J-A12036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOHN B. O'LAUGHLIN AND GRACE               :   IN THE SUPERIOR COURT OF
    VETERINARY CLINIC, INC.                    :        PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 1512 WDA 2019
    LAURIE A. JOSEPH, DVM                      :


             Appeal from the Judgment Entered October 18, 2019,
            in the Court of Common Pleas of Westmoreland County,
                   Civil Division at No(s): No. 4187 of 2015.


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 11, 2020

        Appellants, Dr. John B. O’Laughlin, DVM, and his business, Grace

Veterinary Clinic, Inc.,1 appeal from the judgment entered upon the jury

verdict, finding that Dr. O’Laughlin breached a contract to sell the assets of

that business. For the reasons below, we affirm.

        Dr. O’Laughlin ran a veterinary practice for nearly two decades. At the

end of 2014, he contracted to sell its assets, real estate, and patient list to

Appellee, Dr. Laurie A. Joseph, DVM. The parties put their contract into writing

and signed it. According to the writing, Dr. O’Laughlin would still own the

business’s name, but Dr. Joseph could continue to use the name for six
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 For simplicity sake, this Memorandum refers to them collectively as “Dr.
O’Laughlin.”
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months after the sale. The parties’ disagreement over this written contract

has spawned civil actions in three counties.

       Dr. Joseph filed the first legal action. On August 25, 2015, she sought

an injunction against Dr. O’Laughlin in Fayette County to block him from

violating a non-compete provision of the contract.         Three days later, Dr.

O’Laughlin responded by filing this action in the Court of Common Pleas of

Westmoreland County. Then in 2017, Dr. O’Laughlin filed a malpractice suit

against the attorney who had drafted the contract in Allegheny County. Dr.

O’Laughlin asserted his former attorney’s “drafting of the contract and

representation . . . in selling [the assets] to Dr. Joseph fell below legal industry

standards.”2 O’Laughlin’s Brief at 9.

       The injunction matter from Fayette County reached this court in the fall

of 2015 after that trial court granted Dr. Joseph an injunction. See Joseph

v. O’Laughlin, No. 1706 WDA 2015 (Pa. Super. 2017) (unpublished). 3 There,

Judge Musmanno described the facts as follows:

                 On December 23, 2014, [Drs.] O’Laughlin and Joseph
          executed an asset-transfer agreement (“the [contract]”)
          outlining [Dr.] Joseph’s purchase of the [clinic assets]. The
          [contract] included the following restrictive covenant:


____________________________________________


2 The Allegheny Court of Common Pleas eventually transferred that third suit
to Westmoreland County. O’Laughlin v. Moore, No. GD-17-003506 (C.C.P.
Allegheny 2017), trans. to No. 5578 of 2017 (C.C.P. Westmoreland 2017).
The record does not appear to indicate the status of that action.

3Our decision in that prior appeal has precedential value as to the parties at
bar. Pa.R.A.P. 126.

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           [Dr.] O’Laughlin acknowledges and agrees that he will
           not be involved in any of the following activities at any
           location within 50 miles of the veterinary clinic
           (“Geographic Area”). [Dr.] O’Laughlin covenants and
           agrees that for a period of five years following the
           execution of this [contract], he shall not directly or
           indirectly . . . participate in any business or practice
           within the Geographic Area that is in competition in
           any manner whatsoever with the Buyer. Further,
           [Dr.] O’Laughlin shall not contact, solicit, or engage in
           any activity to contact or solicit, indirectly or directly,
           any client, past, present, or future, during that five
           year period.

        [Contract], 12/24/14, ¶ 3. The restrictive covenant, which
        expire[d] on December 24, 2019, comprised $17,973.50 of
        the $750,000 sale price. Id. at ¶ 4.

               Approximately six months later, on July 2, 2015, [Dr.]
        O’Laughlin filed a Petition for Special Exemption with the
        Fayette County Zoning Hearing Board, wherein he
        requested permissive use to operate a veterinary clinic at
        114 Eannotti Road, Dawson Pennsylvania, which is
        approximately eight miles from [his prior clinic]. The zoning
        hearing was scheduled for August 26, 2015. Meanwhile,
        [Dr.] O’Laughlin formed a limited liability company
        (O’Laughlin Veterinary Services), created a Facebook page
        of the same name, and purchased equipment.               The
        Facebook page included a link that advised followers that
        the clinic was, “coming soon,” and when activated, the link
        directed users to the business’s location on a map.

              On August 25, 2015, [Dr.] Joseph filed an action for
        injunctive relief . . . to permanently enjoin [Dr.] O’Laughlin
        from operating a veterinary clinic and prohibit him from
        seeking the zoning variance that was scheduled for a
        hearing the following day. On the same date, [Dr.] Joseph
        filed a self-styled Motion for Preliminary/Permanent
        Injunction requesting the identical relief.

Joseph v. O’Laughlin, Memorandum at 1-3 (some punctuation omitted;

footnotes omitted). The Court of Common Pleas of Fayette County found Dr.



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O’Laughlin breached the non-compete clause and issued a permanent

injunction against him. This Court affirmed.4

       In Count I of the instant suit, Dr. O’Laughlin claimed Dr. Joseph also

breached the written contract (1) by refusing to employ him following the

transfer of the assets to her, (2) by not repaying a PNC loan he claimed she

agreed to assume, and (3) by not making payments on a leased Heska blood

machine. In Count II, he sought a declaratory judgment that the non-compete

provision, i.e., the clause at issue in the Fayette County litigation, was invalid.5

       Dr. Joseph filed a counterclaim for attorney’s fees. She alleged Count

II constituted “vexatious, obdurate, and . . . bad faith” litigation, because she

averred that her Fayette County action resolved Count II. Joseph’s Answer

and Counterclaim at 15.

       Eventually, the parties tried this case before a Westmoreland County

jury. In preparation for trial, the parties filed motions in limine, two of which

are at issue in this appeal.

       First, the trial court denied a motion in limine by Dr. O’Laughlin in which

he sought to prevent his former attorney from testifying against him, based
____________________________________________


4 Judge Bowes dissented. She reasoned that nothing in the non-compete
clause of the contract prohibited Dr. O’Laughlin from laying the groundwork
for a new veterinary clinic, so he could open a new clinic on the day when the
non-compete provision expired.

5Dr. O’Laughlin also had a third count in his complaint seeking injunctive relief
against Dr. Joseph. That claim is no longer in issue.




                                           -4-
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on the attorney-client-privilege statute.6 The trial court ruled Dr. O’Laughlin

had waived the privilege when he sued his former attorney for malpractice

and published his version of their private conversations in a complaint that Dr.

O’Laughlin filed in the Department of Court Records of Allegheny County. At

trial, Dr. O’Laughlin’s former attorney testified that Dr. O’Laughlin never asked

him to include terms regarding the PNC loan or blood machine in the written

contract. See N.T., 5/9/19, at 623-25. Thus, the written contract did not

contain those terms.

        Second, the trial court granted a motion in limine, which barred Dr.

O’Laughlin from presenting evidence of an alleged, oral contract for

employment between the parties.                This effectively granted Dr. Joseph a

directed verdict on the breach-of-employment-contract claim, because the

ruling prevented Dr. O’Laughlin from establishing that the oral contract

existed. The written contract made no mention of Dr. Joseph employing Dr.

O’Laughlin following the transfer of assets to Dr. Joseph.

        If the trial court had permitted Dr. O’Laughlin to offer evidence of the

alleged, oral contract, he would have introduced the following:

           (1)   [A sample of] the flier sent out to [the clinic’s]
                 customers, indicating Dr. O’Laughlin would still be
                 available to provide veterinary care and that he would
                 be available by phone and the Internet;

           (2)   Dr. O’Laughlin’s testimony that he entered into an oral
                 employment [contract] with Dr. Joseph to provide

____________________________________________


6   42 Pa.C.S.A. § 5928.

                                           -5-
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                 veterinary services at her clinic after the sale, as her
                 employee;

          (3)    Dr. Joseph’s deposition testimony that she was aware
                 of the post card flyer before it was sent to her clients,
                 that she did not object to it, that Dr. O’Laughlin had
                 specialized, laparoscopic-surgical skills that her clients
                 would have benefitted from, and that she approved of
                 Dr. O’Laughlin performing and being paid for such
                 surgeries in her clinic after the closing, despite the
                 non-compete clause; and

          (4)    Leslie Hauser’s testimony that she maintained a list of
                 customers for whom Dr. O’Laughlin was to perform
                 surgeries on animals at [the clinic] following [Dr.
                 Joseph’s] purchase of the clinic, all pursuant to the
                 oral employment [contract].

O’Laughlin’s Post-Trial Motion at 6.

       The jury returned a verdict in favor of Dr. Joseph. Dr. O’Laughlin moved

for a new trial. He argued the trial court erred in two respects. First, Dr.

O’Laughlin claimed that permitting his former attorney to testify against him

violated the attorney-client privilege. Second, he asserted the trial judge, who

ruled upon his motion in limine, misapplied the rule of parol evidence

regarding the alleged, oral contract of employment.7

       The post-trial-motions judge denied relief, based partially on the

coordinate-jurisdiction rule, and this timely appeal followed.

       Dr. O’Laughlin raises two appellate issues:



____________________________________________


7 A different, now-retired member of the Westmoreland County bench had
already ruled in pre-trial matters that the written contract was an integrated
agreement and therefore excluded parol evidence from his considerations
upon an objection by Dr. O’Laughlin.

                                           -6-
J-A12036-20


           1.    Whether the trial court erred as a matter of law and
                 substantially prejudiced [Dr. O’Laughlin], requiring a
                 new trial to be granted, by permitting [Dr.
                 O’Laughlin’s] former attorney to testify . . . on
                 attorney-client-privileged communications?

           2.    Whether the trial court erred as a matter of law and
                 substantially prejudiced [Dr. O’Laughlin], requiring a
                 new trial to be granted, by ruling that the parol
                 evidence rule precluded Dr. O’Laughlin from showing
                 that [Dr. Joseph] breached an oral contract to employ
                 him following her purchase of his veterinary clinic’s
                 assets, either through an oral modification of the
                 [contract] at issue or by entering into a separate and
                 subsequent oral contract?

O’Laughlin’s Brief at 4.

        We begin our analysis, as always, with our scope and standard of review.

They are the same for both issues.

        When reviewing the trial court’s decision not to order a new trial after a

jury verdict, the Supreme Court of Pennsylvania has admonished this Court

to tread carefully.    “Although all new-trial orders are subject to appellate

review, it is well-established law that, absent a clear abuse of discretion by

the trial court, appellate courts must not interfere with the trial court’s

authority to grant or deny a new trial.” Harman ex rel. Harman v. Borah,

756 A.2d 1116, 1121–22 (Pa. 2000).

        This abuse-of-discretion standard arises from the two-step process that

trial courts undertake when ruling upon motions for a new trial.            Harman

said:

           First, the trial court must decide whether one or more
           mistakes occurred at trial. These mistakes might involve
           factual, legal, or discretionary matters. Second, if the trial

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J-A12036-20


         court concludes that a mistake (or mistakes) occurred, it
         must determine whether the mistake was a sufficient basis
         for granting a new trial. The harmless error doctrine
         underlies every decision to grant or deny a new trial. A new
         trial is not warranted merely because some irregularity
         occurred during the trial or another trial judge would have
         ruled differently; the moving party must demonstrate to the
         trial court that he or she has suffered prejudice from the
         mistake.

Id. at 1122 (citations omitted). “To review the two-step process of the trial

court for granting or denying a new trial, the appellate court must also

undertake a dual-pronged analysis.” Id.

      First, we review “the decision of the trial court that [no] mistake

occurred.”   Id.   “[T]he appellate court’s review is limited in scope to the

[alleged errors], and the appellate court must review [those alleged errors]

under the appropriate standard.” Id. at 1123 (some punctuation omitted).

“If the [alleged] mistake involved a discretionary act, the appellate court will

review for an abuse of discretion. If the mistake concerned an error of law,

the court will scrutinize for legal error.” Id. (citation omitted).

      If we conclude that a mistake occurred, we then must consider whether

the error was harmless or prejudicial. The question becomes whether, given

the mistake, “the trial court abused its discretion [by denying] the request for

a new trial.”   Id.   “An abuse of discretion exists when the trial court has

rendered a judgment that is manifestly unreasonable, arbitrary, or capricious,

has failed to apply the law, or was motivated by partiality, prejudice, bias, or

ill will.” Id. If the mistake did not prejudice the party seeking a new trial,

then the trial court did not abuse its discretion by denying post-trial relief.

                                      -8-
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A.    Attorney-Client Privilege

      For his first issue, Dr. O’Laughlin claims the trial court erred by denying

his motion in limine to prevent his former attorney from testifying against him.

He argues that attorney-client privilege required the trial court to award him

a new trial, because the privilege shielded the conversations he and his former

attorney had when negotiating and drafting the contract.

      Beginning with the first step of our review, as discussed above, we apply

the standard of review applicable to the alleged error. “Whether the attorney-

client privilege or the work product doctrine protects a communication from

disclosure is a question of law,” and our “standard of review over questions of

law is de novo, and the scope of review is plenary.”         In re Thirty-Third

Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa. 2014).

      The parties do not dispute that the communications between Dr.

O’Laughlin and his prior attorney fell within the scope of the privilege. They

only dispute whether Dr. O’Laughlin waived that privilege when he sued his

former attorney and disclosed what they discussed in court records.            The

statute regarding attorney-client privilege provides, in relevant part, “In a civil

matter, counsel shall not be competent or permitted to testify to confidential

communications made to him by his client . . . unless . . . this privilege is

waived upon the trial by the client.” 42 Pa.C.S.A. § 5928.

      Dr. O’Laughlin contends that filing a malpractice complaint against his

former attorney only constituted a waiver of the privilege in that matter but

not in this lawsuit. See O’Laughlin’s Brief at 19-24. He also contends that

                                       -9-
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allowing Dr. O’Laughlin’s prior attorney to testify was “contrary to public

policy.” Id. at 22. He indicates that he had to sue his former attorney during

the pendency of this action “to preserve the statute of limitations on [the]

malpractice claim.” Id. Dr. O’Laughlin therefore tells this Court, “Parties in

cases with a related, attorney-malpractice claim should not be forced between

the Scylla of allowing their malpractice claim to expire and the Charybdis of

having privileged matters from their malpractice claim taint their originally

filed claim.”8 Id. at 23. Thus, he urges us to adopt a “limited-waiver doctrine”

to allow him to preserve both his malpractice claims and his attorney-client

privilege in this action. Id.

       The Supreme Court of Pennsylvania has recently said, “disclosure to a

third party generally waives the attorney-client privilege . . . .” BouSamra

v. Excela Health, 210 A.3d 967, 977 (Pa. 2019). Additionally, at common

law, we presume “that the public may inspect and copy judicial records and

____________________________________________


8 Scylla and Charybdis are two of the mythical monsters with whom the Greek
hero Odysseus and his seafaring crew must contend in Homer’s THE ODYSSEY
(circa 700 B.C.E.). The monsters live on opposite sides of a narrow portion of
the Mediterranean Sea – presumably the Strait of Messina that separates
Sicily from the Italian mainland. Scylla, on the eastern shore, is a six-headed
beast with snake-like necks and shark-like teeth. Charybdis dwells on the
western side of the strait, swallowing the sea and vomiting it up three times
a day. She devours anything in the water, including whole ships.

      The strait is so narrow that it is impossible for vessels to pass without
encountering either Scylla or Charybdis. Following the sorceress Circe’s
advice, Odysseus hugs the eastern side, thereby allowing Scylla to eat six of
his men while avoiding Charybdis who would have killed them all. Hence, to
say that one must choose between Scylla and Charybdis means to face a
choice between two bad outcomes.

                                          - 10 -
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public documents.” Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954,

960 (Pa. Super. 1989). “The presumption extends to documents which have

been filed with the court, such as pleadings, arrest warrant affidavits, and

settlement agreements, and which are considered public records.” Id.

      Dr. O’Laughlin filed a civil complaint in the Court of Common Pleas of

Allegheny County, where he published the private conversations between his

former attorney and himself to the whole world. Thus, he has waived the

attorney-client privilege that had rendered his former attorney “not . . .

competent or permitted to testify” about them. 42 Pa.C.S.A. § 5928. Had Dr.

O’Laughlin wished to waive that privilege in a limited manner (namely, only

to the extent necessary to sue his former attorney), Dr. O’Laughlin could have

moved the Allegheny trial court to allow him to file his malpractice complaint

under seal and thereby shield it from public view. Or, he could have filed it in

a redacted form for public review and an unredacted version for the parties

and the trial court. See Allegheny County Local Rule of Admin. 6001.7. Had

he done so, the contention that he only waived it to the extent necessary for

preserving his malpractice claims might be more persuasive. On this record,

however, it is not.

      Moreover, this waiver of attorney-client privilege was of Dr. O’Laughlin’s

own making. The statute of limitations on malpractice suits did not cast a

wavier dilemma upon him, as he suggests in his brief. Like Odysseus, who

could have avoided Scylla and Charybdis by sailing around Sicily rather than

through the Strait of Messina, Dr. O’Laughlin could have avoided waiver by

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asking the court to seal the malpractice complaint in Allegheny County. He

neglected to do so and, instead, published the private discussions he had with

his former attorney to every third party on the planet. The law will not, in the

name of some nebulous “public policy,” ignore Dr. O’Laughlin’s missteps and

restore a privilege he voluntarily discarded.

      Dr. O’Laughlin’s first appellate issue is meritless.

B.    Parol Evidence of an Oral Contract for Employment

      As his second issue, Dr. O’Laughlin contends the trial court misapplied

the rule against parol evidence when it granted Dr. Joseph’s motion in limine.

This ruling prevented Dr. O’Laughlin from proving the existence of an alleged,

oral contract for employment with Dr. Joseph.

      “[O]ur standard of review regarding a challenge to the admissibility of

evidence is very narrow; we will only reverse a ruling of the trial court if there

is an abuse of discretion . . . .”   Kehr Packages, Inc. v. Fidelity Bank,

National Association, 710 A.2d 1169, 1172 (Pa. Super. 1998).

      First, Dr. O’Laughlin contends that the rule of parol evidence does not

apply, because the written contract that he and Dr. Joseph signed does not

contain a full-agreement clause.      Without such a clause, Dr. O’Laughlin

believes that Dr. Joseph cannot prove that the writing is fully integrated,

constituting the “entire agreement” of the parties. O’Laughlin’s Brief at 31.

      The judge who ruled upon Dr. O’Laughlin’s post-trial motions and whose

order and opinion we review here, did not deny post-trial relief, because the

judge disagreed with Dr. O’Laughlin’s argument that the contract was not fully

                                     - 12 -
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integrated. Instead, the Honorable Harry F. Smail, Jr. based his post-trial

ruling solely upon the coordinate-jurisdiction rule. He concluded that another

judge’s pre-trial ruling – namely, that the contract was integrated – bound

him.9

        Judge Smail opined as follows:

          . . . the Honorable Anthony G. Marsili previously applied the
          parol-evidence rule to the [written contract] in the present
          case by ruling on an objection at the time of a Contempt
          Hearing held on April 27, 2016 . . . Judge Marsili’s ruling,
          then, must stand for the proposition that the [written
          contract] is an integrated contract. Under Pennsylvania law,
          “the coordinate-jurisdiction rule commands that upon
          transfer of a matter between trial judges of coordinate
          jurisdiction, a transferee trial judge may not alter resolution
          of a legal question previously decided by a transferor trial
          judge.” Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa.
          2003). This Court then cannot alter its predecessor Court’s
          resolution of the legal question here, and so the [written
          contract] must be treated as an integrated contract for
          purposes of the parol-evidence rule.

Trial Court Opinion, 9/5/19, at 4-5 (some punctuation and citation omitted).

The post-trial-motions judge therefore concluded that, under the doctrine of

the law of the case, the contract was an integrated contract and the parol-

evidence rule applied.10
____________________________________________


9 Dr. O’Laughlin had no standing to challenge that pre-trial ruling either in
post-trial motions or on appeal, because Judge Marsili’s ruling was in favor
of Dr. O’Laughlin. His prior attorney had objected to Dr. Joseph’s attempt to
introduce parol evidence regarding their negotiations and won that objection.

10Arguably, this analysis rested upon a procedural error by the post-trial-
motions judge. A post-trial-motions judge sits in place of the court of common



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       Dr. O’Laughlin did not challenge this basis for denying his post-trial relief

on appeal. “Pennsylvania Rule of Appellate Procedure 2116(a) mandates that

an appellant must present all issues on appeal in the Statement of Questions

Involved section of his brief.” Thomas v. Elash, 781 A.2d 170, 176–77 (Pa.

Super. 2001). Hence, “[i]ssues not addressed in the Argument section of an

appellate brief are waived for purposes of appeal.” Id. at 177.

       Because Dr. O’Laughlin did not appeal the post-trial-motions judge’s

application of the coordinate-jurisdiction rule to hold that the written contract

was fully integrated, that issue is not before us. Dr. O’Laughlin has waived

his opportunity to challenge the post-trial-motions judge’s analysis. Thus, the

judge’s ruling that the written contract was fully integrated and that the parol-

evidence rule applies has become final.            As a matter of law, the written

contract is fully integrated.

____________________________________________


pleas en banc, and, therefore, that judge may overrule the prior decisions of
her or his colleagues. “All post-trial motions and other post-trial matters shall
be heard and decided by the trial judge unless the trial judge orders that the
matter be heard by a court en banc of which the trial judge shall be a
member.” Pa.R.C.P. 227.2

       “[T]he post-trial-motion process is a clearly distinct procedural posture
. . . and . . . the considerations of the judge are different at each procedural
stage.” Riccio v. American Republic Insurance Co., 705 A.2d 422, 425
(Pa. 1997). Thus, the Supreme Court has held “the coordinate-jurisdiction
rule does not apply to bar a substituted judge hearing post-trial motions from
correcting a mistake made by [a colleague].” Id. at 426 (emphasis added).
In other words, a post-trial-motions judge exercises the common pleas court’s
en banc jurisdiction, which is not of the same nature of or coordinate to a pre-
trial or trial judge’s jurisdiction.



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       In the alternative, Dr. O’Laughlin argues, even if the written contract

was fully integrated, the trial court still should have allowed him to prove the

oral, employment contract by parol evidence.        He claims this alleged, oral

contract was separate from the written contract upon which he based this

lawsuit. Dr. O’Laughlin does not believe that reasonable parties would have

included it in the language of the written contract to transfer the assets of a

veterinary clinic.11    And, failing that, he believes that the trial court “also

should have permitted [him] to show that he and Dr. Joseph subsequently

modified the [written contract] with an oral employment agreement.”          Dr.

O’Laughlin’s Brief at 36.

       We proceed directly to the second prong of the test for reviewing an

order denying post-trial relief and explain why, even if the trial court erred

regarding the parol-evidence rule, that error was harmless, and, therefore,

the trial court did not abuse its discretion by denying Dr. O’Laughlin’s motion

for a new trial.

       In his Second Amended Complaint, Dr. O’Laughlin pleaded that the

employment contract was part of the parties’ original, written contract. See

Dr. O’Laughlin’s Second Amended Complaint at ¶22(f). In fact, he premised
____________________________________________


11 The trial court disagreed with Dr. O’Laughlin’s characterization of what
would be reasonable matters to include in a fully integrated contract. See
Trial Court Opinion, 9/5/19, at 6 (stating, “It stands to reason that any
additional agreement concerning [Dr.] O’Laughlin continuing to be employed
by [Dr.] Joseph is a subject ‘so interrelated’ to the subject of the [written,
integrated contract] ‘that both would be executed at the same time and in the
same contract;’” quoting Mellon Bank Corp. v. First Union Real Estate
Equity & Mortgage Investments, 951 F.2d 1399, 1405 (3d Cir. 1991)).

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Count I of his complaint alleging “Breach of Contract” upon Dr. Joseph

materially breaching the written, fully integrated contract. Pennsylvania law

is clear that, “Statements of fact by one party in pleadings . . . are termed

judicial admissions and are binding on the party.       Judicial admissions are

deemed true and cannot be contradicted by the admitting party.”

Cogley v. Duncan, 32 A.3d 1288, 1292 (Pa. Super. 2011) (emphasis added).

      Having only pleaded that Dr. Joseph materially breached only the

written contract, Dr. O’Laughlin may not contradict this judicial admission,

as he attempts to do with his remaining two theories. He bases both theories

upon the alternative facts that the parties entered a separate, oral contract

for employment or modified their written contract. These alternative facts

contradict the facts and theory of the case that Dr. O’Laughlin pleaded in his

complaint – i.e., that Dr. Joseph breached the original, written contract, itself.

He may not retry the case on alternative factual theories that controvert the

allegations of his operable complaint.

      Accordingly, the trial court did not abuse its discretion by refusing to

grant him a new trial based upon alternative allegations, even if it erroneously

concluded that Drs. O’Laughlin and Joseph would have included the terms of

employment in the written contract, had they agreed to such a deal.

      Dr. O’Laughlin’s second and final issue warrants no relief.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




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