J-S44010-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID SCHOENHOLTZ AND MARYA 

SHOENHOLTZ

v.

HALF MOON LAND COMPANY, LLC 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 242 MDA 2020

Appeal from the Judgment Entered January 6, 2020

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

2015-1726

BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 30, 2020

Half Moon Land Company, LLC (“Half Moon”) appeals from the judgment 

entered on January 6, 2020,1in favor of Appellees, David Schoenholtz and 

Marya Schoenholtz (collectively “the Schoenholtzes”), after the trial court 

denied the parties’ cross motions for post-trial relief. After careful review, we 

affirm. 

____________________________________________

1 Half Moon purports to appeal from the order dated December 11, 2019, 

denying the parties’ cross-motions for post-trial relief; however, an appeal 

properly lies from the entry of judgment following the trial court’s disposition 

of post-trial motions. See Fanning v. Davne, 795 A.2d 388 (Pa. Super. 

2002). Although Half Moon erroneously appealed from the order denying 

post-trial relief, judgment was subsequently entered on January 6, 2020, and 

its notice of appeal relates forward to that date. See Pa.R.A.P. 905(a)(5). 

Hence, no jurisdictional defects impede our review. 
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This matter stems from an agreement to purchase land that never came 

to fruition. The Schoenholtzes initiated a breach of contract and unjust 

enrichment action against Half Moon on April 27, 2015,

2

in which they sought 

the return of their $20,400 escrow deposit, plus pre-judgment interest. On 

October 7, 2016, Half Moon filed an answer with new matter and a 

counterclaim, also asserting breach of contract and unjust enrichment. The

Schoenholtzes filed a reply to Half Moon’s new matter and counterclaim, 

wherein they raised the statute of limitations defense to Half Moon’s breach 

of contract counterclaim. 

Testimony was heard at a non-jury trial on April 12, 2019, after which 

the trial court issued the following findings of fact:

1. [The Schoenholtzes] own several restaurants in Centre County, 

Pennsylvania[,] and are residents of Half Moon Township, 

Centre County[,] Pennsylvania. 

2. [Half Moon] is a limited liability company organized under the 

laws of the Commonwealth of Pennsylvania. 

3. [Half Moon’s] managing member is Mark Maloney, a resident 

of Centre County, Pennsylvania. 

4. [The Schoenholtzes] knew Mr. Maloney as a customer at one 

of their restaurants and had conversations with him about their 

desire to purchase land to build a home. Mr. Maloney informed 

[them] about land he was developing (later referred to as “the 

Farm”) in Half Moon Township. These conversations occurred 

in early 2011. 

5. [The Schoenholtzes] and [Half Moon] initially executed a 

standard agreement for the sale of vacant land (“Agreement of 

Sale”) on December 14, 2011. 

____________________________________________

2 The complaint was reinstated by agreement of counsel on June 16, 2016. 
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6. In the Agreement of Sale, [the Schoenholtzes] agreed to 

purchase 5.465 acres of land identified as Property Code #17-

2-4A (the “Property” or “Lot 3”) for $204,000. 

7. The Property is located in Half Moon Township, Centre County, 

Pennsylvania. 

8. As consideration for the Agreement of Sale, [the

Schoenholtzes] gave [Half Moon] a $20,400 deposit via check 

on December 14, 2011. 

9. [The Schoenholtzes’] deposit was placed into an operating 

account held by [Half Moon]. 

10. On December 23, 2011, the parties entered into an Article of 

Agreement, which supplanted the Agreement of Sale, with a 

closing date on or before March 15, 2012. 

11. The Article of Agreement incorporated the $20,400 deposit 

previously paid by [the Schoenholtzes], and that deposit 

served as consideration for the agreement. 

12. The parties agree the deposit was to be deposited into an 

escrow account. 

13. Mr. Maloney signed the Article of Agreement as a 

representative of [Half Moon]. 

14. Paragraph Four of the Article of Agreement calls for the 

execution of a special warranty deed to be delivered on the 

date of possession (listed as December 30, 2011 in Paragraph 

Two of the Article of Agreement) to Greg Copenhaver, an agent 

with RE/MAX Centre Realty of State College [(“RE/MAX”)]. 

15. Mr. Copenhaver acted as a real estate agent for the sale of 

many of the lots located on the Farm. 

16. Mr. Copenhaver was asked to write the Agreement of Sale for 

Lot 3 by Mr. Maloney. 

17. Mr. Copenhaver did not receive a deed nor did he escrow a 

deed as was required by Paragraph Four of the Article of 

Agreement. 

18. In February 2012, [the Schoenholtzes] commenced discussions 

with Mr. Maloney about replotting Lot 3 to possibly extend it to 

ten (10) acres, with the intention of splitting the lot with their 

friends[,] the Krauses. 
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19. The parties never entered into an agreement of sale for the 

replotted land. 

20. Neither party sought to close on Lot 3, pursuant to the Article 

of Agreement, on March 15, 2012.

21. PennTerra Engineering, Inc. ([“]PennTerra[”]) was hired by 

[Half Moon] to replot the lot, and began that process in April 

2012. 

22. PennTerra worked to replot Lot 3 from April 2012 to January 

2013. 

23. On February 12, 2013[,] Mr. Maloney sent an email to [the

Schoenholtzes] with a letter attached informing them Lot 3, 

with its new dimensions, was approved for sewage disposal 

permits to be issued. The letter was sent from Robert W. 

Everett III, a sewage planning specialist with the Pennsylvania 

Department of Environmental Protection. 

24. In June 2013, [Half Moon] asserts [it] informed [the 

Schoenholtzes] Lot 3 was replotted. [Mrs.] Schoenholtz 

testified she and her husband were never informed Lot 3 had 

officially been replotted. 

25. After it was replotted, Lot 3 became a 10.256 acre lot. 

26. There is some discrepancy as to the new purchase price of Lot 

3. [Mrs.] Schoenholtz testified the Property was to be 

approximately $320,000[,] which she and her husband were 

going to split with the Krauses. [Half Moon] avers the agreed 

upon price was $316,506.74. 

27. Sometime in 2013, Mr. Maloney presented [the Schoenholtzes] 

with a Termination of Article of Agreement to terminate the 

Article of Agreement entered into by the parties on December 

23, 2011. 

28. The Termination of Article of Agreement addressed the cost of 

the replot and how the cost[] would be distributed between the 

parties. 

29. [The Schoenholtzes’] attorney had legal concerns about the 

terms of the Termination of Article of Agreement and neither 

[the Schoenholtzes] nor [Half Moon] signed it. 
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30. On May 30, 2014, ... [Mr.] Schoenholtz informed Mr. Maloney, 

through email, that he and his wife no longer wished to 

purchase the land, and requested the return of their deposit. 

31. In the email[,] ... [Mr.] Schoenholtz stated it had been a while 

since he and his wife had spoken with Mr. Maloney about the 

[P]roperty. 

32. [The Schoenholtzes] hired a realtor in May 2014. 

33. [The Schoenholtzes] purchased their current house in July 

2014. 

Trial Court Opinion (“TCO I”), 8/7/19, at 2-4 (unnecessary capitalization 

omitted). 

On August 7, 2019, the trial court issued an order, finding in favor of 

the Schoenholtzes on their breach of contract claim and in favor of Half Moon 

on their unjust enrichment claim. Additionally, the trial court held that Half 

Moon’s counterclaim, to the extent it alleged breach of the Article of 

Agreement, was time-barred by the statute of limitations,

3 and denied its 

unjust enrichment counterclaim. However, the trial court found partially in 

favor of Half Moon to the extent its counterclaim alleged breach of an oral 

agreement pertaining to the replotting of Lot 3. Accordingly, the trial court 

awarded the Schoenholtzes their escrow deposit of $20,400.00, plus prejudgment interest, and awarded Half Moon $8,996.27, representing half of the 

replotting costs. Both parties filed motions for post-trial relief, which were 

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3 The statute of limitations on breach of contract actions is four years. Half 

Moon alleges that the Schoenholtzes breached the Article of Agreement by not 

closing on the home on December 30, 2011; however, it did not file its 

amended counterclaim until November 14, 2016. See TCO I at 9; 42 Pa.C.S. 

§ 5525. 
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denied by the trial court on December 11, 2019. On January 6, 2020, 

judgment was entered in accordance with the August 7, 2019 verdict. 

On February 5, 2020, Half Moon filed a timely notice of appeal, followed 

by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. Half Moon presents the following issues for our 

review, which we address out of order for ease of disposition: 

1. Whether the trial court erroneously concluded, by employing 

the wrong legal standard and conclusions that were 

unsupported by any factual findings, that [Half Moon] failed to 

establish its right to damages associated with reselling real 

property after [the Schoenholtzes] agreed, but then refused to 

purchase that property? 

2. Whether the trial court erroneously concluded that unjust 

enrichment did not apply to the purchase of real property, 

because [the Schoenholtzes] had not physically taken 

possession of the property despite having agreed to purchase 

the property?

3. Whether the trial court erroneously concluded that [the

Schoenholtzes] proved their right to the return of a $20,400 

agreement of sale deposit, when finding at the same time that 

[the Schoenholtzes], not [Half Moon], failed to consummate 

the purchase transaction and thereby breached the 

agreement[?]

Half Moon’s Brief at 6. 

To begin, we note our standard of review from the denial of a request 

for judgment notwithstanding the verdict (“JNOV”):

Appellate review of a denial of JNOV is quite narrow. We may 

reverse only in the event the trial court abused its discretion or 

committed an error of law that controlled the outcome of the case. 

Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 

(Pa. Super. 2005) (citations and quotations omitted). “Abuse of 

discretion occurs if the trial court renders a judgment that is 

manifestly unreasonable, arbitrary or capricious; that fails to 
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apply the law; or that is motivated by partiality, prejudice, bias or 

ill-will.” Id. 

When reviewing an appeal from the denial of a request for 

JNOV, the appellate court must view the evidence in the 

light most favorable to the verdict-winner and give him or 

her the benefit of every reasonable inference arising 

therefrom while rejecting all unfavorable testimony and 

inferences.... Thus, the grant of [JNOV] should only be 

entered in a clear case and any doubts must be resolved in 

favor of the verdict-winner. Furthermore, it is only when 

either the movant is entitled to judgment as a matter of law 

or the evidence was such that no two reasonable minds 

could disagree that the outcome should have been rendered 

in favor of the movant that an appellate court may vacate a 

jury’s finding. 

Hutchison ex rel. Hutchison v. Luddy, 896 A.2d 1260, 1265 

(Pa. Super. 2006) (citations and quotations omitted). 

Empire Trucking Co., Inc. v. Reading Anthracite Coal Co., 71 A.3d 923, 

932 (Pa. Super. 2013) (quoting Thomas Jefferson Univ. v. Wapner, 903 

A.2d 565, 569 (Pa. Super. 2006) (internal brackets omitted)).

Here, Half Moon argues that he is entitled to JNOV, as the trial court 

erred in finding in favor of the Schoenholtzes on their breach of contract claim 

and in awarding them the return of their $20,400 deposit, plus interest. Half 

Moon’s Brief at 17-18. Half Moon denies the Schoenholtzes’ assertion that it 

refused to convey the Property to them, in violation of the terms of the Article 

of Agreement. To the contrary, Half Moon asserts that the parties agreed to 

replot Lot 3, which amounted to an oral modification of the original contract, 

and that it held the Property for the Schoenholtzes, as required by the Article 

of Agreement, between the time the contract was executed in December of 

2011, and May 30, 2014, when the Schoenholtzes “reneged on this 
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transaction.” Id. at 34. Half Moon avers that it rightfully withheld the 

Schoenholtzes’ deposit “when [they] failed to consummate the transaction.” 

Id. at 32. Additionally, Half Moon argues that the Schoenholtzes breached an 

oral contract to purchase the reconfigured Lot 3, and it seeks recovery for the 

lost value associated with the subsequent sale of the land.4 

At the crux of Half Moon’s claims is its assertion that the trial court erred 

in finding that the original Article of Agreement was “terminated by the 

parties[,]” and in determining that no valid, oral agreement for the purchase 

of the replotted land existed. See TCO I at 9, 11. Half Moon argues that the 

trial court applied the wrong standard in reaching its decision. Rather than 

examining the record for the establishment of an independent, oral agreement 

to purchase real estate, it claims that the trial court should have considered 

the parties’ actions to be a mere modification of an existing, written 

agreement. Half Moon’s Brief at 16-18. Half Moon notes that this distinction 

is relevant because “the standard for establishing an oral modification to a 

preexisting, written agreement is different than the standard for establishing 

a standalone oral agreement for the purchase of real property.” Id. at 20.

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4 Half Moon avers that the parties had agreed that the Schoenholtzes would 

purchase the replotted Lot 3 for $316,506.74, but that after they reneged on 

the arrangement, it was only able to sell the property for $270,000. Excluding 

carrying costs, Half Moon alleges that it lost $71,506.74 as a result of the 

Schoenholtzes’ opting to not purchase the Property. Id. at 14-15. 
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Subject to limited exception, the statute of frauds prohibits the 

enforcement of an oral agreement for the sale of real property. Id. (citing 33 

P.S. § 1).5 Whereas, Half Moon suggests that an oral modification to a written 

real estate agreement “may be shown by writings or by words or by conduct 

or by all three.” Id. (quoting Bonczek v. Pascoe Equipment Co., 450 A.2d 

75, 77 (Pa. Super. 1982) (internal citations omitted)).6 Half Moon further 

avers that “[a]n agreement may be modified with the assent of both 

contracting parties if the modification is supported by consideration.” Id. at 

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5 Our Supreme Court recognized an exception to the statute of frauds in 

Kurland v. Stolker, 533 A.2d 1370 (Pa. 1987), where it held that a party 

may enforce an oral agreement for the purchase of real property by 

establishing the following:

The terms of the contract must be shown by full, complete, and 

satisfactory proof. The evidence must define the boundaries and 

indicate the quantity of the land. It must fix the amount of the 

consideration. It must establish the fact that possession was 

taken in pursuance of the contract, and, at or immediately after 

the time it was made, the fact that the change of possession was 

notorious, and the fact that it has been exclusive, continuous and 

maintained. And it must show performance or part performance 

by the vendee which could not be compensated in damages, and 

such as would make rescission inequitable and unjust. 

Id. at 1373 (citations omitted). A claimant seeking to prove the existence of 

such an agreement has the burden of presenting “full, complete, satisfactory 

and indubitable proof.” Id. “The ‘indubitable proof’ a claimant is required to 

proffer is evidence that should not only be found credible, but of such weight 

and directness as to make out the facts alleged beyond a doubt.” Id. (internal 

citation omitted).

 

6 Half Moon’s reliance on Bonczek is misplaced, as Bonczek involves a 

contract for a lease agreement, not a contract for the purchase of real estate.
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19 (quoting Wilcox v. Regester, 207 A.2d 817, 821 (Pa. 1965) (citing 

Pellegrene v. Luter, 169 A.2d 298, 299 (Pa. 1961); Stoner v. Sley System 

Garages, 46 A.2d 172, 173 (Pa. 1946))).7 

Preliminarily, we must address a fundamental flaw in Half Moon’s 

argument. The law is clear that “when a contract is required by the statute of 

frauds to be in writing[,] its terms cannot be orally modified[.]” Brown v. 

Aiken, 198 A. 441, 447 (Pa. 1938). “The modification of a contract is subject 

to the same test to determine validity as is the original contract.” Id. at 448 

(citing Williston on Contracts, 1936, vol. 2, p. 1709, § 594). Our Supreme 

Court further explained that “where a written agreement is varied by oral 

testimony, the whole contract in legal contemplation becomes parol.” Id. at 

447. Thus, when a party to a written agreement for the sale of land converts 

the writing into an oral agreement, the statute of fraud declares it to be void. 

Id. “The statute is not a mere rule of evidence but a limitation of judicial 

authority to afford a remedy.” Id.

We have recognized an exception to the rule that parties generally may 

not alter by parol the terms of an agreement required by the statute to be in

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7 Again, the cases cited by Half Moon are distinguishable, as none of them 

arises from contracts for the purchase of real estate. See Half Moon’s Brief 

at 19 (citing Wilcox, 207 A.2d at 821 (involving an agreement to sell a liquor 

license); Pellegrene, 169 A.2d at 299 (arising from an oral contract for the 

construction of a house); Stoner, 46 A.2d at 173 (based on a written lease 

agreement)). Moreover, Half Moon fails to mention the requirement that the 

oral agreement must be proven “by evidence which is clear, precise and 

convincing,” Pellegrene, 169 A.2d at 299, nor does it state the exception to 

the allowance of an oral modification where the modification conflicts with the 

law or public policy. Id. at 299 n.2. 
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writing. Hostetter v. Hoover, 547 A.2d 1247, 1250 (Pa. Super. 1988) (citing 

Brown, 198 A. at 441). 

[O]ral modifications of a contract required by the statute of frauds 

to be in writing[,] which relate to the manner of performance[,]

do not change the character of the written agreement and are 

enforceable. Thus, a modification as to the time of settlement for 

a contract for the sale of real estate does not result in a new and 

substituted agreement and does not reduce the written contract 

to one in parol. 

Id. (internal quotation marks and citation omitted). This exception is not 

applicable in the instant matter, however, as the alleged modifications affect

much more than the manner of performance, i.e., the closing date. Here, Half 

Moon alleges modification of fundamental terms of the Article of Agreement, 

such as the size, location, and description of the land itself, as well as the 

purchase price, all of which clearly relate to the character of the agreement. 

Based on the foregoing, we uphold the trial court’s determination that the 

original Article of Agreement was not orally modified by the parties. 

Having determined that the parties’ discussions regarding the replotting 

of Lot 3 did not constitute a valid modification of the original contract, we 

discern that the trial court properly reviewed the parties’ negotiations to 

determine whether a separate, valid, oral contract was entered into for the 

purchase of the reconfigured Lot 3. The trial court opined:

In order for a party to succeed on a breach of contract claim, 

a contract must exist, there must have been a breach of the 

contract, and the breach must have resulted in damages. 412 

North Front Street Associates, LP[ v. Spector Gadon & 

Rosen, P.C., 151 A.3d 646, 657 (Pa. Super. 2016)]. “Where the 

existence of an informal contract is alleged, ‘it is essential to the 

enforcement of such an informal contract that the minds of the 
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parties should meet on all the terms as well as the subject matter. 

If anything is left open for future [negotiation], the informal paper 

cannot form the basis of a binding contract.’” GMH Associates, 

Inc.[ v. Prudential Realty Group], 752 A.2d [889,] 900 [(Pa. 

Super. 2000)] (quoting Isenbergh v. Fleisher, 145 A.3d [903,] 

907 [(Pa. Super. 1958)]). The first element of a general contract 

is the existence of an offer or promise that is definite and certain 

in its terms. GMH Associates, Inc., supra at 899. A valid 

contract for the sale of land must also include the name of the 

parties, the property, and the consideration or purchase price. 

[Id.] Generally, a contract for the sale of land must be in writing 

to satisfy the [s]tatute of [f]rauds. Firetree, Ltd. v. Department 

of General Services, 978 A.2d 1067, 1074 (Pa. [Cmwlth]. Ct. 

2009). Our Supreme Court has acknowledged an oral contract for 

the sale of land under certain circumstances.... [See Kurland, 

533 A.3d at 1370.]

Here, [the Shoenholtzes] approached Mr. Maloney 

regarding replotting Lot 3 approximately one month before the 

closing date within the Article of Agreement. Before the discussion 

to reconfigure the Lot, [the Schoenholtzes] were working with 

First National Bank to finalize the details to close on the Property. 

There was not a signed agreement for the sale of the newly 

replotted Lot 3, but [the Schoenholtzes] submitted into evidence 

a Termination of Article of Agreement from 2013[,] which 

documented the newly defined acreage of Lot 3 and how the 

replotting costs would be split. This agreement was prepared by 

[Half Moon’s] legal counsel but was never signed by the parties 

due to concerns [the Schoenholtzes’] attorney had with the 

contract terms. Despite [the Shoenholtzes’] definite offer to have 

Lot 3 replotted, and [Half Moon’s] acceptance of that offer through 

performance, there was not definitive evidence submitted to this 

[c]ourt that indicates the amount of consideration and the 

purchase price of the land were fixed by the parties. 

[Mrs.] Schoenholtz testified at trial that she discussed 

splitting an approximately $320,000 purchase price for Lot 3 with

[their friends,] the Krauses. [Half Moon] avers the purchase price 

of the land was approximately $316,000. The Termination of 

Article of Agreement did not list a proposed price for the land. The 

purchase price is an essential element to a contract for the sale of 

real property. GMH Associates, Inc., supra. Because the 

record reflects the parties were still negotiating the price of the 

Property, this [c]ourt finds a valid oral contract for the sale of the 

reconfigured Lot 3 did not exist between the parties. Thus, [Half 
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Moon’s] claim for lost value on the property must fail as it relied 

on the validity of the oral contract and was calculated based on a 

proposed purchase price and not a finalized purchase price for the 

sale of the Property. 

TCO I at 10-11. 

Half Moon objects to the trial court’s finding that the parties were still in 

the process of negotiating a price for the purchase of replotted Lot 3. In fact, 

Half Moon suggests that “[n]o portion of the record ... even arguably supports 

that conclusion.” Half Moon’s Brief at 24. Rather, Half Moon avers that the 

record reflects a clear meeting of the minds regarding purchase price. Id. at 

25-26. In response to Half Moon’s argument, the trial court clarified its 

decision:

[The Schoenholtzes] admitted two unsigned agreements. The 

[]Termination of Article of Agreement[] (“Termination 

Agreement”) was to end [the Schoenholtzes’] association with 

[Half Moon] and provided that [their] $20,400 deposit was to be 

transferred, in escrow, to Green Acres One, LLC (“Green Acres”). 

Green Acres is a company owned by [Mr.] Maloney’s ... father, 

mother, and acquaintance, Myles Diamond. An [a]rticle of 

[a]greement between Green Acres and [the Schoenholtzes (the 

“Green Acres Agreement”)] was drafted for the newly replotted 

land. The [Green Acres] Agreement set the purchase price of the 

land at $321,297.... On cross-examination, [Half Moon’s] counsel

... asked [Mrs.] Schoenholtz if she agreed there was a purchase 

discussed between her and Mr. Maloney about the new replotted 

lot. [She] asked if [he] was asking about the purchase price of 

the replot. [He] ... replied, “Yes.” [Mrs.] Schoenholtz replied that 

the purchase price was arrived at between [herself and her 

husband,] ... and the Krauses.... [She] then reiterated that was 

how the purchase price was established for the replot. [Counsel]

then asked [Mrs.] Schoenholtz what the purchase price of the 

replotted lot was going to be. [Mrs.] Schoenholtz replied she 

believed it was around $320,000. It was from this exchange that 

the [c]ourt reached the conclusion that the parties had not agreed 

upon the final price of the Property.
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The [c]ourt stands on its decision and analysis.... Upon 

review of the record, [Mrs.] Schoenholtz was likely referring to the 

unsigned [Green Acres] Agreement ... when she testified that the 

purchase price of the Property was to be approximately $320,000. 

[Half Moon] avers the purchase price was approximately 

$316,506.74, but Mr. Maloney was the only party to testify as to 

this amount, and [Half Moon] did not present any other evidence 

as to this agreement. Further, there is nearly a $4,000 difference 

between the purchase price each party testified to, and this 

[c]ourt will not entertain [Half Moon’s] argument that [Mrs. 

Schoenholtz] simply rounded up when she put forward the 

$320,000 figure. 

Trial Court Opinion (“TCO II”), 12/11/19, at 2-3 (footnotes omitted). 

Despite Half Moon’s claims, we agree with the trial court that the 

evidence presented does not meet the strict burden of proof established in 

Kurland, in order to constitute an enforceable, oral contract for the purchase 

of replotted Lot 3. See Kurland, 522 A.2d at 1373 (requiring “indubitable 

proof” of all elements of a contract, which should “not only be found credible, 

but of such weight and directness as to make out the facts alleged beyond a 

doubt”). Thus, we discern no error of law or abuse of discretion by the trial 

court in its finding that the parties were still negotiating a purchase price. 

Moreover, we note that the Kurland Court also dictated that, in order to meet 

the exception to the statute of frauds, the party alleging a valid, oral contract 

“must establish the fact that possession was taken in pursuance of the 

contract, and at or immediately after the time it was made, the fact that the 

change of possession was notorious, and the fact that it has been exclusive, 

continuous and maintained.” Id. The Schoenholtzes never took possession 

of the Property in this matter; thus, Half Moon’s claim also fails on this basis. 
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Next, we consider whether Half Moon should have been granted JNOV 

on the Schoenholtzes’ breach of contract claim. In order to establish a breach 

of contract, the Schoenholtzes must prove: “(1) the existence of a contract, 

including its essential terms, (2) a breach of a duty imposed by the contract, 

and (3) resultant damages.” McCausland v. Wagner, 78 A.3d 1093, 1101 

(Pa. Super. 2013) (quoting Hart v. Arnold, 884 A.2d 316, 332 (Pa. Super. 

2005)). 

Instantly, the trial court observed that there has never been a question, 

regarding the existence of the contract, and that the contract is not 

ambiguous. TCO I at 6.8Instead of proceeding with an assessment, however, 

____________________________________________

8 The trial court explained:

The parties originally entered into the Agreement of Sale on 

December 14, 2011, at which time [the Schoenholtzes] presented 

to [Half Moon] a check for $20,400[,] as a deposit and 

consideration. On December 23, 2011, the parties signed the 

Article of Agreement[, which supplanted the Agreement of Sale]. 

The Article of Agreement listed all essential terms to make the 

contract enforceable, including the names of the parties, the 

property to be sold, and the purchase price.... The Article of 

Agreement also incorporated the $20,400 deposit [the 

Schoenholtzes] previously paid to [Half Moon] as consideration for 

the contract. To date, the parties never entered into another 

written agreement for the sale of the Property.

Id. (citing GMH Associates, Inc., 752 A.2d at 900 (“The essential terms that 

must be identified and agreed to in order to form a valid contract for the sale 

of real estate are the naming of the specific parties, property and 

consideration or purchase price.”) (citing Detwiler v. Capone, 55 A.2d 380, 

385 (Pa. 1947)). 
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as to whether the Schoenholtzes established a breach of the Article of 

Agreement and resulting damages, the trial court abandoned its breach of 

contract analysis and, instead, determined that the parties mutually rescinded 

the contract. See id. at 6-7. The trial court concluded on that basis that Half 

Moon must return the Schoenholtzes’ deposit. Id. at 8. By awarding the 

Schoenholtzes the return of their deposit, plus interest, we discern that the 

trial court was attempting to return the parties to their status quo by applying 

the equitable remedy of restitution.9 

“The parties to an agreement may always rescind or abandon it.” Kirk 

v. Brentwood Manor Homes, Inc., 159 A.2d 48, 50 (Pa. Super. 1960) 

(citation omitted).10 The law is clear, however, that “[i]n a breach of contract 

____________________________________________

9

It is well-established:

Rescission is an equitable remedy, to be granted only where the 

parties to a contract can be placed in their former positions with 

regard to the subject matter of the contract. Sullivan v. 

Allegheny Ford Truck Sales, Inc., ... 423 A.2d 1292 ([Pa. 

Super.] 1980). It is well known that the purpose of equitable 

rescission is to return the parties as nearly as possible to their 

original positions where warranted by the circumstances of the 

transaction. Gilmore v. Northeast Dodge Co., Inc., ... 420 A.2d 

504, 507 ([Pa. Super.] 1980), citing Fichera v. Gording, ... 227 

A.2d 642 ([Pa.] 1967)....

Therefore, restitution often goes with rescission, and should not 

be characterized as damages....

Baker v. Cambridge Chase, Inc., 725 A.2d 757, 766 (Pa. Super. 1999) 

(emphasis omitted). 

10 As we explained in Kirk: 
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suit, the plaintiff either may rescind the contract and seek restitution or

enforce the contract and recover damages based on expectation.” 

McCausland, 78 A.3d at 1102 (emphasis added) (explaining that “[i]n such 

a case, the inconsistent nature of those actions is obvious—one cannot 

attempt to terminate his contractual obligations and, at the same time, seek 

to enforce the contract and enjoy its full benefits in an action for breach”). 

Here, the Schoenholtzes elected to bring a breach of contract claim 

against Half Moon; thus, the trial court erred in failing to conduct a proper 

breach of contract analysis. Moreover, the trial court raised sua sponte the 

issue of whether the parties had rescinded the Article of Agreement, which it 

cannot do. See Hertzberg v. Zoning Bd. Of Adjustment of City of 

Pittsburgh, 721 A.2d 43, 46 n.6 (Pa. 1998) (indicating that a trial court 

cannot raise an issue sua sponte that does not invoke its subject-matter 

jurisdiction). Likewise, this Court may not sua sponte address an issue that 

was not raised and preserved by the parties. Steiner v. Markel, 968 A.2d 

1253, 1256 (Pa. 2009). “Sua sponte consideration of issues deprives counsel 

____________________________________________

A contract in writing for the purchase of land may be rescinded by 

parol, or by such conduct of the parties as clearly shows an 

intention to rescind. The agreement to rescind a written contract 

need not be expressed in words, but may be inferred from the 

acts and declarations of the parties. All that is necessary is a 

mutual agreement. Whether or not the parties have so agreed is 

a question of intention, and the existence of such intention is 

ordinarily an issue for the jury. 

Id. at 50-51 (internal citations omitted). 
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of the opportunity to brief and argue the issues and the court of the benefit of 

counsel’s advocacy.” Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975). 

Half Moon’s assertion that it is entitled to JNOV on the Schoenholtzes’ 

breach of contract claim requires this Court to interpret the terms of the Article 

of Agreement. We note that the interpretation of the terms of a contract is a 

question of law for which our standard of review is de novo and our scope of 

review is plenary. McMullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009). It is 

also well-established that in interpreting an agreement, we must ascertain the 

intent of the parties. 

In cases of a written contract, the intent of the parties is the 

writing itself. If left undefined, the words of a contract are to be 

given their ordinary meaning. When the terms of a contract are 

clear and unambiguous, the intent of the parties is to be 

ascertained from the document itself. When, however, an 

ambiguity exists, parol evidence is admissible to explain or clarify 

or resolve the ambiguity.... While unambiguous contracts are 

interpreted by the court as a matter of law, ambiguous writings 

are interpreted by the finder of fact.

Kripp v. Kripp, 849 A.29 1159, 1163 (Pa. 2004). 

Here, the Schoenholtzes contend that Half Moon breached the Article of 

Agreement by failing to deliver a special warranty deed to the RE/MAX agent, 

Mr. Copenhaver, and by failing to escrow the deed,11 as required by Paragraph 

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11 “[A]n escrow is a deed delivered to a stranger, to be by him delivered to 

the grantee upon the happening of certain conditions, upon which last delivery 

the transmission of title is complete.” Weisenberger v. Huebrier, 107 A. 

763, 764 (Pa. 1919) (internal quotation marks and citation omitted).
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4 of the Article of Agreement.12 TCO I at 5-6. Based on our review of the 

terms of the Article of Agreement, it is clear that the parties intended for Half 

Moon to deliver to Mr. Copenhaver a special warranty deed on or before 

December 30, 2011,13 to be placed in escrow until the purchase price was paid 

in full by the Schoenholtzes, at which time the deed would be delivered to the 

Schoenholtzes. The record indicates that no such deed was ever prepared 

and placed in escrow.14 Moreover, we deem that the Schoenholtzes were 

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12 Paragraph 4 provides:

Deeds, Transfer Taxes: Seller shall execute a Deed containing the 

usual covenants of special warranty, with a blank grantee clause, 

and shall deliver the same on the date of possession to Greg 

Copenhaver of [RE/MAX], who shall escrow the Deed until such 

time as the purchase price set forth in Paragraph 3 has been fully 

paid, at which time he shall deliver said Deed to Buyer. Upon the 

delivery of the Deed, Seller and Buyer shall equally divide the 

applicable realty transfer taxes.

Complaint, Exhibit “B” at 2 ¶4. The “date of possession” is defined in the 

Article of Agreement as “at closing on or before Dec[ember 30], 2011[.]” Id.

at 1 ¶ 2.

13 “[I]n law and equity, in contracts for the sale of real property, time is not 

of the essence unless it is expressly stipulated, or necessarily implied from the 

language of the contract or clear action of the parties.” Tanenbaum v. 

Sears, Roebuck and Co., 401 A.2d 809, 814 (Pa. Super. 1979). Here, the 

Article of Agreement expressly provides: “Time is of the essence....” 

Complaint, Exhibit “B” at 4 ¶ 16. Although parties may waive a stipulation 

that time is of the essence, see Cohn v. Weiss, 51 A.2d 740, 742 (Pa. 1947), 

Half Moon has waived any such defense in this matter. See Pa.R.A.P. 302(a) 

(stating “[i]ssues not raised in the lower court are waived and cannot be raised 

for the first time on appeal”). 

14 “Mr. Copenhaver did not receive a deed nor did he escrow a deed as was 

required by Paragraph Four of the Article of Agreement.” TCO I at 3 ¶ 17. 
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entitled to see the deed before making any further payments. Our Supreme 

Court has established that before a buyer is obligated to pay money under an 

agreement to purchase real estate, he is “entitled to see that the conveyance 

was properly signed, sealed, and acknowledged, and that the description of

the land to be conveyed was correct.” Cohn v. Weiss, 51 A.2d 740, 743 (Pa. 

1947) (quoting Lefferts v. Dolton, 66 A. 527 (Pa. 1907)).

15

 Thus, we 

determine as a matter of law that the Schoenholtzes have met their burden 

of establishing a breach of the Article of Agreement on the part of Half Moon. 

See McCausland, 78 A.3d at 1101 (“When performance of a duty under a 

contract is due, any nonperformance is a breach.”). 

Our Commonwealth’s Supreme Court set forth the following general rule 

regarding the damages available to the vendee when the vendor breaches a 

contract for the sale of real estate: 

A vendee in a contract for the sale of land may recover as 

damages the loss of his bargain if his contract is in writing and the 

vendor in bad faith refuses to convey, or if the contract is in parol 

and it was obtained by fraud. In all other cases of contracts for 

sale of land, whether written or parol, vendees are limited to the 

money paid, with interest and expenses.

Seidlek v. Bradley, 142 A. 914, 916 (Pa. 1928) (emphasis added). See also

Empire Properties, Inc. v. Equireal, Inc., 674 A.2d 297 (Pa. Super. 1996)

____________________________________________

Moreover, the record is devoid of any evidence of a special warranty deed for 

Lot 3 prepared or tendered by Half Moon. 

15 “[T]o constitute a valid tender, a duly executed deed must be produced by 

the vendor to the vendee, so that the vendee may see that it is regular in 

form, and that it conveys the estate he bargained for.” Lefferts, 66 A.2d at 

527. 
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(providing that, absent bad faith on the part of the vendor, a purchaser’s right 

of recovery for the breach of a contract to convey land is limited to a return 

of the purchaser’s down payment and such other reasonable expenditures as 

the purchaser has incurred); 25 Williston on Contracts § 66:81 (4th ed.) (May 

2020) (“A purchaser who is not in default under a contract for the sale of real 

estate has a cause of action for damages where the vendor wrongfully fails or 

refuses to convey in accordance with the terms of the contract, such as where 

the vendor fails to convey at the time stipulated in the contract....”). 

As there is no assertion of bad faith on the part of Half Moon in the 

instant matter and the Schoenholtzes are not in default under the contract,

16

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16 As explained by the trial court:

Paragraph 10 of the Article of Agreement ... outlines the actions to 

be taken by the Seller ([Half Moon]), including a forfeit of the 

deposit, in the event of [the Schoenholtz’s] default. The Article of 

Agreement states[,] “If Buyer fails to perform any of his 

obligations under the terms of this Agreement, which failure shall 

continue for a period of thirty (30) days after written notice of 

such failure to perform has been given to Buyer by Seller, Buyer 

shall be in default hereunder.” The Article of Agreement states 

further, “ ... in the event of default by the Buyer, the said payment 

may be retained by the Seller (1) on account of the purchase 

price, or (2) as monies to be applied to the Seller’s damages, or 

(3) as liquidated damages....” 

TCO I at 7 (emphasis added; citations to record omitted). We reject Half 

Moon’s suggestion that it did exercise its rights by withholding the deposit, 

see Half Moon’s Brief at 33 (reasoning that the Article of Agreement states “in 

the event of default by the Buyer, ... payment may be retained by the 

Seller...”), as Paragraph 10 clearly provides that Half Moon must provide 

written notice of a failure to perform and an opportunity to cure before the 
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it is clear that the damages available to the Schoenholtzes are limited to the 

amount of their down payment, plus interest and expenses. Thus, we deem 

the trial court’s award of damages in favor of the Schoenholtzes in the amount 

of $20,400, plus interest from May 30, 2014, the date on which they first 

requested the return of their deposit, to be appropriate.17 

Finally, Half Moon claims that the Schoenholtzes were unjustly enriched 

by the replotting services performed at their request. Although the 

Schoenholtzes voluntarily chose not to proceed with the purchase of the 

replotted Property, Half Moon avers that they still received the benefit of the 

time, energy, and money put into the process of reconfiguring Lot 3. Half 

Moon’s Brief at 31. It argues that the trial court erred in failing to find unjust 

enrichment in this matter and in declining “to find Mr. and Mrs. Schoenholtz 

in any way responsible for the lost value associated with the [P]roperty....” 

Id. at 26. In support of its argument, Half Moon insists that the trial court’s 

reading of unjust enrichment is “overly restrictive, and it rests on an erroneous 

conflation of the services provided—replotting—with the outcome of those 

services—the replotted parcel.” Id. at 27. We deem this claim to be meritless. 

____________________________________________

Schoenholtzes can be declared in default. The record is devoid of any such 

written notice.

17 We recognize that the trial court reached its award based on a theory of 

rescission rather than breach of contract. Notwithstanding, “[t]his Court is 

not bound by the rationale of the trial court, and we may affirm the trial court 

on any basis.” Commonwealth v. Williams, 73 A.3d 609, 620 n.4 (Pa. 

Super. 2013). See also Lilliquist v. Copes-Vulcan, Inc., 1233, 1235 (Pa. 

Super. 2011) (stating that an appellate court may affirm a trial court’s decision 

on any grounds supported by the record on appeal). 
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Unjust enrichment, a remedy in equity, is “the retention of a benefit 

conferred by another, without offering compensation, in circumstances where 

compensation is reasonably expected, and for which the beneficiary must 

make restitution.” Commonwealth by Shapiro v. Golden Gate National 

Senior Care LLC, 194 A.3d 1010, 1034 (Pa. 2018) (quoting Roethlein v. 

Portnoff Law Associates, Ltd., 81 A.3d 816, 825 n.8 (Pa. 2013)). See also

Telwell Inc. v. Grandbridge Real Estate Capital, LLC, 143 A.3d 421, 428 

(Pa. Super. 2016) (recognizing unjust enrichment as an equitable doctrine 

that imposes a duty in the absence of an agreement when one party has been 

unjustly enriched at the expense of the other party). A party is precluded 

from recovering under an unjust enrichment claim where a written or express 

contract exists. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999). 

A party may recover for any work performed outside the scope of a contract 

or promise. Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 893 (Pa. Super. 

2006). 

Instantly, the trial court rejected Half Moon’s unjust enrichment claim 

based on the following findings: “[T]he Property was never conveyed to [the 

Schoenholtzes], nor were they involved in the subsequent sale of the Property. 

No benefit was conferred on [the Schoenholtzes] after Lot 3 was replotted for 

which [they] would have been expected to provide compensation.” TCO I at 

12. The trial court further justified its holding in its opinion regarding the 

denial of post-trial relief:
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“The elements of unjust enrichment are benefits conferred 

on [the] defendant by [the] plaintiff, appreciation of such benefits 

by [the] defendant, and acceptance and retention of such benefits 

under such circumstances that it would be inequitable for [the] 

defendant to retain the benefit without payment of value.” 

Lackner v. Glosser, ... 892 A.2d 21, 34 [(Pa. Super. 2006)] 

(quoting AmeriPro Search, Inc. v. Fleming Steel Company, ... 

787 A.2d 988, 991 [(Pa. Super. 2001)]). [Half Moon] argues that 

by replotting the Property at [the Schoenholtzes’] request, [Mr. 

and Mrs. Schoenholtz] were unjustly enriched. The [c]ourt agrees 

... that [the Schoenholtzes] asked for the Property to be replotted. 

Even if the [c]ourt amended its decision by finding the replot, 

itself, was a benefit conferred on [Mr. and Mrs. Schoenholtz], [Half 

Moon’s] unjust enrichment claim would still fail because there was 

no appreciation of the benefit, and the benefit of the replot was 

neither retained nor accepted by [the Schoenholtzes] such that 

the [c]ourt would be justified in ordering [them] to pay the 

damages [Half Moon] requests. 

TCO II at 5-6. We discern no abuse of discretion or error of law by the trial 

court in denying Half Moon JNOV on its unjust enrichment claim. Moreover, 

we note that contrary to Half Moon’s assertion that the trial court failed to 

hold the Schoenholtzes responsible in any way for the loss it incurred 

regarding the reconfiguration of the Property, the trial court did find that the 

parties entered an oral agreement to replot Lot 3 and that the Schoenholtzes 

breached that agreement on May 30, 2014. See TCO I at 11.18 Accordingly, 

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18 The trial court opined:

[Half Moon] acted in accordance with [the Schoenholtzes’] request 

to replot Lot 3. The record does not reflect that at any time before 

May 30, 2014[,] [the Schoenholtzes] indicated their unwillingness 

to proceed with the purchase of the replotted land. The record 

reflects the parties were kept abreast, periodically, regarding the 

replotting process[,] which was finished in April 2013, and [the 

Schoenholtzes] were allegedly notified the replotting was finished 
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the trial court found Half Moon entitled to half of the replotting expenses 

incurred. Id. at 12. 

Based on the foregoing, we affirm the judgment entered in favor of the 

Schoenholtzes on January 6, 2020. 

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2020

____________________________________________

in June 2013.... Despite the periodic updates from Mr. Maloney 

regarding the replotting of Lot 3, [the Schoeholtzes] did not, with 

words or actions, express their wish to not continue with the 

replotting of the land. In fact the Termination of Article of 

Agreement[,] admitted into evidence as [the Schoenholtzes’] 

Exhibit “P[,]” shows [they] were aware of the replotting costs in 

2013[,] ... [and] that [they] knew the replotting was occurring at 

their own behest[].

Id. at 11-12.