J-A24045-16

2016 PA Super 261

HUMERA KHAWAJA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

RE/MAX CENTRAL

Appellee No. 3776 EDA 2015

Appeal from the Order Entered November 20, 2015

In the Court of Common Pleas of Lehigh County

Civil Division at No(s): 2015-C-1511

BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION BY SOLANO, J.: FILED NOVEMBER 23, 2016

Appellant Humera Khawaja appeals from an order entered on 

November 20, 2015, that sustained the preliminary objections of Appellee 

RE/MAX Central and dismissed Khawaja’s complaint. We affirm in part, 

reverse in part, and remand.

According to her complaint,1 Khawaja is a licensed real estate agent 

who entered into a one-year Agreement on January 19, 2015, to act as an 

independent contractor with RE/MAX, a licensed real estate broker. Compl. 

at 2 ¶ 8; Agreement (Compl., Ex. “A”). Pursuant to the Agreement, RE/MAX 

would provide Khawaja with office space, administrative support, and other 

 

1 Because this case was decided on preliminary objections, we rely on the 

facts as alleged in the complaint, including its exhibits. See Albert v. Erie 

Ins. Exch., 65 A.3d 923, 928 (Pa. Super. 2013) (“In an appeal from an 

order granting preliminary objections in the nature of a demurrer we accept 

as true all well-pleaded material facts in the complaint, as well as all 

reasonable inferences deducible therefrom”).
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services. Compl. at 3 ¶ 10. In exchange, Khawaja worked on a “100% 

commission concept,” in which 30% of Khawaja’s commissions would be 

withheld by RE/MAX to pay for support and services up to a total of $17,163. 

Compl. at 2-3 ¶¶ 4, 11; Agreement (Compl., Ex. “A”) ¶¶ 8,11. After that 

amount was satisfied, Khawaja would receive 100% of any further 

commissions she earned. Compl. at 2 ¶ 7. 

The applicable terms governing this arrangement are set forth in

Paragraphs 8(A) and 11(A) of the Agreement, which read:

8. COMMISSIONS

A. All commissions payable to Contractor will be collected by 

RE/MAX and transmitted with 30% retained by RE/MAX 

and 70% to Contractor. Contractor is responsible for 1% 

Broker Service Fee. Commissions are earned at time of 

Agreement of Sale but not collected until settlement. 

Independent Contractor Agreement in force at the time of 

Agreement of Sale is how commission splits will be 

disbursed.

. . . 

11. CONTRACTOR FEES

. . . 

A. Contractor agrees to allow RE/MAX to withhold 30 percent 

(30%) from Contractor’s commission income to 

compensate RE/MAX $17,163.00 (yearly amount) as a 

Fixed & Administrative Expense Fee during the term of this 

Agreement. These Fixed Expenses are for an office 

expense of $831.25 per month and administrative fee of 

$599.00 per month. This monthly figure shall be for a 

one-year period according to the terms of the contract. All 

income in excess of the Fixed Expense Fee shall be paid to 

the Contractor for the duration of this one (1) year 

contract, subject to Paragraphs 12 [“Late Charges”] and 

14 [“Termination”] of this Agreement.
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Agreement (Compl., Ex. “A”) at 5-6 ¶¶ 8(A), 11(A). 

RE/MAX terminated its Agreement with Khawaja on April 22, 2015. 

Compl. at 4 ¶ 20.2 At that time, Khawaja had several pending listings of 

properties with RE/MAX. Id. at ¶ 21. Some of the listings had closed prior 

to the filing of this lawsuit, and some listings remained open at the time the 

suit was filed. Trial Court Opinion, 3/1/16, at 1-2. Paragraph 14 of the 

Agreement governs payments to real estate agents for transactions pending 

at the time the Agreement is terminated:

14. TERMINATION

. . . 

D. Transactions Pending

In the event the Contractor terminates and any 

transaction(s) pending require(s) further work normally 

rendered by the Contractor, RE/MAX may at its sole 

discretion make arrangements with the Contractor to 

perform the required work, or Broker may assign an agent 

to complete the transaction. Direct out-of-pocket 

expenses incurred by RE/MAX and a twenty percent (20%) 

referral fee for the manager completing the work shall be 

deducted from terminated Contractor’s commission(s).

E. Commissions Received After Termination

After notice by either party of intent to terminate this 

Agreement, should RE/MAX receive any sales commissions 

as a result of transactions initiated by Contractor, subject 

to Sub-paragraph “D” above, they shall be applied, in 

total, first to the payment of late charges, then to interest, 

then to any outstanding balance owed RE/MAX, and, if 

any, the remainder shall be paid to the Contractor.

 

2 Both parties agree that RE/MAX terminated the Agreement. See Compl. at 

4 ¶ 20; Prelim. Objections at 2 ¶ 7. Although Khawaja claims she was 

terminated without cause, and RE/MAX claims that she was terminated for 

cause, that issue is not relevant here. See Trial Court Opinion, 3/1/16, at 2.
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Agreement (Compl., Ex. “A”) at 9 ¶14(D)-(E). Khawaja alleges that RE/MAX 

received commissions after she was terminated and, in violation of the 

Agreement, failed to pay those commissions to Khawaja. Compl. at 4-5 ¶¶ 

21, 23, 27-28.

On May 11, 2015, Khawaja commenced this action to recover the 

unpaid commissions. Her complaint alleged breach of contract and unjust 

enrichment.3 On May 22, 2015 and June 2, 2015, RE/MAX issued checks to 

Khawaja for commissions to which it agreed Khawaja was entitled under the 

Agreement. It withheld from the commissions the 20% “referral fee” 

referenced in Paragraph 14(D) of the Agreement. See Prelim. Objections ¶¶ 

27-28 & Exs. “A,” “B.” On June 9, 2015, RE/MAX filed preliminary objections 

in the nature of a demurrer that asserted that Khawaja was entitled to no 

additional payments. 

On July 10, 2015, the trial court entered an order directing the parties 

“to establish and create any facts of record necessary to the disposition of 

the Preliminary Objections” and scheduling argument on the preliminary 

objections for September 4, 2015. On the date scheduled for argument, 

each party filed affidavits. RE/MAX submitted an affidavit by its principal, 

Thomas Skiffington, that was dated August 6, 2015, and stated that RE/MAX 

had paid Khawaja “all commissions due and owing” under the Agreement for 

 

3 Her complaint also included a count requesting equitable relief. The trial 

court dismissed that count, and Khawaja does not appeal that part of the 

trial court’s decision.
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transactions that closed after her termination. Skiffington Aff., 8/6/15, ¶ 7. 

He attached a spreadsheet showing deductions that RE/MAX made from 

those commissions, including deduction of the 20% “referral fee.” Id. ¶¶ 8-

9 & Ex. “A.” Khawaja submitted her own affidavit listing properties for which 

she claimed commissions still were due and owed to her and stating her 

disagreement with Mr. Skiffington’s assertions. She claimed RE/MAX owes 

her $26,982.86. Khawaja Aff., 9/4/15, ¶¶ 7-9 & Exs. “A” & “B.” 

The trial court sustained RE/MAX’s preliminary objections in an order 

dated November 20, 2015. In its order, the trial court stated: 

Plaintiff is correct that Section 14D of the Independent 

Contractor Agreement does not apply in this instance because 

Plaintiff was terminated by RE/MAX Central; Plaintiff did not 

terminate the contract. After a thorough reading of the 

Independent Contractor Agreement, we find Defendant RE/MAX 

Central’s generous interpretation of the contract to Plaintiff’s 

benefit. Plaintiff failed to set forth a cause of action indicating 

she is entitled to more.

Trial Court Order, 11/20/15, at 1-2 n.1. This appeal followed.

In her brief, Khawaja raises the following four issues:

1. Did The Lower Court Err By Granting [RE/MAX’s] Demurrer 

After Expressly Finding [RE/MAX’s] Sole Defense To 

[Khawaja]’s Complaint Was Unfounded?

2. Did The Lower Court Err By Entering Final Judgment On 

[RE/MAX’s] Demurrer Where It Was Evident That The Claimed 

Deficiency Could Have Been Cured By Permitting An 

Amendment To [Khawaja]’s Complaint?

3. Did The Lower Court Err By Dismissing [Khawaja]’s Unjust 

Enrichment Claim Because A Breach Of Contract Claim Was 

Asserted In The Alternative?
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4. Did The Lower Court Err By Expressly Acknowledging That It 

Committed Error, But Then Disregarded It?

Khawaja’s Brief at 4.

On March 16, 2016, the trial court filed an opinion pursuant to 

Appellate Rule 1925. Focusing on Khawaja’s claim that she was entitled to 

commissions due on listings that closed after she was terminated, the court 

reviewed the competing affidavits and found that Khawaja did not include in 

her submissions the closing dates for the properties to which she claimed 

commissions and therefore had failed to provide “necessary elements for 

determining the amounts due pursuant to Paragraph 8 of the Agreement.” 

Trial Court Opinion, 3/16/16, at 4. Accordingly, the court said, “the facts 

asserted by [RE/MAX] “essentially remained unrefuted.” Id. 

The court then lamented its consideration of the affidavits, stating that 

it was “in error” to receive them because preliminary objections should be 

decided only on the pleadings. Trial Court Opinion, 3/16/16, at 4. “By 

submitting affidavits,” the court said,” both counsel invited the consideration 

of matters which would have been more properly addressed by a motion for 

summary judgment.” Id. The court said that because defense counsel did 

not object to consideration of the affidavits, RE/MAX had waived this error. 

Id. 

The court then stated the following holding on the breach of contract 

claim:
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We conclude the following: Paragraph 8 of the Agreement 

is the only paragraph which applies to Plaintiff’s right of 

recovery. Therefore, to the extent that the complaint alleges 

contractual rights of recovery in excess of Paragraph 8, the 

demurrer is sustained. Our order should have allowed the case 

to proceed on Count I, and to that extent we were in error. 

However, we point out that the error was prompted by the 

Defendant’s complicity in submitting an affidavit and in failing to 

object to the court’s consideration of same.

Trial Court Opinion, 3/16/16, at 4-5. In later pages of its opinion, the court 

said it had properly dismissed Khawaja’s claim for unjust enrichment 

because Khawaja had pleaded an entitlement to the commissions under an 

express contract and an unjust enrichment claim is incompatible with such a 

contract claim. Id. at 5-6 (citing, e.g., Villoresi v. Femminella, 856 A.2d 

78, 84 (Pa. Super. 2004)). 

Our standard of review is as follows:

Our standard of review of an order of the trial court overruling or 

granting preliminary objections is to determine whether the trial 

court committed an error of law. When considering the 

appropriateness of a ruling on preliminary objections, the 

appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal 

sufficiency of the complaint. When considering preliminary 

objections, all material facts set forth in the challenged pleadings 

are admitted as true, as well as all inferences reasonably 

deducible therefrom. Preliminary objections which seek the 

dismissal of a cause of action should be sustained only in cases 

in which it is clear and free from doubt that the pleader will be 

unable to prove facts legally sufficient to establish the right to 

relief. If any doubt exists as to whether a demurrer should be 

sustained, it should be resolved in favor of overruling the 

preliminary objections.
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Perelman v. Perelman, 125 A.3d 1259, 1263 (Pa. Super. 2015), appeal 

denied, 141 A.3d 435 (Pa. 2016) (internal citations and quotation marks 

omitted).

Breach of Contract

With respect to her first issue, Khawaja contends that the trial court’s 

order dismissing her breach of contract claim contains erroneous logic that 

wrongly permits RE/MAX to withhold $26,982.86 of her earned commissions. 

Khawaja’s Brief at 15-16. Khawaja claims that RE/MAX already has withheld 

the full $17,163 in expense fees to which it is entitled under Paragraph 

11(A) of the Agreement and that she therefore should be paid 100% of the 

commissions earned on listings that closed after her termination, pursuant 

Paragraph 14(E) of the Agreement. RE/MAX responds that it has paid 

Khawaja all of the commissions to which she is entitled and that any money 

it has retained consists mainly of the 20% “referral fee” authorized under 

Paragraph 14(D) of the Agreement. RE/MAX’s Brief at 10. 

The trial court’s November 20, 2015 order held that Paragraph 14(D) 

did not permit RE/MAX to withhold referral fees because Paragraph 14(D) 

applies only to cases in which the real estate agent — here, plaintiff Khawaja 

— terminates the Agreement, and not to terminations by RE/MAX. As the 

court emphasized, “Plaintiff did not terminate the contract.” Trial Court 

Order, 11/20/15, at 1 n.1. But the trial court nevertheless held that the 

case should be dismissed because RE/MAX’s “generous interpretation of the 
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contract [is] to Plaintiff’s benefit” and Khawaja failed to state a claim to 

entitlement to more than RE/MAX had already paid her. Id. at 2 n.1. The 

court did not further explain this reasoning, and in its Rule 1925 opinion, it 

apparently stepped back from this second part of its order. The Rule 1925 

opinion states that Paragraph 8 “is the only paragraph which applies to 

[Khawaja’s] recovery,” thus apparently adhering to the court’s original view 

that Paragraph 14(D) is inapplicable; then, the opinion adds that the court’s 

failure to allow Khawaja to proceed on her breach of contract claim was “in 

error.” Trial Court Opinion, 3/16/16, at 4. 

We interpret all of this to mean that the trial court concluded the 

following: RE/MAX’s defense based on Paragraph 14(D) is without merit; 

Khawaja’s contract claim therefore is not subject to dismissal on the basis of 

that Paragraph 14(D) defense; and, contrary to what the court initially said 

in its November 20, 2015 order, Khawaja is entitled to proceed on her 

contract claim for recovery of damages under the remainder of the 

Agreement. With this understanding of the trial court’s decision, we agree, 

and we therefore reverse and remand to correct the error in the November 

20, 2015 order that was recognized by the trial court. 

First, we agree that Paragraph 14(D) of the Agreement does not give 

RE/MAX a right to retain 20% of the commissions as a “referral fee.” The 

paragraph reads: 

In the event the Contractor terminates and any 

transaction(s) pending require(s) work normally rendered by the 
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Contractor, RE/MAX may at its sole discretion make 

arrangements with the Contractor to perform the required work, 

or Broker may assign an agent to complete the transaction. 

Direct out-of-pocket expenses incurred by RE/MAX and a twenty 

percent (20%) referral fee for the manager completing the work 

shall be deducted from terminated Contractor's commission(s).

Agreement (Compl., Ex. “A”) at 9 ¶ 14(D) (emphasis added).4 When 

interpreting a contract, “[t]o discern the parties’ intent, the court must give 

effect to clear and unambiguous terms without reference to matters outside 

the contract.” Anchel v. Shea, 762 A.2d 346, 352 (Pa. Super. 2000) 

(internal citations and quotation marks omitted). By its plain terms, 

Paragraph 14(D) applies only “[i]n the event the Contractor terminates” the 

Agreement. The definition of “Contractor” is set forth at the very beginning 

of the Agreement:

THIS AGREEMENT made and entered into this 19th day of 

January, 2015, and effective date February 1, 2015 by and 

between RE/MAX Central (hereinafter called “RE/MAX”) . . . and 

Humera Khawaja (hereinafter called “CONTRACTOR”) . . . .

Agreement (Compl., Ex. “A”) at 1. Clearly, then, the reference in Paragraph 

14(D) to “the Contractor” is to Khawaja, and the paragraph applies only if 

Khawaja terminates the Agreement. The parties agree that RE/MAX 

terminated the Agreement, not Khawaja. Compl. at 4 ¶ 20; Prelim. 

Objections, at 2 ¶ 7. Therefore, Paragraph 14(D) is inapplicable, and 

RE/MAX has no right to claim a “referral fee” under it. 

 

4 We have found no reported decisions interpreting this provision.
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RE/MAX argues that this interpretation is incorrect because the 

sentence setting forth its right to a referral fee (the final sentence of 

Paragraph 14(D)) states that “a twenty percent (20%) referral fee for the 

manager completing the work shall be deducted from terminated 

Contractor's commission(s).” Agreement (Compl., Ex. “A”) at 9 ¶ 14(D) 

(emphasis added). RE/MAX contends that the phrase “terminated 

Contractor” refers to any terminated contractor, regardless of whether the 

Agreement was terminated by the contractor or by RE/MAX. RE/MAX’s Brief 

at 10-11. We disagree. 

We interpret provisions of a contract in light of the context in which 

they appear. Reilly v. City Deposit Bank & Trust Co., 185 A. 620, 623 

(Pa. 1936) (in interpreting contracts, that sense of words used should be 

adopted which best harmonizes with context and promotes in the fullest 

manner the objects of the parties). Paragraph 14(D) is a single paragraph 

addressing what happens to pending transactions when a real estate agent 

terminates the Agreement. It authorizes RE/MAX to arrange for the agent to 

continue working on the listing or to assign another agent to complete the 

transaction, and it then provides for RE/MAX to be paid its expenses 

resulting from the agent’s termination of the Agreement and for payment of 

a referral fee relating to the hiring of a new manager to complete the 

transaction. There is no indication in Paragraph 14(D) that the references in 

its last sentence to payment of expenses and a referral fee have a broader 
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application than the rest of the paragraph, which relates only to terminations 

by an agent (“the Contractor”).5 Indeed, the Agreement’s succeeding 

paragraph, 14(E), lists the categories of payments (late charges, interest, 

and outstanding balances) that are to be subtracted from commissions when 

there is “notice by either party of intent to terminate this Agreement.” 

See Agreement (Compl., Ex. “A”) at 9 ¶ 14(E) (emphasis added). Referral 

fees are not in that list. 

Because Paragraph 14(D) provides no defense to Khawaja’s claim for 

breach of contract, it provides no ground for dismissal of that claim.6 The 

trial court’s Rule 1925 opinion recognized this fact, stating that the court’s 

dismissal was “in error.” Trial Court Opinion, 3/16/16, at 4. We agree, and 

 

5 RE/MAX contends that the “referral fee” provision merely “memorializes” 

the idea that, once a second agent is assigned to complete the transaction, 

that agent and the original agent will share compensation, and RE/MAX 

suggests that the 20% fee is intended to allocate commissions between the 

two agents. See RE/MAX’s Brief at 10. But a separate provision of the 

Agreement, Paragraph 8(C), provides for shared commissions. It states:

In the event that two or more Contractors participate in a 

transaction, the commission shall be divided between the 

participating contractors according to the agreement between 

them or by arbitration.

Because this provision already provides for allocation of the commissions, 

Paragraph 14(D) has no role to play in that task. 

6 Although we agree that Paragraph 14(D) is inapplicable, we do not 

necessarily agree with the trial court’s statement that “Paragraph 8 of the 

Agreement is the only paragraph that applies to Plaintiff’s right of recovery.” 

Trial Court Opinion, 3/16/16, at 4. As our opinion notes, several other 

paragraphs of the Agreement may be implicated here, and we take no 

position on whether or how they may apply.
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we therefore reverse and remand for further proceedings on Counts I and III 

of the complaint alleging breach of contract.

Our disposition makes it unnecessary to reach Khawaja’s second and 

fourth issues. Khawaja’s second issue relates to the trial court’s failure to 

permit her to amend her complaint to add any averments necessary to make 

her contract claim viable. Because we have held that the contract claim as 

originally pleaded was viable and should have been permitted to proceed, 

that issue is moot.

Khawaja’s fourth issue relates to the trial court’s discussion of its 

professed error in considering the parties affidavits in connection with the 

preliminary objections. The trial court was correct that it should have 

resolved the preliminary objections without reference to the affidavits. See 

Kilmer v. Sposito, --- A.3d ----, 2016 PA Super 141, at *2 (Pa. Super. 

2016). Consideration of materials extraneous to the complaint would have 

been appropriate on a motion for summary judgment, but the trial court was 

not presented with a summary judgment motion here. Although the trial 

court commented about deficiencies in in the proof provided by the 

affidavits, see Trial Court Opinion, 3/16/16, at 4, the court did not base its 

dismissal of the action on any of the extraneous information provided by the 

parties. As we now reverse the dismissal on other grounds, the trial court’s 

consideration of the affidavits provides no basis for any appellate action.
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Unjust Enrichment

Khawaja’s remaining issue is whether the trial court erred in 

dismissing her count alleging unjust enrichment. The trial court recognized 

that a plaintiff may plead alternative theories of recovery in a complaint, but

it held that, because Khawaja acknowledged the undisputed fact that she 

entered into a written Agreement with RE/MAX, there could be no basis for 

an unjust enrichment claim. We agree. A cause of action for unjust 

enrichment may arise only when there is no express contract between the 

parties. Villoresi, 856 A.2d at 84. Here, in light of the written Agreement, 

Khawaja’s claim of unjust enrichment cannot stand.

Although Khawaja contends that the trial court misapplied this rule of 

law, she presents no authority to support her assertion. A claim sounding in 

breach of contract may be pleaded alternatively with a claim of unjust 

enrichment if the claims are raised in separate counts of a complaint. Lugo 

v. Farmers Pride, Inc., 967 A.2d 963, 970 (Pa. Super. 2009). However, 

the fact remains that “[a] cause of action for unjust enrichment arises only 

when a transaction is not subject to a written or express contract,” 

Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., 933 A.2d 

664, 669 (Pa. Super. 2007). Khawaja argues that the trial court’s rejection 

of her claim based on the Agreement meant that her unjust enrichment 

claim should have been permitted to proceed. Khawaja’s Brief at 22-23. 

But because we have reversed the dismissal of Khawaja’s contract claim, 
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this argument no longer has any force. Khawaja’s complaint alleged unjust 

enrichment in her second count, which incorporated by reference the facts 

pled in Count I, her breach of contract count. See Compl. at 6. Her unjust 

enrichment count thus averred the existence and terms of the signed 

Agreement. Because a claim for unjust enrichment cannot stand when there 

is an express contract and because Khawaja’s allegations in this regard are 

based on the terms of such a contract, we affirm the trial court’s dismissal of 

Khawaja’s unjust enrichment claim. 

In sum, we reverse the trial court’s dismissal of Counts I and III of 

Khawaja’s complaint, alleging breach of contract; reinstate those claims; and 

remand for further proceedings with respect to them. We affirm the trial 

court’s dismissal of Count II of the complaint, alleging unjust enrichment. 

Case remanded. Panel jurisdiction relinquished.

Judge Bowes joins the opinion.

Judge Ott concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016