Schoenholtz D. & M. v. Half Moon Land Co., LLC



    SHOENHOLTZ                                 :        PENNSYLVANIA
                v.                             :
    HALF MOON LAND COMPANY, LLC                :
                                               :   No. 242 MDA 2020
                       Appellant               :

              Appeal from the Judgment Entered January 6, 2020
     In the Court of Common Pleas of Centre County Civil Division at No(s):


MEMORANDUM BY BENDER, P.J.E.:                       FILED DECEMBER 30, 2020

       Half Moon Land Company, LLC (“Half Moon”) appeals from the judgment

entered on January 6, 2020,1 in favor of Appellees, David Schoenholtz and

Marya Schoenholtz (collectively “the Schoenholtzes”), after the trial court

denied the parties’ cross motions for post-trial relief. After careful review, we



1  Half Moon purports to appeal from the order dated December 11, 2019,
denying the parties’ cross-motions for post-trial relief; however, an appeal
properly lies from the entry of judgment following the trial court’s disposition
of post-trial motions. See Fanning v. Davne, 795 A.2d 388 (Pa. Super.
2002). Although Half Moon erroneously appealed from the order denying
post-trial relief, judgment was subsequently entered on January 6, 2020, and
its notice of appeal relates forward to that date. See Pa.R.A.P. 905(a)(5).
Hence, no jurisdictional defects impede our review.

        This matter stems from an agreement to purchase land that never came

to fruition. The Schoenholtzes initiated a breach of contract and unjust

enrichment action against Half Moon on April 27, 2015,2 in which they sought

the return of their $20,400 escrow deposit, plus pre-judgment interest. On

October 7, 2016, Half Moon filed an answer with new matter and a

counterclaim, also asserting breach of contract and unjust enrichment. The

Schoenholtzes filed a reply to Half Moon’s new matter and counterclaim,

wherein they raised the statute of limitations defense to Half Moon’s breach

of contract counterclaim.

        Testimony was heard at a non-jury trial on April 12, 2019, after which

the trial court issued the following findings of fact:

        1. [The Schoenholtzes] own several restaurants in Centre County,
           Pennsylvania[,] and are residents of Half Moon Township,
           Centre County[,] Pennsylvania.

        2. [Half Moon] is a limited liability company organized under the
           laws of the Commonwealth of Pennsylvania.

        3. [Half Moon’s] managing member is Mark Maloney, a resident
           of Centre County, Pennsylvania.

        4. [The Schoenholtzes] knew Mr. Maloney as a customer at one
           of their restaurants and had conversations with him about their
           desire to purchase land to build a home. Mr. Maloney informed
           [them] about land he was developing (later referred to as “the
           Farm”) in Half Moon Township. These conversations occurred
           in early 2011.

        5. [The Schoenholtzes] and [Half Moon] initially executed a
           standard agreement for the sale of vacant land (“Agreement of
           Sale”) on December 14, 2011.


2   The complaint was reinstated by agreement of counsel on June 16, 2016.


     6. In the Agreement of Sale, [the Schoenholtzes] agreed to
        purchase 5.465 acres of land identified as Property Code #17-
        2-4A (the “Property” or “Lot 3”) for $204,000.

     7. The Property is located in Half Moon Township, Centre County,

     8. As consideration for the Agreement of Sale, [the
        Schoenholtzes] gave [Half Moon] a $20,400 deposit via check
        on December 14, 2011.

     9. [The Schoenholtzes’] deposit was placed into an operating
        account held by [Half Moon].

   10. On December 23, 2011, the parties entered into an Article of
       Agreement, which supplanted the Agreement of Sale, with a
       closing date on or before March 15, 2012.

   11. The Article of Agreement incorporated the $20,400 deposit
       previously paid by [the Schoenholtzes], and that deposit
       served as consideration for the agreement.

   12. The parties agree the deposit was to be deposited into an
       escrow account.

   13. Mr. Maloney signed the Article           of   Agreement    as   a
       representative of [Half Moon].

   14. Paragraph Four of the Article of Agreement calls for the
       execution of a special warranty deed to be delivered on the
       date of possession (listed as December 30, 2011 in Paragraph
       Two of the Article of Agreement) to Greg Copenhaver, an agent
       with RE/MAX Centre Realty of State College [(“RE/MAX”)].

   15. Mr. Copenhaver acted as a real estate agent for the sale of
       many of the lots located on the Farm.

   16. Mr. Copenhaver was asked to write the Agreement of Sale for
       Lot 3 by Mr. Maloney.

   17. Mr. Copenhaver did not receive a deed nor did he escrow a
       deed as was required by Paragraph Four of the Article of

   18. In February 2012, [the Schoenholtzes] commenced discussions
       with Mr. Maloney about replotting Lot 3 to possibly extend it to
       ten (10) acres, with the intention of splitting the lot with their
       friends[,] the Krauses.


   19. The parties never entered into an agreement of sale for the
       replotted land.

   20. Neither party sought to close on Lot 3, pursuant to the Article
       of Agreement, on March 15, 2012.

   21. PennTerra Engineering, Inc. ([“]PennTerra[”]) was hired by
       [Half Moon] to replot the lot, and began that process in April

   22. PennTerra worked to replot Lot 3 from April 2012 to January

   23. On February 12, 2013[,] Mr. Maloney sent an email to [the
       Schoenholtzes] with a letter attached informing them Lot 3,
       with its new dimensions, was approved for sewage disposal
       permits to be issued. The letter was sent from Robert W.
       Everett III, a sewage planning specialist with the Pennsylvania
       Department of Environmental Protection.

   24. In June 2013, [Half Moon] asserts [it] informed [the
       Schoenholtzes] Lot 3 was replotted.      [Mrs.] Schoenholtz
       testified she and her husband were never informed Lot 3 had
       officially been replotted.

   25. After it was replotted, Lot 3 became a 10.256 acre lot.

   26. There is some discrepancy as to the new purchase price of Lot
       3.   [Mrs.] Schoenholtz testified the Property was to be
       approximately $320,000[,] which she and her husband were
       going to split with the Krauses. [Half Moon] avers the agreed
       upon price was $316,506.74.

   27. Sometime in 2013, Mr. Maloney presented [the Schoenholtzes]
       with a Termination of Article of Agreement to terminate the
       Article of Agreement entered into by the parties on December
       23, 2011.

   28. The Termination of Article of Agreement addressed the cost of
       the replot and how the cost[] would be distributed between the

   29. [The Schoenholtzes’] attorney had legal concerns about the
       terms of the Termination of Article of Agreement and neither
       [the Schoenholtzes] nor [Half Moon] signed it.


     30. On May 30, 2014, … [Mr.] Schoenholtz informed Mr. Maloney,
         through email, that he and his wife no longer wished to
         purchase the land, and requested the return of their deposit.

     31. In the email[,] … [Mr.] Schoenholtz stated it had been a while
         since he and his wife had spoken with Mr. Maloney about the

     32. [The Schoenholtzes] hired a realtor in May 2014.

     33. [The Schoenholtzes] purchased their current house in July

Trial Court Opinion (“TCO I”), 8/7/19, at 2-4 (unnecessary capitalization


       On August 7, 2019, the trial court issued an order, finding in favor of

the Schoenholtzes on their breach of contract claim and in favor of Half Moon

on their unjust enrichment claim. Additionally, the trial court held that Half

Moon’s counterclaim, to the extent it alleged breach of the Article of

Agreement, was time-barred by the statute of limitations,3 and denied its

unjust enrichment counterclaim. However, the trial court found partially in

favor of Half Moon to the extent its counterclaim alleged breach of an oral

agreement pertaining to the replotting of Lot 3. Accordingly, the trial court

awarded the Schoenholtzes their escrow deposit of $20,400.00, plus pre-

judgment interest, and awarded Half Moon $8,996.27, representing half of the

replotting costs. Both parties filed motions for post-trial relief, which were


3 The statute of limitations on breach of contract actions is four years. Half
Moon alleges that the Schoenholtzes breached the Article of Agreement by not
closing on the home on December 30, 2011; however, it did not file its
amended counterclaim until November 14, 2016. See TCO I at 9; 42 Pa.C.S.
§ 5525.


denied by the trial court on December 11, 2019.        On January 6, 2020,

judgment was entered in accordance with the August 7, 2019 verdict.

      On February 5, 2020, Half Moon filed a timely notice of appeal, followed

by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.    Half Moon presents the following issues for our

review, which we address out of order for ease of disposition:

      1. Whether the trial court erroneously concluded, by employing
         the wrong legal standard and conclusions that were
         unsupported by any factual findings, that [Half Moon] failed to
         establish its right to damages associated with reselling real
         property after [the Schoenholtzes] agreed, but then refused to
         purchase that property?

      2. Whether the trial court erroneously concluded that unjust
         enrichment did not apply to the purchase of real property,
         because [the Schoenholtzes] had not physically taken
         possession of the property despite having agreed to purchase
         the property?

      3. Whether the trial court erroneously concluded that [the
         Schoenholtzes] proved their right to the return of a $20,400
         agreement of sale deposit, when finding at the same time that
         [the Schoenholtzes], not [Half Moon], failed to consummate
         the purchase transaction and thereby breached the

Half Moon’s Brief at 6.

      To begin, we note our standard of review from the denial of a request

for judgment notwithstanding the verdict (“JNOV”):

      Appellate review of a denial of JNOV is quite narrow. We may
      reverse only in the event the trial court abused its discretion or
      committed an error of law that controlled the outcome of the case.
      Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984
      (Pa. Super. 2005) (citations and quotations omitted). “Abuse of
      discretion occurs if the trial court renders a judgment that is
      manifestly unreasonable, arbitrary or capricious; that fails to


      apply the law; or that is motivated by partiality, prejudice, bias or
      ill-will.” Id.

         When reviewing an appeal from the denial of a request for
         JNOV, the appellate court must view the evidence in the
         light most favorable to the verdict-winner and give him or
         her the benefit of every reasonable inference arising
         therefrom while rejecting all unfavorable testimony and
         inferences…. Thus, the grant of [JNOV] should only be
         entered in a clear case and any doubts must be resolved in
         favor of the verdict-winner. Furthermore, it is only when
         either the movant is entitled to judgment as a matter of law
         or the evidence was such that no two reasonable minds
         could disagree that the outcome should have been rendered
         in favor of the movant that an appellate court may vacate a
         jury’s finding.

      Hutchison ex rel. Hutchison v. Luddy, 896 A.2d 1260, 1265
      (Pa. Super. 2006) (citations and quotations omitted).

Empire Trucking Co., Inc. v. Reading Anthracite Coal Co., 71 A.3d 923,

932 (Pa. Super. 2013) (quoting Thomas Jefferson Univ. v. Wapner, 903

A.2d 565, 569 (Pa. Super. 2006) (internal brackets omitted)).

      Here, Half Moon argues that he is entitled to JNOV, as the trial court

erred in finding in favor of the Schoenholtzes on their breach of contract claim

and in awarding them the return of their $20,400 deposit, plus interest. Half

Moon’s Brief at 17-18. Half Moon denies the Schoenholtzes’ assertion that it

refused to convey the Property to them, in violation of the terms of the Article

of Agreement. To the contrary, Half Moon asserts that the parties agreed to

replot Lot 3, which amounted to an oral modification of the original contract,

and that it held the Property for the Schoenholtzes, as required by the Article

of Agreement, between the time the contract was executed in December of

2011, and May 30, 2014, when the Schoenholtzes “reneged on this


transaction.”     Id. at 34.     Half Moon avers that it rightfully withheld the

Schoenholtzes’ deposit “when [they] failed to consummate the transaction.”

Id. at 32. Additionally, Half Moon argues that the Schoenholtzes breached an

oral contract to purchase the reconfigured Lot 3, and it seeks recovery for the

lost value associated with the subsequent sale of the land.4

       At the crux of Half Moon’s claims is its assertion that the trial court erred

in finding that the original Article of Agreement was “terminated by the

parties[,]” and in determining that no valid, oral agreement for the purchase

of the replotted land existed. See TCO I at 9, 11. Half Moon argues that the

trial court applied the wrong standard in reaching its decision. Rather than

examining the record for the establishment of an independent, oral agreement

to purchase real estate, it claims that the trial court should have considered

the parties’ actions to be a mere modification of an existing, written

agreement. Half Moon’s Brief at 16-18. Half Moon notes that this distinction

is relevant because “the standard for establishing an oral modification to a

preexisting, written agreement is different than the standard for establishing

a standalone oral agreement for the purchase of real property.” Id. at 20.


4 Half Moon avers that the parties had agreed that the Schoenholtzes would
purchase the replotted Lot 3 for $316,506.74, but that after they reneged on
the arrangement, it was only able to sell the property for $270,000. Excluding
carrying costs, Half Moon alleges that it lost $71,506.74 as a result of the
Schoenholtzes’ opting to not purchase the Property. Id. at 14-15.


       Subject to limited exception, the statute of frauds prohibits the

enforcement of an oral agreement for the sale of real property. Id. (citing 33

P.S. § 1).5 Whereas, Half Moon suggests that an oral modification to a written

real estate agreement “may be shown by writings or by words or by conduct

or by all three.” Id. (quoting Bonczek v. Pascoe Equipment Co., 450 A.2d

75, 77 (Pa. Super. 1982) (internal citations omitted)).6    Half Moon further

avers that “[a]n agreement may be modified with the assent of both

contracting parties if the modification is supported by consideration.” Id. at


5 Our Supreme Court recognized an exception to the statute of frauds in
Kurland v. Stolker, 533 A.2d 1370 (Pa. 1987), where it held that a party
may enforce an oral agreement for the purchase of real property by
establishing the following:

       The terms of the contract must be shown by full, complete, and
       satisfactory proof. The evidence must define the boundaries and
       indicate the quantity of the land. It must fix the amount of the
       consideration. It must establish the fact that possession was
       taken in pursuance of the contract, and, at or immediately after
       the time it was made, the fact that the change of possession was
       notorious, and the fact that it has been exclusive, continuous and
       maintained. And it must show performance or part performance
       by the vendee which could not be compensated in damages, and
       such as would make rescission inequitable and unjust.

Id. at 1373 (citations omitted). A claimant seeking to prove the existence of
such an agreement has the burden of presenting “full, complete, satisfactory
and indubitable proof.” Id. “The ‘indubitable proof’ a claimant is required to
proffer is evidence that should not only be found credible, but of such weight
and directness as to make out the facts alleged beyond a doubt.” Id. (internal
citation omitted).

6 Half Moon’s reliance on Bonczek is misplaced, as Bonczek involves a
contract for a lease agreement, not a contract for the purchase of real estate.


19 (quoting Wilcox v. Regester, 207 A.2d 817, 821 (Pa. 1965) (citing

Pellegrene v. Luter, 169 A.2d 298, 299 (Pa. 1961); Stoner v. Sley System

Garages, 46 A.2d 172, 173 (Pa. 1946))).7

       Preliminarily, we must address a fundamental flaw in Half Moon’s

argument. The law is clear that “when a contract is required by the statute of

frauds to be in writing[,] its terms cannot be orally modified[.]” Brown v.

Aiken, 198 A. 441, 447 (Pa. 1938). “The modification of a contract is subject

to the same test to determine validity as is the original contract.” Id. at 448

(citing Williston on Contracts, 1936, vol. 2, p. 1709, § 594). Our Supreme

Court further explained that “where a written agreement is varied by oral

testimony, the whole contract in legal contemplation becomes parol.” Id. at

447. Thus, when a party to a written agreement for the sale of land converts

the writing into an oral agreement, the statute of fraud declares it to be void.

Id. “The statute is not a mere rule of evidence but a limitation of judicial

authority to afford a remedy.” Id.

       We have recognized an exception to the rule that parties generally may

not alter by parol the terms of an agreement required by the statute to be in

7  Again, the cases cited by Half Moon are distinguishable, as none of them
arises from contracts for the purchase of real estate. See Half Moon’s Brief
at 19 (citing Wilcox, 207 A.2d at 821 (involving an agreement to sell a liquor
license); Pellegrene, 169 A.2d at 299 (arising from an oral contract for the
construction of a house); Stoner, 46 A.2d at 173 (based on a written lease
agreement)). Moreover, Half Moon fails to mention the requirement that the
oral agreement must be proven “by evidence which is clear, precise and
convincing,” Pellegrene, 169 A.2d at 299, nor does it state the exception to
the allowance of an oral modification where the modification conflicts with the
law or public policy. Id. at 299 n.2.

                                          - 10 -

writing. Hostetter v. Hoover, 547 A.2d 1247, 1250 (Pa. Super. 1988) (citing

Brown, 198 A. at 441).

      [O]ral modifications of a contract required by the statute of frauds
      to be in writing[,] which relate to the manner of performance[,]
      do not change the character of the written agreement and are
      enforceable. Thus, a modification as to the time of settlement for
      a contract for the sale of real estate does not result in a new and
      substituted agreement and does not reduce the written contract
      to one in parol.

Id. (internal quotation marks and citation omitted).      This exception is not

applicable in the instant matter, however, as the alleged modifications affect

much more than the manner of performance, i.e., the closing date. Here, Half

Moon alleges modification of fundamental terms of the Article of Agreement,

such as the size, location, and description of the land itself, as well as the

purchase price, all of which clearly relate to the character of the agreement.

Based on the foregoing, we uphold the trial court’s determination that the

original Article of Agreement was not orally modified by the parties.

      Having determined that the parties’ discussions regarding the replotting

of Lot 3 did not constitute a valid modification of the original contract, we

discern that the trial court properly reviewed the parties’ negotiations to

determine whether a separate, valid, oral contract was entered into for the

purchase of the reconfigured Lot 3. The trial court opined:

            In order for a party to succeed on a breach of contract claim,
      a contract must exist, there must have been a breach of the
      contract, and the breach must have resulted in damages. 412
      North Front Street Associates, LP[ v. Spector Gadon &
      Rosen, P.C., 151 A.3d 646, 657 (Pa. Super. 2016)]. “Where the
      existence of an informal contract is alleged, ‘it is essential to the
      enforcement of such an informal contract that the minds of the

                                     - 11 -

     parties should meet on all the terms as well as the subject matter.
     If anything is left open for future [negotiation], the informal paper
     cannot form the basis of a binding contract.’” GMH Associates,
     Inc.[ v. Prudential Realty Group], 752 A.2d [889,] 900 [(Pa.
     Super. 2000)] (quoting Isenbergh v. Fleisher, 145 A.3d [903,]
     907 [(Pa. Super. 1958)]). The first element of a general contract
     is the existence of an offer or promise that is definite and certain
     in its terms. GMH Associates, Inc., supra at 899. A valid
     contract for the sale of land must also include the name of the
     parties, the property, and the consideration or purchase price.
     [Id.] Generally, a contract for the sale of land must be in writing
     to satisfy the [s]tatute of [f]rauds. Firetree, Ltd. v. Department
     of General Services, 978 A.2d 1067, 1074 (Pa. [Cmwlth]. Ct.
     2009). Our Supreme Court has acknowledged an oral contract for
     the sale of land under certain circumstances…. [See Kurland,
     533 A.3d at 1370.]

            Here, [the Shoenholtzes] approached Mr. Maloney
     regarding replotting Lot 3 approximately one month before the
     closing date within the Article of Agreement. Before the discussion
     to reconfigure the Lot, [the Schoenholtzes] were working with
     First National Bank to finalize the details to close on the Property.
     There was not a signed agreement for the sale of the newly
     replotted Lot 3, but [the Schoenholtzes] submitted into evidence
     a Termination of Article of Agreement from 2013[,] which
     documented the newly defined acreage of Lot 3 and how the
     replotting costs would be split. This agreement was prepared by
     [Half Moon’s] legal counsel but was never signed by the parties
     due to concerns [the Schoenholtzes’] attorney had with the
     contract terms. Despite [the Shoenholtzes’] definite offer to have
     Lot 3 replotted, and [Half Moon’s] acceptance of that offer through
     performance, there was not definitive evidence submitted to this
     [c]ourt that indicates the amount of consideration and the
     purchase price of the land were fixed by the parties.

            [Mrs.] Schoenholtz testified at trial that she discussed
     splitting an approximately $320,000 purchase price for Lot 3 with
     [their friends,] the Krauses. [Half Moon] avers the purchase price
     of the land was approximately $316,000. The Termination of
     Article of Agreement did not list a proposed price for the land. The
     purchase price is an essential element to a contract for the sale of
     real property. GMH Associates, Inc., supra. Because the
     record reflects the parties were still negotiating the price of the
     Property, this [c]ourt finds a valid oral contract for the sale of the
     reconfigured Lot 3 did not exist between the parties. Thus, [Half

                                    - 12 -

      Moon’s] claim for lost value on the property must fail as it relied
      on the validity of the oral contract and was calculated based on a
      proposed purchase price and not a finalized purchase price for the
      sale of the Property.

TCO I at 10-11.

      Half Moon objects to the trial court’s finding that the parties were still in

the process of negotiating a price for the purchase of replotted Lot 3. In fact,

Half Moon suggests that “[n]o portion of the record … even arguably supports

that conclusion.” Half Moon’s Brief at 24. Rather, Half Moon avers that the

record reflects a clear meeting of the minds regarding purchase price. Id. at

25-26.      In response to Half Moon’s argument, the trial court clarified its


      [The Schoenholtzes] admitted two unsigned agreements. The
      []Termination    of    Article  of    Agreement[]    (“Termination
      Agreement”) was to end [the Schoenholtzes’] association with
      [Half Moon] and provided that [their] $20,400 deposit was to be
      transferred, in escrow, to Green Acres One, LLC (“Green Acres”).
      Green Acres is a company owned by [Mr.] Maloney’s … father,
      mother, and acquaintance, Myles Diamond.           An [a]rticle of
      [a]greement between Green Acres and [the Schoenholtzes (the
      “Green Acres Agreement”)] was drafted for the newly replotted
      land. The [Green Acres] Agreement set the purchase price of the
      land at $321,297…. On cross-examination, [Half Moon’s] counsel
      … asked [Mrs.] Schoenholtz if she agreed there was a purchase
      discussed between her and Mr. Maloney about the new replotted
      lot. [She] asked if [he] was asking about the purchase price of
      the replot. [He] … replied, “Yes.” [Mrs.] Schoenholtz replied that
      the purchase price was arrived at between [herself and her
      husband,] … and the Krauses…. [She] then reiterated that was
      how the purchase price was established for the replot. [Counsel]
      then asked [Mrs.] Schoenholtz what the purchase price of the
      replotted lot was going to be. [Mrs.] Schoenholtz replied she
      believed it was around $320,000. It was from this exchange that
      the [c]ourt reached the conclusion that the parties had not agreed
      upon the final price of the Property.

                                      - 13 -

             The [c]ourt stands on its decision and analysis…. Upon
      review of the record, [Mrs.] Schoenholtz was likely referring to the
      unsigned [Green Acres] Agreement … when she testified that the
      purchase price of the Property was to be approximately $320,000.
      [Half Moon] avers the purchase price was approximately
      $316,506.74, but Mr. Maloney was the only party to testify as to
      this amount, and [Half Moon] did not present any other evidence
      as to this agreement. Further, there is nearly a $4,000 difference
      between the purchase price each party testified to, and this
      [c]ourt will not entertain [Half Moon’s] argument that [Mrs.
      Schoenholtz] simply rounded up when she put forward the
      $320,000 figure.

Trial Court Opinion (“TCO II”), 12/11/19, at 2-3 (footnotes omitted).

      Despite Half Moon’s claims, we agree with the trial court that the

evidence presented does not meet the strict burden of proof established in

Kurland, in order to constitute an enforceable, oral contract for the purchase

of replotted Lot 3. See Kurland, 522 A.2d at 1373 (requiring “indubitable

proof” of all elements of a contract, which should “not only be found credible,

but of such weight and directness as to make out the facts alleged beyond a

doubt”). Thus, we discern no error of law or abuse of discretion by the trial

court in its finding that the parties were still negotiating a purchase price.

Moreover, we note that the Kurland Court also dictated that, in order to meet

the exception to the statute of frauds, the party alleging a valid, oral contract

“must establish the fact that possession was taken in pursuance of the

contract, and at or immediately after the time it was made, the fact that the

change of possession was notorious, and the fact that it has been exclusive,

continuous and maintained.” Id. The Schoenholtzes never took possession

of the Property in this matter; thus, Half Moon’s claim also fails on this basis.

                                     - 14 -

        Next, we consider whether Half Moon should have been granted JNOV

on the Schoenholtzes’ breach of contract claim. In order to establish a breach

of contract, the Schoenholtzes must prove: “(1) the existence of a contract,

including its essential terms, (2) a breach of a duty imposed by the contract,

and (3) resultant damages.” McCausland v. Wagner, 78 A.3d 1093, 1101

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


        Instantly, the trial court observed that there has never been a question,

regarding the existence of the contract, and that the contract is not

ambiguous. TCO I at 6.8 Instead of proceeding with an assessment, however,


8   The trial court explained:

        The parties originally entered into the Agreement of Sale on
        December 14, 2011, at which time [the Schoenholtzes] presented
        to [Half Moon] a check for $20,400[,] as a deposit and
        consideration. On December 23, 2011, the parties signed the
        Article of Agreement[, which supplanted the Agreement of Sale].
        The Article of Agreement listed all essential terms to make the
        contract enforceable, including the names of the parties, the
        property to be sold, and the purchase price…. The Article of
        Agreement also incorporated the $20,400 deposit [the
        Schoenholtzes] previously paid to [Half Moon] as consideration for
        the contract. To date, the parties never entered into another
        written agreement for the sale of the Property.

Id. (citing GMH Associates, Inc., 752 A.2d at 900 (“The essential terms that
must be identified and agreed to in order to form a valid contract for the sale
of real estate are the naming of the specific parties, property and
consideration or purchase price.”) (citing Detwiler v. Capone, 55 A.2d 380,
385 (Pa. 1947)).

                                          - 15 -

as to whether the Schoenholtzes established a breach of the Article of

Agreement and resulting damages, the trial court abandoned its breach of

contract analysis and, instead, determined that the parties mutually rescinded

the contract. See id. at 6-7. The trial court concluded on that basis that Half

Moon must return the Schoenholtzes’ deposit.       Id. at 8. By awarding the

Schoenholtzes the return of their deposit, plus interest, we discern that the

trial court was attempting to return the parties to their status quo by applying

the equitable remedy of restitution.9

        “The parties to an agreement may always rescind or abandon it.” Kirk

v. Brentwood Manor Homes, Inc., 159 A.2d 48, 50 (Pa. Super. 1960)

(citation omitted).10 The law is clear, however, that “[i]n a breach of contract

9   It is well-established:

        Rescission is an equitable remedy, to be granted only where the
        parties to a contract can be placed in their former positions with
        regard to the subject matter of the contract.        Sullivan v.
        Allegheny Ford Truck Sales, Inc., … 423 A.2d 1292 ([Pa.
        Super.] 1980). It is well known that the purpose of equitable
        rescission is to return the parties as nearly as possible to their
        original positions where warranted by the circumstances of the
        transaction. Gilmore v. Northeast Dodge Co., Inc., … 420 A.2d
        504, 507 ([Pa. Super.] 1980), citing Fichera v. Gording, … 227
        A.2d 642 ([Pa.] 1967)….

        Therefore, restitution often goes with rescission, and should not
        be characterized as damages….

Baker v. Cambridge Chase, Inc., 725 A.2d 757, 766 (Pa. Super. 1999)
(emphasis omitted).

10   As we explained in Kirk:

                                          - 16 -

suit, the plaintiff either may rescind the contract and seek restitution or

enforce    the   contract    and    recover    damages   based   on   expectation.”

McCausland, 78 A.3d at 1102 (emphasis added) (explaining that “[i]n such

a case, the inconsistent nature of those actions is obvious—one cannot

attempt to terminate his contractual obligations and, at the same time, seek

to enforce the contract and enjoy its full benefits in an action for breach”).

       Here, the Schoenholtzes elected to bring a breach of contract claim

against Half Moon; thus, the trial court erred in failing to conduct a proper

breach of contract analysis. Moreover, the trial court raised sua sponte the

issue of whether the parties had rescinded the Article of Agreement, which it

cannot do.       See Hertzberg v. Zoning Bd. Of Adjustment of City of

Pittsburgh, 721 A.2d 43, 46 n.6 (Pa. 1998) (indicating that a trial court

cannot raise an issue sua sponte that does not invoke its subject-matter

jurisdiction). Likewise, this Court may not sua sponte address an issue that

was not raised and preserved by the parties. Steiner v. Markel, 968 A.2d

1253, 1256 (Pa. 2009). “Sua sponte consideration of issues deprives counsel


       A contract in writing for the purchase of land may be rescinded by
       parol, or by such conduct of the parties as clearly shows an
       intention to rescind. The agreement to rescind a written contract
       need not be expressed in words, but may be inferred from the
       acts and declarations of the parties. All that is necessary is a
       mutual agreement. Whether or not the parties have so agreed is
       a question of intention, and the existence of such intention is
       ordinarily an issue for the jury.

Id. at 50-51 (internal citations omitted).

                                          - 17 -

of the opportunity to brief and argue the issues and the court of the benefit of

counsel’s advocacy.” Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975).

       Half Moon’s assertion that it is entitled to JNOV on the Schoenholtzes’

breach of contract claim requires this Court to interpret the terms of the Article

of Agreement. We note that the interpretation of the terms of a contract is a

question of law for which our standard of review is de novo and our scope of

review is plenary. McMullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009). It is

also well-established that in interpreting an agreement, we must ascertain the

intent of the parties.

       In cases of a written contract, the intent of the parties is the
       writing itself. If left undefined, the words of a contract are to be
       given their ordinary meaning. When the terms of a contract are
       clear and unambiguous, the intent of the parties is to be
       ascertained from the document itself.         When, however, an
       ambiguity exists, parol evidence is admissible to explain or clarify
       or resolve the ambiguity…. While unambiguous contracts are
       interpreted by the court as a matter of law, ambiguous writings
       are interpreted by the finder of fact.

Kripp v. Kripp, 849 A.29 1159, 1163 (Pa. 2004).

       Here, the Schoenholtzes contend that Half Moon breached the Article of

Agreement by failing to deliver a special warranty deed to the RE/MAX agent,

Mr. Copenhaver, and by failing to escrow the deed,11 as required by Paragraph


11“[A]n escrow is a deed delivered to a stranger, to be by him delivered to
the grantee upon the happening of certain conditions, upon which last delivery
the transmission of title is complete.” Weisenberger v. Huebrier, 107 A.
763, 764 (Pa. 1919) (internal quotation marks and citation omitted).

                                          - 18 -

4 of the Article of Agreement.12 TCO I at 5-6. Based on our review of the

terms of the Article of Agreement, it is clear that the parties intended for Half

Moon to deliver to Mr. Copenhaver a special warranty deed on or before

December 30, 2011,13 to be placed in escrow until the purchase price was paid

in full by the Schoenholtzes, at which time the deed would be delivered to the

Schoenholtzes. The record indicates that no such deed was ever prepared

and placed in escrow.14        Moreover, we deem that the Schoenholtzes were

12   Paragraph 4 provides:

        Deeds, Transfer Taxes: Seller shall execute a Deed containing the
        usual covenants of special warranty, with a blank grantee clause,
        and shall deliver the same on the date of possession to Greg
        Copenhaver of [RE/MAX], who shall escrow the Deed until such
        time as the purchase price set forth in Paragraph 3 has been fully
        paid, at which time he shall deliver said Deed to Buyer. Upon the
        delivery of the Deed, Seller and Buyer shall equally divide the
        applicable realty transfer taxes.

Complaint, Exhibit “B” at 2 ¶4. The “date of possession” is defined in the
Article of Agreement as “at closing on or before Dec[ember 30], 2011[.]” Id.
at 1 ¶ 2.

13 “[I]n law and equity, in contracts for the sale of real property, time is not
of the essence unless it is expressly stipulated, or necessarily implied from the
language of the contract or clear action of the parties.” Tanenbaum v.
Sears, Roebuck and Co., 401 A.2d 809, 814 (Pa. Super. 1979). Here, the
Article of Agreement expressly provides:           “Time is of the essence….”
Complaint, Exhibit “B” at 4 ¶ 16. Although parties may waive a stipulation
that time is of the essence, see Cohn v. Weiss, 51 A.2d 740, 742 (Pa. 1947),
Half Moon has waived any such defense in this matter. See Pa.R.A.P. 302(a)
(stating “[i]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal”).

14“Mr. Copenhaver did not receive a deed nor did he escrow a deed as was
required by Paragraph Four of the Article of Agreement.” TCO I at 3 ¶ 17.

                                          - 19 -

entitled to see the deed before making any further payments. Our Supreme

Court has established that before a buyer is obligated to pay money under an

agreement to purchase real estate, he is “entitled to see that the conveyance

was properly signed, sealed, and acknowledged, and that the description of

the land to be conveyed was correct.” Cohn v. Weiss, 51 A.2d 740, 743 (Pa.

1947) (quoting Lefferts v. Dolton, 66 A. 527 (Pa. 1907)).15             Thus, we

determine as a matter of law that the Schoenholtzes have met their burden

of establishing a breach of the Article of Agreement on the part of Half Moon.

See McCausland, 78 A.3d at 1101 (“When performance of a duty under a

contract is due, any nonperformance is a breach.”).

       Our Commonwealth’s Supreme Court set forth the following general rule

regarding the damages available to the vendee when the vendor breaches a

contract for the sale of real estate:

       A vendee in a contract for the sale of land may recover as
       damages the loss of his bargain if his contract is in writing and the
       vendor in bad faith refuses to convey, or if the contract is in parol
       and it was obtained by fraud. In all other cases of contracts for
       sale of land, whether written or parol, vendees are limited to the
       money paid, with interest and expenses.

Seidlek v. Bradley, 142 A. 914, 916 (Pa. 1928) (emphasis added). See also

Empire Properties, Inc. v. Equireal, Inc., 674 A.2d 297 (Pa. Super. 1996)

Moreover, the record is devoid of any evidence of a special warranty deed for
Lot 3 prepared or tendered by Half Moon.

15 “[T]o constitute a valid tender, a duly executed deed must be produced by
the vendor to the vendee, so that the vendee may see that it is regular in
form, and that it conveys the estate he bargained for.” Lefferts, 66 A.2d at

                                          - 20 -

(providing that, absent bad faith on the part of the vendor, a purchaser’s right

of recovery for the breach of a contract to convey land is limited to a return

of the purchaser’s down payment and such other reasonable expenditures as

the purchaser has incurred); 25 Williston on Contracts § 66:81 (4th ed.) (May

2020) (“A purchaser who is not in default under a contract for the sale of real

estate has a cause of action for damages where the vendor wrongfully fails or

refuses to convey in accordance with the terms of the contract, such as where

the vendor fails to convey at the time stipulated in the contract….”).

        As there is no assertion of bad faith on the part of Half Moon in the

instant matter and the Schoenholtzes are not in default under the contract,16


16   As explained by the trial court:

        Paragraph 10 of the Article of Agreement … outlines the actions to
        be taken by the Seller ([Half Moon]), including a forfeit of the
        deposit, in the event of [the Schoenholtz’s] default. The Article of
        Agreement states[,] “If Buyer fails to perform any of his
        obligations under the terms of this Agreement, which failure shall
        continue for a period of thirty (30) days after written notice of
        such failure to perform has been given to Buyer by Seller, Buyer
        shall be in default hereunder.” The Article of Agreement states
        further, “ … in the event of default by the Buyer, the said payment
        may be retained by the Seller (1) on account of the purchase
        price, or (2) as monies to be applied to the Seller’s damages, or
        (3) as liquidated damages….”

TCO I at 7 (emphasis added; citations to record omitted). We reject Half
Moon’s suggestion that it did exercise its rights by withholding the deposit,
see Half Moon’s Brief at 33 (reasoning that the Article of Agreement states “in
the event of default by the Buyer, … payment may be retained by the
Seller…”), as Paragraph 10 clearly provides that Half Moon must provide
written notice of a failure to perform and an opportunity to cure before the

                                          - 21 -

it is clear that the damages available to the Schoenholtzes are limited to the

amount of their down payment, plus interest and expenses. Thus, we deem

the trial court’s award of damages in favor of the Schoenholtzes in the amount

of $20,400, plus interest from May 30, 2014, the date on which they first

requested the return of their deposit, to be appropriate.17

       Finally, Half Moon claims that the Schoenholtzes were unjustly enriched

by the replotting services performed at their request.             Although the

Schoenholtzes voluntarily chose not to proceed with the purchase of the

replotted Property, Half Moon avers that they still received the benefit of the

time, energy, and money put into the process of reconfiguring Lot 3. Half

Moon’s Brief at 31. It argues that the trial court erred in failing to find unjust

enrichment in this matter and in declining “to find Mr. and Mrs. Schoenholtz

in any way responsible for the lost value associated with the [P]roperty….”

Id. at 26. In support of its argument, Half Moon insists that the trial court’s

reading of unjust enrichment is “overly restrictive, and it rests on an erroneous

conflation of the services provided—replotting—with the outcome of those

services—the replotted parcel.” Id. at 27. We deem this claim to be meritless.

Schoenholtzes can be declared in default. The record is devoid of any such
written notice.
17 We recognize that the trial court reached its award based on a theory of

rescission rather than breach of contract. Notwithstanding, “[t]his Court is
not bound by the rationale of the trial court, and we may affirm the trial court
on any basis.” Commonwealth v. Williams, 73 A.3d 609, 620 n.4 (Pa.
Super. 2013). See also Lilliquist v. Copes-Vulcan, Inc., 1233, 1235 (Pa.
Super. 2011) (stating that an appellate court may affirm a trial court’s decision
on any grounds supported by the record on appeal).

                                          - 22 -

      Unjust enrichment, a remedy in equity, is “the retention of a benefit

conferred by another, without offering compensation, in circumstances where

compensation is reasonably expected, and for which the beneficiary must

make restitution.” Commonwealth by Shapiro v. Golden Gate National

Senior Care LLC, 194 A.3d 1010, 1034 (Pa. 2018) (quoting Roethlein v.

Portnoff Law Associates, Ltd., 81 A.3d 816, 825 n.8 (Pa. 2013)). See also

Telwell Inc. v. Grandbridge Real Estate Capital, LLC, 143 A.3d 421, 428

(Pa. Super. 2016) (recognizing unjust enrichment as an equitable doctrine

that imposes a duty in the absence of an agreement when one party has been

unjustly enriched at the expense of the other party). A party is precluded

from recovering under an unjust enrichment claim where a written or express

contract exists. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999).

A party may recover for any work performed outside the scope of a contract

or promise. Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 893 (Pa. Super.


      Instantly, the trial court rejected Half Moon’s unjust enrichment claim

based on the following findings: “[T]he Property was never conveyed to [the

Schoenholtzes], nor were they involved in the subsequent sale of the Property.

No benefit was conferred on [the Schoenholtzes] after Lot 3 was replotted for

which [they] would have been expected to provide compensation.” TCO I at

12. The trial court further justified its holding in its opinion regarding the

denial of post-trial relief:

                                    - 23 -

                “The elements of unjust enrichment are benefits conferred
        on [the] defendant by [the] plaintiff, appreciation of such benefits
        by [the] defendant, and acceptance and retention of such benefits
        under such circumstances that it would be inequitable for [the]
        defendant to retain the benefit without payment of value.”
        Lackner v. Glosser, … 892 A.2d 21, 34 [(Pa. Super. 2006)]
        (quoting AmeriPro Search, Inc. v. Fleming Steel Company, …
        787 A.2d 988, 991 [(Pa. Super. 2001)]). [Half Moon] argues that
        by replotting the Property at [the Schoenholtzes’] request, [Mr.
        and Mrs. Schoenholtz] were unjustly enriched. The [c]ourt agrees
        … that [the Schoenholtzes] asked for the Property to be replotted.
        Even if the [c]ourt amended its decision by finding the replot,
        itself, was a benefit conferred on [Mr. and Mrs. Schoenholtz], [Half
        Moon’s] unjust enrichment claim would still fail because there was
        no appreciation of the benefit, and the benefit of the replot was
        neither retained nor accepted by [the Schoenholtzes] such that
        the [c]ourt would be justified in ordering [them] to pay the
        damages [Half Moon] requests.

TCO II at 5-6. We discern no abuse of discretion or error of law by the trial

court in denying Half Moon JNOV on its unjust enrichment claim. Moreover,

we note that contrary to Half Moon’s assertion that the trial court failed to

hold the Schoenholtzes responsible in any way for the loss it incurred

regarding the reconfiguration of the Property, the trial court did find that the

parties entered an oral agreement to replot Lot 3 and that the Schoenholtzes

breached that agreement on May 30, 2014. See TCO I at 11.18 Accordingly,


18   The trial court opined:

        [Half Moon] acted in accordance with [the Schoenholtzes’] request
        to replot Lot 3. The record does not reflect that at any time before
        May 30, 2014[,] [the Schoenholtzes] indicated their unwillingness
        to proceed with the purchase of the replotted land. The record
        reflects the parties were kept abreast, periodically, regarding the
        replotting process[,] which was finished in April 2013, and [the
        Schoenholtzes] were allegedly notified the replotting was finished

                                          - 24 -

the trial court found Half Moon entitled to half of the replotting expenses

incurred. Id. at 12.

       Based on the foregoing, we affirm the judgment entered in favor of the

Schoenholtzes on January 6, 2020.

       Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 12/30/2020


       in June 2013…. Despite the periodic updates from Mr. Maloney
       regarding the replotting of Lot 3, [the Schoeholtzes] did not, with
       words or actions, express their wish to not continue with the
       replotting of the land. In fact the Termination of Article of
       Agreement[,] admitted into evidence as [the Schoenholtzes’]
       Exhibit “P[,]” shows [they] were aware of the replotting costs in
       2013[,] … [and] that [they] knew the replotting was occurring at
       their own behest[].

Id. at 11-12.

                                          - 25 -

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