2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-23-2012

Berish Berger v. Richard Zeghibe

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4287

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Berish Berger v. Richard Zeghibe" (2012). 2012 Decisions. Paper 1394.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1394
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 10-4287/11-1087

_____________

BERISH BERGER; KILBRIDE INVESTMENTS LIMITED; BUSYSTORE LIMITED; 

TOWERSTATES LIMITED; BERGFELD CO. LIMITED; ARDENLINK LIMITED,

v.

RICHARD ZEGHIBE; PATRIOT PARKING INC.; JAMES RAPPOPORT; DDI 

ARCHITECTS, P.C.; DAROFF DESIGN, INC.; DAROFF DESIGN INC+ DDI 

ARCHITECTS, P.C.; JATINDER CHAWLA; ELI WEINSTEIN; RAVINDER 

CHAWLA; MARK SAHAYA; 2040 MARKET ASSOCIATES, LP; JFK BLVD 

ACQUISITION PARTNERS, L.P.; PINE PROJECTS LLC; WORLD ACQUISITION 

PARTNERS CORPORATION,

RAVINDER CHAWLA;

WORLD ACQUISITION PARTNERS CORPORATION,

 Appellants in 10-4287

ELI WEINSTEIN;

PINE PROJECTS LLC,

 Appellants in 11-1087

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 08-cv-5861)

District Judge: Hon. Berle M. Schiller

_______________

Submitted Under Third Circuit LAR 34.1(a)

January 10, 2012

Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.

(Filed: February 23, 2012)

_______________
2

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Berish Berger and a series of closely held corporate entities (the “Berger Entities”)

sued Ravinder Chawla, Eli Weinstein, and their associated corporate entities, alleging

that they fraudulently induced Berger to cause the Berger Entities to invest $36.5 million 

in two real estate transactions. After a two-week jury trial, the United States District 

Court for the Eastern District of Pennsylvania entered judgment in accordance with a jury 

verdict against Chawla, Weinstein, and the defendant corporations, and denied those 

parties’ post-judgment motions challenging the verdict. Chawla, Weinstein, and their 

entities appealed. For the reasons that follow, we will affirm.

I. Background1

In 2007, Berger, a citizen of the United Kingdom, sued Chawla, Chawla’s related 

corporate entity World Acquisitions Partners Corporation (“WAPC”), Weinstein, and 

Weinstein’s related corporate entity Pine Projects LLC (“Pine”), claiming fraud. Berger

had caused each of the Berger Entities2

 1 Because we write only for the benefit of the parties, we assume familiarity with 

the facts. In setting forth the background, we recount the facts in the light most favorable 

to the prevailing parties. See generally Intermilo, Inc. v. I.P. Enters., Inc., 19 F.3d 890, 

892 (3d Cir. 1994) (stating that, after a jury trial, facts are reviewed to “‘determine 

whether the evidence and justifiable inferences most favorable to the prevailing party 

afford any rational basis for the verdict’” (quoting Bhaya v. Westinghouse Elec. Corp., 

832 F.2d 258, 259 (3d Cir. 1987))).

to give money to Pine in exchange for what 

2 As discussed further infra, the Berger Entities include five foreign companies: 

(1) Kilbride Investments Limited, (2) Busystore Limited, (3) Towerstates Limited, (4) 
3

Berger believed were investments in two real estate development projects in Philadelphia,

Pennsylvania, known as “River City” and “2040 Market Street.” The District Court 

granted summary judgment against Berger on the ground that the Berger Entities, not 

Berger himself, had standing to pursue the claims in Berger’s complaint. Berger 

appealed that decision, and we affirmed. See Berger v. Weinstein, 348 F. App’x 751 (3d 

Cir. 2009) (non-precedential) [hereinafter Berger I]. As a result of our disposition in 

Berger I, Berger filed a new complaint on behalf of the Berger Entities after he had

obtained assignments from them that permitted him to assert whatever claims they had 

against Chawla, WAPC, Weinstein, and Pine. 

A. The Investments in River City and 2040 Market Street

Berger’s new action went to trial, at which he sought to prove that the defendants 

fraudulently procured the Berger Entities’ investments in the River City and 2040 Market 

Street properties.

1. River City

Chawla contracted to purchase the River City property for $32.5 million, intending 

to sell it to someone else for a profit. Shortly after beginning that transaction but before 

closing on the property, Chawla learned of a new height restriction ordinance pending in 

the Philadelphia City Council that, if passed, would impose a height limitation of 125 feet 

on a portion of River City’s development. While it was understood that River City’s 

value would be greatly diminished as a result of the height limitation, Chawla entered 

 

Bergfeld Co. Limited, and (5) Ardenlink Limited. 
4

into an agreement with Weinstein whereby Weinstein would, in the future, purchase that 

property from Chawla for $62.5 million. Weinstein eventually became aware of the 

height limitation, but nevertheless worked with Chawla to try to acquire the money to pay 

the $62.5 million purchase price. 

To that end, Mark Sahaya, a real estate broker, helped organize a meeting at the 

office of an architect, James Rappoport, whom Chawla had retained to prepare proposed 

development designs for River City. Berger was invited by Weinstein to attend that 

meeting, and, on the appointed date, he arrived and was greeted by Chawla and 

Weinstein.3

 3 In the correspondence leading up to the meeting, Sahaya did not indicate that 

Berger was a potential investor or describe any role he might play in contributing funds 

towards River City’s development. Instead, Sahaya stated only that the meeting would 

be conducted with “[Weinstein’s] investor group.” (App. at 574.) As a result, when they 

met with Berger, the attendees at the meeting were not necessarily aware of the role the 

Berger Entities might have in contributing funds. Berger, however, testified that “it [was]

understood” that he would have appeared at the meeting on “behalf of ... [his] 

companies” as everyone “would be expecting that [he] was investing on behalf of 

corporations, which is normal in real estate situations.” (App. at 1022-23.)

 Chawla and Weinstein introduced themselves to Berger as partners and

proceeded to show him a presentation based on Rappoport’s proposed design. Berger 

was not, at any time, apprised of the pending height limitation or the impact it would 

have on the development of the River City property. Instead, the presentation led him to 

believe that there were no such limitations. After the presentation, Weinstein and Chawla 

gave Berger a driving tour of the River City site, and again failed to mention the pending

height restriction ordinance that would limit River City’s development. 
5

A few days after the meeting, Chawla arranged for Berger to receive an appraisal 

of River City dated June 23, 2006, valuing the property at $77 million.4

While at the River City property meeting, Berger saw a model of a separate 

property that Chawla and Weinstein were also involved in developing, which was located 

at 2040 Market Street. As was true of River City, Weinstein had agreed to buy that 

property from Chawla and sought capital to facilitate his purchase. Weinstein explained 

to Berger that a sale of air rights associated with the property was imminent and that he 

needed $9.5 million dollars to make that acquisition. Berger agreed to help Weinstein do 

that by investing in the property. 

 Although Berger 

had not yet decided to invest in River City, the appraisal corroborated the meeting’s pitch 

that River City was a good investment and that he should participate in the project. Like

the representations made at the meeting, however, the appraisal was far less than truthful; 

it falsely suggested that Chawla would be purchasing the property for $50 million rather 

than the $32.5 million Chawla had actually contracted to expend in acquiring it, and, 

despite the pending height restriction ordinance, it affirmatively stated that there was no 

applicable height limitation. 

Relying on the appraisal, Berger caused one of the Berger Entities – Kilbride 

Investments Limited (“Kilbride”) – to make a $12 million payment to facilitate purchase 

of the River City property.

2. 2040 Market Street

 4 Chawla testified that he did not intend for Berger to receive the appraisal, but 

acknowledged that it was sent by his office to London. 
6

Thus, a day after having caused Kilbride to invest in River City, Berger caused 

another of the Berger Entities – Busystore Limited – to make a $9.5 million payment to 

Pine for the purpose of purchasing 2040 Market Street’s air rights. Shortly thereafter, 

Berger received a copy of a letter addressed to Weinstein that falsely implied that a third 

party was interested in increasing a previously-made offer for the air rights.5

Despite those substantial investments, Weinstein continued to ask Berger for more

money, which aroused Berger’s suspicions. Berger thus engaged a lawyer to determine 

how the money from the Berger Entities had been spent. Berger and his attorney met 

with Weinstein and his attorney, after which Berger received a January 29, 2007 letter

from Weinstein’s attorney that served to “memorialize [Berger’s] discussion with ... 

Weinstein that took place [the previous day] in [Weinstein’s attorney’s] New York office 

on Sunday, January 28, 2006 [sic].” (App. at 2610.) The letter, sent by fax, detailed how 

Weinstein had expended funds and referenced attached checks that would corroborate the

explanations therein. However, although the checks seemed to verify the representations 

 Later, and 

in response to Weinstein’s demands for additional funds, Berger caused other Berger 

Entities to send money to Pine: Towerstates Limited transferred $4 million, Ardenlink 

Limited transferred $6 million, and Bergfeld Co. Limited transferred $5 million. 

B. Weinstein’s Requests for Additional Funds and Berger’s Actions

 5 The letter Berger received was dated December 21, 2006, stated it was “further 

to [a prior] letter dated 7/21/06,” and purported to increase a previous offer made in that 

prior letter. (App. at 1758.) The referenced July 21, 2006 letter, however, was – like the 

letter Berger received – actually prepared in December 2006 by Sahaya on Chawla’s 

company’s computers. Weinstein paid $45,000 to have Sahaya arrange for the letters’ 

creation. 
7

in the letter, they were actually in furtherance of fraud because some of them were

entirely falsified and others were never in fact negotiated.6

Berger did not cause any additional funds to be sent after receiving the letter and 

the checks, but the damage was done; in total, the Berger Entities invested $36.5 million 

in the two properties.

 

7

 6 Berger testified that he believed the letter and checks were from Weinstein, 

based on a fax header that indicated that some of the materials were sent by Pine. 

Weinstein, however, suggested at trial that the fax might not have been sent from a fax 

machine in his office. In response, the District Court asked Weinstein whether “someone 

c[a]me into [his] office” or “[s]ome stranger walked into [his] office” to send the fax. 

(Supp. App. at 655.) Weinstein acknowledged that no one had done so, but nevertheless 

implied the materials were not sent by him because an explanatory cover sheet would 

have been sent along with the materials if they were. That cover sheet, as Weinstein 

explained, would have served to mitigate any deception caused by its absence. However, 

because Weinstein did not produce the cover sheet for trial and had never seen it, the 

District Court struck his testimony to that effect. 

7 At trial, Weinstein tried to establish that he had appropriately invested Berger’s 

money and was, himself, a victim of Chawla’s misconduct. Among other things, he 

wanted to show that he had spent some of Berger’s money in buying out investors in 900 

Delaware Avenue, a separate property which was not the subject of the dispute at trial. 

According to Weinstein, the facts attendant to that transaction would show that he had 

been acting appropriately with respect to Berger’s 2040 Market Street investment, as the 

900 Delaware Avenue transaction would have permitted Weinstein to proceed with the 

2040 Market Street deal. Berger objected to Weinstein’s testimony because there was no 

documentation supporting it, and the Court reprimanded Weinstein’s counsel in the jury’s 

presence:

The Court: No. I want to tell you something --

[Weinstein’s Attorney]: Yes, your Honor.

The Court: -- I’ve been letting you stray off into a parallel galaxy here and 

I’m a little upset about it.

[Weinstein’s Attorney]: I will try not to your Honor, but it’s –

The Court: I want you to focus on this deal and this lawsuit. I don’t want 

to hear about what happened somewhere else as a figment of imagination or 

thought or whatever.
8

C. Procedural History

This lawsuit followed and, after hearing the evidence, the jury returned a verdict in 

Berger’s favor against Chawla, WAPC, Weinstein, and Pine. The jury determined that 

Weinstein and Berger had entered into a contract, but that Weinstein and Pine were liable 

for fraud, conspiracy to defraud, and unjust enrichment. It also found Chawla and 

WAPC liable for conspiracy to defraud. The jury awarded Berger $33 million in 

compensatory damages, with Chawla and WAPC responsible for 5% each, Weinstein 

responsible for 70%, and Pine responsible for 20%. 

Chawla and WAPC filed a post-judgment motion under Federal Rule of Civil 

Procedure 50(b), arguing that they were entitled to judgment as a matter of law because 

there was insufficient evidence to establish that they acted with the requisite intent to 

injure the Berger Entities. Weinstein and Pine filed a post-judgment motion under Rule 

59, reasoning that the existence of a contract between Berger and Weinstein barred 

 

...

The Court: There is nothing in exhibits that documents this scheme, plan, 

idea or whatever.

(Supp. App. at 858.) Despite that admonition, Weinstein’s counsel again elicited 

testimony regarding 900 Delaware Avenue. She argued to the Court that she had to 

introduce that testimony so as to explain some of the representations made in Weinstein’s 

lawyer’s letter. The Court disagreed:

The Court: There’s nothing to explain, they saw the letter.

...

[Weinstein’s Attorney]: -- it was -- the $23 million mortgage, it is referred 

to in the letter... .

The Court: He already explained what the $23 million mortgage was, the 

rest of it ... is all ... a plan, a scheme, an artifice ... I don’t know what.

(Supp. App. at 862.)
9

Berger’s tort claims and unjust enrichment claim. In the alternative, Weinstein and Pine 

sought a new trial on the ground that the District Court’s behavior during trial evinced 

bias against Weinstein. The District Court entered separate orders denying the 

defendants’ motions.

These timely appeals followed. 

II. Discussion8

Under Pennsylvania law, a plaintiff proceeding on a civil conspiracy claim must 

show that two or more persons “acted in concert to commit an unlawful act or do a lawful 

act by unlawful means, and that they acted with malice.” Skipworth ex rel. Williams v. 

Lead Indus. Ass’n, Inc., 690 A.2d 169, 174 (Pa. 1997); see Petruska v. Gannon Univ., 

462 F.3d 294, 309 n.13 (3d Cir. 2006). The Chawla Appellants acknowledge that the 

A. Chawla and WAPC’s Appeal

Chawla and WAPC (collectively, the “Chawla Appellants”) argue that the District 

Court erred in denying their motion for judgment as a matter of law because the evidence 

did not support a finding that they had the requisite intent to harm the Berger Entities. 

We exercise plenary review of the District Court’s order, and therefore determine 

whether, “viewing the evidence in the light most favorable to ... [Berger] and giving 

[Berger] the advantage of every fair and reasonable inference, there is [sufficient] 

evidence from which a jury reasonably could find liability.” Brennan v. Norton, 350 F.3d 

399, 424 n.20 (3d Cir. 2003) (citation omitted).

 8 The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have 

jurisdiction over these appeals under 28 U.S.C. § 1291.
10

evidence presented would suffice to meet Berger’s burden were he asserting a civil 

conspiracy claim in his own right. (See Chawla’s Opening Br. at 32-33 (“If Berger had 

standing to bring a civil conspiracy claim ... and obtained a favorable jury verdict on this 

issue, then there would have been legally sufficient evidence ... .”).) They argue, 

however, that Berger’s status as an assignee of the Berger Entities precludes liability 

because the evidence established that the Chawla Appellants intended to injure Berger,

not the Berger Entities. See Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 

(Pa. 1979) (describing “[p]roof of malice” as the “intent to injure”). Pointing out that 

they did not even know the Berger Entities existed until Berger caused those entities to 

invest in the River City and 2040 Market Street projects, see supra note 3, the Chawla 

Appellants contend that Berger cannot demonstrate that they acted with the requisite

malice in this case. We disagree.

In Thompson Coal, the court set forth the elements for civil conspiracy and 

concluded that the defendant’s actions did not give rise to a civil conspiracy claim 

because the evidence did not demonstrate that the defendants acted for the purpose of 

injuring the plaintiffs. Thompson Coal, 412 A.2d at 472. Instead, as the court explained, 

the evidence suggested that the defendant’s actions were undertaken for a legitimate

purpose. See id. (stating the evidence demonstrated that the defendant “acted solely to 

advance the legitimate business interests of his client and to advance his own interests”). 

The Chawla Appellants read the suggestion in Thompson Coal that malice was lacking 

because the facts did not establish that the defendant acted “solely to injure” the 

plaintiffs, id., to mean that a defendant must know the precise identity of all the 
11

defendant’s victims to satisfy the “intent to injure” requirement for a civil conspiracy 

claim. However, Thompson Coal neither expressly nor impliedly suggests that a 

defendant lacks the necessary intent whenever an injured party’s precise identity is 

unknown.9

On the record here, the jury could fairly conclude that the Chawla Appellants 

acted “solely to injure” Berger and his funding sources, id., because – as the Chawla 

Appellants acknowledge – the evidence was sufficient to show they intended to injure 

Berger, who appeared at the River City meeting as a representative of the Berger Entities. 

Indeed, the Chawla Appellants were aware that the River City meeting would be 

conducted with an investor group of which Berger was a member, and Berger testified 

 

 9 The Chawla Appellants also rely heavily on a South Carolina case, Future 

Group, II v. Nationsbank, 478 S.E.2d 45 (S.C. 1996), in which the court held a civil 

conspiracy claim was improper because, among other things, there was no evidence that 

the defendant was aware of the plaintiff’s existence. Id. at 51; see Burnside v. Abbott 

Labs., 505 A.2d 973, 981 (Pa. Super. Ct. 1985) (stating South Carolina and Pennsylvania 

have similar requirements for civil conspiracy claims). The Future Group, II court did 

so, however, because the plaintiff’s claim was that the defendant had conspired to impede 

the plaintiff’s ability to recover on an investment that the defendant was not aware of. 

See Future Group, II, 478 S.E.2d at 47; id. at 51 (“[T]here is no evidence Bank combined 

with Heffron to damage 5R’s by obtaining Agency’s corporate guarantee since there is no 

evidence Bank even knew of 5R’s existence in relation to Agency.”). Thus, 

notwithstanding the Future Group, II court’s language concerning the defendant’s 

awareness of a party’s “existence,” it was the fact that the defendant could not have 

foreseen the injury, not the fact the defendant was unaware of the plaintiff’s existence, 

which was controlling. In this case, by contrast, it was entirely foreseeable that harm 

would come to Berger’s funding sources and Future Group, II is therefore 

distinguishable. See, e.g., PCS Nitrogen, Inc. v. Ross Dev. Corp., No 09-3171, 2010 WL 

3893619, at *11 (D.S.C. Sept. 30, 2010) (agreeing with another district court that Future 

Group, II does not preclude a civil conspiracy claim “when the only part of the alleged 

harm that was unforeseeable was the identity of the people or entities that would be 

harmed”).
12

that “it [was] understood” he was there on “behalf of ... [his] companies” because it was 

“normal in real estate situations” to “invest[] on behalf of corporations.” (App. at 1022-

23.) That testimony was entirely credible, since Chawla and Weinstein were themselves 

acting through surrogate business entities. Given that evidence, a jury could reasonably 

conclude that the Chawla Appellants acted in concert with Weinstein and Pine to commit 

an unlawful act to injure the Berger Entities, even if the Chawla Appellants did not know 

the names of Berger’s corporate vehicles. That finding would support a verdict in 

Berger’s favor on his civil conspiracy claim. See Skipworth, 690 A.2d at 174 (civil 

conspiracy requires a showing that the defendants “acted in concert to commit an 

unlawful act or do a lawful act by unlawful means, and that they acted with malice”). 

Moreover, even if one accepts that the Chawla Appellants were unaware of the 

Berger Entities at first, a reasonable jury could determine that the Chawla Appellants had 

knowledge that Berger’s money was coming through corporations once the first transfer 

from Kilbride was effectuated. Any such determination would support a finding of the 

requisite intent to injure, given that the Chawla Appellants thereafter undertook 

additional actions in furtherance of the conspiracy. It was, in fact, after the Kilbride 

transfer that Berger received the letter falsely suggesting that there was a bidder for 2040 

Market Street’s air rights and, after receiving that letter, Berger caused three separate 

transfers to Pine to be initiated in response to Weinstein’s requests. Given the 

circumstances attendant to the letter’s production, see supra note 5, the jury could have 

reasonably concluded that the Chawla Appellants played a role in transmitting the letter 

to Berger. Thus, like the evidence regarding the Chawla Appellants’ initial actions in 
13

courting Berger’s investment at the River City meeting, the Chawla Appellants’ 

subsequent actions also support the jury’s verdict.

Accordingly, we will affirm the District Court’s denial of the Chawla Appellants’ 

motion for judgment as a matter of law.

B. Weinstein and Pine’s Appeal

Weinstein and Pine (collectively, the “Weinstein Appellants”) argue that the 

District Court erred in denying their motion to alter or amend the judgment because (1) 

the District Court’s conduct during the trial prejudiced them; (2) the January 29, 2007 

letter from Weinstein’s attorney to Berger was improperly admitted into evidence; and 

(3) the contract between Berger and Weinstein precludes Berger’s tort and unjust 

enrichment claims. We address those arguments in turn.10

 10 The Weinstein Appellants also make two arguments that we will not address at 

any length. First, they, like the Chawla Appellants, contend that Berger did not introduce 

enough evidence to establish that the Weinstein Appellants had the intent to harm the 

Berger Entities. However, they never raised that argument below and, in fact, appeal 

from the denial of a Rule 59 motion in which sufficiency of the evidence was not, and 

could not have been, at issue. Cf. Pediatrix Screening, Inc. v. TeleChem Int’l, Inc., 602 

F.3d 541, 546 (3d Cir. 2010) (permitting a “gist of the action” challenge by way of a Rule 

59 motion because, unlike the Rule 50 motion appellant had waived, the gist of the action 

argument did not “contest the sufficiency of the evidence underlying the ... judgment”). 

Moreover, the sufficiency-of-the-evidence argument is plainly meritless. Second, they 

argue that the District Court erred by permitting Weinstein’s prior counsel in an allegedly 

related case to represent Chawla in this case. Although the Weinstein Appellants 

acknowledge they never moved for counsel’s disqualification or properly presented their 

disqualification argument to the District Court, they assert that the District Court had an 

independent duty to investigate and, ostensibly, disqualify Chawla’s counsel because 

Weinstein’s counsel apprised the Court of the potential conflict during a status 

conference. Given the Weinstein Appellants’ failure to pursue this argument before 

filing their brief on appeal, we will not consider it. See Tri-M Grp., LLC v. Sharp, 638 

F.3d 406, 416 (3d Cir. 2011) (“It is axiomatic that arguments asserted for the first time on 

appeal are deemed to be waived and consequently are not susceptible to review in this 
14

1. Judicial Bias

The Weinstein Appellants argue that the conduct of the District Court violated 

their right to a fair trial because, they say, the Court’s comments in front of the jury 

manifested a “clear bias” against Weinstein.

11

We reject the Weinstein Appellants’ effort to overturn the hard work it took to 

manage this contentious case. The majority of the contested comments by the District 

They ask us to vacate the District Court’s

judgment so as to remedy that alleged error. (Weinstein’s Opening Br. at 4.)

Recognizing that “any comment by a trial judge concerning the evidence or

witnesses may influence a jury considerably, and emphatic or overbearing remarks ...

may be accepted as controlling,” United States v. Anton, 597 F.2d 371, 374 (3d Cir. 

1979), we have set forth a series of factors to consider in determining whether a trial 

court’s remarks “are appropriate” or, instead, whether they would “unduly influence a 

jury,” United States v. Olgin, 745 F.2d 263, 268 (3d Cir. 1984). Those factors include

“the materiality of the comment, its emphatic or overbearing nature, the efficacy of any 

curative instruction, and the prejudicial effect of the comment in light of the jury 

instruction as a whole.” Id. at 268-69. 

 

Court absent exceptional circumstances.” (internal quotation marks and citation 

omitted)).

11 Specifically, they point to the Court’s statement to counsel, made in reference to 

900 Delaware Avenue, that it did not want to “hear about what happened somewhere else 

as a figment of imagination or thought or whatever” and that “nothing in [the] exhibits ... 

documents this scheme, plan, idea or whatever.” (Supp. App. at 858-59; see also id. at 

862 (“He already explained what the $23 million mortgage was, the rest of it ... is all ... 

a plan, a scheme, an artifice ... I don’t know what.”).) They also identify the District 

Court’s inquiry as to whether “someone c[a]me into [Weinstein’s] office” to send the fax 

Weinstein disputed sending as evidence of the Court’s bias. (Supp. App. at 655.)
15

Court were directed towards Weinstein’s counsel – not Weinstein himself – and were 

responses to counsel’s efforts to press beyond bounds the Court had set.

12

That is particularly clear in light of the District Court’s repeated instruction that 

jury members should form their own conclusions and not rely on anything the Court 

might have said in the course of managing the proceedings. (See, e.g., Supp. App. at 

1115 (instructing jurors that they should “not rely upon any impressions that [they] have 

as to the Court’s view of the facts in this case”).) Jurors are, after all, presumed to follow 

a court’s instructions, see United States v. Vaulin, 132 F.3d 898, 901 (3d Cir. 1997), and 

an instruction explaining that the jury is “free to disregard [the court’s] remarks and ... 

 So viewed,

and considering the fact that the comments comprise an exceptionally small portion of 

the voluminous record that this two-week trial produced, we think it evident that the 

District Court’s comments did not have the influence the Weinstein Appellants attribute 

to them. See United States v. Beaty, 722 F.2d 1090, 1094-95 (3d Cir. 1983) (“The sheer 

length of this two week trial makes us cautious about investing any but the most 

inflammatory isolated statements with critical importance. We do not believe that a few 

summary questions or intemperate remarks assumed the same importance in the jury’s 

mind as they naturally have in counsel’s while preparing this appeal.”). 

 12 While the record is not entirely clear, we understand the District Court to have 

been trying to limit unsupported hearsay that Weinstein’s counsel repeatedly attempted to 

put before the jury. Those discussions with counsel, which at times bore the tone of 

rebuke, should have taken place at sidebar, since counsel for both parties strayed into 

argument and the Court’s impatience became evident. While the refusal to accommodate 

the request by Weinstein’s counsel to approach the bench was, we think, ill-advised, it 

does not amount to reversible error on this record.
16

determine the facts ... on its own” may therefore counterbalance a potentially prejudicial 

comment, Olgin, 745 F.2d at 269. We are satisfied that, in this case, the District Court’s 

instruction did just that.

In sum, considering the nature of the comments made, the sparse number of

comments the Weinstein Appellants take exception to, and the District Court’s jury 

instructions, we conclude that the District Court’s conduct during trial did not influence 

the verdict. 

2. Admission of the Fax

The Weinstein Appellants next argue that the District Court erred in admitting the 

January 29, 2007 letter from Weinstein’s attorney and the accompanying checks, because 

they were improperly authenticated as having been sent from Weinstein. We review that 

evidentiary determination for an abuse of discretion. See United States v. Reilly, 33 F.3d 

1396, 1403 (3d Cir. 1994). 

Federal Rule of Evidence 901(a) requires a proponent of evidence to “produce 

evidence sufficient to support a finding that the item is what the proponent claims it is.” 

Fed. R. Evid. 901(a). That burden is “slight,” requiring only sufficient evidence from 

which “the fact-finder could legitimately infer that the evidence is what the proponent 

claims it to be.” Reilly, 33 F.3d at 1425 (citation omitted). The Weinstein Appellants 

argue that Berger failed to properly authenticate the letter and checks because Berger 

lacked personal knowledge as to whether those materials were sent from Weinstein, and 

offered no testimony or evidence that could properly demonstrate that Weinstein had sent 

them. However, in light of Berger’s testimony that he believed the letter and checks were 
17

from Weinstein due to a fax header stating that some of the materials had been sent by 

Pine,13

Accordingly, the District Court did not err in admitting the January 29, 2007 letter 

and checks into evidence.

and the fact that the letter relayed information in connection with a meeting that 

had taken place the day before, it can hardly be said that the District Court abused its 

discretion in concluding that Berger had met his burden of providing sufficient grounds 

for a jury to rationally attribute the letter to Weinstein. See id. at 1425; id. at 1407 (“A 

letter ... may be authenticated by its contents with or without the aid of physical 

characteristics if the letter is shown to contain information that persons other than the 

purported sender are not likely to possess.” (internal quotation marks and citation 

omitted)). 

14

 13 Although Weinstein contested sending the fax, he acknowledged that it was sent 

from his office. When asked whether the checks were sent to Berger from his office, he 

testified “[s]omeone in my office, according to the fax that I’ve seen ... someone in my 

office used my fax machine and sent that, that’s correct.” (Supp. App. at 654-55.)

14 The Weinstein Appellants alternatively argue that the letter admitted was an 

improper “duplicate” of the real letter, see Fed. R. Evid. 1003 (“A duplicate is admissible 

to the same extent as the original unless a genuine question is raised about the original’s 

authenticity or the circumstances make it unfair to admit the duplicate.”), inasmuch as it 

did not contain the cover sheet that Weinstein testified would have been included with the 

letter. That argument fails, however, because Weinstein never produced any such cover 

sheet or otherwise demonstrated that one ever existed. See supra note 6.
18

3. The Jury’s Finding of a Contract Between the Parties

Finally, the Weinstein Appellants argue that the jury’s finding that Weinstein and 

Berger entered into a contract bars Berger’s tort and unjust enrichment claims. We 

exercise plenary review of those contentions. See generally Pediatrix Screening, Inc. v. 

TeleChem Int’l, Inc., 602 F.3d 541, 547-48 (3d Cir. 2010) (permitting appellate review of

a “gist of the action” challenge presented under Rule 59, observing that the defendant 

“does not now contest the sufficiency of the evidence ... but the legal ruling allowing tort 

recovery for conduct that arguably was a breach of contract”).

According to the Weinstein Appellants, Berger’s tort claims are barred under the 

“gist of the action” doctrine, which “precludes plaintiffs from re-casting ordinary breach 

of contract claims into tort claims.” Id. at 548 (internal quotation marks omitted) 

(quoting eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002)). 

However, notwithstanding the Weinstein Appellants’ suggestion that the gist of the action 

doctrine bars any tort claims whenever there is a contract between the parties, the 

doctrine has no application when the contractual relationship is collateral to the tortious 

conduct. eToll, Inc., 811 A.2d at 14, 17. It is plain, for example, that it does not bar tort 

claims that arise from the “fraudulent inducement to enter into a contract.” Sullivan v. 

Chartwell Inv. Partners, LP, 873 A.2d 710, 719 (Pa. Super. Ct. 2005); see id. (“[S]ince 

Appellant’s tort claims relate to the inducement to contract, they are collateral to the 

performance of the contracts and therefore, are not barred by the gist-of-the action 

doctrine.”). 
19

That point is dispositive in this case because, as the District Court appropriately 

recognized, the evidence presented at trial could have been interpreted to establish that 

there would have been no contract between Weinstein and Berger absent Weinstein’s

actions in inducing Berger to invest in the two projects. See Intermilo, Inc. v. I.P. 

Enters., Inc., 19 F.3d 890, 892 (3d Cir. 1994) (stating that, after a jury trial, facts are 

reviewed to “‘determine whether the evidence and justifiable inferences most favorable 

to the prevailing party afford any rational basis for the verdict’” (quoting Bhaya v. 

Westinghouse Elec. Corp., 832 F.2d 258, 259 (3d Cir. 1987))). A rational conclusion 

from the evidence is that Berger’s decisions to invest money from the Berger Entities

with Weinstein were made only after Berger was misled regarding the River City and 

2040 Market Street projects. As a result, the jury’s finding that there was a contract does 

not preclude Berger’s tort claims under the gist of the action doctrine.

Nor does the parties’ contract preclude a verdict in Berger’s favor on his unjust 

enrichment claim. Although an unjust enrichment claim is “inapplicable where a written 

or express contract exists,” Lackner v. Glosser, 892 A.2d 21, 34 (Pa. Super. 2006), that is 

only true, as the Weinstein Appellants acknowledge, when the express contract is “on the 

same subject,” Matter of Penn Cen. Transp. Co., 831 F.2d 1221, 1230 (3d Cir. 1987); see 

also Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir. 1987) 

(“Under Pennsylvania law ... . [w]here an express contract governs the relationship of 

the parties, a party’s recovery is limited to the measure provided in the express 

contract.”). Here, as the District Court observed, Weinstein and Berger both testified that 

they arranged for Berger to invest $21.5 million for the two properties. (See Supp. App. 
20

at 643 (Weinstein’s testimony that “around the middle of December, 2006, ... Berger 

provided $21.5 million to purchase both River City and 2040 Market Street”); App. at 

894 (Berger’s testimony that $12 million was sent to close on River City); App. at 897 

(Berger’s testimony that $9.5 million was sent to close on 2040 Market Street).) Berger, 

however, caused the Berger Entities to invest a total of $36.5 million in the two 

properties. Based on that evidence, the jury could have concluded that the contract 

between the parties involved only $21.5 million, meaning that Berger’s unjust enrichment

claim could permit him to recover, at a minimum, the $15 million difference between 

what was covered by his contractual arrangement with Weinstein and the amount he 

caused the Berger Entities to invest. See Intermilo, 19 F.3d at 892.

Thus, the District Court properly rejected the Weinstein Appellants’ contention 

that the contractual relationship between Weinstein and Berger barred Berger’s other 

claims.

III. Conclusion

For the foregoing reasons, we will affirm the judgment and the District Court’s 

orders denying the defendants’ post-judgment motions.

15

 15 The Weinstein Appellants have moved to strike Berger’s brief on the ground 

that it contains a false representation in a footnote that, evidently, they believed would 

inhibit our ability to objectively evaluate the merits of their appeal. We reject the 

implication, and will deny that motion in a separate order.