J-A25004-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

EDDIE GERVIS       AND    BARTOLO   J. : IN THE SUPERIOR COURT OF
MORENO,                                :      PENNSYLVANIA
                                       :
                  Appellants           :
                                       :
            v.                         :
                                       :
BUCKS COUNTY MENTAL            HEALTH :
CLINIC AND CHRISTINE           TORRES :
MATRULLO,                              :
                                       :
                  Appellees            : No. 880 EDA 2014

              Appeal from the Judgment entered March 3, 2014,
                   Court of Common Pleas, Bucks County,
                   Civil Division at No. 2008-02415-32-2

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED OCTOBER 21, 2014

      Eddie Gervis (“Gervis”) and Bartolo Moreno (“Moreno”) (collectively,

“Appellants”) appeal from the judgment entered in favor of Bucks County

Mental Health Clinic (“the Clinic”) and Christine Torres Matrullo (“Matrullo”)

(collectively “Appellees”). For the reasons discussed herein, we affirm.

      The trial court summarized the factual history as follows:

                   [Gervis]   first   met    [Matrullo]   at   the
            Panamerican Mental Health Clinic in Philadelphia.
            Matrullo was the Clinical Director of the Panamerican
            Mental Health Clinic, and Gervis worked there as a
            psychotherapist.      They worked together at the
            Philadelphia location for a year and a half.
            Sometime around early 2006, both Gervis and
            Matrullo were transferred to the Panamerican Mental
            Health Clinic in Bristol, Pennsylvania. Shortly after
            this transfer, Matrullo called and told Gervis about a
            new clinic she was starting.       This clinic became



*Retired Senior Judge assigned to the Superior Court.
J-A25004-14


          known as Bucks County Mental Health Clinic, a
          nonprofit corporation, and Gervis began working
          there on March 31, 2006.

                 Soon after Gervis joined, Matrullo told Gervis
          that the nonprofit Bucks County Mental Health Clinic
          was experiencing financial difficulties, and that an
          investment was needed to help with these
          difficulties. Gervis testified that Matrullo told him if
          he invested in the nonprofit … he would receive large
          profits in the long run. On December 18, 2006,
          Gervis signed a document titled ‘Second Level Letter
          of Intention, and Agreement to Allow For A Third
          Investor’ (hereinafter, ‘Investor’s Agreement’). This
          document stated that Gervis would provide $20,000
          [] to the nonprofit Bucks County Mental Health Clinic
          to ‘ease its cash flow needs,’ and that he would be
          placed on the Board of Directors. [Moreno] signed
          an identical Investor’s Agreement, and also invested
          $20,000 [] in the nonprofit Bucks County Mental
          Health Clinic.

                 The nonprofit Bucks County Mental Health
          Clinic provided psychotherapist services for mental
          health patients, along with family therapy. In the
          Investor’s Agreement signed by Gervis and Moreno,
          there were plans of a ‘for profit Corporation
          anticipated to be formed.’      Gervis testified that
          Matrullo led he and Moreno to believe [that] they
          would make money back from their investments
          through the for-profit corporation.       Gervis and
          Moreno signed an Operating Agreement in 2011,
          giving them part ownership of Matrullo’s for-profit
          entity known as Bucks County Mental Health
          Services, LLC. The Operating Agreement of the for-
          profit [entity] states, ‘The Company desires to
          engage in the business of brokering of [sic]
          managing and operating a Mental Health Facility and
          providing mental health services for residents of the
          Commonwealth of Pennsylvania and the State of
          New Jersey, particularly, Hunterdon and Mercer
          Counties.’ Gervis and Moreno were listed as each
          having a 10% interest in the for-profit [entity], along



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          with one vote each. Neither was listed as having
          given an initial capital contribution. Gervis testified
          that no meetings were ever held for the for-profit
          [entity] and no business was even conducted.
          Further, Gervis and Moreno claim that Matrullo
          guaranteed them a return on their $20,000 []
          investment in the nonprofit [entity], and that this
          return never materialized. None of the documents
          related to either the nonprofit [] or the for-profit []
          mention a guarantee of a return on any kind of
          investment, nor do they mention a specific return on
          a $20,000 [] investment.

                 Gervis was employed by the nonprofit [entity]
          from March 31, 2006 until January 29, 2008. Gervis
          signed a ‘Mental Health Services Contract for
          Psychotherapist’      (hereinafter,     ‘Employment
          Agreement’) on April 28, 2006. The Employment
          Agreement read, ‘In exchange for the mutual
          services and promises delineated herein, the Clinical
          Provider agrees to abide by and honor the following
          terms: (a) It will pay Contractor at the rate of $35
          per hour for services actually provided during the
          first six months of this contract and $40 per hour
          thereafter.’ Despite the contract language reading
          ‘per hour,’ Gervis repeatedly testified that he was
          paid ‘per session,’ and at one point referred to the
          payment measures a ‘session hour.’ Gervis testified
          that he never received an increase in his pay.
          Additionally, Gervis claims that he stopped being
          paid altogether for some sessions, and would only
          receive a portion of what he was owed. Gervis
          resigned from his position on January 29, 20[08].

                On March 11, 2008, Gervis and Moreno filed a
          [c]omplaint against Matrullo and Bucks County
          Mental     Health   Clinic,  alleging   [i]ntentional
          [m]isrepresentation, [u]njust [e]nrichment, [b]reach
          of [c]ontract, and a [c]laim under the Unfair Trade
          Practices and Consumer Protection Law.

               On December 19, 2013, the [c]ourt held a
          one-day non-jury trial.



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                  On February 7, 2014, the [c]ourt entered a
            verdict in favor of [Appellees] on all claims.

                 On March 3, 2014, the [c]ourt denied
            [Appellants’] [post-trial] [m]otion and entered
            judgment in the matter.

                  On March 20, 2014, [Appellants] field their
            [n]otice of [a]ppeal … .

Trial Court Opinion, 5/27/14, at 1-5 (footnotes omitted).

      Appellants present one issue for our review: “Was the verdict so

against the weight of the evidence such that it constitutes a miscarriage of

justice and leads to the conclusion that the [trial court] committed a clear

abuse of its discretion in refusing to grant a new trial?” Appellants’ Brief at

4.

            A new trial based on weight of the evidence issues
            will not be granted unless the verdict is so contrary
            to the evidence as to shock one’s sense of justice; a
            mere conflict in testimony will not suffice as grounds
            for a new trial. Upon review, the test is not whether
            this Court would have reached the same result on
            the evidence presented, but, rather, after due
            consideration of the evidence found credible by the
            fact-finder, and viewing the evidence in the light
            most favorable to the verdict winner, whether the
            court could reasonably have reached its conclusion.
            Our standard of review in denying a motion for a
            new trial is to decide whether the trial court
            committed an error of law which controlled the
            outcome of the case or committed an abuse of
            discretion.

            We stress that if there is any support in the record
            for the trial court’s decision to deny the appellant’s
            motion for a new trial based on weight of the
            evidence, then we must affirm.



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J-A25004-14




Joseph v. Scranton Times, L.P., 89 A.3d 251, 274 (Pa. Super. 2014)

(citation omitted).

      Appellants argue that the verdicts are against the weight of the

evidence as to each of the three claims they raised in their complaint, and

they address each claim separately.        They begin with their claim for

intentional misrepresentation.

            The      elements      of    fraud,   or    intentional
            misrepresentation, are (1) a representation; (2)
            which is material to the transaction at hand; (3)
            made falsely, with knowledge of its falsity or
            recklessness as to whether it is true or false; (4)
            with intent of misleading another into relying on it;
            (5) justifiable reliance on the misrepresentation; and
            (6) the resulting injury was proximately caused by
            the reliance.

Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003).

Appellants argue that both Gervis’s testimony and the content of the

Investor’s Agreements establish all of the elements required to succeed on

this claim, and therefore that the verdict is against the weight of the

evidence. Appellants’ Brief at 11. Appellants summarize their argument as

follows:

            Matrullo took $20,000 from each [Appellant]. She
            never placed [Appellants] on any board of directors,
            never gave them voting rights in any entity, never
            gave them an equity interest in a for-profit entity
            and never formed a for-profit entity which carried on
            any business. [Matrullo] has never offered any
            explanation and failed to appear for trial.



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             [Appellants]      proved       their     intentional
             misrepresentation case … by clear and convincing
             evidence. The verdict on [this] claim … was against
             the weight of that evidence, and the [trial court]
             abused its discretion when it failed to award
             [Appellants] a new trial.

Id. at 12.

      In reaching its conclusion, the trial court found that Appellees followed

through with any/all of their obligations as outlined in the Investor’s

Agreements. In doing so, it expressly rejected Gervis’s testimony that

Matrullo represented that he and Moreno would receive a return on their

investment. Trial Court Opinion, 5/27/14, at 8-9. The record supports the

trial court’s determination.   The Investor’s Agreements provide that the

$20,000 payments made by each Appellant to the Bucks County Mental

Health Clinic were “to ease its cash flow needs” and that it “constitutes an

equity investment in the for[-]profit corporation, whose value is 10% of the

for profit corporation’s stock and ownership of any and all assets deemed

owned by said corporation.”     Exhibit P-1 at 2; Exhibit P-2 at 2.     It also

provides that Appellants would be on the Boards of Directors of both the

Clinic and the to-be-formed for-profit entity.   Id. at 4; Exhibit P-2 at 4.

There is no provision in these Agreements regarding a return of any kind on

the $20,000 investment. The for-profit was formed on January 1, 2010, and

Appellants were named as members with voting rights and 10% ownership

interests therein. Exhibit P-3 at 8, Annex A.




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Appellants make much of the fact that the for-profit entity has not carried on

any business and that they were never called upon to cast votes for the

entity. Appellant’s Brief at 9-10. Appellants have established only that they

have not discharged any duties in connection with these entities. The fact

that they have not been called upon to do so does not negate the trial

court’s finding that they received what the Investor’s Agreements provided

they would receive: seats on the Boards of Directors of both entities with

voting rights and 10% ownership interests in the for-profit entity. The trial

court’s determination to deny Appellant’s request for a new trial finds

support in the record and we conclude that there was neither an error of law

nor an abuse of discretion.

      Appellants next present their unjust enrichment claim.          To prove

unjust enrichment, one must establish “the retention of a benefit conferred

by   another,   without   offering   compensation,   in   circumstances   where

compensation is reasonably expected, and for which the beneficiary must

make restitution.” Roethlein v. Portnoff Law Associates, Ltd., 81 A.3d

816, 825 n.8 (Pa. 2013).

      Appellants assert that they “conferred a $40,000 benefit upon

[Appellees] and it would be inequitable for [Appellees] to retain that money

without payment of value.” Appellants’ Brief at 13. Appellants argue that

they were entitled to some return on their investments and that it would be

inequitable to conclude otherwise.     Id. at 13-14.      However, as discussed



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J-A25004-14


above, the trial court found that, pursuant to the Investor’s Agreements,

Appellants made the $40,000 cash infusion to the Clinic in order to ease its

cash flow needs and that no return on this money was promised or

expected. Trial Court Opinion, 5/27/14, at 10. It therefore concluded that

Appellants’ unjust enrichment claim could not succeed. As set forth above,

the record supports trial court’s determination that the funds given to the

Clinic were for its cash flow needs and that the Agreements did not provide

that Appellants would receive a return on these funds. As the trial court’s

determination is supported by the record, we may not disturb it. Joseph,

89 A.3d at 274. This finding, which we may not disturb, supports the trial

court’s denial as to this claim.

      Appellants’ final argument involves the breach of contract claim, which

was premised on Gervis’s employment contract with the Clinic. To succeed

on a claim for breach of contract, “a party must establish[] (1) the existence

of a contract, including its essential terms, (2) a breach of a duty imposed

by the contract, and (3) resultant damages.” McCausland v. Wagner, 78

A.3d 1093, 1101 (Pa. Super. 2013). Gervis alleged that the Clinic breached

its contract with him because it failed to pay him in accordance with the

terms of the contract. Specifically, he alleged that the Clinic did not increase

his rate of pay in October 2006 as it was required to do and that it did not

pay him for approximately three months in 2007. The trial court found that

there was “no question” as to the existence of a contract between Gervis



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J-A25004-14


and the Clinic, but that Gervis failed to establish a breach of that contract

because he did not have evidence of the precise sessions or period of time

for which he alleges he is owed compensation. Trial Court Opinion, 5/27/14,

at 11, 14. In doing so, the trial court rejected Gervis’s testimony as to the

period of time for which he had not been paid and that he never received an

increase in pay rate, as well as his manner of calculating the alleged amount

he is owed.   Id. at 14.    Gervis argues only that the trial court erred in

rejecting this evidence as incredible.     Appellants’ Brief at 14-15.   As an

appellate court, we are not permitting to disturb the trial court’s credibility

determinations. Nationwide Ins. Enter. v. Moustakidis, 830 A.2d 1288,

1292 (Pa. Super. 2003) (“[I]t is not the role of an appellate court to pass on

the credibility of witnesses or to act as the trier of fact, and an appellate

court will not substitute its judgment for that of the fact-finder.”). Beyond

Gervis’s testimony, there was no other evidence to support Gervis’s claims.

As set forth above, on review of a claim that the verdict was against the

weight of the evidence, the test we apply is whether “after due consideration

of the evidence found credible by the fact-finder, and viewing the evidence

in the light most favorable to the verdict winner, … the court could

reasonably have reached its conclusion.” Joseph, 89 A.3d at 274. As the

trial court found Gervis’ testimony incredible, and there was no other

evidence from which the trial court could have determined the period of time




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for which Gervis had not been paid or the rate of his pay, we find that the

trial court’s conclusion is reasonable.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




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