J-S68045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CHRISTOPHER WATKINS,            :            IN THE SUPERIOR COURT OF
 INDIVIDUALLY, AND D/B/A WATKINS :                 PENNSYLVANIA
 SECURITY                        :
                                 :
                Appellant        :
                                 :
                                 :
           v.                    :
                                 :            No. 9 WDA 2018
                                 :
 THE LERRO CORPORATION           :

                 Appeal from the Order November 28, 2017
  In the Court of Common Pleas of Cambria County Civil Division at No(s):
                                4799-2014


BEFORE:    SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                    FILED JANUARY 23, 2019

      Appellant, Christopher Watkins, individually and doing business as

Watkins Security (“Watkins”), appeals from the trial court’s order granting

Lerro’s motions in limine and motion to dismiss in favor of Appellee, The Lerro

Corporation (“Lerro”). We vacate and remand for proceedings consistent with

this decision.

      The trial court aptly sets forth a summary of pertinent facts and

procedural history as follows:

      On December 17, 2014, Plaintiff [hereinafter Watkins] filed a
      Complaint in which he avers . . . [that] on April 9, 2012, [he]
      submitted a very detailed bid to update Indiana County’s
      Courthouse and Magisterial District Courts security infrastructure.
      His bid contained “extensive and unique custom product
      design[s], installation, configuration, and training.”




____________________________________
* Former Justice specially assigned to the Superior Court.
J-S68045-18


        [The Complaint continues that,] approximately nine months later,
        on January 28, 2013, Defendant [hereinafter Lerro] submitted a
        line-item quote “exactly mirrored, to the penny[,]” Watkins’
        proposal. Watkins claims that Lerro obtained Watkins’ confidential
        bid proposal, which Lerro then used to prepare its own quote.
        Watkins file[s] suit against Lerro for: wrongful appropriation of
        trade secrets (Count 1); breach of restrictive covenants (Count
        2); theft of confidential information (Count 3); unfair competition
        (Count 4); and, intentional interference with prospective
        economic advantages.

        After a lengthy discovery period [of approximately 485 days],
        Defendant Lerro sent Plaintiff Watkins a Request for Admissions[,
        pursuant to Pa.R.C.P. 4014,1] which went unanswered. Lerro[,
____________________________________________


1   Rule 4014, Request for Admission, provides in pertinent part:

        (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. . . .


        (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; . . . .

        ***

        (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



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       therefore,] filed a motion praying the [trial court] to deem
       judicially admitted the unanswered Request for Admissions
       [pursuant to Rule 4014(b), which provides in pertinent part that
       any matter properly served upon a party in a Request for
       Admissions is admitted unless, within thirty days after service of
       the request, or other time as prescribed by the court, the party
       files a verified and signed answer or objection to the Request].

       On August 1, 2016 the trial court granted Lerro’s Motion for Facts
       Deemed Admitted. [Specifically, the matters deemed judicially
       admitted were:

              1. that Plaintiff Watkins’ proposal was not a trade
                 secret;

              2. that Defendant Lerro’s proposal did not contain the
                 exact “custom design” contained in Watkins’
                 proposal;


              3. that Lerro did not interfere with Watkins’ business
                 relations; and


              4. that Watkins was not injured as a result of Lerro’s
                 actions or inactions.]


       On August 15, 2016, Defendant Lerro filed a Motion for Summary
       Judgment in which [it] chiefly argued that in light of the facts
       deemed judicially admitted, Plaintiff Watkins could not sustain its
       burden and therefore there were no issues of material fact.

       After briefs and arguments of counsel, [a three-judge panel of]
       the trial court[, sitting en banc, unanimously] denied Defendant
       Lerro’s [motion for] summary judgment on October 3, 2016.
____________________________________________


       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. . . .

Pa.R.C.P. No. 4014(a), (b), and (d), in pertinent part.


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      On September 11, 2017, Defendant Lerro filed three Motions in
      Limine and Dismissal to: preclude Plaintiff Watkins from
      introducing any witnesses not previously named or produced
      during discovery from testifying at trial; preclude Watkins from
      introducing any evidence or testimony which contradicted the
      facts judicially admitted from being presented at trial; preclude
      the introduction of any evidence or testimony as to the claims in
      Watkins’ Complaint; and to dismiss all counts of the Complaint.

      [Judge Tamara R. Bernstein, who had sat on the en banc panel
      denying Lerro’s motion for summary judgment, granted Lerro’s
      motions in limine in whole, as well as the motion to dismiss, “as
      the motions granted supra are dispositive of all counts in this
      case.”]. Watkins appealed.

Trial Court Opinion, April 25, 2018, at 2-3.

      Watkins presents the following question for our consideration:

      [Did] the court err[ ] in granting the defendant’s [Lerro’s] motion
      in limine when it had denied [Lerro’s] motion for summary
      judgment that was based upon the same argument?

Brief of Appellant, at 4.

      Our standard of review is as follows: “To the extent that the question

presented involves interpretation of rules of civil procedure, our standard of

review is de novo. To the extent that this question involves an exercise of the

trial court's discretion in granting [a] ‘motion to dismiss,’ our standard of

review is abuse of discretion.” Coulter v. Ramsden, 94 A.3d 1080, 1086

(Pa. Super. 2014).

      In assailing Judge Bernstein’s order granting Lerro’s motions in limine

and motion to dismiss based on Watkins’ judicial admissions, Watkins invokes

the coordinate jurisdiction rule.   In Ryan v. Berman, 813 A.2d 792 (Pa.




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2002), our Supreme Court offered a detailed explanation of the coordinate

jurisdiction rule:

      The coordinate jurisdiction rule prohibits a judge from overruling
      the decision of another judge of the same court, under most
      circumstances. There are, however, situations when the rule does
      not apply. This Court stated recently that “a later motion should
      not be entertained or granted when a motion of the same kind has
      previously been denied, unless intervening changes in facts or the
      law clearly warrant a new look at the question.” Goldey v.
      Trustees of University of Pennsylvania, 544 Pa. 150, 675 A.2d
      264, 267 (1996). Nevertheless, we recognized that “where the
      motions differ in kind, as preliminary objections differ from ...
      motions for summary judgment, a judge ruling on a later motion
      is not precluded from granting relief although another judge has
      denied an earlier motion.” Id.

      The salient case on the coordinate jurisdiction rule is
      Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995).
      It states the rule as follows: “Judges of coordinate jurisdiction
      sitting in the same case should not overrule each others'
      decisions.” Id. 664 A.2d at 1331. “Departure ... is allowed only
      in exceptional circumstances such as where there has been an
      intervening change in the controlling law, a substantial change in
      the facts or evidence giving rise to the dispute in the matter, or
      where the prior holding was clearly erroneous and would create a
      manifest injustice if followed.” Id. 664 A.2d at 1332. The rule
      serves “not only to promote the goal of judicial economy” but also
      “(1) to protect the settled expectations of the parties; (2) to insure
      uniformity of decisions; (3) to maintain consistency during the
      course of a single case; (4) to effectuate the proper and
      streamlined administration of justice; and (5) to bring litigation to
      an end.” Id. 664 A.2d at 1331. It is manifest that a judge may
      not lightly overrule the prior decision of another judge of the same
      court. In some circumstances, however, application of the rule
      can “thwart the very purpose the rule was intended to serve, i.e.,
      that judicial economy and efficiency be maintained.” Salerno v.
      Philadelphia Newspapers, Inc., 546 A.2d 1168, 1170
      (Pa.Super. 1988). Thus, we said in Starr that departure from the
      rule of coordinate jurisdiction is allowed “where the prior holding
      was clearly erroneous and would create a manifest injustice if
      followed.” 664 A.2d at 1332. Applying the rule of coordinate

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      jurisdiction too rigidly, therefore, can undermine the purposes
      which justify the rule.

Ryan, 813 A.2d at 795.

      Furthermore, the Ryan Court stated, “[W]here the motions differ in

kind, as preliminary objections differ from ... motions for summary judgment,

a judge ruling on a later motion is not precluded from granting relief although

another judge has denied an earlier motion.” Id. at 794 (quoting Goldey v.

Trustees of University of Pennsylvania, 675 A.2d 264, 267 (Pa. 1996)).

      Watkins correctly notes that prior to the court’s order granting Lerro’s

motions in limine and motion to dismiss based on the conclusion that Watkins

could not prove his claims given his judicial admissions, the same court sitting

en banc had unanimously denied Lerro’s motion seeking summary judgment

because of Watkins’ admissions.

      Specifically, at the hearing on Lerro’s motion for summary judgment,

Lerro had argued that Watkins’ Rule 4014(b) failure to answer or object to

Lerro’s Request for Admissions constituted an admission that necessarily

resolved all issues of material fact in Lerro’s favor, thus necessitating

summary judgment. Watkins, however, countered that his judicial admissions

were not conclusive as a matter of law, and he stressed the disconnect

between Lerro’s Request for Admissions and the clear controversies within the

discovery record over all material, elemental facts. In this vein, counsel for

Watkins effectively renounced the judicial admissions, as follows:

      [COUNSEL FOR WATKINS]:              You take both contracts.
      They’re line by line the same. I mean quotes. They’re line by line
      the same. The quantity is the same. They’re in the same absolute

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J-S68045-18


     sequencing of line items. They are so amazingly the same that
     you would have to strain the imagination to say that Lerro took
     this quote and made it up themselves.

     No. They stole this quote from Watkins, didn’t even go out to the
     site, popped it into the computer. Yes, they did add something
     different, labor, but the labor is the last line of the item on the
     sheet. The way I laid this out, you can actually tell by the page
     number and the corresponding part it’s exactly the same, and they
     put a prescreening mechanism in as part of the award of the
     contract. Everything else is exactly the same.

     JUDGE KINIRY:             How did they do that?

     [COUNSEL FOR WATKINS]:             I’d like to know that, sir,
     because our agreement was there like a year before this. So
     somebody gave it to Lerro. And in order to just like take this case
     and make it go – you know, get a real quick contract, they took
     it. They didn’t even send anybody out there. They just put their
     name on it, boom, the same exact thing, got an award.

     Now, my client has complained in various other spots that he put
     on all this information he sent to the courthouse, [‘]this is
     confidential, this is confidential.[’] They have nobody that says –
     they have no way of knowing this information other than it was
     given to them.

     Furthermore, Mr. Murphy in his deposition, who owns [Lerro] or
     runs it or is C.O. of the company, specifically stated – I asked him,
     [‘]Do you think your quote, the one I’ve just shown you, your Lerro

     quote, do you think that’s confidential?[’] He said, [‘]Yeah, it’s
     confidential.[’] I said, [‘]Why?[’] [‘]Because,[’] he said[,] [‘]because
     we have a certain method of putting that together and, you know,
     it’s detailed. I would consider that confidential.[’] I mean, that’s
     their own company saying that.

     So all these counts in here, I can go through them. Regarding,
     you know, breach of restrictive covenant, throw it away if you
     want to. Lack of trade secrets, it meets the definition as detailed
     in the brief. Theft of confidential information, it certainly meets
     that.   Everything in here was marked confidential.           Unfair
     competition, even in their brief on the Restatement Third of Torts,
     they put there that – I’m sorry—confidential information used by
     another party can be evidence of unfair competition.

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J-S68045-18



     ***

     As far as the admissions are concerned, the Court -- the Superior
     Court has said they may be used in a summary judgment. They’re
     not conclusive. And my theory is, on all those admissions, if
     somebody in their deposition is saying this is confidential, I’ve
     suffered damages, I have this breach of confidentiality, there is a
     conflict as to the facts, the court can decide that.

     But there’s a genuine issue I’m saying to the court. However it
     decides, the first paragraph of my brief is the most conclusive part
     of the case. They just plain took the info and used it.

     ***

     [With respect to Watkins’ damages claim,] he put in his deposition
     that he would have made a certain amount of margin on this
     contract. He gave us that amount of margin in there. He states
     it as like 30 percent he would have made on this agreement.

Hearing on Motion for Summary Judgment, 9/30/16, at 9-11, 14.

     By its order of October 3, 2016, the en banc court decided the following:

     [U]pon consideration of defendant’s [Lerro’s] “Motion for
     Summary Judgment,” the briefs and arguments of counsel, and a
     review of the pleadings of record, viewing the facts in a light most
     favorable to the non-moving party, and accepting all well-pleaded
     facts and the reasonable inferences drawn therefrom as true, the
     Court finds that material questions of fact remain. Accordingly, it
     is hereby ORDERED AND DIRECTED that Defendant’s Motion is
     DENIED.

     Additionally, the Court has reviewed relevant portions of the
     transcript from September 30, 2016 Argument Court, and believes
     that it is ambiguous as to whether plaintiff’s [Watkins’] counsel
     conceded to a withdrawal of one, or many, of the five counts of
     plaintiff’s Complaint. Thus, the Court finds that plaintiff’s counsel
     is proceeding on all five counts of plaintiff’s Complaint.

Trial Court Order, 10/3/16.




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        According to Watkins, Lerro’s subsequent motions in limine and motion

to dismiss effectively asked Judge Bernstein to overrule the en banc court’s

order denying Lerro’s previous motion for summary judgment without

identifying an intervening change in the underlying facts or the law:

        The [trial] court, in denying [Lerro’s] Motion for Summary
        Judgment, was aware of [Lerro’s] argument regarding Judicially
        admitted facts and held in favor of [Watkins]. [Lerro’s] Motion in
        Limine, prior to trial, was the same argument that was used in
        [Lerro’s] Motion for Summary Judgment. The [trial court] granted
        [Lerro’s] Motion in Limine. The salient and consequential point is
        that both arguments were based on the same material facts and
        were present in the Summary Judgment argument and the Motion
        in Limine.

Brief of Appellant, at 9.

        Judge Bernstein opines that the en banc panel’s order denying Lerro’s

motion for summary judgment did not preclude it from granting Lerro’s

motions in limine and motion to dismiss because the latter motions were not

of the same kind as the former and were raised in a different procedural

posture. We disagree.

        When it denied Lerro’s motion for summary judgment, the en banc court

refused to rule out the possibility that Watkins could prevail upon each of his

claims given the issues of material fact existing throughout the record. The

court’s determination in this regard must be understood, therefore, as one

effectively granting a Rule 4014(d)2 withdrawal of the judicial admissions

resulting from Watkins’ failure to respond to Lerro’s Request for Admissions,

____________________________________________


2   See infra.

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for the admissions, if upheld, would necessarily have precluded Watkins from

proving his claims.

      Moreover, the record remained unchanged nearly one year later when

Lerro filed its motions in limine and motion to dismiss, which were limited to

the same facts and arguments litigated in Lerro’s earlier motion for summary

judgment. Indeed, the latter motions asked the court to dismiss Watkins’ suit

because he could not possibly prevail on his claims given his judicial

admissions. The court en banc, however, already rebuffed this position, and

there had been no change in the underlying facts or arguments at issue in the

ensuing year leading up to trial.

      As such, the latter motions, though bearing different titles than the

previous motion for summary judgment, simply repeated the earlier request

for terminating the suit on the basis of Watkins’ judicial admissions. For this

reason, we disagree with the learned trial court’s position that the motions

were different in kind and procedural posture so as to preclude application of

the coordinate jurisdiction rule. See Campbell v. Attanasio, 862 A.2d 1282,

1285–87 (Pa. Super. 2004) (holding coordinate jurisdiction rule violated

where court granted motion in limine predicated on same facts and arguments

previously rejected by same court in denying motion for summary judgment

five months earlier).

      Our final consideration in conducting our coordinate jurisdiction rule

inquiry is to ask whether the court en banc committed an abuse of discretion

or error of law in entering its order denying Lerro’s motion for summary

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judgment, such that Judge Bernstein was not subsequently bound by the order

in reviewing Lerro’s later motions. Our review of the record shows that the

court sitting en banc committed no error in effectively declining to uphold the

Rule 4014 admissions when the discovery record clearly contained material

issues of fact on all pertinent matters.

      It must be remembered that “[r]equests for admissions pursuant to Rule

4014 are a discovery tool intended to clarify issues, expedite the litigation

process, and promote a decision on the merits.” Stimmler v. Chestnut Hill

Hospital, 981 A.2d 145, 160-61 n.18 (Pa. 2009) (noting further “Rule 4014

is designed to expedite the production and authentication of evidence that is

not controverted by the litigants.”) (citations omitted) (emphasis added)).

While failure to answer or object within 30 days to a Rule 4014 request for

admissions is sufficient by itself to constitute an admission to the matters in

the request,        see Pa.R.C.P. 4014(b), Pa.R.C.P. 4014(d) permits the

withdrawal or amendment of admissions “when the presentation of the merits

of the action will be subserved [i.e. promoted] thereby.” Stimmler, supra.

      Here, it would not have been patently erroneous for the trial court sitting

en banc to keep in force the earlier order deeming admitted all matters within

Lerro’s Request for Admissions for Watkins’ failure to answer or respond.

Indeed, Watkins’ failure to comply with Rule 4014(b) subjected him to such a

potential result.

       Nevertheless, the court en banc clearly elected, instead, to accept

Watkins’ oral argument at the summary judgment hearing as tantamount to

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a motion challenging the propriety of technical admissions that had no support

in a controverted record and would result in the undue circumvention of merits

review. The court’s denial of Lerro’s motion for summary judgment based on

Watkins’ earlier admissions, therefore, represented the functional equivalent

of withdrawing Watkins’ admissions and allowing the controverted record on

such matters to form the basis for a trial on the merits.

      As the court’s en banc determination, therefore, aligns with Rule 4014

precepts expressed supra favoring merits review, we deem it appropriate

under the circumstances. Finally, we discern no undue burden upon Lerro in

our application of the coordinate jurisdiction rule here, as the parties had

approximately one year to prepare for trial on the merits following the en banc

court’s order denying summary judgment.

      For the foregoing reasons, we vacate the order granting Lerro’s motions

in limine and motion to dismiss and remand for proceedings consistent with

this decision.

      Order vacated. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2019



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