J-S50033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    VIDYAVATHI ASHOK SHETTY                    :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SAMUEL CHILDERS AND ANGELS OF              :
    EAST AFRICA, INC.                          :
                                               :   No. 362 WDA 2019
                       Appellant               :

                 Appeal from the Order Dated February 5, 2019
       In the Court of Common Pleas of Somerset County Civil Division at
                             No(s): No. 2017-252


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED OCTOBER 30, 2019

        This matter is an appeal filed by Samuel Childers (Childers) and his

nonprofit corporation Angels Of East Africa, Inc. (Angels) (collectively,

Defendants) from an order of the Court of Common Pleas of Somerset County

(trial court) granting summary judgment against them in a breach of contract

and unjust enrichment action brought by Vidyavathi Ashok Shetty (Plaintiff).

For the reasons set forth below, we affirm.

        On May 1, 2017, Plaintiff filed this action against Defendants seeking

payment of $120,000 pursuant to a written loan contract between Plaintiff and

Childers. In the Complaint, Plaintiff averred that on February 24, 2013, she

and Childers entered into a written contract that provided as follows:

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*   Retired Senior Judge assigned to the Superior Court.
J-S50033-19


      Mrs Vidyavathi [S]hetty is lending $100,000 to Mr Sam Childers
      to cover the printing cost of Samuel Childers new book.
      As requested by Mr Sam Childers, Mrs. Vidyavathi [S]hetty is
      wiring at this time USD $ 100,000. (USD One hundred thousand)
      to the Wells Fargo bank account of Angels of [E]ast Africa [I]nc.
      PA 15926 U.S.A.
      Samuel Childers and Mrs Vidyavathi [S]hetty are under the
      understanding that Samuel Childers will repay to Vidyavathi
      [S]hetty USD 100,000 (USD One hundred thousand) plus a
      consideration of $20,000 (twenty thousand ) within 90 days after
      receiving the amount. The total repayment amount by Mr Sam
      Childers is USD $ 120,000 (One hundred twenty thousand only).

Complaint ¶5 & Ex. A. Plaintiff averred that pursuant to this contract, she

wired $100,000 to Angels’ bank account on March 4, 2013 and that neither

Childers nor Angels has made any repayment of the loan. Id. ¶¶7-11. The

complaint asserted a claim for breach of contract against Childers, a claim for

unjust enrichment against Childers and Angels, and a claim for conversion

against Childers and Angels.

      In their answer to the complaint, Defendants admitted that Childers

entered into the written contract attached to Plaintiff’s complaint, but alleged

that it was “not the complete memorialization of the agreement between the

parties.” Answer ¶5. Defendants denied the other averments of Plaintiff’s

complaint, but pleaded no affirmative defenses or other new matter.            In

response to requests for admissions served by Plaintiff, Defendants admitted

that Childers entered into the written contract attached to Plaintiff’s complaint,

that Plaintiff wired $100,000 to Angels’ bank account pursuant to that

contract, and that Childers and Angels had not made any payment to Plaintiff




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after receiving the $100,000. Defendants’ Response to Plaintiff’s Requests for

Admissions ¶¶1-2, 5.

      On July 2, 2018, Plaintiff moved for summary judgment on all three of

the claims in her complaint based on the above admissions. Defendants in

response conceded that there was no dispute that Childers entered into the

written agreement, that they received the $100,000, and that there was no

repayment, but argued that there were genuine issues of fact as to whether

the $100,000 was a donation rather than a loan and contended that they

understood the agreement as providing a donation which they were not

required to repay. Defendants’ Response to Motion for Summary Judgment

¶¶16-18, 24; N.T. Summary Judgment Argument at 9.            Defendants also

asserted that there were conversations between the parties concerning their

intent with respect to the $100,000 and the terms of their agreement.

Defendants’ Response to Motion for Summary Judgment ¶¶10, 12, 16-17;

N.T. Summary Judgment Argument at 9.          Defendants, however, did not

submit any affidavit or other evidence that such conversations occurred or

supporting any of their other allegations.

      On September 24, 2018, following oral argument, the trial court granted

Plaintiff’s summary judgment motions with respect to her breach of contract

and unjust enrichment claims and denied summary judgment on the

conversion claim.      With respect to the breach of contract and unjust

enrichment claims, the trial court ordered:


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       Summary judgment is hereby entered in favor of the plaintiff and
       against the defendant Samuel Childers in the amount of
       $120,000, based on Count 1 [breach of contract] of the plaintiff’s
       complaint.
       Summary judgment is also entered in favor of the plaintiff and
       against the defendant Angels of East Africa, Inc., in the amount
       of $120,000 based on Count 2 [unjust enrichment] of the
       plaintiff’s complaint.

Trial Court Order, 9/24/18 (unnecessary capitalization omitted).

       Defendants filed an appeal from this order, which this Court quashed on

December 6, 2018, on the grounds that it was interlocutory because no

judgment had been entered on the conversion claim. On February 5, 2019,

the trial court issued an order dismissing the conversion claim with the consent

of both parties. On February 27, 2019, Defendants filed a timely notice of

appeal from this final order in which they appeal the September 24, 2018

summary judgment order.1

       In this Court, Defendants argue that the trial court erred in granting

summary judgment on the breach of contract claim because there were

allegedly genuine disputes of fact concerning the terms of the parties’



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1A notice of appeal filed from the entry of a final order encompasses all prior
non-final orders in the case. K.H. v. J.R., 826 A.2d 863, 871 (Pa. 2003);
Scampone v. Grane Healthcare Co., 169 A.3d 600, 610 n.5 (Pa. Super.
2017). See also Commonwealth v. Walker, 185 A.3d 969, 977 n.4 (Pa.
2018) (requirement of separate notices of appeal where multiple final orders
are appealed “has no impact on the rule that a party need only file a single
notice of appeal to secure review of all non-final orders that are rendered final
and appealable by the entry of a final order”).


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agreement and Defendants’ understanding of their obligations under the

agreement. With respect to the unjust enrichment claim, Defendants argue

that Plaintiff did not show the elements of unjust enrichment because there

was no evidence as to how the $100,000 was used and because the money

was a donation. Our standard of review of the trial court’s grant of summary

judgment is de novo and the scope of review is plenary. American Southern

Insurance Co. v. Halbert, 203 A.3d 223, 226 (Pa. Super. 2019).

      Before addressing the merits of these issues, we must consider Plaintiff’s

contention that Defendants’ Pa.R.C.P. 1925(b) statement of errors complained

of on appeal was too vague to preserve any issues for review. Defendants

filed a Rule 1925(b) statement that set forth only the following issues:

      1. The Trial Court committed abuse of discretion in failing to
      consider that genuine issues of material fact exist as to Plaintiff's
      Breach of Contract claim and that the record does not
      demonstrate that Plaintiff is entitled to judgment as a matter of
      law.
      2. The Trial Court committed abuse of discretion in failing to
      consider that genuine issues of material fact exist as to Plaintiff's
      claim for unjust enrichment against Defendant and that the record
      does not demonstrate that Plaintiff is entitled to judgment as a
      matter of law.

Defendants’ Concise Statement of Errors Complained of on Appeal at 2. A

statement that is too vague to allow the trial court to identify the issues raised

on appeal is the functional equivalent of no Rule 1925(b) statement at all.

Lineberger v. Wyeth, 894           A.2d   141,   148-49    (Pa.   Super. 2006);

Commonwealth v. Dowling, 778 A.2d 683, 686–87 (Pa. Super. 2001).




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      An insufficient Rule 1925(b) statement, however, can result in a waiver

of issues in an appeal only where the trial court has issued an order requiring

the appellant to file a Rule 1925(b) statement and that order has been entered

on the docket. Commonwealth v. Hess, 810 A.2d 1249, 1252 (Pa. 2002);

Commonwealth v. Antidormi, 84 A.3d 736, 745 n.7 (Pa. Super. 2014);

Forest Highlands Community Association v. Hammer, 879 A.2d 223, 227

(Pa. Super. 2005); Commonwealth v. Thomas, 451 A.2d 470, 472 n. 8 (Pa.

Super. 1982).

      The requirements of Rule 1925(b) are not invoked in cases where
      there is no trial court order directing an appellant to file a Rule
      1925(b) statement. “[T]he lower court must order a concise
      statement of [errors] complained of on appeal and appellant must
      fail to comply with such directive before this Court can find
      waiver[.]”

Antidormi, 84 A.3d at 745 n.7 (quoting Thomas) (citations omitted, brackets

in original).

      Here, no order directing Defendants to file any statement of issues on

appeal appears in the record and the docket does not contain any entry

showing such an order was ever issued. Indeed, neither Plaintiff nor the trial

court states that any Rule 1925(b) order was entered in this case or cites to

anything in the record indicating that such an order was issued. Rather, they

discuss only the deficiency of Defendants’ Rule 1925(b), not whether

Defendants were required to file such a statement and on what basis.

Appellee’s Brief at 3, 5-7; Trial Court Opinion, 3/5/19, at 2; Trial Court

Opinion, 11/2/18, at 1-2. Because it has not been shown the trial court issued

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an order requiring Defendants to provide a statement of issues on appeal,

Defendants’ Rule 1925(b) statement cannot constitute a waiver and does not

bar this Court from considering the merits of this appeal.

      While they are not waived, Defendants’ arguments fail on the merits.

Summary judgment is properly granted in favor of the plaintiff where the

plaintiff submits undisputed facts sufficient to prove all elements of her cause

of action. American Southern Insurance Co., 203 A.3d at 226-27; see

also Pa.R.C.P. 1035.2(1) (summary judgment may be granted “whenever

there is no genuine issue of any material fact as to a necessary element of the

cause of action” and movant is entitled to judgment as a matter of law).

      To obtain a judgment for breach of contract, Plaintiff was required to

prove the following elements: (1) the existence of a contract, including its

essential terms, (2) that the defendant breached a duty imposed by the

contract, and (3) resultant damages.       McCausland v. Wagner, 78 A.3d

1093, 1101 (Pa. Super. 2013); Hart v. Arnold, 884 A.2d 316, 332 (Pa. Super.

2005). Defendants’ admissions established each of these elements.

      Defendants admitted that Childers entered into the written contract on

which Plaintiff based her claims.     Answer ¶5; Defendants’ Response to

Plaintiff’s Requests for Admissions ¶1.     That written contract stated that

Plaintiff “is lending $100,000 to Mr Sam Childers” and that Childers agreed

that he “will repay to [Plaintiff] USD 100,000 (USD One hundred thousand)

plus a consideration of $20,000.” Complaint ¶5 & Ex. A. Defendants admitted


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that Plaintiff performed her obligation under the contract by wiring $100,000

to Angels and that neither Childers nor Angels has repaid any of the $100,000

or the additional $20,000 that Childers agree to pay. Defendants’ Response

to Plaintiff’s Requests for Admissions ¶¶2, 5.

      None of the arguments made by Defendants shows any genuine issue

of disputed fact with respect to any element of Plaintiffs’ breach of contract

claim.   Contrary to Defendants’ contention, the written contract was not

ambiguous. While the contract states that the purpose of the loan was “to

cover the printing cost of Samuel Childers new book,” it contains no language

making the loan, the repayment, or the amount of the loan or repayment

contingent on the successful publication of the book or dependent on the cost

of publishing the book. Rather, it sets forth a definite amount to be loaned, a

definite amount to be repaid, and a time for repayment without regard the

publication of the book or its cost.

      Defendants’ claims that there were other terms of the contract in oral

communications and that they understood that the payment was a donation

rather than a loan could not create a genuine issue of fact because Defendants

submitted no affidavits or other evidence of such communications or

understandings in response to Plaintiff’s summary judgment motion. Where,

as here, a properly supported motion for summary judgment has been filed,

the adverse party cannot show a genuine dispute of fact based on mere

allegations, but must identify evidence in the record of the facts that he claims


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are in dispute or produce evidence of those facts.        Pa.R.C.P. 1035.3(a);

American Southern Insurance Co., 203 A.3d at 227; CitiMortgage v.

Barbezat, 131 A.3d 65, 69-70 (Pa. Super. 2016).

      Moreover, Defendants’ claims that they subjectively believed that the

$100,000 was a donation rather than a loan would not create a dispute of

material fact even if it had been supported by evidence. Where the parties

have set forth their rights and obligations in an unambiguous writing, their

intent must be determined from the writing itself, not from testimony as to

their subjective understanding or intent. Murphy v. Duquesne University

of the Holy Ghost, 777 A.2d 418, 429 (Pa. 2001); Steuart v. McChesney,

444 A.2d 659, 661-63 (Pa. 1982); Hart, 884 A.2d at 332. “Under contract

law, the objective manifestation of the parties is the governing factor

regardless of subjective beliefs and reservations. … ‘In ascertaining the intent

of the parties to a contract, it is their outward and objective manifestations of

assent, as opposed to their undisclosed and subjective intentions, that

matter.’”   Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006)

(quoting Ingrassia Construction Co. v. Walsh, 486 A.2d 478 (Pa. Super.

1984)).

      Defendants’ claim that there were disputed issues of fact with respect

to the elements of Plaintiffs’ unjust enrichment claim likewise fails.       The

elements of a cause of action for unjust enrichment are 1) a benefit conferred

on the defendant by the plaintiff, 2) the appreciation of such benefit by the


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defendant, and 3) the acceptance and retention of such benefit under such

circumstances that it would be inequitable for the defendant to retain the

benefit without payment of value. Gutteridge v. J3 Energy Group, Inc.,

165 A.3d 908, 917 (Pa. Super. 2017) (en banc); Discover Bank v. Stucka,

33 A.3d 82, 88 (Pa. Super. 2011). Defendants’ admissions established all of

these elements.

       Defendants admitted that Angels received, was aware of, and accepted

a benefit from Plaintiff, a $100,000 payment, and did not return those funds

to Plaintiff. Defendants’ Response to Plaintiff’s Requests for Admissions ¶¶2-

3, 5. Defendants’ admissions also established that Angels received this money

knowing that it was a loan that was subject to a repayment obligation.

Defendants admitted that the Angels received the wire transfer of $100,000

pursuant to the contract between Childers and Plaintiff that expressly provided

that the $100,000 was a loan to be repaid in 90 days and the wire transfer to

Angels specifically referenced that contract. Id. ¶2; Complaint Exs. A and B.

Having accepted the $100,000 with knowledge that it was obtained under a

contract that required a payment to Plaintiff, Angels’ retention of that benefit

without payment of value was inequitable. Gutteridge, 165 A.3d at 917-18.2



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2 Defendants do not challenge the amount of the unjust enrichment judgment
and did not challenge the amount sought on this count in the trial court.
Rather, they have argued only that no unjust enrichment was shown at all.
Any claim that Angels’ unjust enrichment was limited to the $100,000 that it
received, rather than the $120,000 owed on the contract, is therefore waived.

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       Defendants argue that there is no evidence that the $100,000 was used

to benefit Angels. That, however, is immaterial. How a recipient chose to

spend funds that it received and knowingly accepted is not an element of

unjust enrichment. The absence of evidence as to Angels’ use of the $100,000

does not negate the facts that it received the $100,000, that it knew that the

$100,000 was a loan, and that it did not return or repay those funds to

Plaintiff.   There is, moreover, no claim that Angels performed services for

Plaintiff in exchange for those funds or expended those funds to benefit

Plaintiff.

       Defendants also argue that the retention of the $100,000 without any

repayment was not inequitable because the funds were a donation.           This

argument fails because the claim that the funds were a donation is without

any support in the record. As was discussed above in addressing the breach

of contract judgment, the undisputed facts before the trial court established

that the $100,000 was a loan, not a donation. Defendants admitted that the

$100,000 was provided pursuant to the written contract between Plaintiff and

Childers and that contract expressly provided that the funds were loaned and

required repayment of $120,000.        Complaint ¶5 & Ex. A; Answer ¶5;

Defendants’ Response to Plaintiff’s Requests for Admissions ¶1.

        Because Defendants’ admissions established all of the elements of

Plaintiff’s breach of contract and unjust enrichment causes of action, we affirm

the trial court’s grant of summary judgment in Plaintiff’s favor.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2019




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