NF G.P.            :
L.L.C.,                                      :
                                             :
                      Appellees              :   ARGUED: March 5, 2019


                                   CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                   DECIDED: September 26, 2019


      As concerns the main legal issue presented for review -- “[m]ay a litigant

simultaneously pursue inconsistent alternative remedies in a civil action in Pennsylvania

prior to the entry of final judgment” -- I am more sympathetic to Gamesa’s policy-based

argument than the majority appears to be.     To my mind, it is troublesome that a non-

breaching party to a contract must be presented with options that are “very risky and

highly disadvantageous to them.” Majority Opinion, slip op. at 28. Indeed, I saw this

case as an opportunity to consider whether appropriate adjustments should be made to

the law to ameliorate the dilemma faced by non-breaching parties. Accord Gamesa

Energy USA, LLC v. Ten Penn Center Assocs., 181 A.3d 1188, 1196 (Pa. Super. 2018)

(Stevens, P.J.E., concurring).
      That said, there is substantial force to the majority’s position that the practice of

generally forcing an election of remedies that would foreclose retroactive termination or

rescission upon continued performance should remain extant.1 In this regard, it seems

to me that Gamesa simply has not done enough to demonstrate, empirically, that the

net consequences of a modification would not be harmful.          Given the social-policy

ramifications and the substantive-law nexus, I also conclude that the legislative forum

would be more suitable for the consideration of potential reforms.

      I would find an exception to this general rule, however, applicable to instances in

which the non-breaching party continues to be denied the benefit of its bargain during

the period of its own continuing performance. One who makes an election to continue

to fulfill their own contractual commitments after a breach by the other party has a right

to expect mutual performance going forward. Presently, however, the trial court found

that Ten Penn Center continued to act in a manner that deprived Gamesa of material

benefits from the lease. See, e.g., Findings of Fact and Conclusions of Law dated Feb.

23, 2016, in Gamesa Energy USA, LLC v. Ten Penn Center Assocs., L.P., No. 03678


1As Ten Penn Center relates, the notion of a “retroactive termination,” as contemplated
by Gamesa’s prayer for relief, is substantially problematic. See Brief for Appellees at 33
n.17.

In my view, it would be preferable to envision any remedy invalidating a contract
retroactively as a rescission, and to treat any partial quid pro quo on account of a period
of mutual performance as an offset to the restitutionary remedy. And while Ten Penn
Center correctly explains that the remedy of unjust enrichment (as pled by Gamesa) is
not directly implicated in cases in which the litigants are parties to a written agreement,
see Brief for Appellees at 20 n.11, the concept of unjust enrichment is also embedded in
the remedy of restitution, which may be available in cases arising out of express
contracts. See RESTATEMENT (SECOND) OF CONTRACTS §344, cmt. d (1981). That said,
since the outcome may be substantively the same, it does not seem to me that
Gamesa’s approaches in the above respects should necessarily be treated as fatal
pleading defects.


                          [J-5-2019][M.O. – Dougherty, J.] - 2
Mar. Term 2013, at COL ¶3 (C.P. Phila.) (“Ten Penn Center prevented Gamesa from

obtaining any additional subtenant and did so while also collecting rent.”). Since the

Superior Court disregarded this determination without any supporting analysis,2 I was

initially inclined to favor remanding the case for that court to assess whether this finding

is supported by the record and legally correct.

       Nevertheless, I conclude that there are simply too many entanglements involved

here on account of Gamesa’s continued performance militating against the affordance

of a rescissionary remedy. By way of example, I find resonance in Ten Penn Center’s

complaint about the trial court’s extraordinary directive establishing a “judicially-created-

and-imposed contract between Viridity and Ten [Penn Center].” Brief for Appellees at

15. While I have some differences with the details, I support the majority’s ultimate

determination that Gamesa’s continued performance coupled with the involvement of

third parties relegated it exclusively to the course of proving its claim for damages for

Ten Penn Center’s breach of contract.




2 I recognize that the Superior Court opined that “all of the evidence points to
[Gamesa’s] continued benefit from the terms of the Lease following summer 2012.”
Gamesa, 181 A.3d at 1195. However, the court did not so much as consider the trial
court’s findings to the contrary, at least on account of Ten Penn Center’s continuing to
maintain that Gamesa remained in default under the Lease. According to the trial court,
Ten Penn Center’s conduct in this regard undermined Gamesa’s ability to effectuate
subleases. See Findings of Fact and Conclusions of Law in Gamesa, No. 03678 Mar.
Term 2013, at FOF ¶¶23-25, COL ¶3.


                           [J-5-2019][M.O. – Dougherty, J.] - 3
