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HomeMy WebLinkAbout96-5349 CivilJOSEPH J. CURRERI, JR., TRADING AS THE CURRERI REAL ESTATE COMPANY, Plaintiff Vo DAVID E. DYSON, JAMES P. STEPHENS, JR., JOHN H. RHODES, MICHAEL K. LAU, JEFFREY D.BILLMAN AND RHODES DEVELOPMENT GROUP, INC., TRADING AS CAPITOL VIEW ASSOCIATES A PENNSYLVANIA GENERAL PARTNERSHIP AND DAVID E. DYSON, JAMES P. STEPHENS, JR., JOHN H. RHODES, HARLIN J. WALL, MICHAEL K. LAU AND JEFFREY D. BILLMAN, TRADING AS THE CHERRINGTON GROUP, A PENNSYLVANIA GENERAL PARTNERSHIP Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW · NO. 96-5349 CIVIL TERM 1996 IN RE: DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE HESS and OLER, JJ.* ORDER OF COURT AND NOW, this~d~y of December, 1999, upon consideration of the motion for partial summary judgment filed by Defendants Capitol View Associates and the Cherrington Group, and for the reasons stated in the accompanying opinion, the motion is denied. * Guido, J., did not participate in the consideration or disposition of this case. Timothy Anstine, Esq. t00 Pine Street, Suite 510 Harrisburg, PA 17101 Attorney for Plaintiff Keith O. Brenneman, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 Attorney for Defendants :rc BY THE COURT, J. ~os[e~ Oler, Jr~,~. * Guido, J., did not participate in the consideration or disposition of this case. JOSEPH J. CURRERI, JR., TRADING AS THE CURRERI REAL ESTATE COMPANY, Plaip_tiff DAVID E. DYSON, JAMES P. STEPHENS, JR., JOHN H. RHODES, MICHAEL K. LAU, JEFFREY D.BILLMAN AND RHODES DEVELOPMENT GROUP, INC., TRADING AS CAPITOL VIEW ASSOCIATES A PENNSYLVANIA GENERAL PARTNERSHIP AND DAVID E. DYSON, JAMES P. STEPHENS, JR., JOHN H. RHODES, HARLIN J. WALL, MICHAEL K. LAU AND JEFFREY D. BILLMAN, TRADING AS THE CHERRINGTON GROUP, A PENNSYLVANIA GENERAL PARTNERSHIP Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW · NO. 96-5349 CIVIL TERM 1996 IN RE: DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, j.1 OPINION and ORDER OF COURT At issue in this civil case is a motion for partial summary judgment made by Defendants Capitol View Associates and the Cherrington Group. Defendants bring this motion for partial summary judgment with respect to Counts II, V, VIII, IX, and X of Plaintiff's amended complaint. Counts II, V, and VIII are claims for unjust enrichment with respect to Plaintiff's alleged services as a sales agent at real estate developments Guido, J., did not participate in the consideration or disposition of this case. known as Crown Pointe, Cherrington, and Timber Chase. Count IX is a claim for intentional interference with contractual relations with respect to Plaintiff's relationship with Vincent R. Corrao. Count X is a claim for intentional interference with prospective contractual relations with respect to Plaintiff's relationship with Thomas Ceranic. Oral argument was held on Plaintiff's motion on May 26, 1999. For the reasons stated in this opinion, the motion for partial summary judgment will be denied. STATEMENT OF FACTS This case arises out of business relationships between Plaintiff and each of the Defendant partnerships. Plaintiff commenced this action for breach of contract, unjust enrichment, promissory estoppel, and interference with existing and prospective contractual relations by filing a complaint on September 27, 1996. Defendants filed preliminary objections on November 4, 1996. In response to these preliminary objections, Plaintiff filed an amended complaint on November 20, 1996. Defendants Capitol View and the Cherrington Group filed an answer with new matter on December 10, 1996. The facts can be summarized as follows. Plaintiff and Defendant Capitol View Associates (hereinafter Capitol View) entered into a written agreement on July 9, 1993, whereby Plaintiff was to sell townhouses at a development known as Crown Pointe (hereinafter the Crown Pointe agreement).2 Plaintiff alleges that, subsequent to this agreement, he and Defendant Cherrington Group entered into an oral agreement whereby Plaintiff would serve as the exclusive marketing representative for a second development known as Cherrington.3 2 Amended complaint, Exhibit A (copy of the Crown Pointe agreement). 3 Amended complaint, paragraphs 30-31. In reliance upon this alleged agreement with the Cherrington Group, Plaintiff asserts that he offered i'homas Ceranic a position as sales associate for the marketing of the Cherrington development.4 Defendant Cherrington Group, however, denies ever entering into an agreement with Plaintiff,~ but admits that it entered into an agreement with Rhodes Development Group, Inc.. a constituent partner of Capitol View, for the marketing of the Cherrington development.6 According to Defendants, the Rhodes Development Group thereafter retained Mr. Ceranic as a sales associate for the marketing of the Cherrington development.7 Plaintiff alleges that in September 1994 he offered Vincent R. Corrao a position as sales associate? According to Plaintiff, Mr. Corrao accepted and commenced selling units at the Crown Pointe development.9 Mr. Corrao testified that he was an associate broker with PlaintiWs real estate company. ~0 Mr. Corrao also testified that he and Plaintiff discussed the terms of compensation and that there was a written agreement in the form of a letter that confirmed the terms of compensation.~ ~ 4 Amended complaint, paragraph 41. 5 Answer with new matter of Defendants Capitol View Associates and the Cherrington Group to PlaintiWs amended complaint and counterclaim of Capitol View Associates, paragraphs 30-31. 6 Id. at paragraph 47. 7 Id. at paragraph 48. s Amended complaint, paragraph 56. 9 Id. at paragraph 59. 10 Deposition of Vincent R. Corrao, November 19, 1997, at 9 (hereinafter Corrao N.T. at __). II Id. at 8-9. Plaintiff asserts that Defendant Capitol View approached Mr. Corrao about representing Capitol View's properties independent of Plaintiff,~2 and that in June 1995 Mr. Corrao informed Plaintiff that he was going to terminate his relationship with Plaintiff in order to take such a position.~3 Mr. Corrao testified that in May or June of 1995 he indicated to Plaintiff that he was going to terminate his relationship with Plaintiff and that he hoped to represent Capitol View properties independent of Plaintiff. 14 Mr. Corrao further testified that he believed Plaintiff was going to be responsible for the marketing of a third development known as Timber Chase, and that this would create an opportunity for Mr. Corrao to be the broker at Crown Pointe.15 Plaintiff also alleges that he and Capitol View entered into another agreement whereby Plaintiff was to serve as the marketing representative for the Timber Chase development, 26 but that Capitol View would not execute a written agreement unless Plaintiff agreed to relinquish his rights under the Crown Pointe agreement.~7 Capitol View, on the other hand, denies that any agreement was ever reached with respect to the Timber Chase development.~8 Capitol View admits that on June 21, 1995, 12 Amended complaint, paragraph 60. See also Deposition of Joseph J. Curreri, April 3, 1998, at 293-294 (hereinafter Curreri N.T. 4/3/98 at ~). ~3 Amended complaint, paragraph 63. ~4 Corrao N.T. at 36. ~5 Id. at 36-37. ~6 Amended complaint, paragraph 72. ~7 Id. at paragraphs 77-78; see amended complaint, exhibit B (copy of proposed interim Crown Pointe agreement). la Answer with new matter of Defendants Capitol View Associates and the Cherrington Group to Plaintiff's amended complaint and counterclaim of Capitol View Associates, paragraph 74. 4 Plaintiff declined to accept the arrangement that would have required Plaintiff to abandon his rights under the Crown Pointe agreement. 19 On June 29, 1995, Plaintiff was advised that he was being terminated by Capitol View as the exclusive marketing representative of the Crown Pointe development? Plaintiff asserts that he performed all of his obligations under the Crown Pointe development contract.21 Defendants deny this assertion.22 With respect to the marketing of the Crown Pointe development, Plaintiff is suing Capitol View for breach of contract and unjust enrichment.23 With respect to the marketing of the Cherrington development, Plaintiff is suing the Cherrington Group for breach of contract, promissory estoppel, and unjust enrichment.24 With respect to the marketing of the Timber Chase development, Plaintiff is suing Capitol View for breach of contract, promissory estoppel, and unjust enrichment? Plaintiff also asserts a claim against Capitol View for intentional interference with contractual relations in regard to Plaintiff's business relationship with Vincent R. Corrao.26 Additionally, Plaintiff is suing the Cherrington Group for intentional interference with prospective contractual relations ~9 Id. at paragraph 81. 20 Id. at paragraph 82. 2~ Amended complaint, paragraph 87. 22 Answer with new matter of Defendants Capitol View Associates and the Cherrington Group to Plaintiff's amended complaint and counterclaim of Capitol View Associates, paragraph 87. 23 Amended complaint, paragraphs 89-96 (Counts I and II of the amended complaint). 24 Id. at paragraphs 97-113 (Counts III, IV, and V of the amended complaint). 25 Id. at paragraphs 114-128 (Counts VI, VII, and VIII of the amended complaint). 26 Id. at paragraphs 129-136 (Count IX of the amended complaint). in regard to Plaintiff's business relationship with Thomas Ceranic.27 Capitol View has filed a counterclaim against Plaintiff for breach of the Crown Pointe agreement? DISCUSSION Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. "[T]he mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial." Ertel v. Patriot-News Co., 544 Pa. 93,100, 674 A.2d 1038, 1042 (1996). "Oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party's witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact." Note, Pa. R.C.P. 1035.2; see Pa. R.C.P. 1035.3(b). Additionally, the record must be examined in the light most favorable to the non- moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Company, 544 Pa. 93, 93-94, 27 Id at paragraphs 137-146 (Count X of the amended complaint). 6 674 A.2d 1038, 1041 (1996). Furthermore, on a motion for summary judgment, a court "should not attempt to resolve conflicting contentions of fact or conflicting inferences, which may be drawn from such facts .... Summary judgment is an 'eyes-only' procedure, which does not allow for a factual hearing." 6 Standard Pennsylvania Practice 2d, 32:113, at 257 (1994) (emphasis added). The Pennsylvania Supreme Court has held that "a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor." Ertel v. Patriot-News Company, 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 102, 674 A.2d at1042. I. Count IX: Intentional Interference with Contractual Relations by Capitol View Associates as to Plaintiff's Relationship with Mr. Corrao Plaintiff has alleged that Defendants interfered with his contractual relationship with Vincent R. Corrao in an effort to hire Mr. Corrao to represent Defendants' properties independent of Plaintiff. The Restatement (Second) of Torts provides that: [o]ne who intentionally and improperly interferes with the performance of a contract ... between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract. Restatement (Second) of Torts, {}766 (1979). 28 Answer with new matter of Defendants Capitol View Associates and the Cherrington Group to Plaintiff's amended complaint and counterclaim of Capitol View Associates, paragraphs 170-175. There are four elements to intentional interference with contractual ,'elati,ms: (1) an existing contractual relationship between plaintiff and a third party; (2) det'c~:dant interfered with the performance of that contract by inducing a b.,',tach or otherwise causing the third party not to perform; (3) defendant was not privileged to act in this manner; and (4) plaintiff suffered a pecuniary loss as a result of the breach of contract. Hamilton Contracting Company v. Cowder, 434 Pa. Super. 491,497, 644 A.2d 188, 191 (1994). Defendants assert that Plaintiff has not met his burden with respect to the requirements of an existing contractual relationship and pecuniary losses for his claim against Defendant Capitol View for intentional interference with contractual relations. A. Existing Contractual Relationship As to the existence of a contractual relationship, Defendants argue that the relationship between Plaintiff and Mr. Corrao was in the nature of an at-will employment relationship and that Capitol View's hiring of Mr. Corrao is not actionable? Defendants submit that because Mr. Corrao's engagement as a sales agent was for an indefinite period of time, it created an at-will employment relationship.3° Defendants argue that based upon this relationship, either Plaintiff or Mr. Corrao had the right to end their relationship at any time and that the offering of employment to a person under contract terminable at-will is not actionable in and of itself.31 Furthermore, Defendants submit that Plaintiff terminated his business relationship with Mr. Corrao well before Mr. Corrao 29 Defendants' Brief in Support of Motion for Partial Summary Judgment, at 13. 30 Id. 3~ Id. at 14. performed any services for Capitol View and that therefore the contract or relationship was no longer in existence.32 Plaintiff, on the other hand, asserts that he and Mr. Corrao did not have an employer-employee relationship at all.33 Plaintiff submits Mr. Corrao was a licensed real estate broker who entered into a contract with Plaintiff to serve as his associate broker and that a broker-associate broker contract is not an employer-employee relationship.34 Plaintiff notes that Mr. Corrao testified that he was an associate broker with Plaintiff's real estate company, that he and Plaintiff discussed the terms of compensation, and that there was a written agreement in the form of a letter that confirmed the terms of compensation.35 Plaintiff submits that there is sufficient evidence in the record to be submitted to a jury on the issue of whether Defendants interfered with Plaintiff's contract with Mr. Corrao.36 Plaintiff alleges that Mr. Corrao told him that Capitol View approached Mr. Corrao about working directly for Capitol View37 and that Michael Lau, a general partner of both Capitol View and Cherrington, indicated that Capitol View and Mr. Corrao had discussed the possibility of Mr. Corrao working directly for Capitol View prior to Plaintiff's termination of Mr. Corrao.38 Plaintiff alleges that Capitol View engineered 32]d. at I0-11. 33 Plaintiff's Brief in Opposition to Defendants' Motion for Partial Summary Judgment, at 24. 34 Id. 35 Id. 36 Id. at 23. 37 xgd. at 27. 381d' Plaintiff' s termination of Mr. Corrao by wrongfully ternfina ting i~s contract with Plaintiff, thus resulting in Plaintiff being compelled to terminate Mr. C(~r:',:o because he no longer had any work for him? Plaintiff further alleges thztt after Capitol View terminated Plaintiff, Mr. Corrao continued to work as an associate broker and ultimately served as the representative for the Timber Chase development, t0 It is clear that there is a disputed question of fact regarding the nature of the business relationship between Plaintiff and Mr. Corrao. Furthermore, given the possible interpretations of the events subjudice, this court is not in a position, based upon the record as it exists, to hold as a matter of law that Plaintiff cannot recover tinder a theory of intentional interference with contractual relations. B. Pecuniary Losses Defendants argue that the record is void of any evidence of proof of damages and that Plaintiff has not suffered any pecuniary loss.41 Defendants submit that there can be no separate damages for interference with any contract between Plaintiff and Mr. Corrao because the alleged breaches by Defendants establish all damages recoverable by Plaintiff? It is further argued by Defendants that any alleged breach by Defendants had, at most, only the incidental consequence of affecting Plaintiff's relationship with Mr. Corrao and that such an incidental consequence does not give rise to a claim for interference with an existing contractual relationship.43 39 Id. at 29. 40 Id. at 28. 4~ Defendants' Brief in Support of Motion for Partial Summary Judgment, at 12. 42 Id. n~Id. at 13. 10 In response to this argument, Plaintiff asserts that he suffered pecuniary losses as a result of Mr. Corrao's nonperformance.44 According to Plaintiff, he would have earned money in commissions on sales procured by Mr. Corrao.45 Plaintiff submits that his pecuniary losses can be proven by the historical record of the commissions earned by Plaintiff through Mr. Corrao's efforts during the time he worked for Plaintiff.46 Plaintiff also notes that the terms of Mr. Corrao's engagement are of record47 as are copies of the settlement statements from the sale of units at Crown Pointe, including the sales that Mr. Corrao procured.48 The record contains evidence from which a trier of fact could conclude that the Plaintiff suffered pecuniary losses. Without in any way suggesting that a trier of fact will find that intentional interference with contractual relations occurred in this case, it would be premature to summarily dispose of this cause of action at this time. II. Count X: Claims of Intentional Interference with Prospective Contractual Relations by Defendant Cherrington Group as to Plaintiff's Relationship with Thomas Ceranic Plaintiff has alleged that Defendants made it impossible for Plaintiff to come to terms with Thomas Ceranic as a result of direct efforts by Defendants to recruit Mr. Ceranic as well as alleged misrepresentations made to Mr. Ceranic in the course of these communications .49 44 Plaintiff's Brief in Opposition to Defendants' Motion for Partial Summary Judgment, at 28. 45 Id. at 28-29. 46 Id. at 28. 47 See Deposition of Vincent R. Corrao, Exhibit 2. 4~ See Affidavit filed in support of PlaintiWs Motion for Summary Judgment. 49 PlaintiWs Brief in Opposition to Defendants' Motion for Partial Summary Judgment, at 9-1 1. 11 The Restatement (Second) of Torts provides ti~at: [o]ne who intentionally and impropc~ 1> interferes wit~, another's prospective contractual relation ... i3 st~bjcct to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of (a)inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the prospective relation. Restatement (Second) of Torts, {}766B Pg. 20 (1979). In order to make a valid claim for intentional interference with contractual relations, a plaintiff must demonstrate (1) the existence of a prospective contractual relation, (2) a purpose or intent on the part of the def~.'ndant to harm the plaintiff by preventing the relationship from occurring, (3) an absence of privilege or justification on the part of the defendant, and (4) the occasioning of' actual damages resulting from the defendant's conduct. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198,208,412 A.2d 466, 471, (1979). Defendants assert that Plaintiff has failed to demonstrate any of the four requisite elements in his claim against Defendant Cherrington Group for intentional interference with prospective contractual relations. A. Prospective Contractual Relation Defendants assert that Plaintiff had no realistic prospect of hiring Thomas Ceranic and that there was no reasonable likelihood that an agreement would ever be reached between Plaintiff and Mr. Ceranic.s° Defendants argue that Plaintiff never had more than a mere hope of hiring Mr. Ceranic.51 ~o Defendants' Brief in Support of Motion for Partial Summary Judgment, at 16. ~ Id. at 17. 12 Plaintiff; on the other hand, asserts he had more than a mere hope of hiring Ceranic, and that in fact there was a reasonable likelihood that Mr. Ceranic would ha~'e become Plaintiff's salesperson,s2 Plaintiff alleges that if Defendants had llo't interfered, Mr. Ceranic would have been a member of Plaintiff's sales force? It is clear that whether there was the existence of a prospective contractual relation is a disputed question of fact. Consequently, Plaintiff is entitled to present this issue to a trier of fact for resolution. B. Purpose or Intent To Harm Plaintiff by Preventing the Relationship from Occurring Defendants assert that Plaintiff has produced no evidence nor is there any evidence of record that the hiring of Mr. Ceranic was intended to harm Plaintiff and that therefore summary judgment as to this claim is appropriate? In response to this argument, Plaintiff asserts that Michael Lau made misrepresentations to Mr. Ceranic concerning Plaintiff's status as a broker and that these misrepresentations severed Plaintiff's ability to enter into a contract with Mr. Ceranic.55 According to Plaintiff, Defendants' intent to harm Plaintiff was motivated by a desire to pay a lower commission to the person selling the Cherrington properties? Pursuant to the Crown Pointe agreement, Plaintiff had been receiving a commission of 5% of the 52 Plaintiff's Brief in Opposition to Defendants' Motion for Partial Summary Judgment, at 19. 53 Id. at 20. 54 Defendants' Brief in Support of Motion for Partial Summary Judgment, at 17. 55 Plaintiff's Brief in Opposition to Defendants' Motion for Partial Summary Judgment, at 10-1 1. 56/d at 20. 13 sales price of units,s7 whereas Mr. Ceranic, pursuant to his agreement with Defendant Cherrington Group. was paid a cc;remission 0f2.5%.s8 Defendants have not established that this element of the cause of action is lacking. Plaintiff has presented sufficient evidence at this stage of the proceeding to create a disputed question of fact as to whether Defendants intended any harm to Plaintiff. C. Absence of Privilege or Justification on the Part of the Defendant Defendants assert that the Cherrington Group had the right to pursue and protect its legitimate business interests? According to Defendants, Plaintiff declined an offer to be the sales agent of the Cherrington development arid the offer was then extended to Mr. Ceranic.6° Thus, it was proper for Defendant Cherrington Group to hire Mr. Ceranic.61 Plaintiff, on the other hand, asserts that Defendants were not privileged to interfere with any prospective contractual relations.62 According to Plaintiff, he and Capitol View were in a direct contractual relationship and this relationship removes any privilege? Even though Plaintiff asserts his claim against Defendant Cherrington Group, this court is satisfied that there is a disputed question of fact regarding this element of the cause of action. In addition, Defendants have failed to cite any support for their 57 Amended complaint, Exhibit A (the Crown Pointe agreement). 58 Deposition of Thomas Ceranic, Exhibit 8 (agreement between the Cherrington Group and Mr. Ceranic). 5o Defendants' Brief in Support of Motion for Partial Summary Judgment, at 17. 60 Id. 6~ id' 62 Plaintiff's Brief in Opposition to Defendants' Motion for Partial Summary Judgment, at 21. 63 Id. 14 proposition that protection of business interests is a privilege that j,stifics their alleged conduct in this situation. Thus, it cannot be said that Defendants a~'e e~:.~itled to judgment as a matter of law as to this element of the cause of acti6~:. D. Occasioning of Actual Damages Resulting from Defendant's Conduct Defendants assert that Plaintiff cannot prove or produce any evidence that he has sustained any damages.64 Defendants indicate that PlaintiWs compensation was fixed by contract with Capitol View and the Cherrington Group and had no relationship to the number of sales agents that Plaintiff hired.65 In response to this argument, Plaintiff asserts that he has suffered pecuniary losses in the form of lost profits he would have earned by having Mr. Ceranic as a salesperson.66 Plaintiff has indicated that the hiring of Mr. Ceranic would have increased the sales of Defendants' properties and would have enabled Plaintiff to seek other properties to market.67 The arguments of the parties have once again indicated that there is a question of material fact. This court cannot say as a matter of law that Plaintiff has failed to indicate any pecuniary loss. As such, this issue is more properly decided by a trier of fact. 64 Defendants' Brief in Support of Motion for Partial Summary Judgment, at 17-18. 651d at 18. 66 Plaintiff's Brief in Opposition to Defendants' Motion for Partial Summary Judgment, at 22. 67 ld. 15 E. De.Cendants' Claim that Plaintiff Failed To Bring Suit within the Statute of Lin~itat,ons Defendants have also alleged that Plaintiff's claim for intentional interference with prospective contractual relations is barred by the applicable statute of limitations? The statute of limitations, however, is an affirmative defense. Pennsylvania Rule of Civil Procedure 1030(a) provides that "all affirmative defenses including ... statute of limitations ... shall be pleaded in a responsive pleading under the heading 'New Matter'." Pursuant to Pennsylvania Rule of Civil Procedure 1032(a), "Iai party waives all defenses and objections which are not presented either by preliminary objection, answer or reply .... ' Defendants have not included this affirmative defense in their prior preliminary objections or their answer. As a result, the statute of limitations claim is deemed waived for purposes of the present motion? III. Counts III, V, and VIII: Claims of Unjust Enrichment With respect to Plaintiff's services in connection with the Crown Pointe development, Plaintiff claims damages against Defendant Capitol View for breach of contract in Count I and for unjust enrichment in Count II of the Amended Complaint. With respect to Plaintiff's services in connection with the Cherrington development, Plaintiff claims damages against Defendant Cherrington Group for breach of contract in Count III and unjust enrichment in Count V. With respect to Plaintiff's services in connection with the Timber Chase development, Plaintiff claims damages against 68 Defendants' Brief in Support of Motion for Partial Summary Judgment, at 18. 69 See also Thompson v. Southeastern Pennsylvania Transportation A uthority, 280 Pa. Super, 193, 421 A.2d 471 (1980) (Unless statute of limitations is pleaded as an affirmative defense, it is waived). 16 Defendant Capitol View for breach of contract in Cout:t VI and unjust enrichment in Count VIII. Defendants assert that PlaintiWs ciaims for unjust enrichment are not appropriate? Defendants argue that the existence of a right to recover on a contract precludes any claims of unjust enrichment.TM Thus, according to Defendants, they are entitled to judgment as a matter of law as to these claims.72 Plaintiff concedes that he may not recover from Defendants on both the breach of contract claims and the unjust enrichment claims? Plaintiff, however, has indicated that Defendants have denied the existence of a contract with respect to the Cherrington and Timber Chase developmentsTM and deny that they breached the Crown Pointe agreement? Pennsylvania Rule of Civil Procedure 1020(c) provides as follows: (c) Causes of action and defenses may be pleaded in the alternative. (d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. While it is true that claims for unjust enrichment are not applicable where the relationship between the parties is founded upon a written agreement or express 70 Defendants' Brief in Support of Motion for Partial Summary Judgment, at 20. 711d' 72 Id. 73 PlaintiWs Brief in Opposition to Defendants' Motion for Partial Summary Judgment, at 33. 74 Answer with new matter of Defendants Capitol View Associates and the Cherrington Group to PlaintiWs amended complaint and counterclaim of Capitol View Associates, paragraphs 163-164. 75 Id., paragraph 9 I. 17 col~tract,7~' Pem~sylvania courts have recognized that plaintiffs should not be precluded l'r()m making claims in quasi-contract in case a cause of action for express contract fails? Thus, based upon the foregoing analysis, Plaintiff is entitled to proceed with both his claims of unjust enrichment and breach of contract. Therefore, Defendants are not entitled to judgment as a matter of law. IV. Conclusion Plaintiff has produced sufficient evidence on each essential element of the challenged claims. In addition, questions of material fact persist in the challenged claims of Plaintiff and Defendants have not established that they are entitled to judgment as a matter of law. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, thi~'~day of December, 1999, upon consideration of the motion for partial summary judgment filed by Defendants Capitol View Associates and the Cherrington Group, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 76 See Thh'd National Bank & Trust Co. of Scranton v. Lehigh Valley Coal Company, 353 Pa. 185, 44 A.2d 571 (1945). 77 See Birchwood Lakes Community Association, Inc. v. Comis, 296 Pa. Super. 77, 442 A.2d 304 (I 982) (If a plaintiff fails to succeed in his claim based on express contract he may not then attempt to demonstrate contract implied in fact unless such has been averred in complaint). 18 Timothy Anstine, Esq. 100 Pine Street, Suite 510 Harrisburg, PA 17101 Attorney for Plaintiff Keith O. Brenneman, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 Attorney for Defendants :rc 19