[J-5-2019][M.O. - Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

GAMESA ENERGY USA, LLC AND 

GAMESA TECHNOLOGY 

CORPORATION INC.,

Appellants

v.

TEN PENN CENTER ASSOCIATES, L.P. 

AND SAP V TEN PENN CENTER NF G.P. 

L.L.C.,

Appellees

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No. 28 EAP 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 County, Civil Division at 

No. 03678 March Term, 2013

ARGUED: 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 nonbreaching party to a contract must be presented with options that are “very risky and 

highly disadvantageous 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 faced 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-5-2019][M.O. – Dougherty, J.] - 2

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 termination or 

rescission upon continued performance should remain extant.1 In this regard, it seems 

to me that Gamesa simply has not done enough to demonstrate, empirically, that the 

net consequences of a modification would not be harmful. Given the social-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 the non-breaching party continues to be denied the benefit of its bargain during 

the period of its own continuing performance. One 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 

benefits 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 agreement, 

see 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 RESTATEMENT (SECOND) OF CONTRACTS §344, cmt. d (1981). That said, 

since the outcome may be substantively the same, it does not seem to me that 

Gamesa’s approaches in the above respects should necessarily be treated as fatal 

pleading defects.
[J-5-2019][M.O. – Dougherty, J.] - 3

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 remanding the case for that court to assess whether this finding 

is supported by the record and legally correct.

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-createdand-imposed contract between Viridity and Ten [Penn Center].” Brief for Appellees at 

15. While 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 the Superior Court opined 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 to 

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.