[ J
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- 201 9 ] [M.O.
- Dougherty , J.] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

GAMESA ENERGY USA, L LC AND GAMESA TECHNOLOGY CORPORATION INC. ,

Appell ant s

v.

TEN PENN CENTER ASSOCIATES, L.P. AND SAP V TEN PENN CENTER NF G.P. L.L.C. , Appell ee s : : : : : : : : : : : : : : : No. 28 E AP 2018 Appeal from the Judgment of Superior Court entered on 3/19/18 at No. 1635 EDA 2016 affirming in part and reversing in part the order entered on 5/20/16 in the Court of Common Pleas, Philadelphia Co unty, Civil Division at No. 0367 8 March Term, 2013

ARGUE D: March 5, 2019

CONCURRING OPINION

CHIEF JUSTICE SAYLOR DECIDED: September 26, 2019

As concerns the main legal issue presented for review

-- “ [m]ay a litigant simultaneously pursue inconsistent alternative remedies in a civil action in Pennsylvania prior to the entry of final judgment ”

-- I am more sympathetic to Gamesa’s policy

- based argument than the majority appears to be

. To my mind, it is troublesome that a non

breaching party to a contract must be presented with options that are “very risky and highly disadvantage ous to them.” Majority Opinion, slip op. at 28. Indeed, I saw this case as an opportunity to consider whether appropriate adjustments should be made to the law to ameliorate the dilemma f aced by non

- breaching parties. Accord Gamesa Energy USA, LLC v. Ten Penn Center Assocs. , 181 A.3d 1188, 1196 (Pa. Super. 2018) (Stevens, P.J.E., concurring).[J

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- 201 9 ] [M.O.

– Dougherty , J.]

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That said, there is substantial force to the majority’s position that the practice of generally forcing an election of remedies that would foreclose retroactive t ermination or
rescission upon continued performance should remain extant. 1 In this regard, i t seems to me that Gamesa simply has not done enough to demonstrate, empirically, that the net consequences of a modification would n ot be harmful. Given the soci al

- policy ramifications and the substantive

- law nexus , I also conclude that the legislative forum would be more suitable for the consideration of potential reforms. I would find an exception to this general rule, however, applicable to instances in
which t he non

- breaching party continues to be denied the benefit of its bargain during the period of its own continuing performance

. O ne who makes an election to continue to fulfill their own contractual commitments after a breach by the other party has a right to expect mutual performance going forward. Presently, however, the trial court found
that Ten Penn Center continued to act in a manner that deprived Gamesa of material benefit s from the lease

. See, e.g. , Findings of Fact and Conclusions of Law dated Feb. 23, 2016, in Gamesa Energy USA, LLC v. Ten Penn Center Assocs., L.P. , No. 03678

1 As Ten Penn Center relates, the notion of a “retroactive termination,” as contemplated by Gamesa ’s prayer for relief , is substantially problematic. See Brief for Appellees at 33 n.17. In my view, it would be preferable to envision any remedy invalidating a contract retroactively as a rescission, and to treat any partial quid pro quo on account of a period of mutual performance as an offset to the restitutionary remedy. And while Ten Penn Center correctly explains that the remedy of unjust enrichment (as pled by Gamesa) is not directly implicated in cases in which the litigants are parties to a written agreeme nt , s ee Brief for Appellees at 20 n.11, the concept of unjust enrichment is also embedded in the remedy of restitution, which may be available in cases arising out of express contracts. See R ESTATEMENT (S ECOND ) OF C ONTRACTS §344, cmt. d (1981). That said , since the outcome may be substantively the same, it does not seem to me that Gamesa’s approach es in the above respects should necessarily be treated as fatal pleading defect s

.[J

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– Dougherty , J.]

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Mar. Term 2013, at COL ¶3 (C.P. Phila.) (“Ten Penn Center prevented Gamesa from obtaining any additional subtenant and did so while also collecting rent .” ). Since the Superior Court disregarded this determination without any supporting analysis , 2 I was initially inclined to favor remand ing the case for that court to assess whether this finding is supported by the record and legally correc t. Nevertheless, I conclude that there are simply too many entanglements involved
here on account of Gamesa’s continued performance militating against the affordance of a rescissionary remedy. By way of example, I find resonance in Ten Penn Center’s complaint about the trial court’s extraordinary directive establishing a “judicially

- created

and

- imposed contract between Viridity and Ten [Penn Center].” Brie f for Appellees at
15. W hile I have some differences with the details, I support the majority’s ultimate
determination that Gamesa’s continued performance coupled with the involvement of third parties relegated it exclusively to the course of proving its claim for damages for Ten Penn Center’s breach of contract.

2 I recognize that t he Superior Court opine d that “all of the evidence points to [Gamesa’s] continued benefit from the terms of the Lease following summer 2012.” Gamesa , 181 A.3d at 1195. However, the court did not so much as consider the trial court’s findings to the contrary, at least on account of Ten Penn Center’s continuing t o maintain that Gamesa remained in default under the Lease. According to the trial court, Ten Penn Center’s conduct in this regard undermined Gamesa’s ability to effectuate subleases. See Findings of Fact and Conclusions of Law in Gamesa , No. 03678 Mar. Term 2013, at FOF ¶¶23

- 25, COL ¶3.