J-A02037-19

2019 PA Super 279

KARDEN CONSTRUCTION SERVICES, 

INC. 

Appellant

v.

BRIAN D'AMICO

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 286 MDA 2018

Appeal from the Judgment Entered April 4, 2018

In the Court of Common Pleas of Berks County Civil Division at No(s): 

09-6787

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY NICHOLS, J.: FILED SEPTEMBER 13, 2019

Appellant Karden Construction Services, Inc. appeals from the judgment 

entered in favor of Appellee Brian D’Amico following a new trial on damages 

from Appellant’s claim of unjust enrichment. Appellant argues that the trial 

court erred in finding that Appellant failed to prove damages. We affirm. 

This Court previously summarized the background of this appeal as 

follows: 

On June 2, 2009, [Appellant] filed a complaint against Appellee, 

alleging breach of contract and, alternatively, unjust enrichment. 

[Appellant] alleged that, on January 4, 2007, [Appellee] entered 

into an oral agreement with [Appellant] for the provision of 

professional services to assist with litigation and construction 

management. Specifically, [Appellant] alleged that [Appellee] 

engaged [Appellant] as an expert to assist [Appellee] in a lawsuit 

[Appellee] had filed against a contractor and a home inspector in 

connection with the construction of [Appellee]’s new home. 

[Appellant] further alleged that it rendered approximately one 

hundred thirteen (113) hours of professional services to 

[Appellee] from January 4, 2007 until December 8, 2008, valued 

at $21,338.70 when combined with out-of-pocket expenses. 
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[Appellant] alleged that [Appellee] failed to pay [Appellant] for the 

professional services and, as a result, breached the oral 

agreement. Alternatively, [Appellant] alleged that [Appellee] 

unjustly enriched himself by retaining the benefits of the services 

provided to him.

This matter proceeded to a non-jury trial, at which both parties 

presented testimony. The trial court summarized the evidence as 

follows:

Dennis Link has been the president and sole employee of 

[Appellant] since 1999. [Appellant] is a corporation that 

provides construction representation, including consulting, 

and project management representation throughout the 

construction of buildings, and expert reports and testimony 

for arbitrations and court hearings. [Mr. Link] works for 

owners, contractors, and counsel. His projects include 

commercial, industrial, institutional, governmental, and 

residential construction. 

[Appellant] was originally hired by [Appellee’s] former law 

firm for its lawsuit against a contractor. Mr. Link testified 

that he first met [Appellee] in January 2007 at [Appellee’s] 

home. Osmer Deming, Esquire, gave the necessary contact 

information to both parties. [Appellee] needed [Appellant’s] 

services for a new home which he was building. The 

meeting took several hours, and afterwards Mr. Link went 

to the job site. Mr. Link testified that during the meeting he 

had discussed his costs as an expert witness. He had said 

that the expenses would probably be $15,000.00 or possibly 

$20,000.00.

Mr. Link further testified that his contracts are typically 

verbal because the clients can hire or fire him at any time. 

In the instant case, he did a site assessment to determine 

what was done and if [the construction] was in conformance 

with codes. He gave the information to [Appellee’s] former 

attorneys to prepare a complaint against [Appellee’s] 

contractor and home inspector and to execute a certificate 

of merit. Mr. Link also stated that he communicated 

regularly with [Appellee] via e-mails and telephone 

conversations. Mr. Link claimed that his work for [Appellee] 

evolved into a considerable amount of construction 

management. [Appellee] also asked him about designs.
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By letter dated July 25, 2008 . . ., [Appellant] attached a

[$3,000.00] retainer invoice with the fee schedule discussed

between the parties in January 2007. Mr. Link testified that 

he had sent this letter because he had been informed by

[Appellee’s] law firm that [Appellee] had not been paying it 

for its services to [Appellee]. There is no place on the letter 

for [Appellee] to sign and return it to [Appellant]. The first 

page of the letter states: “Note: A retainer is required on 

every engagement. The retainer is applied to the final 

billing and any balance is returned at the conclusion of the 

engagement.” [Appellant] did not receive any payments 

from [Appellee] after the letter had been sent to him.

In January 2009 or February 2009, at the conclusion of its

services, [Appellant] sent its first invoice to [Appellee]. Mr. 

Link testified that he usually does not receive any payment 

until there is a negotiated settlement or a trial verdict. He 

normally expects to be paid from the settlement. He does 

not usually bill clients unless they request bills because he 

does not want them to be forced to accept an undesirable 

settlement in order to pay [Appellant’s] bill. [Appellee’s] 

case is still pending. Mr. Link does not think [Appellee] 

terminated his services officially, but, at some point, 

[Appellee] stopped asking [Appellant] to work for him.

[Attorney Deming] is [Appellee’s] present attorney for his 

construction litigation. He had been an associate at the law 

firm which initiated [Appellee’s] lawsuit. He started his own

practice, and [Appellee] is now his client. Attorney Deming

testified that there had been no agreement by his former 

law firm to pay [Appellant] for his work for [Appellee]. He 

did not remember getting any bill from [Appellant].

[Appellee] testified that his attorneys at the law firm, Kevin

Moore, Esquire, and Eden Bucher, Esquire, facilitated the

meeting between him and Mr. Link. He did not know 

anything about Mr. Link before the meeting. When he had 

received the invoice, he had not believed that he had owed 

[Appellant] any money because he had not entered into a 

written or verbal contract with [Appellant]. It was his 

understanding that Mr. Moore and Ms. Bucher were paying 

[Appellant].

[Appellee] further testified that no meeting between Mr.

Link and him had ever occurred at his residence. He first 
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met Mr. Link at the law firm. There had been no discussion 

regarding [Appellee’s] payment or a request for a retainer 

at that meeting. Following the first meeting, it had been 

[Appellee’s] understanding that Mr. Link would offer support 

as an expert witness for the purpose of the litigation against 

[Appellee’s] contractor and the inspector. Mr. Moore, Ms. 

Bucher, and Mr. Deming instructed [Appellee] to work with 

[Mr. Link] so he could help in the litigation concerning the 

house construction.

Upon receipt of the letter of February 5, 2009, [Appellee] 

sent an e-mail to [Appellant] stating that it was his 

understanding that [Appellant] was being paid by the law 

firm and, at the current time, [Appellee] did not wish to hire 

[Appellant] personally. Mr. Moore and Ms. Bucher had told 

[Appellee] that [Appellant] had been on retainer. Mr. Link 

had met with the two attorneys and had talked to them by 

telephone about three or four times prior to [Appellee’s] first 

meeting with Mr. Link. The litigation against the contractor 

and home inspector is still pending.

Karden Const. Servs., Inc. v. D’Amico, 1351 MDA 2015 at 1-2 (Pa. Super. 

filed May 25, 2016) (unpublished mem.) (citation omitted). 

Following a non-jury trial, the trial court found in favor of Appellee on 

all counts and denied Appellant’s post-trial motions for judgment 

notwithstanding the verdict. Id. at 4. On appeal, a prior panel of this Court 

affirmed in part, reversed in part, and remanded this matter. Id. at 10. 

Of relevance to this appeal, the prior panel concluded that Appellee was 

unjustly enriched by Appellant’s construction services. Id. at 9-10. As to the 

provision of construction services, the prior panel focused on Mr. Link’s 

testimony that Appellant provided Appellee with the following construction 

services: 

Frequently, [Appellee] would ask me questions about designs that 

were done, whether they were appropriate or not, whether there 
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was alternatives to it. Early—when—because it’s problems with 

the builder. We discussed going out and getting additional 

estimates so that we had support for damages that were going to 

go into the—into the legal process. And so a lot of activity 

associated with construction management was involved.

Id. at 9 (record citation omitted). Additionally, the prior panel emphasized 

Mr. Link’s testimony that once Appellee filed a complaint, he continued to 

communicate with Appellee “both from the standpoint—a local standpoint, 

dispute resolution standpoint, and also standpoint of construction 

management.” Id. at 10 (record citation omitted). 

The prior panel concluded that Appellant was entitled to judgment 

notwithstanding the verdict on its claim for unjust enrichment for Appellant’s 

“expertise in managing the construction of [Appellee]’s dwelling.”1 Id. at 10. 

The panel remanded for a determination of the reasonable value of the 

construction management services, as opposed to the litigation services,

Appellant provided to Appellee. Id. at 10. Specifically, the panel concluded:

Given the uncontradicted evidence, [Appellee] clearly 

appreciated, accepted and retained the benefit of [Appellant]’s 

expertise in managing the construction of [Appellee]’s dwelling. 

Differently put, [Appellee] unjustly enriched himself from the 

provision of construction management services. As a result, we 

remand this matter to the trial court to determine the reasonable 

value of [Appellant]’s construction management services. 

Accordingly, we affirm the trial court’s judgment to the extent it 

held that no agreement existed between the parties and 

[Appellee] did not benefit from the litigation support services. We, 

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1 The prior panel distinguished Appellant’s provision of “litigation services”

noting that Appellant failed to establish Appellee benefitted from such services 

and because “the lawsuit for which [Appellee’s] former law firm engaged the 

expert service of [Appellant was] still pending.” Karden Const. Servs., Inc.,

1351 MDA 2015 at 9 & n.2. 
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however, reverse the trial court’s judgment to the extent it held 

that [Appellee] was not unjustly enriched from the provision of 

construction management services and remand this matter for 

determination of the reasonable value of such services.

Id. at 10. The prior panel further suggested that the parties and the trial 

court would need to analyze Appellant’s Exhibit 2 (Exhibit P-2), which 

“detail[ed] services performed by [Appellant] both in the context of litigation 

support and construction management.” Id. at 10 n.3. 

On remand, the trial court conducted a new trial limited to the issue of 

damages.2 At the new trial, Mr. Link testified. Through Mr. Link, Appellant’s 

counsel admitted into evidence Exhibit 4 (Exhibit P-4), which Mr. Link 

prepared in anticipation of the new damages trial. Testifying about Exhibit P4, Mr. Link asserted that he spent a total of 113.27 hours on Appellee’s 

project, of which 99.57 hours were for construction management services. 

Mr. Link valued the construction management services at $17,343.30. 

Appellee also testified at the new trial. Appellee asserted that Appellant 

provided no construction management services and that he used none of 

Appellant’s services when finishing the construction of his home. 

At the conclusion of testimony, the parties requested an opportunity to 

file proposed findings of fact and conclusions of law, which the trial court 

granted. Appellant did not move for a directed verdict. 

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2 The initial trial in this matter was heard by Judge Jeffrey K. Sprecher. Judge 

Sprecher recused himself after this Court remanded the case for further 

proceedings. Judge James M. Lillis presided over the new trial following 

remand. 
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On January 9, 2018, the trial court issued its decision finding against 

Appellant and awarding zero damages. Appellant filed post-trial motions on 

January 17, 2018, seeking judgment notwithstanding the verdict, which the 

trial court denied on February 6, 2018.

Appellant filed a notice of appeal on February 8, 2018, and complied 

with the trial court’s order to file and serve a Pa.R.A.P. 1925(b) statement. 

On March 29, 2018, Appellant filed a praecipe for judgment, and the 

Prothonotary of the Court of Common Pleas entered judgment on April 4, 

2018.3 The trial court filed a Rule 1925(a) opinion on May 17, 2018.

In its Rule 1925(a) opinion, the trial court concluded that Appellant 

failed to demonstrate damages associated with its claim of unjust enrichment 

for construction management services. Trial Ct. Op., 5/17/18, at 6. The trial 

court reviewed the evidence presented at the first trial, which was 

incorporated into the record in the second trial, as well as the evidence 

presented in the second trial. See id. at 2-5. The trial court refused to afford 

any weight to Mr. Link’s testimony, or Exhibit P-4, regarding the purposes of 

his engagement with Appellee and the time spent on construction 

management. See id. at 2 (concluding that “[u]nfortunately, [Appellant] 

failed to provide any reliable evidence as to which services were provided for 

construction purposes and which were performed primarily for purposes of 

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3 Although Appellant filed its appeal before the entry of the judgment, a formal 

judgment was entered on Appellant’s praecipe for entry of judgment. 

Therefore, we will not quash this appeal. See Krishnan v. Cutler Grp., Inc., 

171 A.3d 856, 862 (Pa. Super. 2017). 
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litigation”). Specifically, the trial court noted that Appellant’s assertion that 

only 13.70 hours were for litigation services was belied by his prior testimony 

that he initially was hired to provide litigation services. Id. at 3-5. The trial 

court further noted that Appellee testified at the new trial that Appellant did 

not provide any services related to finishing or improving his home. Id. 

The trial court concluded that Appellant’s evidence at the new trial was 

a self-serving attempt to recast the majority of the services he provided as 

construction services. See id. at 5. Moreover, the trial court concluded that 

Appellant failed to demonstrate that any of the construction services he 

provided resulted in a benefit to Appellee.4 Id. 

On appeal, Appellant presents the following questions:

1. Did the trial court err in returning a verdict in favor of . . . 

Appellee as the credible evidence of record presented at trial, 

specifically the testimony and the written exhibits submitted into 

evidence by the Appellant was sufficient to establish that the 

reasonable value of the construction management services 

provided by [Appellant] to [Appellee] was in the amount of 

$17,343.30 plus costs of $739.87? 

2. Did the trial court err in returning a verdict in favor of . . . 

Appellee as the trial court’s finding that “[Appellant] failed to 

sustain its burden of proof to establish the value attributable to 

any construction management services provided by [Appellant] as 

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4 We acknowledge that a party must move for a directed verdict in order to 

preserve a claim that it was entitled to judgment notwithstanding the verdict 

in a post-trial motion. However, this Court has declined to find waiver when 

a party presents a request for judgment notwithstanding the verdict in a posttrial motion, and the trial court denies the post-trial motion on its merits. See 

Capital Care Corp. v. Hunt, 847 A.2d 75, 84 n.4 (Pa. Super. 2004). Here, 

the trial court denied Appellant’s post-trial motion for judgment 

notwithstanding the verdict and explained, in its Rule 1925(a) opinion, that it 

did so on the merits. Therefore, we decline to find waiver. See id. 
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may have benefitted or enriched [Appellee] to any appreciable or 

measurable degree” ignored the language of the Opinion and 

Order of the Superior Court of May 25, 2016, which specified that 

. . . Appellee had in fact been unjustly enriched from . . . 

Appellant’s provision of construction management services and 

that the [trial c]ourt was to analyze the exhibit submitted into 

evidence during the non-jury trial on June 30, 2015, to determine 

the reasonable value of said construction management services 

thus clearly confirming there was value to said services?

Appellant’s Brief at 9. 

We summarize Appellant’s arguments together, although in a different 

order than presented in its brief. Appellant contends that the trial court’s 

determination was inconsistent with this Court’s prior remand order, which 

held that Appellee was unjustly enriched by the provision of construction 

services. Id. at 19-21. Appellant contends that the trial court ignored the 

prior panel’s determination that Appellee was unjustly enriched by suggesting

that Appellant failed to establish that he conferred a specific benefit related to 

construction management services for Appellee’s home. Id. at 20-21. 

Appellant also claims that it provided credible and unrefuted evidence 

that Appellee was unjustly enriched by receiving construction services. 

Specifically, Appellant contends that it presented Exhibit P-4, which showed 

“the breakdown between services provided for construction management and 

services provided for litigation.” Id. at 13. 

Appellant further contends that the trial court erred in affording Exhibit 

P-4 no weight. Appellant criticizes the trial court for finding inconsistencies 

between Mr. Link’s prior testimony and his testimony at the new trial. Id. at 

15-18. Appellant contends that Mr. Link consistently testified that he 
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expended substantial time on construction management, which was not 

inconsistent with his testimony at the new trial or the substance of Exhibit P4. Moreover, Appellant asserts that Mr. Link’s evidence regarding the time 

spent on various services Appellant provided stood unrebutted. Id. Appellant 

concludes that it is entitled to a reversal of the trial court’s decision and the 

entry of a judgment in its favor.5 

Our review is governed by the following well-settled principles:

[a] judgment notwithstanding the verdict can be entered upon two 

bases: (1) where the movant is entitled to judgment as a matter 

of law; and/or, (2) the evidence was such that no two reasonable 

minds could disagree that the verdict should have been rendered 

for the movant. When reviewing a trial court’s denial of a motion 

for judgment notwithstanding the verdict, we must consider all of 

the evidence admitted to decide if there was sufficient competent 

evidence to sustain the verdict. In so doing, we must also view 

this evidence in the light most favorable to the verdict winner, 

giving the victorious party the benefit of every reasonable 

inference arising from the evidence and rejecting all unfavorable 

testimony and inference. Concerning any questions of law, our 

scope of review is plenary. Concerning questions of credibility and 

weight accorded the evidence at trial, we will not substitute our 

judgment for that of the finder of fact. If any basis exists upon 

which the [trial] court could have properly made its award, then 

we must affirm the trial court’s denial of the motion for judgment 

notwithstanding the verdict. A judgment notwithstanding the 

verdict should be entered only in a clear case.

Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 609 (Pa. Super. 2014) 

(citation and internal alterations omitted). 

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5 We note that Appellant did not seek a new trial in its post-trial motion. 

Additionally, Appellant does not argue that any of the specific construction 

management services listed in Exhibit 4 provided a benefit to Appellee.
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Moreover,

[t]he factfinder is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses. The trial court 

may award a judgment notwithstanding the verdict or a new trial 

only when the jury’s verdict is so contrary to the evidence as to 

shock one’s sense of justice. In determining whether this 

standard has been met, appellate review is limited to whether the 

trial judge’s discretion was properly exercised, and relief will only 

be granted where the facts and inferences of record disclose a 

palpable abuse of discretion.

Brown v. Trinidad, 111 A.3d 765, 770 (Pa. Super. 2015) (citations and 

quotation marks omitted).

The Pennsylvania Supreme Court has recently reiterated that a 

judgment notwithstanding the verdict 

should only be entered in a clear case with any doubts resolved in 

favor of the verdict winner. An appellate court “stands on a 

different plane” than a trial court, and it is the trial court that has 

the benefit of an “on-the-scene evaluation of the evidence.” As 

such, while the appellate court may disagree with a verdict, it may 

not grant a motion for [judgment notwithstanding the verdict] 

simply because it would have come to a different conclusion. 

Indeed, the verdict must stand unless there is no legal basis for 

it. 

Menkowitz v. Peerless Publications, Inc., 211 A.3d 797, 804 (Pa. 2019).

The prior panel of this Court stated the law to be applied on remand as 

follows:

[u]njust enrichment is an equitable doctrine, whose elements we 

have described as “[(1)] benefits conferred on defendant by 

plaintiff, [(2)] appreciation of such benefits by defendant, and 

[(3)] acceptance and retention of such benefits under such 

circumstances that it would be inequitable for defendant to retain 

the benefit without payment of value.” Schenck v. K.E. David, 

Ltd., 666 A.2d 327, 328 (Pa. Super. 1995) . . . . The critical inquiry 
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in the application of this doctrine is whether a defendant has been 

unjustly enriched. Id. “Where unjust enrichment is found, the law 

implies a contract, referred to as either a quasi contract or a 

contract implied in law, which requires that the defendant pay to 

plaintiff the value of the benefit conferred.”

Karden Const. Servs., Inc., 1351 MDA 2015 at 7. In assessing damages 

for unjust enrichment, however, “[e]nrichment is ‘measured by the value of 

the benefit to the owner, not by the value of the invoice submitted by the 

subcontractor.’” Ira G. Steffy & Son, Inc. v. Citizens Bank of 

Pennsylvania, 7 A.3d 278, 283 (Pa. Super. 2010) (citations and footnote 

omitted); see also D.A. Hill Co. v. Clevetrust Realty Inv'rs, 573 A.2d 

1005, 1010 (Pa. 1990) (reiterating that damages for unjust enrichment 

required consideration of “the value of the benefit conferred”). 

Having reviewed the evidence in the light most favorable to the verdict 

winner, we find that substantial evidence supported the trial court’s 

determination that Mr. Link failed to demonstrate damages for construction 

management services as was contemplated by the prior panel. See Karden 

Const. Servs., Inc., 1351 MDA 2015 at 10 (discussing Appellee’s retention 

of the benefits of Appellant’s expertise in managing the construction of 

Appellee’s dwelling). The trial court noted that Mr. Link testified at the new 

trial that he performed several construction management services. See Trial 

Ct. Op. at 3; N.T., 8/8/17, at 10. However, there were discrepancies in Mr. 

Link’s testimony. See Trial Ct. Op. at 3-5. As the trial court discussed, Mr. 

Link previously conceded that he initially intended to perform litigation 

services. See N.T., 6/30/15, at 9 (indicating that Mr. Link’s initial objective 
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was to provide Appellee’s counsel with the kinds of information they needed 

to prepare a complaint); see also N.T., 8/8/17, at 14 (noting that Mr. Link’s 

litigation support included providing information relative to defects that he 

learned about during construction management). Therefore, we discern no 

basis to disturb the trial court’s determination. See Menkowitz, 211 A.3d at 

804.

Furthermore, as to Appellant’s claim that it provided unrefuted 

testimony as to damages for construction management services, our review 

of the record reveals no basis for this Court to intrude on the trial court’s 

credibility determinations. See Prieto Corp., 100 A.3d at 609. The trial court 

was entitled to reject all, part, or none of the evidence presented, and the 

record supported the trial court’s determination that Mr. Link’s testimony was 

inconsistent. See Brown, 111 A.3d at 770. Therefore, the trial court did not 

abuse its discretion when rejecting all of Appellant’s evidence at the new trial 

based on a credibility determination. See id. 

In sum, having reviewed the record in light of our standard of review, 

we have no basis to conclude that Appellant was entitled to judgment as a 

matter of law. See Menkowitz, 211 A.3d at 804; Prieto Corp., 100 A.3d at 

609. Accordingly, no relief is due.
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Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2019