Appeal, No. 16, Jan. T., 1963, from decree of Court of Common Pleas of Montgomery County, No. 61-8339, in equity, in case of Austin Meehan, John F. Meehan, William A. Meeehan et al. v. Cheltenham Township. Decree affirmed.
Charles V. Stoelker, Jr., with him William Austin Meehan, and James P. Geoghegan, for appellants.
Samuel H. High, Jr., with him Marlyn F. Smith, and High, Swartz, Roberts & Seidel, for township, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE COHEN
In compliance with The First Class Township Code,*fn1 Morris Novak, Inc. (Novak), a developer, submitted a subdivision plan for the approval of the Board of Commissioners of Cheltenham Township. After the plan was approved, Novak subcontracted the work of paving streets and installing sewers to appellant. This work began in September, 1959 but ceased two months later because Novak had become insolvent in the interim without making any payments to appellant. The sewers and streets were subsequently dedicated to appellee-township and the work completed by another contractor.
After unsuccessfully attempting to establish a mechanic's lien on the improvements, appellant brought this action in equity claiming that appellee had been unjustly enriched in the amount of $17,095.13, the value of the materials and labor expended by appellant. Appellee raised two objections to the complaint: (1) that equity had no jurisdiction because an adequate remedy existed at law; and (2) that the complaint failed to state a cause of action. The court below held that equity did have jurisdiction but agreed with appellee that no cause of action was stated and dismissed the complaint. This appeal followed.
The court below held that this action was cognizable in equity rather than in law because the equitable principle of unjust enrichment was involved. This reasoning overlooks the fact that law courts can and do apply equitable principles so long as the remedy sought
is one within their power to grant.*fn2 Since law courts can give the remedy of money damages, an adequate remedy existed at law in the form of an action of assumpsit and equity therefore had no jurisdiction.*fn3 See Restatement, Restitution § 4 (1936).
The fact that appellee, who obtained the judgment below, has now acquiesced in the equitable jurisdiction of the lower court does not prevent us from raising the defect. Jones v. Amsel, 388 Pa. 47, 130 A.2d 119 (1957); Gordon, Secretary of Banking v. Biesinger, 335 Pa. 1, 6 A.2d 425 (1939). However, since the procedure upon transfer to the law side would be identical with that below, we will decide the case on the merits in order to terminate this litigation.
Where one party has been unjustly enriched at the expense of another, he is required to make restitution to the other. In order to recover, there must be both (1) an enrichment, and (2) an injustice resulting if recovery for the enrichment is denied. See Bailis v. Reconstruction Finance Corporation, 128 F.2d 857 (3d Cir. 1942); Restatement, Restitution § 1, comment a (1936). Appellant alleges that appellee has been enriched by the acquisition of a sewer and road system which has enlarged its revenues through rents from the use of the sewers and increased real estate taxes on the improved lands. Appellant concludes that "the Township cannot in justice refuse to compensate appellant for the fair market ...