HomeMy WebLinkAbout2009-3189 Civil
COMMERCIAL/INDUSTRIAL : IN THE COURT OF COMMON PLEAS OF
REALTY COMPANY d/b/a : CUMBERLAND COUNTY, PENNSYLVANIA
NAI/CIR, :
Plaintiff :
:
v. : CIVIL ACTION – LAW
:
TOD G. SHEDLOSKY and :
LISA T. SHEDLOSKY, :
Defendants : NO. 09-3189 CIVIL TERM
IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS
TO PLAINTIFF’S AMENDED COMPLAINT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., November 17, 2009.
In this civil case involving commercial real estate, a broker has sued the owners of
certain real estate for breach of a listing agreement and unjust enrichment in connection
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with a lease of the property. It is alleged that Plaintiff provided the lessee, but was not
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paid for its work.
For disposition at this time are preliminary objections filed by Defendants to
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Plaintiff’s amended complaint. The case has been submitted on briefs, and the
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preliminary objections being pursued in Defendants’ brief may be summarized as
follows: (a) a demurrer to Plaintiff’s claims against Defendant Lisa T. Shedlosky, based
Plaintiff’s Amended Complaint, filed June 26, 2009 (hereinafter Pl.’s Am. Compl.____).
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Pl.’s Am. Compl., ¶12; and Ex. D.
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Defendants’ Preliminary Objections to Plaintiff’s Amended Complaint, filed July 31, 2009
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(hereinafter Defs.’ Prelim. Objections to Pl.’s Am. Compl.____).
Under Cumberland County Rule of Procedure 1028(c)(5), issues raised, but not briefed, are
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deemed abandoned.
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upon the absence of a designation of her as a party on the listing agreement; (b) a
demurrer to Plaintiff’s claims against both Defendants, based upon alleged
nonconformities of the listing agreement to the Pennsylvania Real Estate Licensing and
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Registration Act; and (c) a demurrer to Plaintiff’s claims against both Defendants for
unjust enrichment, based upon a proscription under the said act on a licensee’s collection
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of a fee in the absence of a written agreement.
For the reasons stated in this opinion, Defendants’ preliminary objections will be
sustained in part and denied in part.
STATEMENT OF FACTS
The facts alleged in Plaintiff’s amended complaint may be summarized as follows:
Plaintiff, Commercial/Industrial Realty Company (hereinafter NAI/CIR), is a
corporation organized under the laws of the Commonwealth of Pennsylvania, with its
principal place of business located at 1015 Mumma Road, Wormleysburg, Cumberland
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County, Pennsylvania. Defendants Tod G. Shedlosky and Lisa T. Shedlosky are a
husband and wife, who reside at 6345 North Powderhorn Road, Mechanicsburg,
Hampden Township, Cumberland County, Pennsylvania, and who own, as tenants by the
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entireties, a tract of land in Shippensburg Township, Cumberland County, Pennsylvania.
Defs.’ Prelim. Objections to Pl.’s Am. Compl., ¶¶7-22.
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Defs.’ Prelim. Objections to Pl.’s Am. Compl., ¶¶23-32.
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Defs.’ Prelim. Objections to Pl.’s Am. Compl., ¶¶33-42.
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Pl.’s Am. Compl., ¶1.
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Pl.’s Am. Compl., ¶¶2-3. The parcel of property is identified as Tax Parcel 36-12-0320-052. Id. at
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¶3; see generally Plaintiff’s Exhibits B, C, attached to Plaintiff’s Amended Complaint.
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Defendant Tod G. Shedlosky, who is himself a licensed Pennsylvania real estate
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salesperson, executed, as Lessor, a “One Party Listing Contract—Leases” with Plaintiff
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NAI/CIR in April, 2007, which provided as follows:
This agreement, made this ______ day of April, 2007, between NAI/CIR,
hereinafter referred to as “BROKER”, and Tod Shedlosky, hereinafter
referred to as “LESSOR”.
WITNESSETH that said BROKER has produced prospective Lessee for
the Property Situate in the Township of Shippensburg, described as follows
to wit:
NOW, in consideration thereof, LESSOR agrees to pay BROKER a
commission of four (4%) percent of the net lease, due and payable at
commencement of the lease and payment of the first month’s rent with Kazi
Foods of New Jersey, Inc./KFC and/or other Yum Brand Restaurants.
If, during the term hereof, the property is sold, exchanged, or otherwise
transferred to the Lessee, the BROKER shall be entitled to a commission of
N/A (0%) percent.
No commissions due on options exercised by Kazi Foods.
THIS AGREEMENT shall be binding upon the undersigned LESSOR, its
heirs, executors, administrators, successors, and assigns.
THE LESSOR, having carefully read and considered this Agreement,
hereby acknowledges receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, the BROKER
and LESSOR have caused this Agreement to be executed and delivered the
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day and year first written above.
Pl.’s Am. Compl., ¶4.
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One Party Listing Contract—Leases, attached to Plaintiff’s Amended Complaint as Exhibit A. The
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contract does not state the specific date in April on which it was executed.
Pl.’s Am. Compl., Ex. A.
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The contract was signed by Bill Gladstone on behalf of NAI/CIR as Broker.
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Lisa T. Shedlosky was not a signatory to the contract. However, according to Plaintiff’s
amended complaint, Defendant Tod G. Shedlosky, in addition to acting on his own
behalf, was “acting with actual authority, or, in the alternative, with apparent authority
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for his spouse, Defendant . . . Lisa T. Shedlosky” in executing the listing agreement.
Furthermore, Defendant Lisa T. Shedlosky subsequently confirmed her personal
obligation in this regard, by acknowledging the obligation in a document described more
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specifically hereafter.
Kazi Foods of New Jersey, Inc. subsequently entered into a Ground Lease as
Tenant with respect to the Shippensburg Township property with both Defendants, Tod
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G. Shedlosky and Lisa T. Shedlosky, on October 19, 2007. The Ground Lease named
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both Defendants as Landlord. Article Thirty-Seven of the Ground Lease discussed
brokers’ commissions in the following terms:
Landlord and Tenant represent to one another that no broker has been
engaged by either or is entitled to a commission in connection with the
negotiation of this Lease EXCEPT for William M. Gladstone of NAI-CIR,
to whom Landlord has agreed to pay a commission under separate
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agreement.
Pl.’s Am. Compl., Ex. A.
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See Pl.’s Ex. A.
14
Pl.’s Am. Compl., ¶5.
15
Pl.’s Am. Comp., ¶¶10-11 and Ex. C.
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Pl.’s Am. Compl., Ex. B.
17
Pl.’s Am. Compl., Ex. B.
18
Pl.’s Am. Compl., Ex. B, p. 19, Art. 37 (emphasis in original).
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On September 3, 2008, Defendants and Kazi Foods of New Jersey, Inc. executed a
document entitled Lease Addendum No. 1, which established the date that rental
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payments would commence. The document was signed by both Defendants as Landlord
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and by Kazi Foods of New Jersey, Inc. as Tenant.
On September 25, 2008, Defendants and Kazi Foods of New Jersey, Inc., executed
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a document entitled Lease Addendum No. 2. Again, the document was signed by both
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Defendants as Landlord and Kazi Foods of New Jersey, Inc. as Tenant.
On or about May 8, 2009, Plaintiff requested payment of a commission in the
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amount of $69,615.00 from Defendants. Defendants have not paid any amount toward
the requested commission, and Plaintiff now seeks to recover $69,615.00 under theories
of breach of contract and unjust enrichment, plus interest and costs.
DISCUSSION
Demurrers, in general. A preliminary objection to a complaint in the nature of a
demurrer is appropriate where the complaint is legally insufficient to sustain a cause of
action recognized by law. Pa.R.C.P. 1028(a)(4). Preliminary objections in the nature of a
demurrer require the court to resolve the issues solely on the basis of the challenged
pleading; in general, no testimony or other evidence outside of the pleading may be
Pl.’s Am. Compl., Ex. C.
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Pl.’s Am. Compl., Ex. C.
21
Pl.’s Am. Compl., Ex. B, “Lease Addendum No. 2”. The subject matter of Lease Addendum No. 2 is
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irrelevant to the instant dispute.
Pl.’s Am. Compl., Ex. B, “Lease Addendum No. 2.”
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Pl.’s Am. Compl., Ex. D.
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considered to dispose of the legal issues presented by the demurrer. Cooper v. Church of
St. Benedict, 2008 PA Super 171, ¶2, 954 A.2d 1216, 1218 (2008), citing Hess v. Fox
Rothschild, LLP, 2007 PA Super 133, ¶18, 925 A.2d 798, 805 (2007) appeal denied 596
Pa. 733, 945 A.2d 771 (2008).
When considering a demurrer to a complaint, the court must accept all material
facts set forth in the complaint, as well as all inferences reasonably deducible therefrom,
as admitted and true and decide whether, based on the facts averred, recovery is
impossible as a matter of law. Wagner v. Waitlevertch, 2001 PA Super 100, ¶6, 774 A.2d
1247, 1250 (2001), citing Wiernik v. PHH US Mortg. Corp., 1999 PA Super 193, 736
A.2d 616 (1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). The demurrer should
be sustained only if, after the averments of the complaint are assumed to be true, the
plaintiff has failed to assert a legally cognizable cause of action and, therefore, cannot
11,
prevail. Lerner v. Lerner, 2008 PA Super 183, ¶954 A.2d 1229, 1234 (2008), citing
Kramer v. Dunn, 2000 PA Super 101, ¶18, 749 A.2d 984, 990.
Liability of Defendant Lisa T. Shedlosky under Principles of Agency. Plaintiff’s
amended complaint purports to state claims against Defendants Tod G. Shedlosky and
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Lisa T. Shedlosky for breach of contract and unjust enrichment. Defendants’ first
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preliminary objection is a demurrer to both counts relating to Lisa T. Shedlosky.
See Pl.’s Am. Compl., Count I, ¶¶14-17.
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See Pl.’s Am. Compl., Count II, ¶¶18-25.
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Defs.’ Prelim. Objections to Pl.’s Am. Compl., ¶¶7-22.
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Defendants argue that Lisa T. Shedlosky is not a signatory to the Listing Contract, and
therefore cannot be obligated to Plaintiff on the contract or on a theory that she was
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unjustly enriched by Plaintiff’s undertaking pursuant to it.
A person may be bound on a contract even if he or she did not actually sign the
document, under principles of agency. One who asserts an agency relationship bears the
burden of proof on the issue. Moyer v. Norristown-Penn Trust Co., 296 Pa. 26, 29, 145
A.2d 682, 683 (1929). An agency relationship, under which a principal is bound by the
act of the agent, may exist on the basis of one or more of four grounds: (1) express
authority directly granted by the principal to bind the principal as to certain matters; (2)
implied authority to bind the principal to those acts of the agent that are necessary, proper
and usual in the exercise of the agent’s express authority; (3) apparent authority; and (4)
agency by estoppel. Sullivan v. Ski Liberty Operating Corp., 40 Pa. D. & C.4th 358, 361,
1999 WL 715183 (C.C.P. Adams 1999), citing Bolus v. United Penn Bank, 363 Pa.
Super. 247, 259, 525 A.2d 1215, 1221 (1987), appeal denied, 518 Pa. 627, 541 A.2d
1138 (1988), citing Joyner v. Harleysville Insurance Co., 393 Pa. Super. 386, 574 A.2d
664 (1990), appeal denied 527 Pa. 587, 588 A.2d 570 (1990); Bolus, supra. Apparent
authority exists where the principal, by words or conduct, leads people with whom the
alleged agent deals to believe that the principal has granted the agent authority that he or
she purports to exercise. Turney Hydraulics, Inc. v. Susquehanna Const. Corp., 414 Pa.
Defs.’ Prelim. Objections to Pl.’s Am. Compl., ¶¶9-11.
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Defs.’ Prelim. Objections to Pl.’s Am. Compl., ¶¶12-22.
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Super. 130, 135, 606 A.2d 532, 534 (1992). The nature and extent of an agent’s authority
is a question of fact. Id. at 136, 606 A.2d at 534.
In the present case, Plaintiff’s amended complaint alleges, as facts, (a) that
Defendant Lisa T. Shedlosky was a co-owner with Defendant Tod G. Shedlosky of the
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property as to which the listing agreement sub judice pertained, (b) that Defendant Tod
G. Shedlosky was acting as her agent, actual or apparent, when he executed the listing
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agreement, and (c) that she subsequently executed a document acknowledging that she
was obligated to pay Plaintiff a broker’s commission in connection with the lease of the
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property.
Given these allegations, the court is of the view that it would be premature to
conclude at this stage of the case that no recovery is possible against Defendant Lisa T.
Shedlosky in favor of Plaintiff, due to the absence of her signature on the listing
agreement
Liability of Defendants As Affected by RELRA. Defendants’ second preliminary
objection is based on Plaintiff’s purported violations of the Real Estate Licensing and
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Registration Act, in terms of the content of the listing agreement. 63 P.S. §455.101 et.
seq. (hereinafter “RELRA”). RELRA establishes specific standards of conduct, which
Pl.’s Am. Compl. ¶3.
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Pl.’s Am. Compl. ¶¶5, 11; Pl.’s Resp. to Defs.’ Prelim. Objections, ¶¶9-14.
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Pl.’s Am. Compl. ¶11; Pl.’s Resp. to Defs.’ Prelim. Objections, ¶29.
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Defs.’ Prelim. Objections to Pl.’s Am. Compl., ¶¶25-32.
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pertain to all licensees engaged in the sale or transfer of any interest in real property
within the Commonwealth of Pennsylvania. Myer v. Gwynedd Development Group, 2000
PA Super 193, ¶7, 756 A.2d 67, 69 (2000). RELRA states:
3536
A licensee may not perform a service for a consumer of real estate
services for a fee, commission or other valuable consideration paid by or on
behalf of the consumer unless the nature of the service and the fee to be
charged are set forth in a written agreement between the broker and the
consumer that is signed by the consumer. This paragraph shall not prohibit
a licensee from performing services before such an agreement is signed, but
the licensee is not entitled to recover a fee, commission or other valuable
consideration in the absence of such a signed agreement.
63 P.S. §455.606a(14)(b)(1). RELRA further specifies certain information that is to be
disclosed by the licensee. 63 P.S. §455. 608(a). This information includes:
(1) A statement that the broker's fee and the duration of the contract have
been determined as a result of negotiations between the broker and the
seller/landlord or buyer/tenant.
(2) A statement describing the nature and extent of the broker's services to
be provided to the seller/landlord or buyer/tenant and the fees that will be
charged.
(3) A statement identifying any possibility that the broker, or any licensee
employed by the broker, may provide services to more than one consumer
in a single transaction and if so, an explanation of the duties that may be
owed the other party and whether the broker may accept a fee for those
services.
(4) In an agreement between a broker and seller, a statement of the broker's
policies regarding cooperation with subagents and buyer agents, a
See 63 P.S. §455.201. “‘Real Estate’ includes any interest or estate in land . . . including leasehold
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interest and time share and similarly designated interests.”
“Licensee” is defined as “[a] person who holds a standard license or a reciprocal license.” 63 P.S. §
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455.201.
“Consumer” is defined as “[a] person who is the recipient of any real estate service.” 63 P.S. §
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455.201.
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disclosure that a buyer agent, even if compensated by the broker or seller
will represent the interests of the buyer and a disclosure of any potential for
the broker to act as a disclosed dual agent.
(5) In an agreement between a broker and a buyer, a statement identifying
any possibility that the broker's compensation may be based upon a
percentage of the purchase price, a disclosure of the broker's policies
regarding cooperation with listing brokers willing to pay buyer's brokers, a
disclosure that the broker, even if compensated by the listing broker or
seller, will represent the interests of the buyer and disclosure of any
potential for the buyer broker to act as a disclosed dual agent.
(6) A statement describing the purpose of the Real Estate Recovery Fund
established under section 801 and the telephone number of the commission
at which the seller can receive further information about the fund.
(7) A statement regarding any possible conflicts of interest and informing
the consumer of the licensee's continuing duty to timely disclose any
conflicts of interest.
63 P.S. §455.608a.
Pennsylvania courts have indicated that “a [principal] purpose of [RELRA] is to
protect buyers and sellers of real estate, the most expensive item many persons ever buy
or sell, from abuse by persons engaged in the business.” Coldwell Banker Commer.
Diamond Realtors v. Dreslin, 2006 Pa. D. & C. LEXIS 31 (C.C.P. Mont. 2006), aff’d
without opinion by, 2006 PA Super LEXIS 3733, 915 A.2d 137 (2006), citing Meyer v.
Gwynedd Dev. Group, Inc., 2000 PA Super 193, ¶6, 756 A.2d 67, 69 (2000), citing
Kalins v. Com., State Real Estate Com’n., 92 Pa. Commw. 569, 500 A.2d 200 (1985).
The act is applicable to one who negotiates or provides a leasehold interest to another.
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See Meyer, 2000 PA Super at ¶13, 756 A.2d at 71-72; see also 63 P.S. §455.201.
“Broker” is defined by the act as “any person who, for another and for a fee, commission, or other
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valuable consideration: (1) negotiates with or aids any person in locating or obtaining for
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Defendants argue that the listing agreement sub judice “fails to include any of the
language required” in subparagraphs (1), (2), (3), (6) and (7) of the above-quoted section
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of RELRA. In this regard, Pennsylvania courts have indicated that a signed, written
agreement disclosing the broker’s fee, duration of the contract, and the nature of the
broker’s services is a necessary prerequisite to the collection of the broker’s commission
for the transaction. See Coldwell Banker, 2006 Pa. D. & C. Lexis 31.
In the present case, although the listing agreement does not utilize the language of
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the statute verbatim, the broker’s fee, duration of the contract, and nature of the
broker’s services are set forth. It would be premature to assume on the basis of Plaintiff’s
complaint that at the time of the agreement the broker had reason to believe that it was
going to be providing services to more than one consumer or that a conflict of interest
existed in connection with the transaction, which had to be disclosed. Finally, the
materiality of the omission from the agreement of information as to the Real Estate
Recovery Fund is far from clear at this stage of the proceeding, particularly where it is
alleged that Defendant Tod G. Shedlosky was himself a licensed real estate agent.
purchase, lease or acquisition of interest in any real estate; (2) negotiates the listing, sale,
purchase, exchange, lease, financing or option for any real estate; (3) manages or appraises any
real estate; (4) represents himself as a real estate consultant, counselor [sic], house finder; (5)
undertakes to promote the sale, exchange, purchase or rental of real estate: provided however,
that this provision shall not include any person whose main business is that of advertising,
promotion or public relations; or (6) attempts to perform any of the above acts.” 63 P.S §455.201
Defs.’ Prelim. Objections to Pl.’s Am. Compl., ¶30.
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Where the listing agreement, as here, states that the lessee has already been procured by the
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broker, the “term” of the agreement in the classic sense is not operative. To the extent that
“term” applies to the period when the lessee is to pay the broker, the agreement is clear that it
begins and ends when the lease commences and the first month’s rent is paid.
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For the foregoing reasons, Defendants’ preliminary objection in the nature of a
demurrer to Plaintiff’s claims on the theory that the listing agreement was fatally
defective under the Real Estate Licensing and Registration Act will be denied.
Viability of Claim for Unjust Enrichment. Count II of Plaintiff’s amended
complaint purports to state a claim for unjust enrichment predicated on the allegations
recited at the beginning of this opinion. Defendants seek dismissal of this count due to the
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existence of a signed, written agreement in the form of the listing agreement.
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The general rule that a plaintiff may plead in the alternative has been recognized
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with respect to claims for breach of contract and unjust enrichment. However, there are
some instances where a plaintiff’s case is so clearly based on a contract theory that a
demurrer will be sustained to an alternative count for unjust enrichment. See, e.g.,
Hudson & Keyse, LLC v. Patlatyuk, No. 08-5886 Civil Term (Cumberland Co.
September 3, 209)(Hess, J.) (action by assignee of credit card company against credit
card holder for debt).
In this regard, a claim for unjust enrichment is ultimately not sustainable where the
relationship between the parties is founded on a written agreement. Blackburn v. Mixter,
2004 WL 3310130 (C.C.P. Allegheny 2004), citing Mitchell v. Moore, 72 A.2d 1200,
1203 (Pa. Super. 1999) (relief on theory of unjust enrichment held not appropriate where
Defs.’ Prelim. Objections to Pl.’s Am. Compl., ¶36-38.
40
Pa. R.C.P. 1020 (c).
41
JK Roller Architects, LLC v. Tower Invs., Inc., 2003 WL 1848101 (C.C.P. Phila. 2003), citing
42
Birchwood Lakes Community Ass’n, Inc. v. Comis., 296 Pa. Super. 77, 85, 442 A.2d 304, 308 (1980).
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“written or express contract between parties exists”). In general, the essence of the
doctrine of unjust enrichment is that there is no direct relationship between the parties.
Gee v. Eberle, 279 Pa. Super. 101, 119, 420 A.2d 1050, 1060 (1980). If there is a
relationship in the form of a promise to, or for the benefit of, the plaintiff, he or she has a
right to recover on the promise, and the existence of that right is not consistent with
pursuit of a claim for unjust enrichment. Id.
In Summit Management Co. v. Tow Path Valley Business Park Development Co.,
the Lehigh County Court of Common Pleas noted that RELRA “precludes a real estate
broker from recovering any fee, commission or other consideration for brokerage services
in the absence of a written agreement or a written memorandum stating the terms of the
agreement.” 2006 Pa. D. & C. Dec. LEXIS 192, *12-13 (C.C.P. Lehigh 2006) (holding
where complaint alleges express agreement under RELRA recovery on theory of unjust
enrichment not possible, since expectation of commission payment rests on parties’
43
express agreement).
In the present case, Plaintiff’s claim against Defendants is not only clearly based
upon a written agreement, but is statutorily precluded from being otherwise based. Under
these unique circumstances, the court will grant Defendants’ demurrer to Plaintiff’s claim
for unjust enrichment.
The case of Barlow v. Sutphen, 8 D. & C.4 421 (C.C.P. Adams 1990), does not, in the court’s view,
43th
support Plaintiff’s position that a claim for breach of a contract governed by RELRA and a claim
for unjust enrichment may be pled in the alternative, inasmuch as the court in Barlow was not
able to conclude on the basis of the complaint whether plaintiff’s transaction with defendant was
encompassed by the act. See id. at 424.
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For the foregoing reasons, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 17 day of November, 2009, upon consideration of Defendants’
Preliminary Objections to Plaintiff’s Amended Complaint, and for the reasons stated in
the accompanying opinion, it is ordered and directed as follows:
1. Defendants’ demurrer to Plaintiff’s claim for unjust enrichment is
sustained, and Count II of Plaintiff’s amended complaint is dismissed; and
2. Defendants’ preliminary objections are otherwise denied.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Jason A. Copley, Esq.
Michael L. Solomon, Esq.
th
7 Floor
240 North Third Street
Harrisburg, PA 17101
Attorneys for Plaintiff
Stephen C. Nudel, Esq.
Bret Keisling, Esq.
219 Pine Street
Harrisburg, PA 17101
Attorneys for Defendants
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COMMERCIAL/INDUSTRIAL : IN THE COURT OF COMMON PLEAS OF
REALTY COMPANY d/b/a : CUMBERLAND COUNTY, PENNSYLVANIA
NAI/CIR, :
Plaintiff :
:
v. : CIVIL ACTION – LAW
:
TOD G. SHEDLOSKY and :
LISA T. SHEDLOSKY, :
Defendants : NO. 09-3189 CIVIL TERM
IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS
TO PLAINTIFF’S AMENDED COMPLAINT
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 17 day of November, 2009, upon consideration of Defendants’
Preliminary Objections to Plaintiff’s Amended Complaint, and for the reasons stated in
the accompanying opinion, it is ordered and directed as follows:
1. Defendants’ demurrer to Plaintiff’s claim for unjust enrichment is
sustained, and Count II of Plaintiff’s amended complaint is dismissed; and
2. Defendants’ preliminary objections are otherwise denied.
BY THE COURT,
________________
J. Wesley Oler, Jr., J.
17
Jason A. Copley, Esq.
Michael L. Solomon, Esq.
th
7 Floor
240 North Third Street
Harrisburg, PA 17101
Attorneys for Plaintiff
Stephen C. Nudel, Esq.
Bret Keisling, Esq.
219 Pine Street
Harrisburg, PA 17101
Attorneys for Defendants