concurring and dissenting:
I join the majority in holding that Andrew Zvonik is liable to Appellee on the basis of the parties’ in-court agreement; *328however, I must dissent regarding Pauline and Paul Zvonik’s liability to Appellee.
The majority states, “Furthermore, the most significant requirement for recovery on a quasi contract is that the enrichment to the defendant must be unjust . . . . ” The majority does not proceed to explain how or why it would be unjust for the donee-beneficiary (Pauline Zvonik) or her son to retain the house that Anna Zvonik gave to Pauline in breach of her (Anna’s) alleged contract with George. Although Pauline and Paul “passively received a benefit,” the majority does not explain how or why “it would be unconscionable” for them to retain this benefit. Even though the courts focus on the result of unjust enrichment, as the majority asserts, not every enrichment is unjust, and not in every case where a benefit is passively received is it unconscionable for the party to retain that benefit. See Meehan v. Cheltenham Township, 410 Pa. 446, 450, 189 A.2d 593, 596 (1963).
As the court stated in Meehan, which the majority cites as authority for the principles of unjust enrichment:
[T]he mere fact that one party benefits from the act of another is not of itself sufficient to justify restitution. There must also be an injustice in permitting the benefit to be retained without compensation.
Id., 410 Pa. at 450, 189 A.2d at 596. The court in Meehan proceeds to cite the following example from section 110 of the Restatement of Restitution to determine whether or not retention of a benefit is unjust:
Section 110 deals with the situation where a third party benefits from a contract entered into between two other parties. It provides that, in the absence of some misleading by the third party, the mere failure of performance by one of the contracting parties does not give rise to a right of restitution against the third party. The Restatement gives as an example of this principle the situation where A purchases a ring from C, a jeweler, for his fiancee B and then defaults in the payments. The Restatement states *329that C cannot recover the ring or its value from B. [Footnote omitted, and emphasis added.]
Id., 410 Pa. at 450-51, 189 A.2d at 596.
If one applies the foregoing example to the instant case, it is clear that George Zvonik does not have a cause of action against either Pauline or Paul Zvonik for the benefits that he (George) conferred upon Anna Zvonik pursuant to their alleged oral contract. Anna requested that George make the improvements to her house as A purchased the ring from C in the foregoing example. Anna subsequently gave the house to Pauline and breached her promise to George as A gave the ring to B and defaulted in his payments to C. As C does not have a cause of action against B, so George does not have a cause of action against either Pauline or Paul. As it is not unjust or unconscionable for B to retain the benefit that she passively received, so it is not unconscionable for either Pauline or Paul to retain the benefits that they passively received.
Although the majority relies greatly upon Scott v. Purcell, 264 Pa.Super. 354, 399 A.2d 1088 (1979), in which the Superior Court applied the theory of unjust enrichment, we note that the opinion by the Supreme Court of Pennsylvania, 490 Pa. 109, 415 A.2d 56 (1980), (KAUFFMAN, J.) affirmed the Superior Court’s order on principles other than unjust enrichment. The opinion by the Superior Court, upon which the majority relies, held that Oaklander Associates, the recipient of the property that was obtained because of Purcell’s violation of his duties as Scott’s agent, had “passively received a benefit that it would be unconscionable for [it] to retain.” 264 Pa.Super. at 367, 399 A.2d at 1095. The Superior Court did not explain why it would be unconscionable for Oaklander Associates to retain the benefit. The court merely states:
The fact that Oaklander Associates may not on the present record be held to have known of Purcell’s wrongful acts does not refute the basic point that it was given a chance to buy the property, only because Purcell violated his duties to appellant as appellant’s agent.
*330Id., 264 Pa.Super. at 367, 399 A.2d at 1095. Since Scott v. Purcell was on appeal from the lower court’s refusal to strike a compulsory nonsuit, the decisions of both the Supreme and the Superior Courts were based upon the principle that a nonsuit should be sustained only if the plaintiff “cannot recover under any view of the evidence. . . . ” Id., 264 Pa.Super. at 357, 399 A.2d at 1090. Thus, the opinion by the Superior Court holds only that sufficient evidence exists so the plaintiff may have a cause of action based upon unjust enrichment. Both appellate courts remanded for a trial to determine whether or not Oaklander Associates actually was liable on any theory. Thus, Scott cannot be cited as precedent for the principle that the passive recipient of a benefit has been unjustly enriched because he would not have acquired the benefit if a third party had not breached a duty.
In Roman Mosaic and Tile Co. v. Vollrath, 226 Pa.Super. 215, 313 A.2d 305 (1974), Appellant installed a new floor in a laundromat owned by Vollrath Investments. Paul Vollrath, who signed the contract without indicating the capacity in which he acted, subsequently defaulted. Appellant filed one action against Paul Vollrath and the corporation and a second action against Paul and his wife, Geraldine, who was also an owner, for unjust enrichment. The Superior Court held that, although Geraldine had been enriched, Appellant could not “secure relief from her unless she did something misleading or otherwise improper in connection with the contract.” Id., 226 Pa.Super. at 218, 313 A.2d at 307. Because Geraldine was not a party to the contract, the “doctrine of unjust enrichment cannot be used to circumvent this principle (viz., that a noncontracting party cannot be sued for breach) merely by substituting one promisor or debtor for another” (citations omitted). Id., 226 Pa.Super. at 218, 313 A.2d at 307.
In the instant case, the record has not revealed that either Pauline or Paul did anything misleading or improper regarding the mother’s contract with George. George chose not to pursue a claim against Anna Zvonik’s estate (N.T. 7, 2/6/79). *331George cannot, therefore, substitute either Pauline or Paul in place of Anna Zvonik who breached her promise to George.
For the foregoing reasons, I would reverse the lower court’s order in No. 12 Civil 1978, and affirm the order in No. 13 Civil 1978.