J-A27004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
POWER LINE PACKAGING, INC. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HERMES CALGON/THG ACQUISITION
LLC, FRANCO S. PETTINATO AND
JOSEPH FALSETTI
Appellants No. 7 EDA 2016
Appeal from the Order Entered November 24, 2015
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2010-02341-36
BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 10, 2017
Hermes Calgon/THG Acquisition LLC, Franco S. Pettinato and Joseph
Falsetti (collectively, Appellants) appeal from the order, entered in the Court
of Common Pleas of Bucks County, which awarded Appellee Power Line
Packaging, Inc. (Power Line) restitution, interest and storage fees based
upon claims of unjust enrichment, quantum meruit, and piercing the
corporate veil. Upon careful review, we affirm based upon the opinions of
the Honorable Gary B. Gilman.
This matter arises out of a failed business venture between the parties
in which Appellants requested that Power Line manufacture a new product
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A27004-16
line of personal care products. Power Line allegedly spent over $62,000.00
in costs, plus significant time in development and production, for which
Appellants failed to reimburse Power Line. Following a non-jury trial held on
February 3 and 4, and September 4, 2014, the trial court found in favor of
Power Line and awarded the company restitution in the sum of $101,137.21,
plus prejudgment interest in the amount of $37,390.29. The court also
awarded post-judgment interest in the amount of $16.63 per day and
storage fees of $138.70 per month after October 2014.
Appellants filed timely post-trial motions, which the court denied on
November 18, 2015. Thereafter, Appellants filed a timely notice of appeal 1
and court-ordered concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On appeal, Appellants raise the following
issues for our review:
1. Whether the trial court abused its discretion and/or erred as a
matter of law in finding any justifiable reliance on the part of
[Power Line] with respect to its claims of misrepresentation.
2. Whether the trial court abused its discretion and/or erred as a
matter of law in finding, upon Power Line’s claim for quantum
meruit, 1) that Power Line conferred a benefit upon anyone,
and/or 2) that anybody appreciated and/or retained any such
benefit.
Brief for Appellant, at 2.
____________________________________________
1
Although the court denied the post-trial motions on November 18, 2015,
notice of the order was not mailed to the parties until November 24, 2015.
Accordingly, the filing of the notice of appeal on December 24, 2015, was
timely.
-2-
J-A27004-16
We note that our role in reviewing
non-jury trial verdicts is to determine whether the findings of the
trial court are supported by competent evidence and whether the
trial court committed error in any application of the law. The
findings of fact of the trial judge must be given the same weight
and effect on appeal as the verdict of a jury. We consider the
evidence in a light most favorable to the verdict winner. We will
reverse the trial court only if its findings of fact are not
supported by competent evidence in the record or if its findings
are premised on an error of law.
Rissi v. Cappella, 918 A.2d 131, 136 (Pa. Super. 2007).
Instantly, the trial court made detailed findings of fact showing that
Appellants engaged in a course of conduct that induced Power Line to
manufacture the personal care product line and that Power Line justifiably
relied upon Appellants’ actions. Likewise, the court’s determination to pierce
the corporate veil of Hermes Calgon is supported by the record. See
Advanced Telephone Systems, Inc. v. Com-Net Professional Mobile
Radio, LLC, 846 A.2d 1264, 1280, 1281 n.12 (Pa. Super. 2004) (corporate
veil is pierced when one in control “uses that control or corporate assets to
further one’s own personal interests. . . . by intermingling his personal
interests with the corporation’s interests[;]” where appropriate, “the doctrine
of piercing the corporate veil will be applied to a limited liability company.”)
We find that the opinions by the Honorable Gary B. Gilman dated
September 30, 2015, and February 24, 2016, comprehensively address the
issues raised on appeal, and we affirm on that basis. We direct the parties
to attach a copy of both decisions in the event of further proceedings.
Order affirmed.
-3-
J-A27004-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2017
-4-
Circulated 12/16/2016 10:41 AM
164 BUCKS COUNTY LAW REPORTER
2016 BCBA Power Line v. Hermes Calgon/THG [89 Bucks Co. L. Rep.
Power Line Packaging, Inc. v. Hermes Calgon/
THG Acquisition, LLC, et al.
Defendants appeal this court's order which found that the Defendants had been unjustly enriched
as a result ofunlawful failure to reimburse Plaintiff for expenses associated with development and manu-
facture of a product line of personal care consumer care products. This Court held that Defendants' issues
raised on appeal are without merit. Appealed to the Superior Court.
Civil law - Piercing a corporate veil =Admission of testimony of an expert- Quantum meruit=
Quasi contract - Misrepresentation by defendant concerning a new product line.
1. The elements necessary to prove unjust enrichment are: (1) benefits conferred on the defendant
by the plaintiff; (2) appreciation of the benefits on 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.
2. The trial court is vested with wide discretion in deciding whether to allow the admission of
expert testimony into evidence, and is not subject to reversal absent a clear abuse of discretion.
3. While there is no clear test or well-settled rule in Pennsylvania as to when the corporate veil
may be pierced and when it may not be pierced, courts have held veil piercing to be appropriate "when
the court must prevent fraud, illegality, or injustice, or when recognition of the corporate entity would
defeat public policy or shield someone from liability from a crime." Pearson v. Component Tech Corp.,
247 F.3rd 471 (3rd Cir. 2001).
4. The Commonwealth Court of Pennsylvania has enunciated four factors that must be considered
if the business entity is to be disregarded and the corporate veil is to be pierced. Those specific factors
are 1) undercapitalization; 2) failure to adhere to corporate formalities; 3) substantial intermingling of
corporate and personal affairs and 4) use of the corporate form to perpetrate a fraud.
C.P. Bucks County, Civil Division, No. 2010-02341. Quantum meruit, Piercing
corporate veil. Power Line Packaging, Inc. v Hermes Calgon/THG Acquisition,
LLC et al.
Matthew A. Lipman, for the Plaintiff.
William T. Dudeck, Eastburn and Gray, P.C. for the Defendants.
GILMAN, J., February 24, 2016.
OPINION
I. INTRODUCTION
Defendants, Hermes Calgon/THG Acquisition, LLC d/b/a SoleburyBrands,
Franco S. Pettinato ("Mr. Pettinato"), and Joseph Falsetti ("Mr. Falsetti") ( collectively
referred to as "Defendants,") appeal from this Court's Decision and Order of
September 30, 2015, which found in favor of Plaintiff, Power Line Packaging, Inc.
("Power Line") and against Defendants on Plaintiff's claims of Breach of Implied
Contract, Promissory Estoppel, Quantum Meruit, Fraudulent Misrepresentation and
Negligent Misrepresentation.1
I
In our Decision and Order of September 30, 2015, we determined that Ms. Laura Barry, who was
initially a named Defendant, was not an equity holder, officer, director or in control ofHermes Calgon!fHG
Acquisition, LLC, and was therefore not individually liable to Power Line. Accordingly, in this Opinion,
"Defendants" refers to Hermes Calgon/THG Acquisition, LLC, Franco S. Pettinato and Joseph Falsetti.
22
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164 (2016)] Power Line v, Hermes Calgon/THG 2016 BCBA
A protracted non-jury trial took place on February 3 and 4, 2014, and on
September 4, 2014. After voluminous post-trial submissions by the parties, this
Court set forth extensive Findings ofFact, Conclusions of Law and an accompanying
Decision and Order in our Opinion dated September, 30, 2015. (That Decision and
Order is incorporated herein. A copy is attached hereto as Exhibit A.) We determined
that the Defendants had been unjustly enriched as a result of unlawful failure to
reimburse Plaintiff for expenses associated with development and manufacture of a
product line of personal care consumer products for which Defendants and Plaintiff
had entered into a binding contract. Those expenses were incurred by Plaintiff while
developing the product line of personal care products, a mist, a lotion and a shave
gel, with six fragrances each, and by purchasing requisite materials and supplies
(the "Product Line").
We also determined that the corporate veil of Defendants' LLC should
be pierced and that Defendants, Mr. Pettinato and Mr. Falsetti, should be held
individually liable to Plaintiff, along with Defendant Hermes Calgon/THG
Acquisition, LLC, for the losses Plaintiff has incurred as a result of Defendants'
actions. Accordingly, we awarded Plaintiff Power Line the sum of $101,137.21,
which represented reimbursement for expenses Plaintiff had incurred for materials,
for labor, for design work, and for storage of materials. Further, we awarded Plaintiff
prejudgment interest of $3 7 ,450. 76, for a total award in favor of Plaintiff and against
Defendants of $138,587.97 in restitution. In addition, we determined that interest
was due in the amount of $16.63 per day from the date of the Order and that storage
fees of$138.70 per month commencing in October 2014 were to be added to Power
Line's award.
II. PROCEDURALAND FACTUALBACKGROUND
The appellate court is referred to Section I of Exhibit A, attached hereto. We
supplement the procedural and factual background as follows:
Following our Decision and Order of September 30, 2015, Defendants Hermes
Calgon/THG Acquisition, LLC, Franco S. Pettinato and Joseph Falsetti filed a
Motion for Post-Trial Relief on October 19, 2015, which was denied by this Court
pursuant to an Order of November 18, 2015. Subsequently, on December 24, 2015,
Defendants filed a Notice of Appeal to the Superior Court. However, the September
30, 2015 Decision and Order of this Court had never been reduced to judgment by
any of the parties, so the Superior Court notified Defendants' counsel that his appeal
was procedurally improper. According to the docket, this error was subsequently
remedied, and on February 16, 2016, judgment was entered in favor of Plaintiff and
against Defendants, in the amount noted in our Order of September 30, 2015. We
submit this Opinion at this time, then, under the assumption that the Superior Court
will consider Defendants' appeal on the merits.
On December 30, 2015, this Court Ordered Defendants to file a Concise
Statement of Errors Complained of on Appeal pursuant to Pa. R.A.P.1925 (b)(1 ).
Defendants filed their Statement on January 16, 2016.
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166 BUCKS COUNTY LAW REPORTER
2016 BCBA Power Line v. Hermes Calgon/THG [89 Bucks Co. L. Rep.
III. STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
The Defendants' Concise Statement of Matters Complained of on Appeal, filed
pursuant to Pa. R.A.P. 1925(b), is recited verbatim, as follows:
1. Whether this Court abused its discretion and/or erred as a
matter oflaw in finding, as part of any liability of Defendants
or anyone of them in this matter, any justifiable reliance on
the part of Plaintiff, Power Line Packaging, Inc. ("Power
Line").
2. Whether, as the underlying substantive basis for all liability
in this matter, this Court abused its discretion and/or erred
as a matter of law in finding, upon Power Line's claim for
quantum meruit, where, as a matter of law 1) Power Line
conferred no benefit(s) upon the Company; and 2) the
Company did not appreciate and/or retain any benefit(s)
from Power Line.
3. Whether this Court abused its discretion and/or erred as a
matter oflaw in admitting the proffered expert testimony of
Peter Fascia, Esquire, CPA, LLM.
4. Whether this Court abused its discretion and/or erred as a
matter of law in piercing the Company's corporate veil in
light of a) the properly admitted and credible evidence at
trial and b) the controlling findings, conclusions and holdings
set forth in Advanced Telephone Systems, Inc. v. Com-Net
Professional Mobile Radio, LLC, 846A.2d 1264, 1278 (Pa.
Super. 2004)
5. Whether, in the alternativeto the foregoing,this Court abused
its discretion and/or erred as a matter of law in awarding
Power Line any damages for labor or warehousing where
the former was speculative and the latter has been incurred
at its own election.
IV. DISCUSSION
Our Findings of Fact and the Conclusions of Law upon which we based our
decisions in this case have been set forth comprehensively in our 66 page Decision
and Order, attached as ExhibitA. Since our Decision and Order addresses the majority
of Defendants' issues complained of on appeal, our discussion herein is limited to
supplemental explications of facts and law which support our decisions.
A. Standard of Review
In establishing the standard and scope of review applicable in an appeal from
a non-jury verdict, the Superior Court of Pennsylvania has stated that.
[ o ]ur appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported by
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BUCKS COUNTY LAW REPORTER 167
164 (2016)] Power Line v. Hermes Calgon/THG 2016 BCBA
competent evidence and whether the trial court committed error in any
application of the law. The findings of fact of the trial judge must be
given the same weight and effect on appeal as the verdict of a jury.
We consider the evidence in a light most favorable to the verdict
winner. We will reverse the trial court only if its findings of fact are
not supported by competent evidence in the record or if its findings
are premised on an error of law.
Rissi v. Cappella, 918 A.2d 131, 136 (Pa.Super.2007) (citation omitted). The
Superior Court has further indicated that:
"We will respect a trial court's findings with regard to the credibility
and weight of the evidence unless the appellant can show that
the court's determination was manifestly erroneous, arbitrary and
capricious or flagrantly contrary to the evidence." Ecksel v. Orleans
Const. Co., 519 A.2d 1021, 1028 (1987) (citation omitted).
J.J. DeLuca Co. v. Toll Naval Associates, 56 A.3d 402, 410 (Pa. Super. 2012).
B. This Court properly concluded that Power Line justifiably relied on
Defendants' representations and misrepresentations when it agreed
to and in fact did manufacture the new Product Line requested by
Defendants.
We reference our attached Decision and Order, noting that no less than 15
pages of facts have been cited which thoroughly address Defendants' fraudulent,
deceptive, and negligent conduct, along with Power Line's justifiable reliance. See
Exhibit A, Findings of Fact# 74 through# 194, pp. 13-28.
To be justifiable, reliance upon the representation of another must be
reasonable. Porreca v. Porreca, 571 Pa. 61, 811 A.2d 566, 571 (2002)
(Opinion Announcing the Judgment of the Court). "Whether the party
claiming to have been defrauded relied upon the false representation
is a question of fact." Silverman, 533 A.2d at 114.
Eigen v. Textron Lycoming Reciprocating Engine Div., 874 A.2d 1179, 1189 (Pa.
Super. 2005).
As fact-finder, we determined that Defendants set out on a course of conduct
to induce Power Line to manufacture the personal care line. Power Line relied upon
the misrepresentations of Defendants that they were operating as a well-funded
business and with established contracts for selling the Product Line to third parties.
The deceptive PowerPoint presentation made by Defendants for Plaintiff, along
with the deceptive "Official Company Info" email Defendants sent to Plaintiff, were
illustrative of Defendants' scheme. All of Power Line's efforts were engaged in the
formulation, production and completion of the Product Line at Defendants' request,
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168 BUCKS COUNTY LAW REPORTER
2016 BCBA Power Line v. Hermes Calgon/THG [89 Bucks Co. L. Rep.
with deadlines which Defendants represented to Plaintiffs were necessary to meet
requirements retailers had imposed upon Defendants. See Exhibit A, Conclusions
of Law #89-115, pages 55-58. See also Conclusions of Law #120-128, pages 59-61.
Defendants' assertion that Power Line did not justifiably rely on Defendants'
numerous representations and/or misrepresentations about Defendants' relationships
with purported retailers and their ability to successfully market the new Product Line
at stores such as Walgreens and Shoppers Drug Mart ("Shoppers") is wholly without
merit. On the contrary, it is clear that Power Line reasonably and justifiably relied
upon Defendants' misrepresentations to its detriment. Power Line suffered significant
damages as a result thereof.
C. This Court properly concluded that Power Line conferred benefits
upon Defendants whereby Defendants were unjustly enriched
It is well-established that "[ c ]ourts sitting in equity hold broad powers to
grant relief that will result in an equitable resolution of a dispute." Williams Two.
Bd. of Supervisors v. Williams Twp. Emergency Co., Inc., 986 A.2d 914, 921 (Pa.
Cmwlth. 2009). In addition, "a trial court must formulate an equitable remedy that
is consistent with the relief requested ... "Id. ( citing North Mountain Water Supply
Co. v. Troxell, 81 A. 157 (1911)).
A cause of action in quasi-contract for quantum meruit, a form of restitution, is
made out where one person has been unjustly enriched at the expense of another. "A
quasi-contract imposes a duty, not as a result of any agreement, whether express or
implied, but in spite of the absence of an agreement, when one party receives unjust
enrichment at the expense of another." AmeriPro Search, Inc. v. Fleming Steel Co.,
787 A.2d 988, 991 (Pa. Super. 2001). Therefore, a claim of quantum meruit raises
the issue of whether a party has been unjustly enriched, and in order to prove such
claim a party must successfully prove the elements of unjust enrichment." Mitchell
v. Moore, 729 A.2d 1200, 1202 (Pa. Super. 1999).
The elements necessary to prove unjust enrichment are: (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. Id.at
1203-1204.
The application of the doctrine depends on the particular factual circumstances
of the case at issue. In determining if the doctrine applies, our focus is not on the
intention of the parties, but rather the most significant element of this equitable
doctrine, which is whether the enrichment of the defendant is unjust. "The doctrine
does not apply simply because the defendant may have benefited as a result of the
actions of the plaintiff." Styer v. Hugo, 619 A.2d 347 (1993), aff'd, 637 A.2d 276
(1994).
To sustain the claim of unjust enrichment, Power Line established that
Defendants "wrongfully secured or passively received a benefit" that was
"unconscionable" for them to retain. Mitchell, supra at 1204 (quoting Torchia v.
Torchia, 499 A.2d 581, 582 (Pa. Super. 1985)). Here, Defendants requested and
26
BUCKS COUNTY LAW REPORTER 169
164 (2016)] Power Line v. Hermes Calgon/THG 2016 BCBA
induced Power Line to develop the Product Line for Defendants, and to purchase
and store the requisite materials, with assurances that Power Line would be paid
by Defendants for their expenditures and efforts. Power Line did so and conferred
on Defendants the benefits of development of, formulation of, and manufacture of
the Product Line, along with purchase of and storage of the necessary materials for
Defendants' use. Although Defendants repeatedly assured Power Line that they would
pay for the purchase and storage of the materials and for the formula development
for the Product Line, Defendants failed to pay Power Line for anything. (See further
discussion herein, Section F, infra.)2.
Defendants' wrongful refusal to actually pay Plaintiff for the Product Line,
which has resulted in Defendants not taking physical possession of it, should not
result in Defendants being able to defeat this unjust enrichment finding. Power Line
conferred substantial benefits upon Defendants, placing them in a position to profit
from sale of the Product Line to third parties. Unfortunately, Defendants failed
to consummate such sales, and such failure has continued to the present day. It is
indisputable, however, that benefits have, indeed, been conferred upon Defendants
by Plaintiff, and that Defendants have actual knowledge of these facts.
Accordingly, our conclusion that Defendants have been unjustly enriched at
the expense of plaintiff Power Line is wholly supported by the credible evidence
and the law.3
D. This Court properly admitted the testimony of Plaintiff's expert Peter
Fascia, Esquire, CPA, LLM
The only issue raised in Defendants' Statement of Errors Complained of on
Appeal that was not exhaustively addressed in our September 30, 2015 Decision
and Order, is the admission of the testimony of Power Line's expert accountant, Mr.
Fascia. As explained more fully below, we concluded that Mr. Fascia's testimony
was relevant and was properly admitted into evidence.
On January 22, 2014, Defendants filed a Motion in Limine to Preclude the
Expert Testimony of Mr. Fascia. That Motion raised an issue that was reiterated
in Defendants' Motion for Post-Trial Relief. Defendants asserted that Mr. Fascia's
written report of July 29, 2013 supported their claim that he should not be permitted
to testify as an expert witness in this matter because of the following:
a.
Expert testimony is not necessary on these subjects of factual
inquiry;
b. He is doing nothing more than acting as a sort of co-counsel and
parroting the arguments ofPower Line's counsel with a request that
they now be received as and accorded the weight of the testimony;
c.
~~~~~~~~
He is invading the province of the fact-finder; and
2
Additionally, see Exhibit A, Conclusions of Law #1-14, pp. 38-40.
3Note that we found Defendants liable to Plaintiff on several alternative theories, which included
more than unjust enrichment, quantum meruit, and promissory estoppel. We also found Defendants liable
for breach of implied contract, fraudulent misrepresentation, and negligent misrepresentation.
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170 BUCKS COUNTY LAW REPORTER
2016 BCBA Power Line v. Hermes Calgon/THG [89 Bucks Co. L. Rep.
d. Even if none of the foregoing were true, his opinions are not
relevant to a limited liability company as opposed to a corporation.
(Defendants' Motion in Limine, 1/22/14, p. 2, Defendants' Motion for Post-Trial
Relief, 10/19/15, p. 2)
At the outset of the trial we heard brief argument on Defendants' Motion in
Limine. Understanding Defendants' concerns that Mr. Fascia is an attorney, we
addressed the motion as follows:
I understand that Mr. Fascia is an attorney, so there are some issues
addressed in the report that come close to attorney opinions as opposed
to economic opinions ...
[t]he motion at this point is denied without prejudice to Mr. Dudeck
(Defendants' counsel) raising objections given the testimony.
N.T. 2/3/14, pp 4-5.
Expert testimony is admissible under Pennsylvania Rule of Evidence
("Pa.RE.") 702, which provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
(a) the expert's scientific, technical, or other specialized knowledge
is beyond that possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue; and
( c) the expert's methodology is generally accepted in the relevant field.
Pa.RE. 702.
A trial court is vested with wide discretion in deciding whether to allow the
admission of expert testimony into evidence, and is not subject to reversal absent a
clear abuse of discretion. Daddona v. Thind, 891 A.2d 786, 805 (Pa. Cmwlth. 2006).
Mr. Fascia is a Certified Public Accountant with an LLM in taxation. He also
happens to be an attorney. As a CPA, he reviewed the relevant company formation
documents, the Operating Agreement, and the financial records and tax returns of
Defendant Hermes Calgon/THG Acquisition, LLC. He rendered opinions regarding
the capitalization and solvency of the Hermes entity. Mr. Fascia expressed his
professional opinion that the company did not adhere to traditional formalities
necessary for the operation of a limited liability company, nor did it adhere to the
requirements contained in the Operating Agreement. Mr. Fascia also opined on other
technical accounting issues. This Court was aware that Mr. Fascia is an attorney as
well as a CPA, and we were careful to evaluate his opinions only as they pertained
to accounting as opposed to legal issues.
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164 (2016)] Power Line v. Hermes Calgon/THG 2016 BCBA
Mr. Fascia's testimony clearly related to issues that were beyond the skills
and knowledge of a layperson. His opinions were provided following generally
accepted accounting analysis. The weight to be afforded his expert testimony was
a determination within this Court's discretion. Accordingly, Mr. Fascia's testimony
was properly admitted into evidence, and Defendants' assertion that admission of his
expert accounting opinions constituted an abuse of discretion is meritless.
E. This Court properly Pierced the Corporate Veil of Hermes Calgon/
THG Acquisition, LLC Based on the Testimony and Evidence Elicited,
Along With Application of Pertinent Law
While there appears to be no clear test or well-settled rule in Pennsylvania as
to exactly when the corporate veil may be pierced and when it may not be pierced,
courts have held veil-piercing to be appropriate "when the court must prevent fraud,
illegality,or injustice, or when recognition of the corporate entity would defeat
public policy or shield someone from liability for a crime." Pearson v. Component
Tech. Coro., 247 F.3d 471, 484 (3d Cir. 2001). "It has been held that the corporate
veil is properly pierced whenever one in control of a corporation uses that control
or corporate assets to further one's own personal interests. In such circumstances,
the shareholder, in effect, pierces the corporate veil by intermingling his personal
interests with the corporation's interests." Advanced Telephone Systems, Inc. v.
Com-Net Professional Mobile Radio, LLC, 846 A.2d 1264, 1280 (Pa. Super. 2004)
( citing College Watercolor Group, Inc. v. William H. Newbauer, Inc., 360 A.2d 200,
207 (1976)). See also E. ComfortAssisted Living (ECAL) IV & Vv. Department of
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