J-S24038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN P. SENATORE, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JOHN HAZAKIS, PAUL HAZAKIS AND : GEORGE MIHOS, : Appellants : No. 3247 EDA 2014
Appeal from the Judgment entered on January 2, 2015 in the Court of Common Pleas of Delaware County, Civil Division, No. 2009-8319
BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 29, 2015
John Hazakis (“John”), Paul Hazakis (“Paul”) and George Mihos
(“Mihos”) (collectively, “Defendants”) appeal from the Judgment entered
against them and in favor of John P. Senatore (“Senatore”). We affirm.
In June 2009, Senatore filed a breach of contract action against
Defendants, seeking payment for services rendered in the construction and
renovation of a diner. According to Senatore’s Complaint, Defendants were
partners in a business called Hot Spot II, “a restaurant to be constructed by
private contractors retained by Defendants” in Springfield, Pennsylvania.
Complaint at ¶ 3. Senatore asserted that on or about February 26, 2006,
Defendants retained Senatore’s services as a project manager “of the
construction to be done at Hot Spot II.” Id. at ¶ 4. According to Senatore,
the parties agreed that he was to be paid $5,000 per month until the end of J-S24038-15
construction, which was estimated to last four months. Id. at ¶ 5. Senatore
accepted the offer. Id. at ¶ 6. Construction began around 2006, but,
according to the Complaint, lasted longer than anticipated. Id. at ¶¶ 7-8.
Finally, in February 2007, Defendants stopped construction. Id. at ¶ 10.
Senatore filed the instant breach of contract action claiming that Defendants
failed to pay him $65,000, in accordance with their agreement. Id. at ¶¶
11-13.
Defendants filed an Answer, New Matter and Cross-Claim. Defendants
averred that initially, only John was involved in the project. Second
Amended Answer, New Matter and Counterclaim at ¶ 4. According to
Defendants, they were principals in a corporation known as Hot Spot Diner
II. Id. at ¶ 3. Defendants averred they filed the Articles of Incorporation on
February 23, 2006, and never acted in their individual capacities. Id.
Defendants further averred that Senatore agreed to construct and renovate
the diner for $80,000, and that Senatore agreed to a fee at the discretion of
John. Id. at ¶ 5. Defendants claimed that Senatore represented to John
that the project would take only three months. Id. Defendants filed
counter-claims against Senatore for breach of contract,
fraud/misrepresentation, and for counsel fees pursuant to 42 Pa.C.S.A.
§ 2503(9).
On December 8, 2011, the trial court entered judgment on the
pleadings in favor of Senatore. On appeal, this Court reversed. Senatore
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v. Hazakis, 60 A.3d 861 (Pa. Super. 2012) (unpublished memorandum).
This Court concluded that there existed disputed issues of fact as to whether
Defendants acted in an individual or representative capacity when
contracting with Senatore. Id. (unpublished memorandum at 1).
On remand, the case proceeded to a jury trial. Ultimately, the jury
rendered its verdict, finding that (1) there was an agreement between
Senatore and Defendants; (2) the oral agreement was not between Senatore
and Defendants as principals in their corporate capacity; (3) the oral
agreement was between Senatore and Defendants acting in their individual
capacities; and (4) each of the Defendants breached their agreement with
Senatore. N.T., 4/30/14, at 96-97. The jury found each of the Defendants
100% liable for $39,600 in damages to Senatore. Id. at 98. Finally, the
jury found in favor of Senatore and against Defendants on Defendants’
counterclaims. Id. at 99-101. Defendants filed Post-Trial Motions, which
the trial court denied. Thereafter, Defendants filed a Notice of Appeal, and
on January 2, 2015, at the direction of this Court, final judgment was
entered on the jury’s verdict.
Defendants now present the following claims for our review:
1. Is it error for a judge to confirm a verdict that found individuals jointly and severally liable for a performance contract when there is no evidence of any contractual relationship between the parties?
2. Is it error for [] a judge to confirm a verdict that assumed a partnership when there is real evidence a partnership existed
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or that there [sic] any conformity with the Uniform Partnership Act of 1915, as amended?
3. Can a piercing of the corporate veil be successful where a corporation is formed prior to the beginning of the contractual work just because a negotiation with a contractor by a principal was successfully done prior to the forming of the corporation?
Brief for Appellants at 5.
Defendants first claim that there is no evidence to support the verdict
against Paul and Mihos, as they were not present at the time the contract
was formed. Id. at 18. Defendants point out evidence that Senatore
initially met with John and a former defendant, Vasilios Kyramararios
(“Kyramararios”). Id. Defendants argue that “[n]owhere in this record is
there any testimony that [Senatore] had any meeting with Paul [] and []
Mihos.” Id. Defendants assert there is no evidence supporting a finding of
individual liability against Paul and Mihos. Id. Thus, Defendant seek
judgment notwithstanding the verdict.
In reviewing a trial court’s decision granting or denying judgment
notwithstanding the verdict,
we must consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner. … We will reverse a trial court’s grant or denial of a judgment notwithstanding the verdict only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.
There are two bases upon which a judgment N.O.V. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable
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minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.
Ty-Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa.
Super. 2002) (citation omitted). “Concerning any questions of law, our
scope of review is plenary. Concerning questions of credibility and weight
accorded evidence at trial, we will not substitute our judgment for that of the
finder of fact.” Van Zandt v. Holy Redeemer Hosp., 806 A.2d 879, 886
(Pa. Super. 2002) (citation omitted).
To prove a breach of contract, a plaintiff must prove that a contract
existed, it was breached, and damages resulting from the breach. Liss &
Marion, P.C. v.
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J-S24038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN P. SENATORE, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JOHN HAZAKIS, PAUL HAZAKIS AND : GEORGE MIHOS, : Appellants : No. 3247 EDA 2014
Appeal from the Judgment entered on January 2, 2015 in the Court of Common Pleas of Delaware County, Civil Division, No. 2009-8319
BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 29, 2015
John Hazakis (“John”), Paul Hazakis (“Paul”) and George Mihos
(“Mihos”) (collectively, “Defendants”) appeal from the Judgment entered
against them and in favor of John P. Senatore (“Senatore”). We affirm.
In June 2009, Senatore filed a breach of contract action against
Defendants, seeking payment for services rendered in the construction and
renovation of a diner. According to Senatore’s Complaint, Defendants were
partners in a business called Hot Spot II, “a restaurant to be constructed by
private contractors retained by Defendants” in Springfield, Pennsylvania.
Complaint at ¶ 3. Senatore asserted that on or about February 26, 2006,
Defendants retained Senatore’s services as a project manager “of the
construction to be done at Hot Spot II.” Id. at ¶ 4. According to Senatore,
the parties agreed that he was to be paid $5,000 per month until the end of J-S24038-15
construction, which was estimated to last four months. Id. at ¶ 5. Senatore
accepted the offer. Id. at ¶ 6. Construction began around 2006, but,
according to the Complaint, lasted longer than anticipated. Id. at ¶¶ 7-8.
Finally, in February 2007, Defendants stopped construction. Id. at ¶ 10.
Senatore filed the instant breach of contract action claiming that Defendants
failed to pay him $65,000, in accordance with their agreement. Id. at ¶¶
11-13.
Defendants filed an Answer, New Matter and Cross-Claim. Defendants
averred that initially, only John was involved in the project. Second
Amended Answer, New Matter and Counterclaim at ¶ 4. According to
Defendants, they were principals in a corporation known as Hot Spot Diner
II. Id. at ¶ 3. Defendants averred they filed the Articles of Incorporation on
February 23, 2006, and never acted in their individual capacities. Id.
Defendants further averred that Senatore agreed to construct and renovate
the diner for $80,000, and that Senatore agreed to a fee at the discretion of
John. Id. at ¶ 5. Defendants claimed that Senatore represented to John
that the project would take only three months. Id. Defendants filed
counter-claims against Senatore for breach of contract,
fraud/misrepresentation, and for counsel fees pursuant to 42 Pa.C.S.A.
§ 2503(9).
On December 8, 2011, the trial court entered judgment on the
pleadings in favor of Senatore. On appeal, this Court reversed. Senatore
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v. Hazakis, 60 A.3d 861 (Pa. Super. 2012) (unpublished memorandum).
This Court concluded that there existed disputed issues of fact as to whether
Defendants acted in an individual or representative capacity when
contracting with Senatore. Id. (unpublished memorandum at 1).
On remand, the case proceeded to a jury trial. Ultimately, the jury
rendered its verdict, finding that (1) there was an agreement between
Senatore and Defendants; (2) the oral agreement was not between Senatore
and Defendants as principals in their corporate capacity; (3) the oral
agreement was between Senatore and Defendants acting in their individual
capacities; and (4) each of the Defendants breached their agreement with
Senatore. N.T., 4/30/14, at 96-97. The jury found each of the Defendants
100% liable for $39,600 in damages to Senatore. Id. at 98. Finally, the
jury found in favor of Senatore and against Defendants on Defendants’
counterclaims. Id. at 99-101. Defendants filed Post-Trial Motions, which
the trial court denied. Thereafter, Defendants filed a Notice of Appeal, and
on January 2, 2015, at the direction of this Court, final judgment was
entered on the jury’s verdict.
Defendants now present the following claims for our review:
1. Is it error for a judge to confirm a verdict that found individuals jointly and severally liable for a performance contract when there is no evidence of any contractual relationship between the parties?
2. Is it error for [] a judge to confirm a verdict that assumed a partnership when there is real evidence a partnership existed
-3- J-S24038-15
or that there [sic] any conformity with the Uniform Partnership Act of 1915, as amended?
3. Can a piercing of the corporate veil be successful where a corporation is formed prior to the beginning of the contractual work just because a negotiation with a contractor by a principal was successfully done prior to the forming of the corporation?
Brief for Appellants at 5.
Defendants first claim that there is no evidence to support the verdict
against Paul and Mihos, as they were not present at the time the contract
was formed. Id. at 18. Defendants point out evidence that Senatore
initially met with John and a former defendant, Vasilios Kyramararios
(“Kyramararios”). Id. Defendants argue that “[n]owhere in this record is
there any testimony that [Senatore] had any meeting with Paul [] and []
Mihos.” Id. Defendants assert there is no evidence supporting a finding of
individual liability against Paul and Mihos. Id. Thus, Defendant seek
judgment notwithstanding the verdict.
In reviewing a trial court’s decision granting or denying judgment
notwithstanding the verdict,
we must consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner. … We will reverse a trial court’s grant or denial of a judgment notwithstanding the verdict only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.
There are two bases upon which a judgment N.O.V. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable
-4- J-S24038-15
minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.
Ty-Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa.
Super. 2002) (citation omitted). “Concerning any questions of law, our
scope of review is plenary. Concerning questions of credibility and weight
accorded evidence at trial, we will not substitute our judgment for that of the
finder of fact.” Van Zandt v. Holy Redeemer Hosp., 806 A.2d 879, 886
(Pa. Super. 2002) (citation omitted).
To prove a breach of contract, a plaintiff must prove that a contract
existed, it was breached, and damages resulting from the breach. Liss &
Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 665 (Pa.
2009). In order for an enforceable agreement to exist,
there must be a “meeting of the minds,” whereby both parties mutually assent to the same thing, as evidenced by an offer and its acceptance. It is equally well established that an offer may be accepted by conduct and what the parties do pursuant to the offer is germane to show whether the offer is accepted. In cases involving contracts wholly or partially composed of oral communications, the precise content of which are not of record, courts must look to the surrounding circumstances and course of dealing between the parties in order to ascertain their intent. We must, therefore, look to the parties’ course of conduct to ascertain the presence of a contract.
Prieto Corp. v. Gambone Constr. Co., 100 A.3d 602, 609 (Pa. Super.
2014) (citation omitted).
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The evidence, viewed in a light most favorable to Senatore, reflects
that Senatore first met John and Kyramararios at a diner owned by John.
N.T., 4/28/14, at 47, 48. At the diner, Kyramararios approached Senatore
about the construction of the Hot Spot II. Id. at 49. Senatore met with
John and Kyramararios about the Hot Spot II construction project in
December 2005. Id. at 51. At that meeting John and Kyramararios
explained that they wanted to open the Hot Spot II within four months. Id.
at 52. Senatore offered to provide equipment and “[a]ll my expertise on
how to save them money to be able to get the job done” for “$5,000 per
month for four months.” Id. at 53. Senatore also stated that he would wait
until the diner opened to get paid. Id. According to Senatore, he knew
three partners were involved with the project: Kyramararios, Paul and John.
Id. at 51. Senatore never was told that a corporation was involved, or that
he would be an employee of a corporation. Id. at 54, 101.
Senatore testified that John accepted his offer to perform the work, for
four months, for a total of $20,000. Id. at 55. When the work extended
beyond four months, John asked Senatore to continue with the project. Id.
at 73. Senatore began work in February 2006, and completed the work in
February 2007. Id. at 91. Finally, upon completion, Senatore was never
paid for his work. Id.
Kyramararios testified that when planning began for the Hot Spot II,
he, John and Paul were partners. Id. at 153. Kyramararios confirmed that
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the partners decided to engage Senatore for the project. Id. at 154-55.
Kyramararios stated that Mihos joined the partnership because of cost
overruns. Id. Kyramararios testified that Senatore offered to perform the
work request for four months, for a total of $20,000. Id. at 157.
Kyramararios explained that Senatore provided tools and equipment that
saved the partnership rental fees. Id. at 166. Kyramararios confirmed that
the partners accepted Senatore’s offer. Id. at 157-58.
Paul testified that he was involved with the business prior to the
formation of a corporation. N.T., 4/29/14, at 114. Mihos testified that John
approached him for money after construction on the Hot Spot II began. Id.
at 116. Mihos expressly confirmed that he was a partner in the business.
Id. at 120.
The evidence, viewed in a light most favorable to Senatore,
established the existence of an agreement with all three Defendants, breach
of the agreement, and damages. We discern no abuse of discretion or error
by the trial court by its denial of judgment notwithstanding the verdict.
Accordingly, we cannot grant Defendants relief on this claim.
Defendants next claim that a partnership cannot be presumed without
evidence of its formation. Brief for Appellants at 19. Defendants assert that
they could only be found liable if there existed a legal partnership, formed
pursuant to Pennsylvania’s Uniform Partnership Act, 15 Pa.C.S.A. §§ 8301 et
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seq. Brief for Appellant at 19-20. According to Defendants, Senatore failed
to establish the legal requirements of a partnership. Id. at 21, 22.
Initially, we observe that Kyramararios and Mihos expressly testified
regarding the existence of a partnership, as summarized above. Further,
Defendants did not challenge the sufficiency of the evidence establishing a
legal partnership in their Post-Trial Motions. Accordingly, that claim is
waived.1 See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the
first time on appeal).
Finally, Defendants claim that the trial court improperly permitted
Senatore to “pierce the corporate veil.” Brief for Appellants at 25.
Defendants argue that Senatore deliberately decided not to name the
corporation in his pleadings. Id. According to Defendants, they formed a
corporation “immediately prior to the effective lease for the facility—the
property for which [Senatore] was hired to supervise construction.” Id.
Nevertheless, Defendants assert that Senatore pierced the corporate veil,
without naming the corporation as a party. Id.
In their Post-Trial Motions, Defendants raised no claim related to the
legal existence of a corporation, or improper piercing of the corporate veil.
Accordingly, this claim is waived. See Pa.R.A.P. 302(a).
Judgment affirmed.
1 In their Post-Trial Motions, Defendants challenged the sufficiency of the evidence establishing the existence of an oral contract. Post-Trial Motions, ¶¶ 1-2.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/29/2015
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