J-A33008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTOPHER GUTTERIDGE AND IN THE SUPERIOR COURT OF
APPLIED ENERGY PARTNERS, LLC PENNSYLVANIA
Appellees
v.
J3 ENERGY GROUP, INC., T/D/B/A J3
ENERGY GROUP AND STEPHEN RUSSIAL
Appellants No. 3397 EDA 2013
Appeal from the Judgment Entered November 25, 2013
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2009-09160-CA
BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*
CONCURRING AND DISSENTING MEMORANDUM BY LAZARUS, J.:
FILED NOVEMBER 17, 2015
I agree with analysis and the result reached by the majority with
respect to Appellants’ Issues 2, 3 4 and 6. However, I disagree with the
majority’s conclusion that the trial court erred in determining that Russial
and Gutteridge were the parties to the failed business deal. I also disagree
with the majority’s conclusion that the judgment must be reduced to account
for commissions J3 paid to Porreca and Keaton.
The trial court heard Gutteridge’s testimony that he was dealing with
Russial personally. The court also heard Gutteridge’s deposition testimony
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A33008-14
in which he stated that he assumed he was dealing with Russial as president
of J3.1 The court specifically notes in its Pa.R.A.P. 1925(b) opinion that
“Gutteridge initially entered into the business relationship with . . . Russial.”
Trial Court Opinion, 6/11/14, at 4. Clearly, the court believed Gutteridge’s
testimony that he was dealing with Russial personally. The court states that
it “finds credible the testimony of . . . Gutteridge when considered against
that of . . . Russial.” Id. at 1.
The court found further support for its conclusion of personal liability in
the following exchange that took place during Gutteridge’s cross-
examination:
Q: Would you admit that neither you nor your company AEP
has a written contract with either J3 Energy Group, Inc. or Mr.
Russial?
A: Formal written contract, no.
Q: In your dealings with J3 Energy Group, did J3 Energy
Group make it clear several times to you that it wanted a written
contract in order to continue a business relationship with AEP?
A: Yes, and I made the same representations in reverse.
THE COURT: Mr. Gutteridge, I thought I heard
testimony earlier on direct examination that Mr. Russial said to
you that there was no need to do this in written form, as long as
the respective obligations of the parties were well defined?
A: Yes, your Honor.
____________________________________________
1
“As the factfinder, it was the judge’s prerogative to believe part of a
witness’ testimony and find him mistaken as to the other part.” Miller v.
C.P. Centers, Inc., 483 A.2d 912, 915 (Pa. Super. 1984).
-2-
J-A33008-14
The Court: So at what point in time in the process did the
idea of having a written document come into being? Because
apparently early on there wasn’t one, and it wasn’t being
pursued.
A: No. You’re right. After, I guess, March or so of 2008, is
when the issue came up of should we form a separate legal
entity to run the Energy Buyers group. And [counsel for
Appellants’] advice at the time was we didn’t need that. But into
the fall and the rest of the year 2009, the issue of how we
should formalize the relationship came up a number of times
over.
N.T. Trial, 6/13/12, at 10-11.
Based on this testimony, the court concluded that once the parties
were unable to come to a written agreement with respect to the Group, it
was “perfectly reasonable for . . . Gutteridge to believe that the formation of
the sales and marketing relationship between himself and . . . Russial was
ongoing and continued despite their inability to formalize the creation of the
Energy Buyers Group.” Trial Court Opinion, 6/11/14, at 4 (emphasis
added).
“Assessments of credibility and conflicts in evidence are for the trial
court to resolve; this Court is not permitted to reexamine the weight and
credibility determinations or substitute our judgments for those of the
factfinder.” Turney Media Fuel v. Toll Bros., 725 A.2d 836, 841 (Pa.
Super. 1999). “The test is not whether we would have reached the same
result on the evidence presented, but rather, after due consideration of the
evidence which the trial court found credible, whether the trial court could
have reasonably reached its conclusion.” Terletsky v. Prudential
-3-
J-A33008-14
Property and Cas. Ins. Co., 649 A.2d 680, 686 (Pa. Super. 1994) (citation
omitted).
Here, the conclusion that Gutteridge was dealing with Russial
individually is supported by evidence that the trial court deemed credible.
Accordingly, we may not disturb that conclusion. See Company Image
Knitwear, supra; Turney Media Fuel, supra; Terletsky, supra.
Mindful of our limited role as an appellate court, I dissent from the
majority’s decision to reverse the trial court’s decision to hold Russial
personally liable.
With respect to the claim for unjust enrichment, I disagree with the
majority that the trial court erred by failing to take into account the
commissions from AEP that J3 paid the channel partners. Appellants have
produced no evidence that the channel partners have released Appellees
from their commission obligations. Therefore, had the trial court discounted
the damages award to offset the commissions Appellants paid to the channel
partners, Appellees would be left responsible for paying commissions without
having received full compensation. Such an award would have been
contrary to the standards for promissory estoppel claims. See Crouse v.
Cyclops Industries, 745 A.2d 606, 610 (Pa. 2000) (promissory estoppel
invoked to avoid injustice by making enforceable a promise when promisee
relies on the promise and changes his position to his detriment).
-4-
J-A33008-14
Accordingly, because I agree with the majority’s disposition of several
issues, I concur in part. However, because I disagree with the majority’s
mandate to vacate the judgment, I dissent.
-5-