Multicultural Wellness Center v. Tipico Restaurant ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MULTICULTURAL WELLNESS : IN THE SUPERIOR COURT OF
CENTER, INC. : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 3431 EDA 2018
TIPICO RESTAURANT :
Appeal from the Order Entered October 16, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 170702194
BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 02, 2020
Appellant, Multicultural Wellness Center, Inc. (hereinafter “Appellant” or
“the center”) appeals from the order entered on October 16, 2018 granting
compulsory non-suit in favor of Appellee, Tipico Restaurant (“Tipico”). Upon
review, we affirm.
We briefly summarize the facts and procedural history of this case, as
gleaned from the pleadings and testimony presented at trial, as follows.
Belgica Santos de la Cruz (“Belgica”) and Humberto de la Cruz (“Humberto”),
licensed mental health therapists, purchased and opened the center in
Philadelphia, Pennsylvania in 2008. In 2012, they purchased a restaurant that
was adjacent to the Center in order to utilize the restaurant parking lot for the
Center’s employees and patients. The restaurant, however, remained closed
until 2015 because Belgica and Humberto were not interested in that
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commercial enterprise. In 2015, when business at the Center began suffering,
Paveli1 de la Cruz (“Paveli”), Belgica and Humberto’s son, opened the
restaurant. Thereafter in June 2015, Paveli met with Yeneisy (a/k/a/ Yenny2)
Cabrera (“Yenny”) who claimed that her family had previously owned
restaurants and she wanted to rent the restaurant. Paveli and Yenny allegedly
partnered and opened Tipico3 in August 2015. A year later, Belgica demanded
rent from Yenny despite the lack of a written lease. On May 30, 2017,
Appellant filed a landlord/tenant complaint against Tipico in Philadelphia
municipal court. The municipal court entered judgment for Tipico on June 21,
2017.
Appellant appealed to the Philadelphia Court of Common Pleas (“trial
court”) on July 21, 2017. Following various continuances and the filing of
three amended complaints, a bench trial commenced on September 17, 2018.
In sum, Appellant alleged two causes of action against Tipico – breach of
contract and unjust enrichment. Appellant presented the testimony of
Belgica, Humberto, and Paveli and then rested. At the start of the second day
____________________________________________
1 We note that the parties and the trial interchangeably spell “Paveli” as
“Pavely.” For consistency, we have used the spelling as it appears in
Appellant’s third amended complaint.
2 “Yenny” is sometimes referred to as “Yenni,” “Yennie,” and/or “Jenny.” For
consistency, we use the spelling as set forth in Appellant’s brief.
3 Yenny purportedly named the establishment after a restaurant previously
owned by her family that had the same name.
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of trial, on October 2, 2018, Tipico orally moved for compulsory nonsuit, which
the trial court granted. The trial court filed an order granting compulsory
nonsuit on October 16, 2018. Appellant subsequently filed a motion for
reconsideration to remove the nonsuit. The trial court denied relief on October
31, 2018. This timely appeal resulted.4
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4 Appellant filed a timely post-trial motion that the trial court denied on
October 16, 2018. On November 14, 2018, Appellant filed a notice of appeal
purporting to appeal from the denial of the motion to remove nonsuit. On
November 16, 2018, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely on December 7, 2018. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on January 15, 2019. On appeal, upon
review of the certified record, we determined that the trial court did not enter
an order entering judgment. “[I]n a case where nonsuit was entered, the
appeal properly lies from the judgment entered after denial of a motion to
remove nonsuit.” Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa. Super. 2004).
On March 25, 2020, pursuant to this Court’s policy, we remanded the case
and directed Appellant to praecipe the trial court Prothonotary to enter final
judgment on the verdict and to file with the Prothonotary of this Court, a
certified copy of the trial court docket reflecting the entry of judgment within
30 days. We further noted that upon compliance with Pa.R.A.P. 301,
pertaining to final orders, the notice of appeal previously filed in this matter
would be treated as filed on the date of entry of final judgment. See Pa.R.A.P.
905(a)(5). Appellant praeciped the trial court for entry of judgment on March
25, 2020, the same day that we directed entry of judgment. However, “[i]n
light of ongoing public-health concerns relating to the COVID-19 pandemic,”
our Supreme Court entered orders declaring a statewide judicial emergency
on “March 16, March 18, March 24, April 1, and April 28, 2020.” In re Gen.
Statewide Judicial Emergency, No. 531 JAD, 2020 WL 3263266, at *1 (Pa.
May 27, 2020). In this case, due to judicial emergency, the trial court clerk
did not accept Appellant’s praecipe until May 18, 2020 and the certified entry
of judgment was delayed until June 29, 2020. Thereafter, Appellant filed proof
of entry of judgment with this Court on July 24, 2020. Due to the various
court closures related to COVID-19, we accept the entry of judgment as
timely. As such, this case is now ready for disposition.
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On appeal, Appellant presents the following issues for our review:
A. Did the trial court err in granting nonsuit and refusing to
remove the nonsuit by no[t] complying with Pa.R.C.P.
230.1(a)(2) which governs [c]ompulsory [n]onsuit[?]
B. Is [Appellant] entitled to have the compulsory nonsuit
[]removed and have the case remanded for further
proceedings[?]
Appellant’s Brief at 5 (suggested answers omitted).5
Initially, Appellant argues that by granting compulsory nonsuit the trial
court failed to follow Pa.R.C.P. 230.1(a)(2) which provides that in deciding a
compulsory nonsuit, the trial court is required to consider only the evidence
in the light most favorable to plaintiff. Id. at 38-41, citing Pa.R.C.P. 230.1.
Our standard of review is well-settled:
A trial court may enter a compulsory nonsuit on any and all causes
of action if, at the close of the plaintiff's case against all
defendants on liability, the court finds that the plaintiff has failed
to establish a right to relief. Absent such finding, the trial court
shall deny the application for a nonsuit. On appeal, entry of a
compulsory nonsuit is affirmed only if no liability exists based on
the relevant facts and circumstances, with appellant receiving the
benefit of every reasonable inference and resolving all evidentiary
conflicts in appellant's favor. The compulsory nonsuit is otherwise
properly removed and the matter remanded for a new trial.
Baird v. Smiley, 169 A.3d 120, 124 (Pa. Super. 2017) (internal citations and
quotations omitted). “When a nonsuit is entered, the lack of evidence to
sustain the action must be so clear that it admits no room for fair and
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5 We have reordered the issues for clarity and ease of discussion. However,
Appellant presents both issues in a single argument. Similarly, we address
both issues together as one over-arching claim.
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reasonable disagreement.” MB Financial Bank v. Rao, 201 A.3d 784, 788
(Pa. Super. 2018) (citation omitted).
Appellant contends that the trial court erred in granting compulsory
nonsuit regarding the two causes of action as pled in its various consolidated
complaints – breach of contract and unjust enrichment. We will examine each
count of Appellant’s complaint separately. With regard to its breach of
contract claim, Appellant contends:
[it] provided sufficient evidence to support its contention that it
was an error of law to grant a nonsuit. [Appellant] produced
sufficient evidence of an agreement to lease the restaurant
premises to [Tipico] under a verbal lease, or, in the alternative an
implied lease. And further, [Appellant] produced evidence of
money owed and real estate exclusively retained by [Tipico] under
theories of a lease agreement or unjust enrichment.
Id. at 41.
More specifically, Appellant contends that although there was no written
contract, “there was a definite oral lease in the present case.” Id. at 23.
Appellant argues the three witnesses it presented “testified with some
variation that the Center would rent to Yenny’s family, or the LLC she planned
to register for the restaurant at 108 W. Wyoming Avenue in Philadelphia, with
permissive use of the parking lot for a period of several months, until the
business was up and making money, for a rental amount of $2,000[.00] per
month.” Id. at 24. Appellant further asserts:
The fact that at one point Belgica [] indicated that, “we failed to
get a lease because we were waiting for the restaurant to make
some money” must be read in context with the rest of her
testimony. She indicated that the Center needed $4,000[.00] or
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$5,000[.00] per month to cover all the expenses, but agreed to
give Tipico a chance to make some money for a few months at
which time a written lease would be drafted with the more realistic
amount. She said, however, it remained oral. And, when
eventually she demanded that they agree to sign a lease, [Y]enny
refused to agree to a written lease unless it included the parking
lot.
* * *
After these discussions, it is uncontested that Yenny’s family
moved into the restaurant, re-named it Tipico, had a [g]rand
[o]pening party in the restaurant on August 13, 2015 and traveled
to Harrisburg[, Pennsylvania (where] the Corporation Bureau [is
located]) and signed documents registering Tipico, LLC with
members including, Yenny, her aunt, Ana[,] and Pavel[i] all being
present to sign and submit the documents. Finally, Yenny and her
two aunts and Pavel[i] agreed among themselves that Yenny’s
family would own 75% and Paveli, 25% of Tipico.
Id. at 28-30. As such, because it claims that it presented evidence of an oral
lease agreement, Appellant asserts that it is error for the trial court to grant
compulsory nonsuit in Tipico’s favor.
Our Court has previously determined:
Generally[, a]n agreement is an enforceable contract wherein the
parties intended to conclude a binding agreement and the
essential terms of that agreement are certain enough to provide
the basis for providing an appropriate remedy. If the essential
terms of the agreement are so uncertain that there is no basis for
determining whether the agreement has been kept or broken,
there is not an enforceable contract.
* * *
[T]he question of whether an undisputed set of facts establishes
a contract is a matter of law. It is also well settled that in order
for an enforceable agreement to exist, there must be a “meeting
of the minds,” whereby both parties mutually assent to the same
thing, as evidenced by an offer and its acceptance. It is equally
well established that an offer may be accepted by conduct and
what the parties do pursuant to the offer is germane to show
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whether the offer is accepted. In cases involving contracts wholly
or partially composed of oral communications, the precise content
of which are not of record, courts must look to the surrounding
circumstances and course of dealing between the parties in order
to ascertain their intent. We must, therefore, look to the parties'
course of conduct to ascertain the presence of a contract.
United Environmental Group, Inc. v. GKK McKnight, LP, 176 A.3d 946,
963 (Pa. Super. 2017) (citations omitted).
Here, the trial court found that Appellant had not established an oral
agreement between the parties:
Throughout testimony of all three witnesses, the terms of the
alleged oral [l]ease changed. Given the contradictory testimony,
there was no way for the [trial c]ourt to ascertain the actual terms
of the alleged oral [l]ease. [The trial c]ourt could not find that the
terms alleged by [] Appellant were accurate, nor could the [trial
c]ourt find that any of the terms of the alleged oral [l]ease were
founded in fact.
Trial Court Opinion, 1/15/2019, at 7. The trial court further concluded that
“testimony by the witnesses shows there was never an oral [l]ease, the parties
involved would work together to see how what type of [l]ease would be
appropriate in the future.” Id. at 6. As such, the trial court determined there
was no meeting of the minds for there to be an enforceable oral contract. Id.
at 7.
Upon review of the certified record and viewing the evidence in the light
most favorable to Appellant, as our standard requires, we discern no error by
the trial court in entering compulsory nonsuit on Appellant’s breach of contract
claim. The witnesses claimed that Tipico initially agreed to pay $2,000.00 per
month for rent, but Appellant failed to obtain a written lease because it was
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waiting to see whether the restaurant was profitable. N.T., 9/17/2018, at 27,
32, and 103. Belgica testified that Appellant intended to raise the rent to
“$4,000.00 or $5,000.00” after “six or seven months.” Id. at 32. In June of
2016, almost one year after Tipico opened, Belgica testified that Appellant
would not agree to a $2,000.00 lease unless it was for a duration of “five
years, possibly ten years” and “had to include the parking lot[.]” Id. at 33.
Belgica also acknowledged that in its original complaint, Appellant initially
alleged that Tipico agreed to provide Appellant with a percentage of the
restaurant’s revenue as rent. Id. at 52; 57-68. Paveli testified that his
parents initially agreed to pay the rent for the restaurant, but that “in the end”
Paveli and Yenny would be responsible for it. Id. at 139.
Based upon all of the foregoing, we conclude that Appellant failed to set
forth evidence to support a cause of action for breach of contract. In this
case, there was simply no meeting of the minds. Appellant alleged that it was
due a percentage of net revenue from the restaurant as rent, but then also
later claimed that it was due $2,000.00 per month in rent, which would
increase to either $4,000.00 or $5,000.00 at an undetermined date in the
future. Appellant did not provide evidence establishing clear terms of an
agreement. Moreover, there was evidence of a dispute over the use of the
adjacent parking lot that was never negotiated fully. As Appellant was unable
to determine the precise terms of the alleged oral contract it purportedly
entered, Tipico simply could not have mutually assented. Here, because the
essential terms of the agreement were so uncertain that there was no basis
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for determining whether the agreement had been kept or broken, there was
no enforceable contract. As such, we discern no error in entering compulsory
nonsuit regarding Appellant’s breach of contract claim.
In the alternative, Appellant argues that it set forth a viable claim for
unjust enrichment and that it was error for the trial court to grant Tipico
nonsuit on this count of its third amended complaint. Appellant’s Brief at
34-37. More specifically, Appellant maintains:
If one party is enriched at the expense of the other, and, it is
against equity and good conscience then the former should not be
permitted from retaining what is sought to be recovered. In this
case, [Appellant] sought to recover possession of [] real estate
and loss of rents. Belgica testified emotionally as to the debts
they incurred and paid for the restaurant, including, real estate
taxes, the water bill and the mortgage. As of the time of trial,
Tipico had operated the restaurant for more than three years. To
sustain a claim for unjust enrichment, a claimant must show that
the party against whom recovery is sought either wrongfully
secured or passively received a benefit that would be
unconscionable to retain. [Here, t]here is an issue as to the value
of the lost rent from [the] restaurant, however, the fact that it
was an operating restaurant presumes its unique value as real
estate if nothing more.
* * *
For now, however, it is enough that the factual evidence of unjust
enrichment and quantum meruit be found legally sufficient and,
therefore, show that it was error to deny [Appellant’s] motion to
remove nonsuit. Viewing all evidence in a light most favorable to
[] Appellant[] in this case, it is submitted that there is no doubt
that if a contract is not found, there is a legal basis for unjust
enrichment.
Id. at 35-37 (quotations and case citation omitted).
This Court has stated:
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A quasi-contract imposes a duty, not as a result of any agreement,
whether express or implied, but in spite of the absence of an
agreement, when one party receives unjust enrichment at the
expense of another. In determining if the doctrine applies, we
focus not on the intention of the parties, but rather on whether
the defendant has been unjustly enriched. The elements of unjust
enrichment are benefits conferred on the 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 most significant element of the doctrine is whether
the enrichment of the defendant is unjust; the doctrine does not
apply simply because the defendant may have benefited as a
result of the actions of the plaintiff. Where unjust enrichment is
found, the law implies a quasi-contract which requires the
defendant to pay to plaintiff the value of the benefit conferred. In
other words, the defendant makes restitution to the plaintiff in
quantum meruit.
Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc., 933
A.2d 664, 668-669 (Pa. Super. 2007) (internal citations and quotations
omitted).
Here, at trial, Humberto testified, and provided written documentation,6
that Yenny gave him $20,000.00 as a “friendly loan” in June of 2015 to
alleviate “financial hardships” related to the Center. N.T., 9/17/2018, at
89-90. The funds were to be repaid within two weeks. Id. at 90. To date, that
$20,000.00 has not been repaid to Yenny. Id. at 93-96. On appeal, Appellant
concedes it received $20,000.00 and that those funds have not been repaid.7
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6 We note that the documentation was marked as a trial exhibit, but upon
review we were unable to locate it in the certified record. See N.T.,
9/17/2018, at 89-90.
7 Appellant states:
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Instead, it argues that “over three years, the loss suffered by [Appellant] was
far greater than the loan amount of $20,000[.00].” Appellant’s Brief at 36.
However, upon review of the transcripts from trial, Appellant did not provide
evidence of any income generated by Tipico or evidence regarding the fair
market value of the property and/or general restaurant operating expenses
paid by Appellant, for an overall determination of whether Tipico received a
benefit to Appellant’s detriment. Furthermore, there was evidence that Tipico
made approximately $10,000.00 in physical improvements to the property at
issue. N.T., 9/17/2018, at 152-161. Accordingly, in sum, the evidence
presented at trial showed that Appellant received approximately $30,000.00
in benefits from Tipico which would off-set any losses as alleged by Appellant.
However, without specific evidence of Appellant’s alleged loss, it was
impossible to discern whether Tipico was unjustly enriched. As such,
Appellant failed to establish a right to relief for unjust enrichment and the trial
court’s grant of compulsory nonsuit was proper.
Order affirmed.
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There may be a set-off for the loan which was raised by the owner
of Tipico, although it was not alleged that Tipico lent him the fund.
Further, Humberto and Belgica testified that more than a year
after the loan was due, Humberto was ready to re-pay Yenny, but
she declined to accept the payment. What her reason for doing
so can be speculated upon. But it is clear that the minimal rent
agreed to, at least discussed and believed to be agreed upon, was
$2,000[.00] monthly.
Appellant’s Brief at 36.
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President Judge Emeritus Ford Elliott joins.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/20
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