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March 5, 2026 Get Citation Alerts Download PDF Add Note

McNamee Real Estate v. Haverford Properties

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 671 EDA 2025
• Precedential Status: Non-Precedential

• Judges: Lazarus

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.3K)

• PDF

Combined Opinion

                        by [Anne E. Lazarus](https://www.courtlistener.com/person/8236/anne-e-lazarus/)

J-A30011-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MCNAMEE REAL ESTATE ADVISORS, : IN THE SUPERIOR COURT OF
LLC : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 671 EDA 2025
HAVERFORD PROPERTIES, INC., :
BULIGO CAPITAL PARTNERS, INC., :
SAMUEL HAMILTON, CHARLES D. :
HOUDER, HP BC EAGLE ONE, LLC, :
PDC-OLD EAGLE, LLC, AND JOSEPH :
R. STAUGAARD :

Appeal from the Order Entered January 22, 2025
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2023-27570

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and SULLIVAN, J.

MEMORANDUM BY LAZARUS, P.J.: FILED MARCH 5, 2026

McNamee Real Estate Advisors, LLC (“McNamee”) appeals from the

order, entered in the Court of Common Pleas of Montgomery County,

sustaining preliminary objections filed by Appellees Haverford Properties, Inc.,

Buligo Capital Partners, Inc., Samuel Hamilton, Charles D. Houder, HP BC

Eagle One, LLC, PDC-Old Eagle, LLC, and Joseph R. Staugaard and dismissing

McNamee’s amended complaint with prejudice. Upon review, we affirm.

McNamee initiated this action by filing a complaint on August 26, 2024,

asserting a single claim for breach of contract against Haverford Properties,

Inc., HP BC Eagle One, LLC, and related principals (collectively, “Haverford”),
J-A30011-25

seeking compensation as a result of the sale of a subject property

(“Property”). Haverford filed preliminary objections in September 2024,

based on McNamee’s failure to allege or produce a valid contract. McNamee

filed an amended complaint on October 17, 2024, asserting both unjust

enrichment and breach of contract claims and seeking “payment of a real

estate commission, fee, and/or other compensation.” Amended Complaint,

10/17/24, at ¶ 1.

In the amended complaint, McNamee identified itself as a duly licensed

“real estate brokerage company” that provides “various state[-]regulated real

estate brokerage services as well as business and investment strategies and

advice, while acting in an ‘[a]dvisory [c]apacity.’” Id. at ¶¶ 3, 4. McNamee

classified Haverford as a real estate developer and investment firm which

utilizes various holding companies to conduct its business. Id. at ¶¶ 7, 8, 10.

According to McNamee, Haverford, by and through its principals,

engaged McNamee in June 2017 for “real estate advisory services,” with a

plan for McNamee to become engaged as a buyer’s agent if it located an

appropriate property for Haverford to acquire. Id. at ¶¶ 18–20. McNamee

alleged that its “initial services were to gain advantage for [Haverford] in

growing its property acquisition pipeline and to do market research as to

suitable properties that Plaintiff would then recommend [] in an advisory

capacity.” Id. at ¶ 21. Haverford “was aware of the Plaintiff [McNamee] being

a respected and well[-]known real estate brokerage firm performing

professional agency services under the known, established[,] and customary

-2-
J-A30011-25

open and non-exclusive agency terms[,] including compensation of 6% of the

purchase price payable.” Id. at ¶ 22.

McNamee represented that the parties “made an oral agreement with

shaking of their hands” for Haverford to engage McNamee as an advisor and,

if a suitable property was located, as a broker, finder, or agent. Id. at ¶ 23.

This oral agreement, which McNamee alleged was later reduced to writing in

a series of email and text messages attached to its complaint, comprised what

McNamee identified as two distinct agreements. Id. at ¶¶ 23, 24, 28.

McNamee labeled the first agreement, identified as the basis for the unjust

enrichment claim, the “Advisory Agreement,” under which McNamee was “an

investment adviser and exempt under registration and licensure

requirement[s] for the services requested and agreed to as well as understood

and/or implied under standard terms and conditions for advisory services.” 1

Id. at ¶ 26. The second agreement, which the trial court designated the

“Brokerage Services Agreement,” formed the basis for McNamee’s breach of

contract claim. Id. at ¶ 27. McNamee asserted that the attached

communications, taken together, allowed the Brokerage Services Agreement

to meet RELRA’s requirements. Id. at ¶ 27–28.

Samuel Hamilton, one of Haverford’s principals, reportedly assured

McNamee that no written agreement was necessary, as professional services

---

1 The trial court observed that McNamee simultaneously represents the
Advisory Agreement both is and is not subject to requirements of the Real
Estate Licensing and Registration Act (“RELRA”). See Trial Court Opinion,
4/1/25, at 2 n.9.

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J-A30011-25

were “limited to first serving in an advisory capacity for standard fees and that

for brokerage services for a term of one year.” Id. at ¶ 25. McNamee

understood that “confirmation of the engagement would be done by email

without need to have lengthy advisory and/or agency agreements,” as all

parties were familiar with RELRA. Id. McNamee represented that “[i]t was

anticipated, customary, and understood that [McNamee]’s professional

advisory services would be included in a brokerage commission if [Haverford]

paid [McNamee] a brokerage commission.” Id. at ¶ 38.

Under the Advisory Agreement, McNamee claimed it could recover

compensation for professional advisory services “under the standard terms

and conditions for such services” on an unjust enrichment theory. Id. at ¶

1. Specifically, it identified the services it provided as having “advised

[Haverford] and Participants of the investment Property availability, the

special opportunity, the appropriateness of the Property to meet [its]

investment needs[,] and the likelihood of a significant return” on its

investment. Id. at ¶ 32. It asserted that Haverford purchased the Property

“under the business arrangement described above,” and McNamee was

therefore entitled to a fee. Id. at ¶¶ 33–35.

McNamee’s breach of contract claim alleged McNamee performed

brokerage services under the Brokerage Services Agreement, and Haverford

was required to pay a brokerage fee. Id. at ¶¶ 40–43. The services McNamee

allegedly provided under this Agreement were “(1) perform[ing] its

[b]rokerage [s]ervices . . . , (2) act[ing] as buy-side broker, finder, or agent,

-4-
J-A30011-25

and (3) successfully sourc[ing] the subject Property for the benefit of

Defendant Haverford[.]” Id. at ¶ 41. McNamee claimed Haverford “had a

duty and obligation to pay Plaintiff [McNamee] the customary, understood[,]

and accepted [c]ompensation in the amount of six (6%) percent of the

purchase price at the time of their purchase.” Id. at ¶ 42.

Haverford filed preliminary objections to the amended complaint on

November 4, 2024, which the trial court sustained on January 22, 2025,

dismissing the case with prejudice. 2 McNamee filed a timely notice of appeal

and concise statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

McNamee advanced ten claims in its Rule 1925(b) statement3 but

presents only one issue in its brief: “Whether the [t]rial [c]ourt committed

---

2 McNamee filed a motion for reconsideration on January 31, 2025, upon which

the trial court did not rule.

3 McNamee’s Rule 1925(b) statement included the following errors complained

of on appeal:

(1) [The trial court] abused its discretion and erred as a matter of
law and fact in finding or not finding on issues occurring or raised
during the review of [Haverford’s] preliminary objections,
[McNamee]’s response thereto and supporting memorandum.

(2) The [trial court] granted the order sustaining [Haverford’s]
preliminary objections dismissing [McNamee]’s amended
complaint with prejudice (1) without any decision being written as
to the legal reasoning why both counts of [McNamee]’s amended
complaint were dismissed with prejudice, and (2) without granting
(Footnote Continued Next Page)

-5-
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---

[McNamee] the right to file a further amended complaint to satisfy
the pleading deficiencies determined by the [trial court].

(3) The [trial court] did not write an opinion as to the reason(s)
for granting [Haverford’s] preliminary objections and therefore
the reasons for the trial court’s ruling are vague or not discernable
from the record, and therefore [McNamee] is unable to adequately
set forth a concise statement of the matters complained of on
appeal.

(4) [Haverford] argued in their preliminary objections that
[McNamee] failed to plead that it had a written buyer agency
agreement as required under [RELRA]. Whereas, [McNamee]
argued in its reply to the preliminary objections and in its
memoranda of law, that advisory services are not regulated by
RELRA and therefore no written engagement agreement is
required for the collection of compensation under the legal claim
of unjust enrichment.

(5) [Haverford] set forth facts not of record in their preliminary
objections and with the bare order sustaining the preliminary
objections, [McNamee] is unable to ascertain if the Court’s order
was based upon facts asserted by [Haverford] through an
improper “[s]peaking [d]emurrer.”

(6) Count One of [McNamee]’s amended complaint seeks recovery
of compensation for advisory services pursuant to a claim of
unjust enrichment based upon an oral and implied agreement for
professional services (1) that were measurably solicited and
engaged by [Haverford], (2) that were measurably performed and
completed by [McNamee] for the benefit of [Haverford], (3) that
were measurably encouraged, received and ratified by
[Haverford], and (4) that were measurably beneficial and
instrumental in [Haverford’s] analysis, negotiations, and
purchase[] of the subject property for $60,800,000.00 and
despite [McNamee] demand, [Haverford] failed to pay [McNamee]
for its professional services.

(7) Count Two of [McNamee]’s amended complaint seeks
recovery, in the alternative to collection of an advisory fee, under
breach of contract for compensation earned based upon RELRA
section 455.606a(b)(2) allowing a written memorandum to be
(Footnote Continued Next Page)

-6-
J-A30011-25

legal error by dismissing an unjust enrichment claim at the pleading stage,

where the question of whether the alleged services fell outside the regulatory

scope of RELRA presents triable issues of fact.” Appellant’s Brief, at 1. 4

---

sufficient to satisfy the requirement of a written buyer agency
agreement. [McNamee] argues in its reply and memorandum of
law that a series of email communications, oral discussions, and
professional brokerage services provided to [Haverford] was
sufficient to satisfy the writing requirement under RELRA.

(8) Without allowing [McNamee] to proceed under either or both
of these theories of law, [Haverford has] avoided responding as
to the allegations that (1) [McNamee] was solicited and engaged
to provide professional services, (2) the requested services were
provided complete[ly] by [McNamee], (3) the benefits were
received by [Haverford], and (4) that [Haverford] refused to
compensate [McNamee] for those requested and performed
professional services. It is [McNamee]’s educated guess that [the
trial court] determined that no sufficient memorandum of a buyer
agency agreement or entitlement to advisory fees were set forth
in [McNamee]’s amended complaint.

(9) [McNamee] timely submitted a motion for reconsideration of
the [trial court]’s order and requested a written decision to
determine the merits of an appeal, however the motion was not
acted upon by the [trial court] by the date necessary for
[McNamee] to file its appeal. [McNamee] reserves the right to
supplement this statement upon receipt and review of the opinion
and record the Court submits to the Superior Court.

Pa.R.A.P. 1925(b) Statement, 3/6/25, at 1–4 (unpaginated) (claims
renumbered; unnecessary capitalization, quotation marks, and citations
omitted).

4 Haverford argues McNamee waived six of the seven issues discussed in its

argument section because the arguments in its appellate brief were “not
remotely implied” by the single issue as stated. Appellee’s Brief, at 12. It
notes that Pa.R.A.P. 2119 requires the argument “be divided into as many
parts as there are questions to be argued; and shall have at the head of each
part [] the particular point treated therein, followed by such discussion and
(Footnote Continued Next Page)

-7-
J-A30011-25

Though McNamee appealed the dismissal of both its breach of contract and

unjust enrichment causes of action, in its brief it abandons the breach of

contract claim and addresses only unjust enrichment.

---

citation of authorities as are deemed pertinent.” Id. at 11–12 (citing Krebs
v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006)). In its
reply brief, McNamee argues that the sole question presented fairly comprises
each remaining section of the brief “because each is an element of, or
necessary predicate to,” that issue. Reply Brief, at 6. We agree with
McNamee that most of the subsections are at least suggested by its question
presented, and the headings help clarify McNamee’s argument. While several
subsections are a bit further afield, we find that McNamee’s nonconformance
with Rule 2119 does not impede our appellate review. See, e.g.,
Commonwealth v. Verma, 334 A.3d 941, 946 n.4 (Pa. Super. 2025). As
such, we decline to find waiver on this basis.

While not raised by Haverford, we also consider whether McNamee’s single
question was fairly suggested by its lengthy Rule 1925(b) statement, which
does not raise the question in the exact form McNamee presents in its brief.
It is well-settled that issues not raised in a Rule 1925(b) statement are waived.
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). In this instance,
the sole question in McNamee’s brief—whether the services it performed fell
outside RELRA’s scope and may therefore be the subject of an unjust
enrichment claim (an argument preserved in McNamee’s briefing at the
preliminary objection stage, see Memorandum of Law Contra to Defendants’
Preliminary Objections to Plaintiff’s Amended Complaint, 12/5/24, at 5–6)—is
not stated in so many words in its Rule 1925(b) statement. We find, however,
that it is reasonably suggested by issues (4), (6), and (8). Thus, we decline
to find waiver on the unjust enrichment issue.

McNamee’s argument in the alternative, that it should have been given the
opportunity to again amend the amended complaint before the action was
dismissed with prejudice, is fairly suggested by issue 2 of its Rule 1925(b)
statement. Though it is not directly stated in McNamee’s single question
presented in its brief, the trial court extensively explained its reasons for
dismissing the claim with prejudice. Because the trial court’s reasoning is
clear, we again decline to find waiver and proceed to the merits of McNamee’s
claim.

-8-
J-A30011-25

McNamee argues that the trial court erred in dismissing its unjust

enrichment count at the demurrer stage, precluding it from proving that the

Advisory Agreement was separate and distinct from the Brokerage

Agreement. Had it been able to prove that it acted in a discrete advisory role,

McNamee asserts, it was entitled to relief even though it could not recover on

the RELRA-governed brokerage agreement, because the Advisory Agreement

fell outside RELRA’s scope and therefore was not required to be in writing. 5

Id. at 5–6. Relying on Fisch’s Parking, Inc. v. Indep. Hall Parking, Inc.,

638 A.2d 217 (Pa. Super. 1994), McNamee claims that a consulting agreement

is distinct from a RELRA-governed brokerage agreement and, therefore, it

should be able to recover in equity for its advisory services. Id. at 5–6.

Finally, McNamee asserts that Durst v. Milroy General Contracting, Inc.,

52 A.3d 357 (Pa. Super. 2012), holds that equitable remedies are not

extinguished by statutes requiring written agreements, where the statute

governing the agreement does not explicitly preclude recovery in equity. Id.

at 8–9.

Haverford, in contrast, counters that RELRA clearly precludes a licensed

broker from obtaining payment for what is, in essence, a commission, by

---

5 McNamee, LLC, distinguishes itself from its principal, Bernard McNamee, by

claiming that Mr. McNamee is a licensed broker who does not prevent
McNamee, LLC, from performing services that fall outside the realm of
brokerage services. See Appellant’s Brief, at 5. In its brief, Haverford notes
that Mr. McNamee is not a party, and further, both Mr. McNamee and
McNamee, LLC, are licensees and therefore equally subject to RELRA’s
requirements. See Appellee’s Brief, at 14–15.

-9-
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repackaging its claim as one sounding in equity, and that a licensee cannot

recover by calling what is clearly a commission payment by another name.

See Appellee’s Brief, at 13–14. Haverford also objects to McNamee’s reliance

on Fisch’s Parking to distinguish between consulting and brokerage services,

pointing out that the plaintiff in Fisch’s Parking was not a licensee, had a

written agreement with the defendant, and had specialized expertise in the

operation of parking garages. By contrast, here, McNamee is a licensee with

no written agreement and claims no expertise beyond real estate investment.

Id. at 14–16. Thus, Haverford argues, McNamee cannot recover on its unjust

enrichment claim.

Our standard of review of an order sustaining preliminary objections is

clear:

When an appellate court rules on whether preliminary objections
in the nature of a demurrer were properly sustained, the standard
of review is de novo and the scope of review is plenary. The court
may sustain preliminary objections only when, based on the facts
pleaded, it is clear and free from doubt that the complainant will
be unable to prove facts legally sufficient to establish a right to
relief. For the purpose of evaluating the legal sufficiency of the
challenged pleading, the court must accept as true all well-
pleaded, material, and relevant facts alleged in the complaint and
every inference that is fairly deducible from those facts.

Gustafson v. Springfield, Inc., 333 A.3d 651, 662 (Pa. 2025) (quoting

Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008)).

RELRA “establishes specific standards of conduct and licensing which

pertain to all persons engaged in the sale or transfer of real property within

this Commonwealth.” Meyer v. Gwynedd Dev. Grp., Inc., 756 A.2d 67, 69

• 10 - J-A30011-25

(Pa. Super. 2000). Subsection 455.606(b)(1) of RELRA requires that material

terms of agreements between covered parties be specified in a written

contract:

A licensee may not perform a service for a consumer of real estate
services for a fee, commission[,] or other valuable consideration
paid by or on behalf of the consumer unless the nature of the
service and the fee to be charged are set forth in a written
agreement between the broker and the consumer that is
signed by the consumer. This paragraph shall not prohibit a
licensee from performing services before such an agreement is
signed, but the licensee is not entitled to recover a fee,
commission[,] or other valuable consideration in the absence of
such a signed agreement.

63 P.S. § 455.606a(b)(1) (emphasis added);6 see Michael Salove Co. v.

Enrico Partners, L.P., 23 A.3d 1066, 1070 (Pa. Super. 2011). Under RELRA,

a “broker” is defined, in relevant part, as

(1) Any person who, for another and for a fee, commission[,] or
other valuable consideration:

(i) negotiates with or aids any person in locating or
obtaining for purchase, lease[,] or an acquisition of
interest in any real estate;

(ii) negotiates the listing, sale, purchase, exchange,
lease, time share and similarly designated
interests, financing[,] or option for any real estate;

---

6 Section 455.608a of RELRA dictates the information that must be set forth

in a written agreement. See also Trial Court Opinion, 4/1/25, at 6–7. As the
trial court notes, none of the electronic communications McNamee attaches to
the amended complaint address these terms. Id. at 8 (“The communications
do not describe the terms or the nature and extent of Plaintiff’s advisory
and/or brokerage services, the duration of the agreements, or any description
of a commission fee.”).

• 11 - J-A30011-25

(iii) manages any real estate;

(iv) represents himself to be a real estate consultant,
counsellor, agent[,] or finder;

(v) undertakes to promote the sale, exchange,
purchase[,] or rental of real estate: Provided,
however, That this provision shall not include any
person whose main business is that of advertising,
promotion[,] or public relations;

(vi) undertakes to perform a comparative market
analysis; or

(vii) attempts to perform any of the above acts.

63 P.S. § 455.201 (definitions).7

The statute’s definition of a broker is expansive by design. As our

Supreme Court has recognized, the plain language of the statute “indicates

the General Assembly intended RELRA to apply broadly, not just to buying and

selling, but to all real estate transactions as they existed” at the time it was

enacted. Ladd v. Real Est. Comm’n, 230 A.3d 1096, 1111 (Pa. 2020). This

explicitly includes licensees who are acting as “consultants,” in addition to

those directly negotiating the purchase and sale of real estate. See 63 P.S. §

455.201 (“Broker”) (1)(iv).

In the amended complaint, McNamee alleges it entered into a RELRA-

compliant written agreement with Haverford, citing and attaching email and

text messages purporting to memorialize an agreement. See Amended

Complaint, 10/17/24, at ¶¶ 27–28, Exhibit “A.” Based on this agreement,

---

7 Haverford indisputably also meets the definition of consumers.
See 63 P.S.
§ 455.201 (definitions) (“‘Consumer.’ A person who is the recipient of any
real estate service.”).

• 12 - J-A30011-25

which McNamee characterized as a written memorandum of the Advisory and

Brokerage Services Agreements, it sought recovery on unjust enrichment and

breach of contract theories. On appeal, McNamee abandons its breach of

contract claim, acknowledging there was no written agreement that satisfied

RELRA’s terms. Instead, it argues that its amended complaint presents a valid

claim for unjust enrichment under the “Advisory Agreement,” which is

excludable from RELRA requirements and, therefore, permits McNamee to

recover a fee.

McNamee’s theory fails for two reasons. First, regardless of what

McNamee calls the services it offered to Haverford, it clearly acted as

Haverford’s broker without entering into a written agreement, signed by

Haverford, as required by RELRA, and the payment it seeks is unmistakably a

commission.8 McNamee’s description of the services it provided to

Haverford—advising Haverford “of the investment Property availability, the

special opportunity, the appropriateness of the Property to meet [its]

investment needs and the likelihood of a significant return on the investment

---

8 The trial court notes that Exhibit “B” to the amended complaint, which
McNamee never references, includes a commission agreement executed and
signed by McNamee and the seller of the Property, PDC Wayne Partners
(“Investor”). See Trial Court Opinion, 4/1/25, at 9 n.11. This agreement
indicates that “Broker” (McNamee) “rendered real estate services to, and at
the request of,” Investor, in the form of introducing Haverford to Investor,
and for those services, Investor will “pay Broker a real estate commission
upon the successful completion, at closing,” of the sale, partial sale, or capital
investment of the Property. Amended Complaint, 10/17/24, at Exhibit “B” pp.
2–3. It further dictates that Broker “will receive no compensation other than
what is contemplated herein regarding the Property and Investor and
Haverford.” Id. at p. 3.

• 13 - J-A30011-25

of the Property”—falls squarely within RELRA’s definition of services offered

by a broker: one who, inter alia, “negotiates with or aids any person in

locating or obtaining” real estate, “represents himself to be a real estate

consultant [or] counsellor,” or “undertakes to promote the sale,

exchange, purchase[,] or rental of real estate.” 63 P.S. § 455.201

(emphasis added). As such, McNamee’s attempt to reframe its claim as one

for unjust enrichment rather than breach of contract, and to reclassify a

commission as an unspecified “fee,” cannot be sustained. 9, 10

---

9 McNamee’s reliance on Fisch’s Parking to distinguish its role as advisor
from that of broker is misplaced. In Fisch’s Parking, where this Court found
the plaintiff was a consultant rather than a broker, the parties specifically
labeled their agreement as a consulting agreement, and we noted that the
agreement identified distinct consulting services and entitled the plaintiff to
payment upon any sale of the property, rather than making it contingent on
plaintiff finding the buyer. Fisch’s Parking, 638 A.2d at 221. The
“consultant” in that case was not a licensed broker and had unique and
relevant expertise in the management of parking garages. See id. at 219,
221-22. This Court concluded that “we are not persuaded that the instant
case is a situation in which no two minds could differ that the consulting
agreement was a broker’s agreement in disguise.” Id. at 222.

Not so here. McNamee, a licensed broker whose principal is also a licensed
broker, claims it was engaged by Haverford to locate a property for purchase.
See Amended Complaint, 10/17/24, at ¶ 20. Under the alleged agreement,
if McNamee were to locate a property, it would be engaged as the buyer-
defendant’s broker for the property acquisition, with payment determined by
standard brokerage fees. Id. at ¶¶ 20, 22, 25. McNamee’s protestations to
the contrary are unavailing.

10 In its reply brief, McNamee argues, for the first time on appeal, that
“underlying this entire case is erroneous statutory construction,” citing Shafer
Elec. & Const. v. Mantia, 96 A.3d 989, 996 (Pa. 2014), to claim that when
an operative statute is self-contradictory, dismissal on the merits is improper.
(Footnote Continued Next Page)

• 14 - J-A30011-25

This Court rejected McNamee’s theory in North Broad Assocs., LLC v.

Stockton Real Est. Advisors, LLC, 2024 WL 2991902 (Pa. Super. filed June

14, 2024) (unpublished memorandum decision). 11 In that case, Stockton Real

Estate Advisors, LLC (“Stockton”) demanded commissions from North Broad

Associates pursuant to a written Exclusive Listing Agreement, which it claimed

had been orally extended “based on the conduct and communications between

the parties.” Id. at *1, *5. Like McNamee, Stockton produced a collection of

emails and documents it believed constituted a memorandum memorializing

this extension agreement. Id. at *5. This Court rejected Stockton’s

argument, finding the materials demonstrated, at best, that Stockton

“wanted, or thought it had, a mutual understanding” to extend the contract.

Id. As such, there was no written agreement as required by RELRA to allow

Stockton to recover commissions on a breach of contract claim. Turning to

Stockton’s unjust enrichment claim, this Court held that “[a]llowing a party to

circumvent RELRA’s requirements by resorting to equitable remedies would

defeat the purpose of the statute” by allowing a licensee to recover a broker’s

---

Reply Brief, at 3. While it is difficult to discern McNamee’s argument because
of its conflicting language, McNamee seems to suggest that the statute does
not distinguish between advisors and consultants, and therefore McNamee’s
agreement falls outside RELRA. Id. at 3–5. This argument is both waived,
since it was not raised before the trial court, in McNamee’s Rule 1925(b)
statement, or in McNamee’s appellant brief, and is incomprehensible.

11 See Pa.R.A.P. 126(b) (this Court’s non-precedential memorandum decisions

filed after May 1, 2019, may be cited for persuasive value).

• 15 - J-A30011-25

commission without agreeing to terms in writing. 12 Id. at *6. The same holds

true here.

Even if McNamee were able to prove it acted as an “advisor” rather than

a broker and, therefore, did not need to meet the requirements for a RELRA-

compliant agreement, McNamee cannot recover as an advisor on an unjust

enrichment theory. Unjust enrichment is an equitable doctrine, allowing the

law to imply a contract that “requires the defendant to pay to the plaintiff the

---

12 McNamee relies heavily on Shafer, supra, and Durst, supra, claiming
these cases support its position that equitable remedies survive statutory
requirements for agreements in writing. See Appellant’s Brief, at 8; Reply
Brief, at 3. Both cases were brought pursuant to the Home Improvement
Consumer Protection Act (HICPA), which provides: “(a) [] No home
improvement contract shall be valid or enforceable against an owner unless
it: (1) [i]s in writing and legible” and contains an enumerated list of
requirements. 73 P.S. § 517.7(a)(1). The same section, however, also
specifies that

Nothing in this section shall preclude a contractor who has
complied with subsection (a) from the recovery of payment for
work performed based on the reasonable value of services which
were requested by the owner if a court determines that it would
be inequitable to deny such recovery.

73 P.S. § 517.7(g). Durst and Shafer apply specifically to HICPA and its
provisions, relying on the plain language of the statute, including a direct
reference to equitable recovery. See, e.g., Keller v. Bank of New York
Mellon, 212 A.3d 52, 59 (Pa. Super. 2019) (rejecting application of Shafer
in a non-HICPA case). In contrast, North Broad Assocs. and the case on
which its panel relies, Com. Realty Grp., Inc. v. Market Square Plaza
Assocs., 2021 WL 3727161 (Pa. Super. filed Aug. 23, 2021) (unpublished
memorandum decision), specifically address RELRA, its plain language, and
its legislative purpose in determining that unjust enrichment cannot be used
as an end run around its requirements. North Broad Assocs., 2024 WL
2991902, at 6; Com. Realty Grp., 2021 WL 3727161, at *11–12.

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value of the benefit conferred.” Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.

Super. 1999). To prove unjust enrichment, a party must demonstrate:

(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 1203–04 (quoting Schenck v. K.E. David, Ltd., 666 A.2d 327, 328

(Pa. Super. 1995)). A claim for implied contract, or unjust enrichment,

“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.” Lackner v. Glosser, 892 A.2d 21,

34 (Pa. Super. 2006) (quotation omitted). “A cause of action for unjust

enrichment may arise only when there is no express contract between the

parties." Khawaja v. RE/MAX Central, 151 A.3d 626, 633 (Pa. Super.

2016); see also Villoresi v. Femminella, 856 A.2d 78, 84 (Pa. Super.

2004).

As the trial court observes, McNamee pleads that (1) there was an

explicit oral agreement between the parties for advisory and brokerage

services, confirmed in writing through a series of electronic communications,

and (2) McNamee’s advisory services fall outside the scope of RELRA and,

thus, McNamee should be able to recoup its losses on an unjust enrichment

theory. See Trial Court Opinion, 4/1/25, at 2 n.9, 9–10. These contentions

are hopelessly at odds with one another. Where an express contract governs

the relationship between parties, “no quantum meruit/unjust enrichment

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recovery is permitted.” Coldwell Banker Phyllis Rubin Real Est. v.

Romano, 619 A.2d 376, 381–82 (Pa. Super. 1993). If RELRA does not apply

because McNamee was acting as an advisor, there was no need for the parties’

express agreement to conform to RELRA with all material terms properly

established in writing. See Trial Court Opinion, 4/1/25, at 2 n.9, 9–10. Thus,

the terms of the express agreement13 govern, and the parties would be bound

by those terms; the courts cannot imply a contract where an express contract

exists. See Lackner, 892 A.2d at 34.14

---

13 Even if the agreement were entirely oral (though according to McNamee, it

was later reduced to writing in the form of electronic communications), it
nonetheless constituted an express agreement. See, e.g., In re Billinger’s
Estate, 301 A.2d 795, 795–96, 796–97 (Pa. 1973) (finding valid oral contract
where parties discussed terms and reached agreement for domestic services
provided); Krebs, 893 A.2d at 783 (court will enforce oral agreements, so
long as nature and extent of mutual obligations are determined and parties
have agreed on material and necessary details); Johnson the Florist, Inc.
v. TEDCO Const. Corp., 657 A.2d 511, 516 (Pa. Super. 1995) (standard for
proving valid oral contract).

14 In addition to proving that unjust enrichment applies to McNamee’s claim,

McNamee was also required to demonstrate that Haverford was enriched, and
that this enrichment was unjust. The only enrichment McNamee alleges is the
purchase of the property. In its complaint, McNamee asserted that it was
anticipated, customary, and understood that the advisory services would be
included in the brokerage commission, if Haverford paid McNamee a brokerage
commission. As McNamee does not allege any specific anticipated fees for its
advisory services beyond what might be rolled into its commission, it is not
even clear Haverford was enriched at all.

Finally, McNamee needed to prove that any enrichment of Haverford was
unjust. See, e.g., Meehan v. Cheltenham Tp., 189 A.2d 593, 596 (Pa.
1963). McNamee argued that Haverford’s retention of benefits it received
from their work together were ill-gotten because (1) Haverford engaged in
(Footnote Continued Next Page)

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Finally, McNamee argues that the trial court should have allowed it to

amend its complaint so it can tailor its claims more clearly to conform to the

evidence, assess the scope of the services it rendered to Haverford, and

determine whether Haverford was enriched and engaged in sharp dealing. It

asserts that the case’s procedural posture is favorable to allow amendment,

and any prior pleading deficiencies will now be remedied because McNamee’s

counsel has access to generative AI technology. See Appellant’s Brief, at 10–

11; Reply Brief, at 4. Haverford responds that the defects in McNamee’s

pleadings are too substantial to be remedied and that McNamee has had two

opportunities to plead a viable claim, without success. See Appellee’s Brief,

at 19–22.

---

“sharp dealing,” and (2) Haverford’s enrichment came as a result of a
confidential relationship or course of dealing marked by inequity. Appellant’s
Brief, at 7–8. McNamee alleges the transaction involved a significant power
imbalance, comparing its relationship to Haverford to that of David to Goliath.
Id. at 8. In its amended complaint, however, McNamee alleges its principal
has “thirty (30) years of experience in real estate that includes business
development, investment properties, transactions, and related services
suitable for clients’ business needs and investment strategies.” Amended
Complaint, 10/17/24, at ¶ 5. In claiming its value as an advisor, McNamee
characterizes itself as a sophisticated party with a significant base of
knowledge in its field. McNamee’s claimed expertise undermines its self-
categorization as a small fish in a big pond that is, therefore, entitled to
compensation on the basis of unjust enrichment.

Finally, McNamee’s brokerage agreement with seller PDC, attached to the
amended complaint, explicitly provides that McNamee’s only compensation is
to be the commission paid by PDC upon successful sale of the Property. See
n.8, supra. It is thus unclear how McNamee can credibly claim that the
transaction was unjust.

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The right to amend a complaint “should not be withheld where there is

some reasonable possibility that amendment can be accomplished

successfully.” Harley Davidson Motor Co., Inc. v. Hartman, 442 A.2d 284,

286 (Pa. Super. 1982) (quoting Otto v. American Mut. Ins. Co., 393 A.2d

450, 451 (Pa. 1978)). Where amendment would be “a futile exercise,”

however, “the complaint may be properly dismissed without allowance for

amendment.” Carlino v. Whitpain Investors, 453 A.2d 1385, 1388 (Pa.

1982). Our standard of review for dismissal of a claim with prejudice is abuse

of discretion. Stock v. Arnott, 608 A.2d 552, 554 (Pa. Super. 1992); see

also Shin v. Brenan, 764 A.2d 609, 610 (Pa. Super. 2000). “An abuse of

discretion is not merely an error of judgment; rather[,] it occurs when the law

is overridden or misapplied, or when the judgment exercised is manifestly

unreasonable or the result of partiality, prejudice, bias, or ill will.” Stock, 608

A.2d at 554.

Both McNamee and Haverford cite Framlau Corp. v. Delaware

County, 299 A.2d 335 (Pa. Super. 1972), to support their positions regarding

the possible efficacy of amendment in this case. In Framlau, the issue was

a discrepancy between the pleading and the documentary evidence attached

to the complaint. Id. at 338. Here, however, the discrepancies are plain from

the face of the amended complaint, as well as McNamee’s attachments

thereto. Based on the facts pled, no recovery is possible. Regardless of

McNamee’s attempts to redefine its role in the transaction, its services clearly

fell within the scope of RELRA and therefore required an agreement

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conforming to its terms. Moreover, unless McNamee intends to retract its

allegations that the parties had an express agreement, a finding that

McNamee’s services did not fall under RELRA does not allow recovery on an

unjust enrichment theory.15 Finally, McNamee’s argument that it is more

likely to succeed with use of generative AI technology is purely speculative,

particularly since McNamee fails to explain how AI might improve upon its

factual allegations.16

McNamee argues in several places that there are open factual questions

that deserve to be developed, largely related to whether the services provided

allow it to be characterized as an advisor rather than a broker. See Appellant’s

Brief, at 7–8, 9–10. McNamee’s allegation that a licensed broker who acts in

an advisory capacity need not comply with RELRA, however, fails as a matter

of law, see North Broad Assocs., 2024 WL 2991902, and further

development of the facts cannot change this inevitable conclusion.

---

15 Where a new pleading contradicts facts pled in the original complaint, that

discrepancy may be considered adversely by the court if it is not explained.
See Avondale Cut Rate, Inc. v. Associated Excess Underwriters, Inc.,
178 A.2d 758, 761–62 (Pa. 1962) (where allegations in amended answer
contradicted and were wholly irreconcilable with “the averments of the original
in matters essential to a valid defense,” defendant needed to provide an
explanation to justify the contradictory allegations).

16 In explaining its dismissal of McNamee’s complaint with prejudice, the trial

court also references the brokerage agreement between McNamee and seller
PDC, see n.8, supra, to explain why amendment would be futile, noting that
in the agreement, McNamee expressly disclaimed any compensation apart
from the brokerage commission PDC would pay. See Trial Court Opinion,
4/1/25, at 9 n.11.

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McNamee’s attempt to distinguish between an “advisor” and a “consultant”

has no basis in law and cannot be sustained.

In short, the trial court did not abuse its discretion in sustaining

Haverford’s preliminary objections and dismissing McNamee’s complaint with

prejudice. See Stock, 608 A.2d at 554.

Order affirmed.17

Date: 3/5/2026

---

17 After the case was argued, McNamee filed an application for post-
submission communication, to which Haverford responded by letter objection.
As Haverford notes, McNamee relies on Pa.R.A.P. 2501, which allows post-
submission communications only when permitted at the time of oral argument
or to advise the Court of a material change in the status of authorities cited in
a party’s brief. See Pa.R.A.P. 2501; see also Appellee’s Letter Objection to
Appellant’s Application for Leave to File Post-Argument Submission (citing
Ferguson v. Commonwealth, 340 A.3d 278, 289 (Pa. 2025); Stimmler v.
Chestnut Hill Hosp., 981 A.2d 145 (Pa. 2009); Commonwealth v. Abdul-
Salaam, 812 A.2d 497 (Pa. 2002)). McNamee’s proposed communication
does not allege or reference any material change in a cited authority, nor
suggest that we requested or permitted additional submissions at the time of
oral argument. Instead, it contains facts unsupported by the record and
additional argument. Because we agree with Haverford that McNamee’s
application is not permissible under the Rules of Appellate Procedure, we deny
it. Even if we were to accept it, however, it would not change our decision in
this case.

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