J-A18033-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    JOSEPH A. BERKOWITZ INTERIORS,         :    IN THE SUPERIOR COURT OF
    INC.,                                  :          PENNSYLVANIA
                                           :
                   Appellant               :
                                           :
                      v.                   :
                                           :
    SUSAN AND MARC KAMENITZ, H/W,          :
                                           :
                   Appellees               :       No. 283 EDA 2018

              Appeal from the Order Entered December 27, 2017
                in the Court of Common Pleas of Bucks County
                      Civil Division at No(s): 2015-01880

BEFORE: STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                FILED SEPTEMBER 26, 2018

        Joseph A. Berkowitz Interiors, Inc. (Berkowitz)1 appeals from the

December 27, 2017 order, which sustained the preliminary objections filed by

Susan and Marc Kamenitz (the Kamenitzes), and dismissed Berkowitz’s

complaint. Upon review, we affirm in part and reverse in part.

        We provide the following background. In a second amended complaint

filed on April 10, 2017, Berkowitz set forth the following facts. He “provides

custom interior design and renovation services which include consulting,

design, materials and finish selections as well as construction and installation

to implement the renovations.” Second Amended Complaint, 4/10/2017, at



1Joseph A. Berkowitz is the owner of Joseph A. Berkowitz, Inc., a Pennsylvania
corporation. We will use Berkowitz to refer to both the individual and the
company.

* Retired Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
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¶ 2. Around April of 2013, Berkowitz alleges that he “entered [into] a contract

with [the Kamenitzes] for Berkowitz to provide labor, services and materials

to design and renovate the interior of [their] home … and particularly the

master bathroom.” Id. at ¶ 4. Specifically, Berkowitz alleged that the parties

entered into an oral contract2 whereby Berkowitz “would perform design and

management services for the [p]roject at an hourly rate of $150.00.” Id. at

¶ 5.    In addition, Berkowitz would purchase materials and complete the

renovations, and the Kamenitzes “would pay the costs thereof.” Id. Berkowitz

also asserted that the parties “engaged in ongoing conversations and written

(email) communications in furtherance of the contract.” Id.

        Between June 11, 2013 and April 3, 2014, Berkowitz sent the

Kamenitzes five “invoices for material and services rendered by Berkowitz,

pursuant to the contract[,] for the total sum of $65,969.85.”3 Id. at ¶ 6.

According to Berkowitz, the Kamenitzes made partial payments or received

credits on these invoices,4 but have “failed and refused to pay the remaining




2 A previous version of the complaint did not state that the contract was an
oral contract. See Complaint, 10/13/2014. This, inter alia, was the subject
of a prior set of preliminary objections, and Berkowitz amended the complaint
to clarify that he was alleging the contract was an oral contract. See Pa.R.C.P.
1019(h) (“When any claim or defense is based upon an agreement, the
agreement shall state specifically if the agreement is oral or written.”).

3All five invoices are attached to the complaint. The dates of those invoices
are June 11, 2013; September 6, 2013; September 17, 2013; October 24,
2013; and April 3, 2014.

4   Each invoice details how much money was paid on that invoice.


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balance” of $22,504.32. Id. at ¶ 13. Thus, Berkowitz filed a complaint against

the Kamenitzes asserting claims for breach of contract, account stated, and

unjust enrichment.

      On April 29, 2017, the Kamenitzes filed preliminary objections to the

second amended complaint. Specifically, they asserted that Berkowitz failed

to satisfy Pa.R.C.P. 1019(h), by claiming that the parties “agreed upon terms

via written communications as the basis for the contract, but [Berkowitz] has

repeatedly failed to supply” those communications. Preliminary Objections,

4/29/2017, at ¶ 12. According to the Kamenitzes, the parties never reached

an agreement, and the Kamenitzes paid Berkowitz “for all work, materials,

labor and services that were provided in a workmanlike manner as well as

erroneously paying for those that were/are defective.” Id. at ¶ 13. Thus, the

Kamenitzes requested that the complaint be dismissed with prejudice for

failing “to conform to law or rule of court” and “legal insufficiency (demurrer).”

Id. at ¶ 19 (citing Pa.R.C.P. 1028(a)(2) and (4)).

      Berkowitz filed a response, both parties filed additional memoranda, and

on December 27, 2018, the trial court entered an order sustaining the

Kamenitzes’ preliminary objections and dismissing Berkowitz’s complaint with

prejudice. Berkowitz timely filed a notice of appeal, and both Berkowitz and

the trial court complied with Pa.R.A.P. 1925.




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      On appeal, Berkowitz complains the trial court erred in sustaining the

preliminary objections as to all three counts. See Berkowitz’s Brief at 4. We

consider these issues mindful of our standard of review.

            When reviewing the dismissal of a complaint based upon
      preliminary objections in the nature of a demurrer, we treat as
      true all well-pleaded material, factual averments and all
      inferences fairly deducible therefrom. Where the preliminary
      objections will result in the dismissal of the action, the objections
      may be sustained only in cases that are clear and free from doubt.
      To be clear and free from doubt that dismissal is appropriate, it
      must appear with certainty that the law would not permit recovery
      by the plaintiff upon the facts averred. Any doubt should be
      resolved by a refusal to sustain the objections. Moreover, we
      review the trial court’s decision for an abuse of discretion or an
      error of law.

B.N. Excavating, Inc. v. PBC Hollow-A, L.P., 71 A.3d 274, 277-78 (Pa.

Super. 2013) (en banc) (quoting Ira G. Steffy & Son, Inc. v. Citizens Bank

of Pennsylvania, 7 A.3d 278, 282–83 (Pa. Super. 2010)).

      We begin with Berkowitz’s contention that the complaint “alleges facts

sufficient to set forth a cause of action for breach of contract.” Berkowitz’s

Brief at 16. “It is well-established that three elements are necessary to plead

a cause of action for breach of contract: (1) the existence of a contract,

including its essential terms, (2) a breach of the contract; and, (3) resultant

damages.” 412 N. Front St. Assocs., LP v. Spector Gadon & Rosen, P.C.,

151 A.3d 646, 657 (Pa. Super. 2016).

      Here, Berkowitz claims that he and the Kamenitzes entered into an oral

contract, he performed work pursuant to that contract, and he was not paid

for all of that work.


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      [I]n the case of a disputed oral contract, what was said and done
      by the parties, as well as what was intended by what was said and
      done by the parties, are questions of fact to be resolved by the
      trier of fact []. The burden is on the plaintiff to prove by a
      preponderance of the evidence the existence of the contract to
      which the defendant is a party.

Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 516 (Pa.

Super. 1995).

      Here, the trial court concluded that Berkowitz’s complaint was

insufficient because he

      has not presented the written agreements allegedly made
      between [him] and [the Kamenitzes], or other information to
      show that an agreement existed between the parties. The only
      information presented by [Berkowitz] – namely, the invoices –
      have been contested by [the Kamenitzes], and by their dating
      were issued after the work had been completed, leaving [the
      Kamenitzes] unable to agree to their terms.

Trial Court Opinion, 3/12/2018, at 9.

      Here, Berkowitz was alleging the parties entered into an oral contract;

therefore “what was said and done by the parties as well as what was intended

by what was said and done by them are questions of fact for the jury.”

Solomon v. Luria, 246 A.2d 435, 438 (Pa. Super. 1968).          Based on the

foregoing, it is apparent that the trial court usurped the role of the jury by

reaching the aforementioned conclusions and sustaining the Kamenitzes’

preliminary objection.    A jury must determine whether the information




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presented by Berkowitz, and the other actions taken by the parties,5 support

Berkowitz’s contention that the parties entered into an oral contract.

      Moreover, with respect to writings, the rules provide that “[w]hen any

claim or defense is based upon a writing, the pleader shall attach a copy of

the writing, or the material part thereof.” Pa.R.C.P. 1019(h). The Kamenitzes

complained, and the trial court agreed, that the attached invoices were not

sufficient where Berkowitz stated in his complaint that there were additional

writings.

      However,    Rule   1019(h)   has   been   interpreted   to   require   only

documentation “which purportedly create[d] the legal obligations which

defendants have allegedly … breached.” Bethlehem Steel Corp. v. Litton

Indus., Inc., 71 Pa. D. & C.2d 635, 641 (Pa. Com. Pl. 1974). A plaintiff is

not required to attach documents of an “evidentiary nature with respect to the

underlying facts and circumstances giving rise to this litigation.” Id.

      At this stage of proceedings, “we must accept as true all material facts

alleged in the complaint, as well as inferences reasonably deductible

therefrom.” DiMarco v. Lynch Homes-Chester Cty., Inc., 559 A.2d 530,

531 (Pa. Super. 1989).      Thus, we conclude that the trial court erred in




5  For example, despite claiming that there was no “agreement,” the
Kamenitzes acknowledge that Berkowitz performed work in their home. In
fact, the Kamenitzes paid for some of that work. See Preliminary Objections,
4/29/2017, at ¶ 13 (“[The Kamenitzes] paid [Berkowitz] for all work,
materials, labor and services that were provided in a workmanlike manner as
well as erroneously paying for those that were/are defective.”).


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sustaining the Kamenitzes’ preliminary objections on the breach of contract

claim and reverse the trial court order as to this count.

      Berkowitz also contends the trial court erred in sustaining the

preliminary objections as to his claim for unjust enrichment. See Berkowitz’s

Brief at 21-24.

            Unjust enrichment is essentially an equitable doctrine. We
      have described the elements of unjust enrichment as 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. 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 the intention of the parties, but rather
      on whether the defendant has been unjustly enriched.

Schenck v. K.E. David, Ltd., 666 A.2d 327, 328 (Pa. Super. 1995) (internal

citations and quotation marks omitted).

      In his complaint, Berkowitz pled that he “conferred valuable benefits

upon [the Kamenitzes] … and, [they] have appreciated those benefits.”

Second Amended Complaint, 4/10/2017, at ¶ 30. Berkowitz claims he is owed

$22,504.32.6 Id. at ¶ 31.

      The trial court concluded that Berkowitz has not pled any facts that fulfill

the elements of unjust enrichment. See Trial Court Opinion, 3/12/2018, at

10. Again, we disagree with the trial court. Here, in reading the complaint as


6We observe that “theories of breach of contract and unjust enrichment must
be pleaded alternatively in order to allow recovery under the latter theory
where an express contract cannot be proven.” Lugo v. Farmers Pride, Inc.,
967 A.2d 963, 970 (Pa. Super. Ct. 2009).


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a whole, Berkowitz has asserted that he conferred a benefit upon the

Kamenitzes for which he has not been paid. It is clear that the Kamenitzes

dispute the value of that benefit, but value is not a relevant consideration at

the preliminary objections stage.      Again, at this stage of proceedings, “we

must accept as true all material facts alleged in the complaint, as well as

inferences reasonably deduc[]ible therefrom.” DiMarco, 559 A.2d at 531.

Accordingly, we reverse the order as to this count as well.

      We now turn to Berkowitz’s claim for account stated, and his claim that

the trial court erred in dismissing this claim. See Berkowitz’s brief, at 19-21.

“[T]he gist of [an account stated] consists in an agreement to, or acquiescence

in, the correctness of the account, so that in proving the account stated, it is

not necessary to show the nature of the original transaction, or indebtedness,

or to set forth the items entering into the account.” David v. Veitscher

Magnesitwerke Actien Gesellschaft, 35 A.2d 346, 349 (Pa. 1944). “Where

the evidence tending to show the statement of account is not in dispute, the

question as to whether the transaction amounts to an account stated is for

the determination of the court.” Id.

      Here, the crux of the dispute between Berkowitz and the Kamenitzes is

what, if anything, the Kamenitzes owe Berkowitz. Thus, the account is clearly

in dispute, and therefore we conclude that the trial court did not err in

sustaining the Kamenitzes’ preliminary objection to this count.




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     Based on the foregoing, we affirm the order sustaining preliminary

objections as to the count for account stated, and we reverse the order with

respect to the other two counts, breach of contract and unjust enrichment.

     Order affirmed in part and reversed in part. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/18




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