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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

TAPCO EUROPE LIMITED                 :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
                 v.                  :
                                     :
RED SQUARE CORPORATION,              :
NOMAD BRANDS, INC., AND              :
MICHAEL KWADRAT                      :
                                     :
APPEAL OF: RED SQUARE                :
CORPORATION,                         :         No. 497 WDA 2014
                                     :
                      Appellant      :


              Appeal from the Order Entered March 20, 2014,
            in the Court of Common Pleas of Allegheny County
                  Civil Division at No. G.D. No. 13-21308


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED APRIL 17, 2015

     Red Square Corporation appeals from the order of March 20, 2014,

granting plaintiff/appellee, Tapco Europe Limited’s (“Tapco”) motion for

judgment on admissions and denying Red Square’s motion to withdraw

admissions. We affirm.1

     Tapco sells building materials to Red Square.     According to the

complaint, Red Square accepted shipment of goods in March and April 2013



1
   On March 21, 2014, Tapco discontinued the case as to defendants
Nomad Brands, Inc. and Michael Kwadrat. Therefore, the order entering
judgment upon admissions against Red Square became a final order
disposing of all claims and parties and is appealable. Pa.R.A.P. 341(b).
J. S76010/14


but failed to pay the invoices, totaling $155,011. Tapco filed a complaint on

November 7, 2013, and served Red Square and the other named defendants

with its first request for admissions on November 13, 2013.         Red Square

failed to respond, and on March 9, 2014, Tapco filed a motion to enter

judgment upon admissions. Following a hearing, the Honorable Judith L.A.

Friedman granted the motion on March 20, 2014. Red Square filed a motion

for reconsideration on March 25, 2014, and notice of appeal on March 28,

2014.      Attached to Red Square’s motion for reconsideration were its

proposed responses to Tapco’s request for admissions. Following a hearing

on April 22, 2014, Red Square’s motion for reconsideration was denied.

Red Square complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the

trial court has filed an opinion.

        Red Square has raised the following issue for this court’s review:

              I.    Whether the trial court erred as a matter of
                    law or abused its discretion by denying
                    Appellant’s Motion to Withdraw Admissions
                    under Pa.R.Civ.P. 4014(d)[?]

Red Square’s brief at 4.

              Rule 4014 governs requests for admissions.           It
              permits a party to serve upon another party a
              written request for the admission of the truth of
              certain matters relating to statements or opinions of
              fact or the application of the law to fact.
              Pa.R.C.P. 4014(a). This includes questions regarding
              the      execution,     correctness,      genuineness,
              authenticity, signing, delivery, mailing, or receipt of
              any document described in the request for
              admissions. Id. “The purpose of this discovery tool
              is to clarify and simplify the issues raised in prior


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           pleadings in order to expedite the litigation process.”
           Christian v. Pennsylvania Fin. Responsibility
           Assigned Claims Plan, 454 Pa.Super. 512, 686
           A.2d 1, 5 (1996) (citation omitted), appeal denied,
           548 Pa. 678, 699 A.2d 733 (1997). Unless the party
           responds to the request within 30 days (45 days for
           a defendant), the matter is deemed admitted.
           Pa.R.C.P. 4014(b). The trial court may extend or
           shorten the timeframe in which the responding party
           has to answer the request. Id.

Estate of Borst v. Edward Stover Sr. Testamentary Trust, 30 A.3d

1207, 1210 (Pa.Super. 2011).

     Rule 4014 provides, in its entirety, as follows:

           Rule 4014. Request for Admission

           (a)   A party may serve upon any other party a
                 written request for the admission, for purposes
                 of the pending action only, of the truth of any
                 matters within the scope of Rules 4003.1
                 through 4003.5 inclusive set forth in the
                 request that relate to statements or opinions of
                 fact or of the application of law to fact,
                 including    the    genuineness,    authenticity,
                 correctness, execution, signing, delivery,
                 mailing or receipt of any document described
                 in the request. Copies of documents shall be
                 served with the request unless they have been
                 or are otherwise furnished or available for
                 inspection and copying in the county. The
                 request may, without leave of court, be served
                 upon the plaintiff after commencement of the
                 action and upon any other party with or after
                 service of the original process upon that party.

                 Note: This Subdivision has been amended so
                 that its content will conform more closely to
                 the content of the first sentence of
                 F.R.Civ.P. 36(a).




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          (b)   Each matter of which an admission is
                requested shall be separately set forth. The
                matter is admitted unless, within thirty days
                after service of the request, or within such
                shorter or longer time as the court may allow,
                the party to whom the request is directed
                serves upon the party requesting the
                admission an answer verified by the party or
                an objection, signed by the party or by the
                party’s attorney; but, unless the court shortens
                the time, a defendant shall not be required to
                serve answers or objections before the
                expiration of forty-five days after service of the
                original process upon him or her. If objection
                is made, the reasons therefor shall be stated.
                The answer shall admit or deny the matter or
                set forth in detail the reasons why the
                answering party cannot truthfully do so. A
                denial shall fairly meet the substance of the
                requested admission, and when good faith
                requires that a party qualify the answer or
                deny only a part of the matter of which an
                admission is requested, the party shall specify
                so much of it as is true and qualify or deny the
                remainder. An answering party may not give
                lack of information or knowledge as a reason
                for failure to admit or deny unless the
                answering party states that he or she has
                made reasonable inquiry and that the
                information known or readily obtainable by him
                or her is insufficient to enable him or her to
                admit or deny. A party who considers that a
                matter of which an admission has been
                requested presents a genuine issue for trial
                may not, on that ground alone, object to the
                request.    That party may, subject to the
                provisions of Rule 4019(d), deny the matter or
                set forth reasons why he or she cannot admit
                or deny it.

                Note: The requirements of an answer are
                governed by this rule and not by Rule 1029(b).




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           (c)   The party who has requested the admission
                 may move to determine the sufficiency of the
                 answer or objection.        Unless the court
                 determines that an objection is justified, it
                 shall order that an answer be served. If the
                 court determines that an answer does not
                 comply with the requirements of this rule, it
                 may order either that the matter is admitted or
                 that an amended answer be served. The court
                 may, in lieu of these orders, determine that
                 final disposition of the request be made at a
                 pre-trial conference or at a designated time
                 prior to trial.

           (d)   Any matter admitted under this rule is
                 conclusively established unless the court on
                 motion permits withdrawal or amendment of
                 the admission. Subject to the provisions of
                 Rule 212.3 governing pre-trial conferences, the
                 court may permit withdrawal or amendment
                 when the presentation of the merits of the
                 action will be subserved thereby and the party
                 who obtained the admission fails to satisfy the
                 court that withdrawal or amendment will
                 prejudice him or her in maintaining the action
                 or defense on the merits. Any admission by a
                 party under this rule is for the purpose of the
                 pending action only and is not an admission by
                 the party for any other purpose nor may it be
                 used against the party in any other
                 proceeding.

Pa.R.C.P., Rule 4014, 42 Pa.C.S.A.

           A party on whom requests for admissions of fact are
           served runs the risk that the facts as set forth in the
           request for admissions will be conclusively binding
           on him if he chooses not to file an answer to the
           request for admissions or file objections to the
           request.

Innovate, Inc. v. United Parcel Service, Inc., 418 A.2d 720, 723

(Pa.Super. 1980).   “The rule clearly states that the party receiving the


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request must respond by answering or objecting.” Richard T. Byrnes Co.,

Inc. v. Buss Automation, Inc., 609 A.2d 1360, 1367 (Pa.Super. 1992).

           Withdrawal of admissions should be granted where
           upholding the admission would practically eliminate
           any presentation of the merits of the case; where
           withdrawal would prevent manifest injustice; and
           where the party who obtained the admissions failed
           to prove that withdrawal would result in prejudice to
           that   party.      Westmoreland       v.    Triumph
           Motorcycle Corp., 71 F.R.D. 192 (D.Conn.1976).
           The test of prejudice turns on whether a party
           opposing the withdrawal is rendered less able to
           obtain the evidence required to prove the matters
           which had been admitted. Teleprompter of Erie,
           Inc. v. City of Erie, 567 F.Supp. 1277
           (W.D.Pa.1983); Rabil v. Swafford, 128 F.R.D. 1
           (D.D.C.1989).

Dwight v. Girard Medical Center, 623 A.2d 913, 916 (Pa.Cmwlth. 1993)

(footnote omitted).

           Furthermore, if the subject matter of the admissions
           is broad and far-reaching, a court should permit
           withdrawal in the absence of bad faith or substantial
           prejudice. Teleprompter of Erie, Inc.; Szatanek
           v. McDonnell Douglas Corp., 109 F.R.D. 37
           (W.D.N.Y.1985). Moreover, requests for admissions
           must call for matters of fact rather than legal
           opinions and conclusions. California v. The Jules
           Fribourg, 19 F.R.D. 432 (N.D.Cal.1955).        Since
           conclusions of law are not within the permissible
           scope of requests for admissions under Rule 4014,
           those statements in the requests for admissions
           which constitute conclusions of law are not properly
           before the court.    Commonwealth v. Diamond
           Shamrock Chemical Co., 38 Pa.Commonwealth Ct.
           89, 391 A.2d 1333 (1978).

Id.




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     The record reflects that Red Square was properly served with both the

complaint and the request for admissions, yet failed to file an answer or

objections as required by the rule.     Under Rule 4014(b), Red Square had

45 days to respond. Tapco waited approximately four months before filing

its motion to enter judgment upon admissions.

     It is clear from Michael Kwadrat’s (“Kwadrat”) deposition that he was

served with the request for admissions but failed to turn it over to his

attorney. (Kwadrat deposition, 2/11/14 at 48-49, 51-52.) Kwadrat testified

that he travels frequently and the request for admissions likely sat unopened

in his office along with other mail.   (Id. at 17, 51.)2    Kwadrat testified to

receiving a “ream of documents.” (Id. at 41.) As the trial court states, “The

deposition of Mr. Kwadrat made it clear that he received the Request for

Admissions and sat on it.”     (Trial court opinion, 8/6/14 at 2.)        While

Judge Friedman did not find that Kwadrat acted in bad faith, he was at least

negligent in failing to forward the documents to counsel:

           No. Bad faith doesn’t matter. What I’m saying is
           your client did, in fact, by his own admission, I didn’t
           say this, at his deposition.       He says he got a
           document. There was one thing sent to him. So
           whatever he did with it, I don’t know. And you don’t
           know. Your client maybe forgot what he did with it.
           But he got it. Okay. It was received. And the rule
           is pretty clear.



2
  Kwadrat is the president, as well as the sole officer and shareholder, of
Red Square. (Id. at 6.) Kwadrat is also the sole shareholder, officer, and
director of Nomad Brands, Inc. (Id. at 46.)


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Notes of testimony, 4/22/14 at 30.

      More importantly, when Red Square finally submitted proposed

responses to Tapco’s request for admissions, attached to its motion for

reconsideration, it admitted that the goods identified on the invoices were

delivered, received, and accepted.    Red Square also admitted in part that

the invoices remained unpaid in the amounts stated, responding with regard

to each invoice: “It is admitted that there is an unpaid invoice. Defendants

deny any obligation to pay said invoice.”

      In response to requests 4 and 5, which state, “Kindly admit that you

never disputed your obligation to pay the attached invoices,” and “Kindly

admit that you never disputed the accuracy of the attached invoices,”

Red Square responds:

            Defendant Red Square has been in ongoing
            discussions      with    Plaintiff  about    Plaintiff’s
            malfeasance, breach of contract and damage done to
            Defendant Red Square[’s] business. Said breach and
            repudiation prior to the shipped orders and
            subsequent dispute with Plaintiff’s counsel as to
            Defendant Red Square’s obligation as well as
            Plaintiff’s obligation have been the source of dispute
            since early 2013.

Red Square does not elaborate or explain why, if there was an anticipatory

breach, it accepted the goods.

      Rule 4014(b) states,

            The answer shall admit or deny the matter or set
            forth in detail the reasons why the answering party
            cannot truthfully do so. A denial shall fairly meet the
            substance of the requested admission, and when


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            good faith requires that a party qualify the answer or
            deny only a part of the matter of which an admission
            is requested, the party shall specify so much of it as
            is true and qualify or deny the remainder.

      Red Square’s general, non-specific denial of any obligation to pay the

invoices is insufficient. It not only lacks detail, but Red Square admits that

(1) the ordered goods were delivered, received, and accepted; and (2) the

invoices remain unpaid in the amounts stated in the complaint. Therefore,

even if the trial court were to permit Red Square’s proposed responses, they

are mostly admissions. Red Square admits receiving and accepting all goods

delivered by Tapco, as stated on the invoices.      Furthermore, as the trial

court remarks, “Red Square also implicitly admits the balances due on the

various invoices by failing to state why it has no obligation to pay each

invoice. These general denials violate Rule 4014(b) which states in pertinent

part ‘A denial shall fairly meet the substance of the requested admission.’”

(Trial court opinion, 8/6/14 at 2-3 (emphasis in original).)

      Additionally, we agree with the trial court that Red Square’s

unsupported and vague allegations of malfeasance and breach of contract

are inadequate to “meet the substance” of the requested admissions. (Id.

at 3.) Red Square does not specify how Tapco was in breach of contract, or

how its alleged malfeasance caused damage to Red Square’s business.

Notably, Red Square alleged there had been an ongoing dispute since early

2013, yet it was still unable to articulate the nature of the dispute more than

a year later. As the trial court observes,


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             These virtually identical responses leave the neutral
             reader without a clue as to what Red Square is
             talking about.     The alleged malfeasance is not
             specified; the alleged breach by Plaintiff is not
             specified; the alleged damage to Red Square’s
             business is not specified; the alleged repudiation is
             not only unspecified, it appears out of thin air.

Id.

        Red Square was properly served with Tapco’s request for admissions,

yet “sat on it” for over four months.        Red Square did not submit any

proposed responses to Tapco’s request until March 25, 2014, when it filed a

motion for reconsideration of the order entering judgment. Even then, its

proposed responses are mostly either admissions or vague, general denials

and unspecified allegations.   We agree with the trial court that Tapco has

been substantially prejudiced by Red Square’s dilatory conduct.      (Id. at

3-4.)    The trial court did not abuse its discretion in refusing to permit

Red Square to withdraw its admissions and file an answer.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2015




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