*1 908 Pennsylvania, of
COMMONWEALTH CARUSO, Petitioner Y. Paula Respondent v. v. ROSS, Petitioner
Samuel T. UNEMPLOYMENT COMPENSATION REVIEW, OF BOARD 623 MAL 2016 No. Respondent Pennsylvania. Supreme Court 548 No. MAL 2016 6, February Supreme Pennsylvania. Court 6, February ORDER
PER CURIAM day February, this 6th NOW,
AND 2017, Appeal Petition Allowance ORDER is DENIED. PER CURIAM February, day this 6th NOW,
AND 2017, of Appeal the Petition Allowance is DENIED. Pennsylvania,
COMMONWEALTH
Respondent
v. HALE,
Justin Petitioner 611 MAL 2016 No. Christopher GUTTERIDGE Pennsylvania. Supreme Court Partners, Applied LLC, Appellee February GROUP, INC.,
J3 ENERGY t/d/b/a Stephen Energy Group ORDER Russial, Appellants PER CURIAM EDA No. 3397 February, NOW, day this 6th AND Appeal the Petition for Allowance of Superior Pennsylvania. Court is DENIED. Argued August May
Filed: *3 Zerbe, Pottsville, Joseph G. appellant. Feldman,
Jeffrey Jenkintown, S. for ap- pellee. P.J., GANTMAN,
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., *4 BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., OTT, and J. LAZARUS, OPINION BY J.: (J3) J3 Stephen Inc. and (Russial) (collectively Russial Appel- lants/Defendants) appeal judg- from the ment in entered the Court Common County Pleas of in Chester favor Chris- topher Gutteridge (Gutteridge) Ap- and (col- Partners, (AEP) plied Energy LLC lectively Appellees/Plaintiffs), in $343,887.00. amount of After careful re- view, we affirm.1 The underlying facts of the case are as 2004, AEP, In Gutteridge follows. formed which sold electronic motor controls and energy saving lighting products to com- mercial AEP and industrial customers. through approxi- conducted its business mately fifteen sales chan- agents known as partners. partners nel had Channel who buy products their own businesses would prices from AEP and sell at discounted higher prices. them to their customers partners not have their Channel did who by own paid businesses were a commission they generated. AEP for the sales before arises out of business case us dealings Gutteridge between AEP and J3. 2004, formed AEP in and Russial founded Appellant/Defendant appeal. 1. J3 filed a motion to tion to withdraw the See Pa.R.A.P. only, averring Additionally, Appellees/Plaintiffs appeal as to J3 J3 withdraw the Appel- ownership portions filed a is now “under common motion to strike grant deny PlaintiffiAppellee mo- We this motion. [AEP].” We J3's brief. lants’/Defendants’ 2002, meeting January in
J3, an AEP corporation, provides in At re- procurement2 and demand energy part- introduced the channel commercial indus- sponse services3 to training ses- and J3. At ners Russial trial clients. Group May in January sions discussed, ex- concept Russial 2007; in Russial met how plan plained how services worked and they developed March where- J3’s partners use its part- channel them. Only sell two channel provide J3’s to its customers. services ners, (owner of.Al Lori Porreca Restora- forming joint They venture discussed Inc.) tion, Inc., A1 and Herb Energy, (the Buyers Group the Energy called (owner Sales), Machinery Keaton Plastic Group); Group’s members would bene- services; Group’s sold fit supply from lower electric costs that the partners channel sole customers negotiate Group would for them. Gutter- area, utility PPL4 sched- which was AEP, idge, through had sales network deregulated January become uled manufacturers, that called which upon 2010.5 have, did not tech- Russial had knowledge expertise nical within meetings in At the initial energy procurement industry, which Gut- partners channel told the that was im- *5 Trial, have. See N.T. teridge did mega- for the to reach 50 portant Group 6/12/12,at 44. of purchasing watts volume because that Gutteridge agreed optimum to they and Russial was the amount needed secure generated by revenue would divide the pricing energy suppliers. from On Febru- to 40% Group as follows: 60% J3 and to 25, 2009, ary Russial sent an email con- However, beginning, in AEP. reve- firming Group that the had reached this nue would be divided 65% to 35% J3 and threshold. to AEP heavily because J3 would be in- Although Gutteridge he maintained that sales, closing the AEP volved while significant to and AEP made efforts mar- partners learning en- channel about Russial became ket dissatisfied response ergy procurement and demand performance respect to with AEP’s Additionally, AEP pay services. would develop AEP’s to and train a revenue, efforts sales partners channel 20% the total energy J3’s On and retain a net commission 15%. force market services. load, trial, grid a'high “procurement” when the has 2. At defined electrical as always follows: nearly which are summer after- helping grid gets high, end-user con- on The business of noons. If the load too buy electricity gas their message. sumer natural they people send out And those a advantageously. years ago most or 15 Ten signed up response, who for demand fully regulated you all utilities were had it, doing agree paid who will for years no choice. Over the or 15 last ten during periods. use those curtail their deregulated, have become various states so Id. 30. buy now consumers can end[-]user electricity po- own from ten to 15 different PPL, PP&L, formerly Pennsyl- 4. known suppliers. tential Light, energy company vania Power and is an Trial, 6/12/12, N.T. Allentown, headquartered Pennsylvania. trial, Gutteridge re- 3. At defined "demand large Pennsylvania, sponse” utilities in as follows: 5. The other MetEd, deregu- PECO and were scheduled large utility pay The where a a will January usage days on electrical user to curtail their late 2011. 9, 2009, March sent Gutteridge Group Russial an ers and then entity market that setting email forth a that J3 com- proposal prospective clients for the of energy sale Restoration, pensate Machinery- A1 Plastic procurement and response demand ser- vices, partner Sales and AEP channel Mark Bur- Russial unilaterally transformed directly any ton for sales close. Under relationship in develop order to a direct proposal, pay the new would AEP a association with the most committed AEP any 10% or for 20% referral fee partners, sales channel Porreca Keaton. generated partners by channel other than AEP commenced this Burton, Porreca, Keaton or depending on action by filing Russial and J3 a in- Appellants’/Defendants’ the extent writ of on August They summons volvement. This referral less fee was than 10, 2010, complaint May a on raising filed being paid share to AEP under the several against Appellants/Defen- counts existing arrangement. proposal also dants, including promissory estoppel, requirement sign included a a contract, unjust enrichment, breach agreement for non-compete any existing or implied duty breach of of good faith and Group. new clients of the tortious interference with contractual rights. Following four-day non-jury trial 21, 2009, April
On Russial sent an email Mahon, before the P. Honorable William Gutteridge informing him 30,2013, court issued a verdict June any payments make to AEP $343,887.00 Appellees in favor of for on the Appellees/Plaintiffs from J3 agreed unless counts of promisso- enrichment and sign by document prepared ry estoppel.6 non-compete that would include clause Porreca, customers secured All parties post-trial filed motions signed Keaton or Burton. AEP never relief. The trial court did not rule *6 J3, agreement new J3 never paid post-trial motions days, within 120 and on generated AEP for of any the revenues 25, 2013, Appellants November filed a Group joint from the venture. for praecipe entry judgment of on the entered, Judgment was this verdict. Appellants/Defendants voluntarily paid timely appeal followed.7 partners channel Porreca and Keaton di- Appellant Stephen Russial has filed a services, rectly for their rather than Ap- appeal substituted brief on before this pellees/Plaintiffs. They also Porreca had following Court en banc. He raises the sign non-compete agreements, and Keaton issues for our review: which Appellees/Plaintiffs caused to lose key two channel in partners, Did the trial and resulted 1. court abuse its discre- the customers Porreca and tion commit error of in Keaton had an law and/or Russial, for becoming holding Appellant, obtained the Group Stephen direct who corporate of Despite customers J3. the fact that was the shareholder and offi- J3[], parties personally any of ultimately manifested intentions to cer liable agreement unjust of reach an to form amount the theories en- Buy- under Elizabeth-town, PA, LLC, (Pa. judgments Super. 6. court in favor 108 96 trial entered A.3d 2015) (touchstone any Appellants/Defendants of of valid contract is Appellees/Plain- consideration). judg Those mutual assent and contracVimplied tiffs’ claims for of breach appealed. ments have not been duty good of tortious faith and interference Verdict, with contractual See relations. Appellant/Defendant The court found no Id. mutual assent. 7. J3 has its 7/3/13. withdrawn appeal judgment against from the it. n.4. Bair v. Care entered Manor of given the same non-jury or case must be richment/promissory estoppel as a weight appeal effect verdict other basis? jury of a and will not disturbed on discre- 2. Did the trial abuse its error of law or abuse of appeal absent in commit an error of law tion and/or discretion. this Court reviews the When finding against Appellant, liability Ste- findings judge, trial Russial, evidence unjust theory under phen light in the most favorable viewed enrichment? all evi- the victorious below and Stephen Appellant, 3. In the event favorable to proper inferences dence Russial, or fact Appellants, did both and all party must be taken true Appellees to the under the liability rejected. inferences unfavorable enrichment, theory of did legal the trial court abuse its discretion and/or Knitware, Company Image Ltd. v. Moth apply an of commit error law Work, (Pa. Inc., ers wrong damages? measure of omitted). 2006) (citation Super. Additional its Did the trial court abuse discre- 4. ly, this Court has stated that we re will tion commit an error law and/or findings regard a trial spect court’s against finding liability Appellant, Ste- weight credibility of the evidence Russial, Appellants, both phen or appellant can “unless the show that theory promissory estop- under manifestly erro court’s determination pel? neous, flagrant arbitrary capricious Stephen In Appellant, 5. the event ly contrary to the J.J. evidence.” DeLuca Appellants, both of the did Associates, Co. v. Toll Naval A.3d liability Appellees fact have under (Pa. 2012), Super. quoting Ecksel estoppel, legal theory promissory Co., Pa.Super. Orleans Const. the trial court did abuse discretion (1987). 1021, 1028 apply commit error law and an and/or Russial first asserts that the trial wrong damages? measure its discretion and committed court abused Superior In Court af- the event the holding person an error law Stephen liability Appellant, firms ally judgment liable entered Russial, or Appellants, both the under reasons, following For J3. we *7 es- promissory enrichment and/or no error. find Appellees affirms toppel and that trial, Gutteridge At that he and testified on damages entitled to lost were based in together business Russial had done dam- opposed commissions as reliance during that a first half road ages, the amount of the trial court’s was trip Pittsburgh quarter in the fourth verdict excessive an abuse discre- 2007, they forming Group. discussed tion an error of law? and/or Trial, 6/12/12, See N.T. at 160. Stephen of Appellant Brief Substituted I Q: your deposition At ask- remember Russial, at 4-6. Russial[,] you[,] you met ing when Steve in non- Our standard review En- you company, of his J3 were aware jury cases is limited to: Inc., Group, you ergy were aware findings determination whether company? supported of the trial court are com A: Yes. petent the trial evidence and whether compa- application Q: you court in the And aware that the committed error were judge ny in Findings corporation? of law. of the trial was a No, I specifically, Gutteridge’s but assumed so. at 10. The court also heard A: deposition testimony in which he stated Gutteridge, handing you your I’m Q: Mr. he he dealing assumed was Rus- with deposition January 2012 of this of J3. Id. president sial as testi- year. bringing I’m your attention point fied that that we “[a]t started page through you lines Would setting Energy Buyers up Group, it you’re read those and let me know when Applied Energy was J3 ven- Partners[-] finished? N.T., 6/13/2012, ture.” at 10. my that. A: “Let’s talk about One Energy Group[,] Inc. clients Were specifically notes in its Pa. Inc. you Energy Group, of J3 aware 1925(b) that, opinion “Gutteridge R.A.P. you dealing when started with Mr. Rus- initially entered into the business relation- sial?” .,. ship Opin- with Russial.” Trial Court
“Yes.” ion, 6/11/14, Clearly, at 4. the court be- Gutteridge’s testimony a cor- lieved you aware that that was he was “Were dealing personally. with Russial poration?” The court stated that it “finds testimony credible the ‘Yes.”
of ... when considered Id. that of ... Russial.” if, IQ: you you also were asked Russial, dealing you Mr. deal- further support The'court found in ing capacity president with him his personal liability fol- conclusion corporation corporation. of this his lowing exchange place during took —of your You answer don’t remember what Gutteridge’s cross-examination: was? Q: you you that neither Would admit my IA: don’t remember what answer your nor company has written was, I met I but when first Mr. Energy Group, contract with either J3 him At dealing personally. Inc. or Russial? Mr. point setting up we started contract, A: Formal written no. Applied it was Energy Buyers Group, InQ: your dealings Energy with J3 J3 venture. Partners[-] Energy Group did J3 make it Q: I’m one going approach you more you clear times to that it several wanted time. contract continue a written order page If the last you, again, I show with AEP? lines, your three and then answer Yes, I represen- A: the same made testimony? top your deposition tations in reverse. my dealings A: You Yes. asked me I Gutteridge, THE COURT: Mr. always dealing he with Mr. Russial was *8 thought testimony I heard earlier I I president as of J3 and said assumed examination that Mr. Russial said direct so. you that no to to there was need do this Q: you. Thank form, long respec- in written as as the Trial, 6/13/12, (emphasis N.T. at 8-10 add- obligations parties were well tive ed). defined? Gutteridge’s The trial court credited tes- Yes, Your Honor. A: that, timony he first when met point THE COURT: at what time dealing believed that he “was So Trial, 6/13/12, having of personally.” him did the idea a written docu- with N.T. 916 Bros., (Pa. 836, Toll appar- Super. being? into 841 come Because
merit 1999). one, early test this Court on there “The is not whether wasn’t ently being pursued. the the same result on have reached wasn’t rather, presented, but after due evidence After, guess, right. I A: You’re No. trial of the evidence the 2008, consideration or of the issue so is March credible, separate court whether the of found trial up came should we form Energy Buyers reasonably to its legal run the court could have reached entity Terletsky Prop. v. Prudential Group. Appellants’/De- [counsel And conclusion. Co., 108, Ins. time was we 649 & Cas. Pa.Super. fendants’] advice the 437 at. into fall and 680, (1994)., need But the that. didn’t A.2d 686 2009, of year the rest the issue conclusion, Here, that court’s Gut- we formalize the how should ' dealing teridge Russial individu- up a times over. came number ally and were and Russial Trial, 6/13/12, at N.T. 10-11. deal, sup- parties to a is' failed The court Russial and Gut- found ported by the trial court evidence the En- teridge the formation' of discussed of our deemed credible. Mindful limited Group joint as a venture be- ergy Buyers court, may as appellate role an we J3, AEP and but never executed tween , Turney Media conclusion. disturb that no ex- written contracts. The court found Fuel, Terletsky, supra; supra. See also contract, there press as was insufficient Knitwear, supra (when Image Company on this of “mutual assent.” Based evidence reviewing findings judge in non- trial that, once testimony, the court concluded trial, jury light evidence is viewed most parties to to writ- come unable favorable victorious below and all agreement respect ten proper inferences favorable evidence it was ... Gut- “perfectly reasonable party must taken true and all teridge believe that formation’of rejected). unfavorable inferences marketing relationship between sales and ongoing ... Russial was himself Appellants/Defendants next assert despite to formal- inability continued court trial abused discretion Buyérs creation of ize the by finding committed an error law liabil Opinion, Trial at 4 Court Group.” ity against theory Russial under added), (emphasis enrichment. We find error trial, “In non-jury factfin- abusé discretion. all, part, or none of is free to
der believe evidence, Superior “Unjust Court is will enrichment” essén- and the Styer Hugo, v. credibility tially equitable court’s de an disturb trial doctrine. Dillabough, (1993). 552 422 262, 619 terminations.” Triffin v. Pa.Super. A.2d 347 It (1998). See also sitting in Pa. that “[c]ourts well-established A.2d Centers, Inc., v. powers C.P. Pa.Super. equity grant relief Miller hold broad (1984). 912, 915 an equitable “Assess that will result resolution A.2d Twp. Supervi Bd. credibility and conflicts in dispute.” ments evi Williams Co., Twp. Emergency resolve; sors are for the Williams trial court dence Inc., (Pa. 2009). permitted this Court is not to reexamine Cmwlth. addition, weight In credibility determinations “a trial must formulate *9 remedy or of an consistent judgments equitable for that is with substitute our those Turney Media Fuel v. Id. North requested (citing the ...” relief factfinder.”
917
Supply
Troxell,
Mountain
Co. v.
Water
the intention of
parties,
but rather the
155,
(1911)).
232 Pa.
retention
benefits
such
under
dence that Appellees/Plaintiffs expended
circumstances that it would
inequi-
be
attempting
considerable efforts
to develop
table for .defendant to retain the bene-
the Energy Buyers Group
persuade
and to
payment
fit
of value.
without
Whether
AEP partners
and their customers to
applies depends
doctrine
Appellants’/Defen-
market
purchase
unique factual
circumstances
each
that,
In
The court
determining
case.
if the
dants’ services.
found
de-
doctrine
spite
expressed
not on
the fact that Russial had
applies, we focus
the intention
parties,
disappointment
but rather
whether
with AEP’s sales and mar-
efforts,
unjustly
keting
the defendant has been
promised
en-
Russial had
Ap-
revenues,
pellees/Plaintiffs
riched-
35% the
Styer Hugo,
v.
422 Pa.Super.
AEP
partners produced
[a]fter
and its
(1993)
(quotation
A.2d
marks
[them,
income for
considerable
omitted).
relationship
then
J3]
decided that
Stoeckinger,
“To claim of Porreca without sustain a enrichment, Gutteridge. the need claimant must show that the for had party against sought whom obtained services recovery most wrongfully or- passively either secured re committed AEP Partners and set out to develop a relationship ceived a benefit that uncon them direct adversely Torchia impact scionable her retain.” Torchia, Pa.Super. unilaterally with AEP. Russial deter- - (1985) (quotation directly marks and pay citation mined he would omitted). application doctrine Porreca percentage and Keaton the depends on particular factual circum sales obligat- commission that AEP was issue, determining pay stances of the case In ed to as a of their sales them result applies, if the doctrine our is not on efforts [Russial J3’s] focus services. *10 (em- because it damages “perplexing” award is at 4-5 Opinion, Trial Court damages on a “contract basis of added). awarded phasis revenues, to gross trying instead 35% also Appellees/Plaintiffs The court found value for determine reasonable whatever that the bene credible evidence presented services, if any, AppelleesITPlaintiffs] Appellants/Defendants secured fits that at provided” Appellants/Defendants. to Id. of mon to the amount unjustly equal were Russial asserts “the Accordingly, ey Appellees/Plaintiffs have received $343,887.00, court’s verdict which was unilaterally not Appellants/Defendants had by taking by calculated the trial court 35% split agreed revenue altered 65%/35% $982,537.00, gross should be of the sales (showing P-64 Exhibit arrangement. See $147,380.55, than to more reduced procurement and for both total revenue gross figure sales which 15% through December services demand $982,537.00.”Id. no error. We find 2011, totaling $982,537.00).The trial court that had determined enriched, unjustly, and Russial has been payment for services expectation an damages value of the measure is the wrongfully kept that Russial performed, conferred; is, that Russial benefits Appel- through revenues obtained Appellees/Plain- must make to restitution efforts, it and that would quantum meruit. AmeriPro lees/Plaintiffs’ tiffs Appellants/Defendants to inequitable Co., Fleming Inc. Search Steel the benefits of that revenue without retain 2001). (Pa. Super. The was A.2d 988 value v. PHH payment value. See Wiernik revenue, Appel- 35% of the which included Corp., Mortgage U.S. obligation compensate to lees’/Plaintiffs’ (Pa. 1999). Super. Accordingly, the trial partners channel for their commissions Appellants/Defen court that determined on those revenues. fact retaining unjustly enriched dants may unilaterally pay have decided di amount, $343,887.00. 35% of that rectly to Porreca Keaton the 15% obligated that AEP commission was if argues Russial also even is, noted, “not pay them trial court as the finding liabili the trial court did err Verdict, 7/3/13, litigation.” part of this enrichment, ty the court under willing “[Appellants’/Defendants’] at n.4. committed an abused discretion and/or pay AEP’s ness sales commissions wrong meas by applying error of law and Keaton entitle [does] Porreca argues the damages. ure of verdict against any to a ‘credit’ claims that them calculated, and improperly excessive [Appellees/Plaintiffs] against [Appel have improperly awarded lants/Defendants,] [Ap nor does relieve commissions, unpaid damages “based pellants/Defendants] commis sales opposed damages[.]” Appel to reliance obligations [they] sion may that, Brief, lant’s at 26. Russial contends Opinion, and Keaton.” Trial Court Porreca most, entitled to Appellees/Plaintiffs were 6/11/14, at 5. percent, commission of which is fifteen pay produced no evidence that earned after Russial has the net would have Appel- partners to A1 Plastic the channel have released ing commissions Ma and/or from their commission obli- chinery Additionally, Russial notes Sales. lees/Plaintiffs (20%) Therefore, did, fact, twenty gations. trial court dis- pay had “J3 damages A1 counted the offset the .commission to award percent Appellants/Defendants paid commissions Machinery Appellant’s Plastic Sales.” Brief, partners, Appellees/Plain- to the channel Russial claims that the court’s
919 Here, responsible paying left tiffs would be the court Ap- found evidence that having pellants/Defendants commissions without full received promises Ap- made pellees/Plaintiffs that compensation. expected to in- were
duce by Appellees/Plaintiffs. action Russial next asserts that the trial (1) court found testimony credible that: court abused its discretion or committed personally promised a revenue by finding liability an of law error under (2) sharing arrangement Gutteridge; promissory theory estoppel. the personal contin- attempted ued they while the formalize Supreme explained Court has Our the Group buying arrangement involving their promissory estoppel doctrine as follows: (3) companies; promised AEP that agree- there is no Where enforceable business, in exchange for marketing its it parties ment between the because the pay would a percentage of the revenues by agreement supported is consider- generated from AEP so AEP could ation, of promissory estop- the doctrine pay existing commissions to its sales force. injustice pel by is invoked to avoid mak- There Appel- was also evidence that ing promise by enforceable made one promises Appel- lants’/Defendants’ induced promisee to the other the to take actions. As. a various lees/Plaintiffs promise on relies and therefore promises, Gutteridge result of in- Russial’s his changes position to his own detri- troduced Russial and J3 to the chan- (Second) ment. [Restatement Contracts] partners, nel made several sales calls who see, 90; e.g., § Shoemaker v. Common- potential to market customers (Pa. Bank, wealth A.2d Furthermore, Group. Gutteridge testified 1997). In Super. order to maintain an that AEP only sought to become involved promissory estoppel, ag- action in procurement in the response demand 1) grieved party must show that the market on Appellants’/Defendants’ based promisor promise made a that he should promises to enter into the revenue shared reasonably expected to ac- induce 6/12/12, Trial, arrangement. N.T. part tion forbearance on the Lastly, “[equi- the court concluded 2) promisee took promisee; actually ty re- [Appellees/Plaintiffs] demands that taking action or refrained from action in theory estoppel promissory cover 3) promise; injustice reliance [Appellants/Defendants] to the extent that enforcing only by can be avoided unjustly by are enriched of the reve- 35% promise. promissory estoppel Id. As paid [Ap- nues that would otherwise injustice, to avoid invoked order pellees/Plaintiffs].” Opinion, Trial Court equitable remedy to con- permits an words, permitting at 4. In other dispute. tract recovery promise only way on the is the Industries, Cyclops Crouse v. 560 Pa. Crouse, injustice. supra. avoid (2000). by This supported conclusion is tes- court, argues timony no trial “there was evidence deemed credible presented by Appellees only Group target once met its and the trial volume, findings Opinion megawatts in its purchasing Ap- made Verdict or finding any prom- pellants/Defendants un- the three elements decided issory happy Appellees’/Plaintiffs’ Ap- estoppel Appellant, either work. Stephen pellants/Defendants pay especially Appellant Ap- Russial.” then refused to Brief, pellant’s disagree. Appellees/Plaintiffs they signed at 46. We unless an circumstances, agreement partners. cut out of these them Under in concluding court did err Group Appellants/Defendants allow to trial promissory estoppel ap- the doctrine AEP. use the sales for their force exclusive *12 plied in this matter. Appellees/Plaintiffs of- gain. rejected this fer, Appellants/Defendants then re- argues next if Russial that even agreed-to to pay already fused the 35% of correctly liability the trial court found un generated by the revenues the channel theory promissory estoppel, der the it $343,887. partners, which to amounted only reliance should awarded dam began pay-
Appellants/Defendants ages Appellees/Plaintiffs. argues then to Russial ing productive “any recovery promissory two most and com- es- AEP’s under i.e., partners, toppel damages, be for reliance mitted channel Porreca and Kea- would ton, for directly damages alleged services and had incurred in reliance of the Brief, promise.” Appellant’s to non-compete' agreements sign them Appellees/Plaintiffs. Appel- detriment (Second) of Restatement Contracts ability thus lost to sell to lees/Plaintiffs 90(1), d, § provides, Comment in relevant clients, including Keaton’s Porreca and part: to them of their ability sell the services binding A is promise under this section for procurement new ser- energy vendor contract, by full-scale enforcement vices, Energy. World is appropriate. normal often remedies argues injustice in But same factors bear there which was relief, any granted whether should be “Appellees[/Plaintiffs] this case because also bear on the character and extent they represented they as perform did particular, may In Brief, remedy. or relief Appellants’ at could[.].” to or sometimes be limited restitution Relying heavily on testimony, his own Rus- damages specific by relief measured “Appellees[/Plaintiffs] sial claims failed to promisee’s reliance extent identify agents, sales as promise. rather than the terms of the represented they could do.” Id. Russial Appellees/Plaintiffs pur- also claims Accordingly, general rule ported agents to have a network of who plaintiff is that a should be awarded the being sell J3’s without J3 could services promises of the defendant’s unless value in training or net- operating involved equity Although dictates otherwise. Rus- However, closing light work sales. Corp., sial cites v. Matthews Banas Int’l trial court’s it statement “finds 464, (1985), Pa.Super. testimony of ... credible general proposition “any recovery considered that of []Rus- promissory estoppel under would be for 6/11/14, sial,” Opinion, Trial at Court Brief, damages,” Appellant’s reliance injustice oc- Russial’s contention that no Rather, paints with too he broad brush. fails. The court had before Gut- noted, curred Supreme promissory our Court teridge’s testimony that it was estoppel remedy may justice credible be limited as megawatt goal Lobolito, only when the 50 was requires. Inc. v. North Pocono reached, Group about to real- Dist., and the Sch. 562 Pa. revenues, (2000). Appellants/Defendants Therefore,
ize
that.
1292 n.10
is
the issue
Ap-
correctly
communicated
dissatisfaction with
whether
court
the trial
found
efforts,
pellees’/Plaintiffs!
en-
equi
then
that the instant case
involve
does
gaged
away Appel-
justify
conduct
lure
that would
table considerations
de
viating
damages.
from
most successful
contract
channel
lees’/Plaintiffs’
Here,
re-
Opinion,
trial court heard evidence
Court
at 5 (emphasis
added).
garding
marketing
the sales and
activities
points
nothing
in the
performed in
Appellees/Plaintiffs
reli-
record to support
finding
that Porreca
promises.
ance on
It also heard
Russial’s
have released AEP from its
Keaton
testimony regarding
Appel-
the losses that
obligations.
commission
find no
We
error.
rely-
sustained as a result of
lees/Plaintiffs
Metropolitan
Co.,
Lesoon
Life Ins.
cir-
ing
promises.
on those
Under these
(Pa.
2006)
Applied Energy you Partners will be And compa- aware that the Buy- promoting operating ‘Energy ny corporation? awas Group’ throughout ers mid-Atlantic No, A: not specifically, I but assumed (PJM region).” states electrical P- Exhibit so. 2. Promotional materials and member agreements Energy Buyers described Group “joint composed as a venture Q: I’m Gutteridge, Mr. handing you
Applied Energy Energy.” Partners and J3 your deposition January 2012 of Buyers Energy Group membership year. bringing your this I’m attention to agreements logos Applied of both bore page 14 through lines you 21. Would Energy Energy. According J3 Mr. read those and let me you’re know when Gutteridge, they logos of both included the finished? “[bjecause throughout entities the whole A: talk my “Let’s about that. period One introducing Energy we were Buyers Energy clients J3 Group every single Group customer as Inc. joint Applied Energy you venture between Energy Were aware N.T., 6/12/12, at and J3.” He also ex- you Inc. when started deal- plained that either he Mr. Russial could ing with Mr. Russial?” sign agreements joint behalf of the ‘Yes.” capacities principals venture you that that “Were aware was a cor-
Applied Energy and J3. poration?” The initial financial arrangement be- Applied Energy tween and J3 pro- “Yes.” *15 that on
vided commissions sales would be
paid Energy. corporation to J3 That would if, Q: I you you also asked when were thirty-five percent of
pay Applied Energy Id, Russial, dealing you with Mr. were deal- gross Applied the revenue. Ener- ing capacity president him in his as gy pay commissions to its channel of corporation corporation. this his partners from share of the commission. —of you You don’t remember what answer Gutteridge Although Mr. and Mr. Rus- was? “I,” “we,” sial in terms of spoke “you” venture, they joint when the it discussed my A: I don’t remember what answer apparent they dealing were behalf was, I but when first met Mr. I of their As Mr. companies, and J3. dealing personally. was with him At the Gutteridge explained, point “At the point setting up that we started Buyers setting up Energy we started Buyers Energy Group, Applied it was Group, Applied it was Partners J3 Energy Partners J3 venture. venture.” Id. exchange during This 10. Q: going you approach I’m one more Gutteridge of Mr. cross-examination you, again, If I page time. show point. illustrates that lines, your three then answer on last Q: deposition I your At remember ask- top your deposition testimony? of ing you you met Steve his En- you company, my dealings
were aware of J3 A: me in Yes. You asked Inc., ergy you of always aware he with Mr. was deal- company? ing president I of I as said A: Yes. assumed so. combination, “special per- or more you. two
Q: Thank where, venture, specific in some sons a N.T., 6/13/12, (emphasis supplied). at 8-10 jointly sought profit is actu- without personal I communications submit designation”: partnership corporate or al regarding corporate principals between Adventures, Jur., § The Am. Joint participation joint a their businesses’ joint a ven- existence or non-existence not constitute a business deal venture do parties depends upon ture what the in- times, At all between individuals. relevant associating It together. must tended acting on behalf of his Mr. Russial was basis, although from arise a contractual J3, Mr. corporation, was express the contract need be but AEP, discussing acting president as may implied acts con- from the be Tq This is en forming joint venture. parties. joint constitute duct that “a cor tirely (1) consistent fact factors venture certain essential: are must, agents.” through act poration each to the venture must make a Sys. contribution, v. Estate necessarily capital, Vision Real Red Nat’l Servs., (Pa.Su services, skill, L.P., way knowledge, Info. but (2) 2015); money; profits per. see Peters Creek materials be also United must (3) among parties; Presbyterian Presby there Church shared Wash. v. (a (Pa.Cmwlth. 2014) “joint tery, proprietary interest and must A.3d right subject control over officers, mutual through its corporation acts (4) usually, enterprise; matter” of the members). shareholders single there is business transaction acting through Energy, AEP and J3 general and rather continuous than joint principals, pursued their venture transaction, to finalize the they attempted terms Phelps, 391 Pa. McRoberts arrangement. The trial court conclud- (Pa. 1958). 439, 443-444 Whether a to execute a ed that when failed depends joint specific venture exists contract, “perfectly formal written case, nor rule can be “and fixed fast reasonable ... believe promulgated generally'to situ apply all of the sales and formation market- ations.” association can be one Id. ing relationship himself ... between contract, corporations; “by express, which *16 ongoing despite continued Russial was and agreed engage to in a common implied, inability to formalize the creation enterprise mutual'profit.” for their &Gold Buyers the Trial Energy Group.” Court Corp., 281 Co. v. Theater Northeast Opinion, 1151, n.1 Pa.Super. (1980). mistakenly The trial court concluded not
that AEP J3 because and did execute a AEP The trial court concluded that and agreement, formal re- written the business J3 to a meeting reach the minds failed lationship to between defaulted one Mr. on specific joint the venture terms Gutteridge I personally. and Mr. Russial finding challenges and neither relationship there submit was business Nonetheless, appeal. imposed on the court J3, between evidenced on liability upon Energy J3 Inc. based pursuit their common of members Ener- promises unjust of.- breach to AEP and gy Buyers Group. Admittedly, the relation- I characterizing enrichment. believe stumbled, technically, ship relationship per- but herein as absence the business Mr, agreement Gutteridge of a formal not written sonal one Mr. between Russial, personal liability on legally required. joint imposing A venture is a Servs., Russial, Clancy, Inc. v. legally is Mr. irreconcilable with 2002) (“An finding liability (Pa.Super. concomitant injured court’s party cannot against Energy on its rela- Inc. based recover twice the same injury, based tionship It does not Applied Energy.2 with theory recovery double results enrichment.”). follow that when those two entities failed in joint agreement, to reach a venture formal For all of foregoing reasons, I would personal devolved into judgment vacate pro- and remand for principals. one between ceedings consistent herewith. evidence, light viewed in most AEP, favorable to Mr. below,
prevailing parties establishes that act-
Mr. and Mr. Russial were
ing at all of their respec- times behalf companies seeking forge joint to
tive venture. This awas failed deal Pennsylvania, COMMONWEALTH AEP, between J3 rather than Appellee Gutteridge. Mr. Mr. There legal to impose personal factual basis thus, liability against I Mr. KNOX, Appellant Devon judgment would vacate and remand No. 1937 WDA 2015 directions the trial court consistent finding. Superior Pennsylvania. Court The trial equitable court invoked reme- March Submitted dies ensure that the Defendants were Filed June unjustly ordered them enriched and of thirty- make restitution the amount percent majority
five revenue. The
sanctions the trial court’s refusal credit pay- the commission amount
ments J3 made Lori Porreca and Herb
Keaton had since latter not released Gutteridge and AEP from
Mr. its obli-
gation to pay I believe such commissions.
equitable principles an offset for favor
payments J3 and Keaton made Porreca in the of a By
even absence release.
crediting the payments, the trial court has
unjustly enriched Mr. and AEP legal there is viable for Lori means again
Porreca and Herb recover Keaton Judge Technical parties. those (1988). corporate I2. am aware that officer is sub- is no 879 n.3 There evidence ject liability breaching promise ex- promises repre- record that Mr. Russial’s corporate capacity, tended not in his but sharing sentations about were made revenue his capacity. See individual corporate anything capacity. in- other than his Loeffler McShane, Pa.Super. 539