J-A02025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KARDEN        CONSTRUCTION            SERVICES,          IN THE SUPERIOR COURT OF
INC.                                                           PENNSYLVANIA

                              Appellant

                       v.

BRIAN D’AMICO

                                                              No. 1351 MDA 2015


              Appeal from the Judgment Entered September 2, 2015
                 In the Court of Common Pleas of Berks County
                          Civil Division at No: 09-6787


BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                                        FILED MAY 25, 2016

        Appellant/plaintiff    Karden     Construction     Services,    Inc.    (“Karden”)

appeals from the September 2, 2015 judgment entered in the Court of

Common Pleas of Berks County (“trial court”), following the denial of

Karden’s post-trial motion seeking judgment notwithstanding the verdict

(“JNOV”). Upon review, we affirm in part, reverse in part, and remand.

        The   facts    and    procedural       history   underlying    this    appeal   are

undisputed.       On    June     2,   2009,     Karden    filed   a   complaint    against

Appellee/defendant Brian D’Amico (“D’Amico”), alleging breach of contract

and, alternatively, unjust enrichment.            Karden alleged that, on January 4,

2007, D’Amico entered into an oral agreement with Karden for the provision
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*
    Former Justice specially assigned to the Superior Court.
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of   professional   services   to   assist   with   litigation   and   construction

management. Specifically, Karden alleged that D’Amico engaged Karden as

an expert to assist D’Amico in a lawsuit D’Amico had filed against a

contractor and a home inspector in connection with the construction of

D’Amico’s new home. Karden further alleged that it rendered approximately

one hundred thirteen (113) hours of professional services to D’Amico from

January 4, 2007 until December 8, 2008, valued at $21,338.70 when

combined with out-of-pocket expenses. Karden alleged that D’Amico failed

to pay Karden for the professional services and, as a result, breached the

oral agreement.       Alternatively, Karden alleged that D’Amico unjustly

enriched himself by retaining the benefits of the services provided to him.

      This matter proceeded to a non-jury trial, at which both parties

presented testimony. The trial court summarized the evidence as follows:

             Dennis Link has been the president and sole employee of
      [Karden] since 1999. [Karden] is a corporation that provides
      construction representation, including consulting, and project
      management representation throughout the construction of
      buildings, and expert reports and testimony for arbitrations and
      court hearings. [Mr. Link] works for owners, contractors, and
      counsel.        His projects include commercial, industrial,
      institutional, governmental, and residential construction.

            [Karden] was originally hired by [D’Amico’s] former law
      firm for its lawsuit against a contractor. Mr. Link testified that
      he first met [D’Amico] in January 2007 at [D’Amico’s] home.
      Osmer Deming, Esquire, gave the necessary contact information
      to both parties. [D’Amico] needed [Karden’s] services for a new
      home which he was building. The meeting took several hours,
      and afterwards Mr. Link went to the job site. Mr. Link testified
      that during the meeting he had discussed his costs as an expert
      witness. He had said that the expenses would probably be
      $15,000.00 or possibly $20,000.00.
            Mr. Link further testified that his contracts are typically
      verbal because the clients can hire or fire him at any time. In

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     the instant case, he did a site assessment to determine what
     was done and if [the construction] was in conformance with
     codes. He gave the information to [D’Amico’s] former attorneys
     to prepare a complaint against [D’Amico’s] contractor and home
     inspector and to execute a certificate of merit. Mr. Link also
     stated that he communicated regularly with [D’Amico] via e-
     mails and telephone conversations. Mr. Link claimed that his
     work for [D’Amico] evolved into a considerable amount of
     construction management. [D’Amico] also asked him about
     designs.

            By letter dated July 25, 2008 . . ., plaintiff attached a
     [$3,000.00] retainer invoice with the fee schedule discussed
     between the parties in January 2007. Mr. Link testified that he
     had sent this letter because he had been informed by
     [D’Amico’s] law firm that [D’Amico] had not been paying it for its
     services to [D’Amico]. There is no place on the letter for
     [D’Amico] to sign and return it to [Karden]. The first page of the
     letter states: “Note: A retainer is required on every engagement.
     The retainer is applied to the final billing and any balance is
     returned at the conclusion of the engagement.” [Karden] did not
     receive any payments from [D’Amico] after the letter had been
     sent to him.

            In January 2009 or February 2009, at the conclusion of its
     services, [Karden] sent its first invoice to [D’Amico]. Mr. Link
     testified that he usually does not receive any payment until there
     is a negotiated settlement or a trial verdict. He normally expects
     to be paid from the settlement. He does not usually bill clients
     unless they request bills because he does not want them to be
     forced to accept an undesirable settlement in order to pay
     [Karden’s] bill. [D’Amico’s] case is still pending. Mr. Link does
     not think [D’Amico] terminated his services officially, but, at
     some point, [D’Amico] stopped asking [Karden] to work for him.

            Osmer Deming, Esquire, is [D’Amico’s] present attorney
     for his construction litigation. He had been an associate at the
     law firm which initiated [D’Amico’s] lawsuit. He started his own
     practice, and [D’Amico] is now his client. Attorney Deming
     testified that there had been no agreement by his former law
     firm to pay [Karden] for his work for [D’Amico]. He did not
     remember getting any bill from [Karden].

           [D’Amico] testified that his attorneys at the law firm, Kevin
     Moore, Esquire, and Eden Bucher, Esquire, facilitated the
     meeting between him and Mr. Link. He did not know anything
     about Mr. Link before the meeting. When he had received the
     invoice, he had not believed that he had owed [Karden] any
     money because he had not entered into a written or verbal
     contract with [Karden]. It was his understanding that Mr. Moore
     and Ms. Bucher were paying [Karden].
           Defendant further testified that no meeting between Mr.
     Link and him had ever occurred at his residence. He first met

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     Mr. Link at the law firm. There had been no discussion regarding
     [Karden’s] payment or a request for a retainer at that meeting.
     Following the first meeting, it had been [D’Amico’s]
     understanding that Mr. Link would offer support as an expert
     witness for the purpose of the litigation against [D’Amico’s]
     contractor and the inspector. Mr. Moore, Ms. Bucher, and Mr.
     Deming instructed [D’Amico] to work with [Karden] so he could
     help in the litigation concerning the house construction.

           Upon receipt of the letter of February 5, 2009, [D’Amico]
     sent an e-mail to [Karden] stating that it was his understanding
     that [Karden] was being paid by the law firm and, at the current
     time, [D’Amico] did not wish to hire [Karden] personally. Mr.
     Moore and Ms. Bucher had told [D’Amico] that [Karden] had
     been on retainer. Mr. Link had met with the two attorneys and
     had talked to them by telephone about three or four times prior
     to [D’Amico’s] first meeting with Mr. Link. The litigation against
     the contractor and home inspector is still pending.

Trial Court Opinion, 9/11/15, at 2-5. Based on the forgoing evidence, and

finding D’Amico’s testimony credible, the trial court returned a verdict in

favor of D’Amico and against Karden on all counts. Karden filed a motion for

post-trial relief, seeking JNOV.   The trial court denied the motion and

entered judgment in favor of D’Amico.     Appellant timely appealed to this

Court.

     On appeal, Appellant essentially raises two issues for our review:

     1. Did the court err in returning a verdict in favor of the
        [D’Amico] where the competent evidence of record
        established that there was an oral contract between the
        [Karden] and [D’Amico] for professional services and that
        [D’Amico] breached said contract in failing to pay [Karden]
        for said services?

     2. Did the court err in returning a verdict in favor of [D’Amico]
        where the competent evidence of record established that
        [D’Amico] was aware of the services provided by [Karden]
        and in fact requested that said services be performed on his
        behalf and accepted the benefit of said services permitted and
        in failing to pay [Karden] for the value of said services, was
        unjustly enriched?




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J-A02025-16


Karden’s Brief at 4.1

       Our standard of review of a trial court’s denial of a motion for JNOV is

as follows:

       Whether, when reading the record in the light most favorable to
       the verdict winner and granting that party every favorable
       inference therefrom, there was sufficient competent evidence to
       sustain the verdict. Questions of credibility and conflicts in the
       evidence are for the trial court to resolve and the reviewing court
       should not reweigh the evidence. Absent an abuse of discretion,
       the trial court’s determination will not be disturbed.

Ferrer v. Trustees of University of Pennsylvania, 825 A.2d 591, 595

(Pa. 2002) (internal citations omitted).         Furthermore, there are two bases

upon which the court can grant JNOV:

       One, the movant is entitled to judgment as a matter of law
       and/or two, the evidence is such that no two reasonable 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.

Drake Mfg. Co. v. Polyflow, Inc., 109 A.3d 250, 258 (Pa. Super. 2015)

(citation omitted).

       With the foregoing standard in mind, we address Karden’s contention

that the trial court erred concluding that D’Amico did not have an oral



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1
  We decline to address Karden’s argument that the trial court erred in
failing to determine the value of services provided by Karden. Here, as
more fully explained below, the trial court’s conclusion that no contract
existed between the parties and that D’Amico was not unjustly enriched
obviated the need to determine the value of services provided by Karden.



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J-A02025-16



agreement with Karden for the provision of professional services relating to

a residential construction project.

      It is settled that the plaintiff bears the burden of proving by a

preponderance of the evidence the existence of a contract. Johnston the

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

1995).   To establish the existence of an enforceable contract, the plaintiff

must satisfy all essential elements of a contract. Id. They include whether

both parties manifested an intent to be bound by the terms of the

agreement, whether the terms are sufficiently definite, and whether

consideration existed. Id. However, as we explained in GMH Associates

Inc. v. Prudential Realty Group, 752 A.2d 889 (Pa. Super. 2000):

      In 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 them are questions of fact. This [C]ourt is bound
      by the trial court’s findings of fact, unless those findings are not
      based on competent evidence. Absent an abuse of discretion,
      we are bound by the trial court’s assessment of the credibility of
      the parties and witnesses.

GMH Associates Inc., 752 A.2d at 898 (citation omitted).

      Instantly, based on our review of the entire record and the trial court’s

undisputed factual findings and credibility determinations, we may not

disturb the trial court’s conclusion that no oral agreement for professional

services existed between the parties. As the trial court reasoned:

      [Mr. Link] is an expert who was hired by the law firm for its
      lawsuit against a contractor, and [D’Amico] was the law firm’s
      client. The law firm needed an expert in order to file an action
      against [D’Amico’s] contractor and home inspector. Mr. Link’s
      first meeting was with [D’Amico’s] attorneys, not with [D’Amico].
      [The trial court] believes that [D’Amico] met Mr. Link for the first
      time at the law firm and not at [D’Amico’s] house. The parties

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J-A02025-16


      agree that they did not know each other until [D’Amico’s]
      attorneys introduced them to each other.

            [D’Amico] testified that he did not hire [Karden] and
      thought that his attorneys did so. [D’Amico] did not receive any
      written memorialization of the oral agreement. He received from
      [Karden] the first written document 18 months after January 4,
      2007, the date [Karden] alleges an oral agreement was entered
      by the parties. This letter was not answered or responded to by
      [D’Amico].

            The next written communication from [Karden] was sent
      six months later. When the [D’Amico] received this invoice from
      [Karden] in February 2009, [he] immediately sent an email to
      [Karden], informing it that he did not wish to hire it personally.
      Thus, [D’Amico] did not think that [Karden] had already been in
      his employ.

Trial Court Opinion, 9/11/15, at 7. Accordingly, Karden’s first issue merits

no relief.

      We now turn to Karden’s second issue that the trial court erred in

concluding that D’Amico was not subject to a claim of unjust enrichment.

      Unjust enrichment is an equitable doctrine, whose elements we have

described as “[(1)] benefits conferred on defendant by plaintiff, [(2)]

appreciation of such benefits by defendant, and [(3)] acceptance and

retention of such benefits under such circumstances that it would be

inequitable for defendant to retain the benefit without payment of value.”

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

denied, 676 A.2d 1200 (Pa. 1996). The critical inquiry in the application of

this doctrine is whether a defendant has been unjustly enriched.           Id.

“Where unjust enrichment is found, the law implies a contract, referred to as

either a quasi contract or a contract implied in law, which requires that the

defendant pay to plaintiff the value of the benefit conferred.” Id. at 328-29.


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“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.”   Torchia v. Torchia, 499 A.2d 581, 582 (Pa. Super. 1985)

(quotation marks and citation omitted).      It is settled that we look to the

equitable remedy of quantum meruit “to provide restitution for unjust

enrichment in the amount of the reasonable value of services.” Am. &

Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526, 532 n.8 (Pa.

2010) (emphasis added) (citing Black’s Law Dictionary (8th ed. 2004)); see

Schenck, 666 A.2d 329 (noting that a defendant must make restitution to

plaintiff in quantum meruit).

      Here, the trial court declined to find that D’Amico unjustly enriched

himself by appreciating and retaining the benefit of Karden’s professional

services. In so doing, the trial court stated:

            It is true that [D’Amico] was aware of [Karden’s] services.
      It is not true, however, that [D’Amico] requested that those
      services be performed and accepted the benefit of those
      services. [D’Amico’s] attorneys needed the services to pursue
      the litigation.    It was [D’Amico’s] attorneys who therefore
      requested the services. . . .

            [D’Amico] has not received the benefit of [Karden’s]
      services; his case is still pending. Furthermore, the evidence
      showed that no expert reports were rendered by [Karden].

Trial Court Opinion, 9/11/15, at 8.     The trial court is only partly correct.

Here, our review of the record lends support to the trial court’s conclusion

that D’Amico was not unjustly enriched from Karden’s provision of litigation




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support services.2 As the trial court noted, the lawsuit for which D’Amico’s

former law firm engaged the expert services of Karden is still pending.

       Nonetheless, the trial court erred to the extent it declined to find that

D’Amico unjustly enriched himself by appreciating, accepting and retaining

the benefit of construction management services. At trial, Mr. Link testified:

       Q. And over what period of time did you provide services for Mr.
       D’Amico?
       A. About 23 months, from January of 2007 through early
       December of 2008.
        ....
       Q. During that period of time, did Mr. D’Amico contact you about
       things he wanted you to do related to that project?
       A. Yes, frequently.      My initial – my initial scope was to
       participate as an expert and to provide support in the litigation
       process. But subsequently, it – a considerable amount of work
       was done in the area of construction management.
       Q. And what type of things would Mr. D’Amico ask you to do?
       A. For the construction management purposes? Frequently,
       [D’Amico] would ask me questions about designs that were
       done, whether they were appropriate or not, whether there was
       alternatives to it. Early – when – because it’s problems with the
       builder. We discussed going out and getting additional estimates
       so that we had support for damages that were going to go into
       the – into the legal process. And so a lot of activity associated
       with construction management was involved.
       Q. What about after litigation had started, were you in touch
       with him after that?
       A. After litigation?
       Q. Yes.
       A. Well, when you say after litigation –
       Q. After the complaint had been filed?

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2
  At trial, Karden failed to establish whether D’Amico benefitted from the
provision of litigation support services because Karden was focused almost
exclusively on proving breach of contract.




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       A. Oh, yes. And that was – that was both from the standpoint –
       a local standpoint, dispute resolution standpoint, and also
       standpoint of construction management.

N.T. Trial, 6/30/15, at 9-10.3 Given the uncontradicted evidence, D’Amico

clearly appreciated, accepted and retained the benefit of Karden’s expertise

in managing the construction of D’Amico’s dwelling. Differently put, D’Amico

unjustly enriched himself from the provision of construction management

services. As a result, we remand this matter to the trial court to determine

the reasonable value of Karden’s construction management services.                 See

Jerry’s Sport Ctr., Inc., supra.               Accordingly, we affirm the trial court’s

judgment to the extent it held that no agreement existed between the

parties and D’Amico did not benefit from the litigation support services. We,

however, reverse the trial court’s judgment to the extent it held that

D’Amico was not unjustly enriched from the provision of construction

management services and remand this matter for determination of the

reasonable value of such services.

       Judgment affirmed in part, and reversed in part. Case remanded to

trial court for further proceedings. Jurisdiction relinquished.




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3
  At trial, Exhibit P-2, introduced by Karden, was admitted into evidence,
detailing services performed by Karden both in the context of litigation
support and construction management. As explained infra, on remand, the
parties and the trial court will need to analyze the exhibit to determine the
reasonable value of Karden’s construction management services.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/2016




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