J-S63032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GRANT MANUFACTURING & ALLOYING, 

INC.,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

GREGORY MCILVAIN AND DARYL 

WILLIAMS,

Appellees No. 2226 MDA 2013

Appeal from the Order Entered November 12, 2013

in the Court of Common Pleas of Berks County

Civil Division at No.: 12-24790

GRANT MANUFACTURING & ALLOYING, 

INC.,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

GREGORY MCILVAIN AND DARYL 

WILLIAMS,

Appellees No. 2227 MDA 2013

Appeal from the Order Entered November 12, 2013

in the Court of Common Pleas of Berks County

Civil Division at No.: 12-24790

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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MEMORANDUM BY PLATT, J.: FILED DECEMBER 09, 2014

Appellant, Grant Manufacturing & Alloying, Inc., appeals from the trial 

court’s orders1sustaining the preliminary objections of Appellees, Gregory 

McIlvain and Daryl Williams, and dismissing the complaint. We affirm. 

We take the factual and procedural background of this case from the 

trial court’s February 25, 2014 opinion:

[Appellant] is a primary manufacturer of tin and tin alloys 

and specialty products servicing the electronics, plating, and tin 

chemicals industries. [Appellee], Gregory [McIlvain], had been 

[Appellant’s] employee for approximately twenty-four years, and 

[Appellee], Darryl Williams, had been [Appellant’s] employee for 

twenty-two years. In its complaint, [Appellant] alleges that it 

had developed trade secrets from which it derives a competitive 

advantage. [Appellant] further alleges in the complaint that 

[Appellees] resigned their employment with [Appellant] in 

February 2010 and began employment in similar capacities with 

one of [Appellant’s] direct competitors. [Appellant’s] complaint 

against [Appellees] alleges five counts: [misappropriation of 

trade secrets in violation of the Pennsylvania Uniform Trade 

Secrets Act, breach of duty of loyalty, unfair competition, 

tortious interference with actual and prospective business 

relations, and civil conspiracy].

[Appellees] filed preliminary objections to this complaint 

due to prior pending actions concerning these same parties. 

[The prior actions included the following.] On March 8, 2010, 

[Appellant] filed suit in the United States District Court for the 

Eastern District of Pennsylvania, seeking damages against 

[Appellees] for the same state law claims that are raised in the 

instant case and a federal claim under the Computer Fraud and 

Abuse Act. On September 23, 2011, the federal court granted 

[Appellees’] motion for summary judgment on the federal claim 

____________________________________________

1 The trial court sustained the preliminary objections in two orders and 

Appellant filed notices of appeal from each of them. On January 7, 2014, 

this Court consolidated the appeals sua sponte. (See Order, 1/07/14, at 1).
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and denied supplemental jurisdiction over the remaining state 

claims. The United States Court of Appeals affirmed the district 

court’s grant of summary judgment.

In late 2011, [Appellant] filed a second action based on 

the same facts in the Chester County Court of Common Pleas 

against [Appellees’] current employer, Nathan Trotter & Co. Inc. 

(Trotter). That action was pending at the time [Appellant] filed 

[its first] case in Berks County against [Appellees,] which was 

docketed to Case No. 11-23934. On April 17, 2012, Judge 

Jeffrey L. Schmehl sustained [Appellees’] preliminary objections 

based upon the prior pending actions in the state and federal 

courts and [Appellant’s] failure to join [Trotter, as] a necessary 

and indispensable party[.] [Judge Schmehl] dismissed [Case 

No. 11-23934] without prejudice to re-file. [Appellant] did not 

file an appeal to that order.

On November 21, 2012, [Appellant initiated the current 

action against Appellees] with the same allegations still pending 

in the Chester Court and the identical claims with verbatim 

averments [as those] that were contained in . . . Berks County 

[C]ase [No. 11-23934] that was dismissed by Judge Schmehl. 

In the case sub judice, [Appellant] again did not join Trotter; the 

Chester County action is still pending.

* * *

[Appellees filed preliminary objections to the complaint.] 

[On November 12, 2013,] [f]ollowing argument . . . , [the trial] 

court sustained the preliminary objections [on the bases of] the 

prior pending action doctrine, failure to join Trotter as a 

necessary and indispensable party, and [that] the 

commencement of this action [is] in derogation of the law of the 

case doctrine due to the [o]rder of dismissal dated April 17, 

2012 in the action docketed to No. 11-23934. [Appellant] filed a 

timely appeal.2

(Trial Court Opinion, 2/25/14, at 1-3).

____________________________________________

2 Appellant filed a Rule 1925(b) statement of errors on January 8, 2014 

pursuant to the court’s order; the court filed a Rule 1925(a) opinion on 

February 25, 2014. See Pa.R.A.P. 1925.
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Appellant raises eight issues for this Court’s review:

1. Whether there was any basis in law or fact for the [c]ourt 

to sustain the [p]reliminary [o]bjections of Appellees . . . and 

dismiss the [c]omplaint with [p]rejudice[?]

2. Whether the trial court committed an error of law and/or 

abused its discretion in finding that the lawsuit commenced by 

[Appellant] in the Court of Common Pleas of Berks County at No. 

11-23934 was dismissed by virtue of a prior pending action 

commenced by [Appellant] against [Trotter] in the Court of 

Common Pleas of Chester County[?]

3. Whether the trial court committed an error of law and/or 

abused its discretion in finding that the lawsuit commenced by 

[Appellant] against [Appellees] in the Court of Common Pleas of 

Berks County at No. 12-24790 was dismissed by virtue of a prior 

pending action commenced by [Appellant] against Trotter in the 

Court of Common Pleas of Chester County[?]

4. Whether the trial court committed an error of law and/or 

abused its discretion in finding that the lawsuit commenced by 

[Appellant] against [Appellees] in the Court of Common Pleas of 

Berks County at No. 11-23934 was dismissed because 

[Appellant] did not join Trotter as a party[?]

5. Whether the trial court committed an error of law and/or 

abused its discretion in finding that the lawsuit commenced by 

[Appellant] against [Appellees] in the Court of Common Pleas of 

Berks County at No. 12-24790 was dismissed because 

[Appellant] did not join Trotter as a party[?]

6. Whether the trial court committed an error of law and/or 

abused its discretion in finding that the lawsuit commenced by 

[Appellant] against [Appellees] in the Court of Common Pleas of 

Berks County at No. 12-24790 was commenced in derogation of 

that [c]ourt’s [o]rder dated April 17, 2012 in the lawsuit at No. 

11-23934[?]

7. Whether the trial court committed an error of law and/or 

abused its discretion in finding that the prior pending action 

doctrine applied to [Appellant’s] lawsuit against [Appellees] in 

the Court of Common Pleas of Berks County at No. 12-24790[?]
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8. Whether the trial court committed an error of law and/or 

abused its discretion in finding that Trotter was a necessary and 

indispensable party to the Berks County lawsuits at Nos. 11-

23934 and 12-24790[?]

(Appellant’s Brief, at 2-5).3

Our standard of review of an order of the trial court 

overruling or granting preliminary objections is to determine 

whether the trial court committed an error of law. When 

considering the appropriateness of a ruling on preliminary 

objections, the appellate court must apply the same standard as 

the trial court.

Bargo v. Kuhns, 98 A.3d 686, 689 (Pa. Super. 2014) (citation omitted).

Appellant argues that the trial court improperly found that the law of 

the case and coordinate jurisdiction doctrines barred re-consideration of the

issues decided by Judge Schmehl in case no. 11-23934. (See Appellant’s 

Brief, at 18). Specifically, Appellant claims that the law of the case doctrine 

and coordinate jurisdiction rules do not apply to bar its attempt to re-litigate 

the exact same complaint dismissed by Judge Schmehl because there was 

no opinion filed supporting his April 17, 2012 order and therefore, “the basis 

____________________________________________

3 Appellant’s brief fails to conform to Pennsylvania Rule of Procedure 

2119(a), which requires that “[t]he argument shall be divided into as many 

parts as there are questions to be argued[.]” Pa.R.A.P. 2119(a); (see

Appellant’s Brief, at 2-5, 12-18) (addressing three questions, although 

raising eight issues in statement of questions involved). Therefore, we will 

only address Appellant’s three issues as presented in the argument section 

of its brief. See Daniel v. Wyeth Pharm., Inc., 15 A.3d 909, 915 n.6 (Pa. 

Super. 2011), appeal dismissed as improvidently granted, 82 A.3d 942 (Pa. 

2013) (finding arguments omitted from argument section of brief waived). 

We have reordered Appellant’s issues for ease of disposition.
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of [Judge Schmehl’s] decision is unknown.” (Id.). This issue is waived and 

would not merit relief.

We first observe that Appellant provides no legal citation in support of 

its position. (See id.). Therefore, this issue is waived. See Pa.R.A.P. 

2119(a)-(b); see also Bombar v. W. Am. Ins. Co., 932 A.2d 78, 94 n.13 

(Pa. Super. 2007) (finding issue waived for appellant’s failure to cite 

authority). Moreover, this argument is specious where the April 17, 2012 

order expressly dismissed Appellant’s complaint on the bases of a prior 

pending action and the failure to join an indispensable party. (See Order, 

4/17/12, at 1). 

Additionally, we conclude that the trial court properly applied the law 

of the case and coordinate jurisdiction doctrines.

This Court has recognized that under the coordinate 

jurisdiction rule, judges of coordinate jurisdiction sitting in the 

same case should not ordinarily overrule each other’s decisions. 

The rule is one of sound jurisprudence based on a policy of 

fostering the finality of pre-trial applications in an effort to 

maintain judicial economy and efficiency. This rule applies to 

civil cases and it falls within the law of the case doctrine, which 

instructs that:

[A] court involved in the later phases of a 

litigated matter should not reopen questions decided 

by another judge of the same court or by a higher 

court in the earlier phases of the matter. Among the 

related but distinct rules which make up the law of 

the case doctrine are that: upon transfer of a matter 

between trial judges of coordinate jurisdiction, the 

transferee trial court may not alter the resolution of 

a legal question previously decided by the transferor 

trial court.
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Kroptavich v. Penn. Power and Light Co., 795 A.2d 1048, 1054 (Pa. 

Super. 2002) (citations and quotation marks omitted).

Here, the trial court found, in pertinent part, that:

In all salient respects, [Appellant’s] prior case and the case 

sub judice are identical. . . . Judge Schmehl made his decision 

regarding the identical issues as those presented here and 

dismissed that case. [Appellant] did not appeal that decision or 

even file an amended complaint; instead, approximately one 

year later, [Appellant] filed the same type of complaint against 

the same parties and did not include Trotter as a defendant. The 

issues, as stated before, are now res judicata. It is axiomatic 

that parties who are unhappy with a decision must appeal the 

decision if they hope to redress it; however, they are not entitled 

to file a second action and hope for a different result. 

[Appellant] has a forum, Chester County, where he can litigate 

all issues and not engage in piecemeal litigation with the risk of 

obtaining conflicting outcomes.

(Trial Ct. Op., at 6). After a review of the record in this matter, we agree 

with the trial court.

The Chester County action still is pending. (See id. at 2). The 

complaint filed in this case is a verbatim copy of the one dismissed in case 

no. 11-23934 on the bases of the prior pending action in Chester County and 

Appellant’s failure to join an indispensable party. (See Complaint, No. 11-

23934, at 1-17; Complaint, No. 12-24790, at 1-17; Order, 4/17/12). 

Importantly, Appellant did not appeal the trial court’s April 17, 2012 decision 

and it is not before us now. See Pa.R.A.P. 903(a) (providing that appeal 

must be filed within thirty days “after the entry of the order from which the 

appeal is taken”). 
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Accordingly, we would conclude that the trial court properly found 

that, because the Chester County case still is pending, the law of the case 

doctrine and the coordinate jurisdiction rule precluded it from reviewing 

Appellant’s identical complaint and reaching a different conclusion than that 

reached in the April 17, 2012 order. See Kroptavich, supra at 1054.4 

Accordingly Appellant’s issue, even if not waived, would not merit relief.

Appellant also claims that the trial court erred in concluding, 

independent of the law of the case and coordinate jurisdiction rules, that the 

complaint does, in fact, violate the pending action doctrine and fails to 

include Trotter, an indispensable party. (See Appellant’s Brief, at 12-18). 

We disagree.

When two lawsuits are pending, the common law doctrine 

of lis pendens permits the dismissal of the newer suit if both 

suits involve the same parties, the same relief requested, the 

same causes of action, and the same rights asserted. One of the 

purposes of lis pendens is to protect a party from being forced to 

litigate the same issues in several suits at the same time. Lis 

pendens also serves the purpose of saving judicial resources. 

Likewise, lis pendens prevents the appearance of the inequitable 

administration of law that would occur if two cases litigating the 

same issues in different counties reached different results. 

____________________________________________

4 Appellant acknowledges that the trial court had the discretion to dismiss its 

complaint. (See Appellant’s Brief, at 14). It maintains, however that, “at 

most” the court should have stayed the Berks County case. (Id.). However, 

it provides no authority to support its claim that the court abused its 

discretion by ordering dismissal. Therefore, this argument is waived. See 

Bombar, supra at 94 n.13.
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[A]pplication of lis pendens is purely a question of law. 

Therefore, as to application of the doctrine, our scope of review 

is plenary. . . .

Barren v. Commonwealth., 74 A.3d 250, 253 (Pa. Super. 2013) (citations 

and quotation marks omitted).

Further:

Once the defense is raised, a court may dismiss or stay the 

subsequent proceedings. . . . [I]f the identity test is not strictly 

met but the action involves a set of circumstances where the 

litigation of two suits would create a duplication of effort on the 

part of the parties, waste judicial resources and create the 

unseemly spectacle of a race to judgment, the trial court may 

stay the later-filed action.

Crutchfield v. Eaton Corp., 806 A.2d 1259, 1262 (Pa. Super. 2002) 

(citations and quotation marks omitted). 

As to the failure to join an indispensable party, this Court has stated:

An indispensable party is one whose rights or interests are 

so pervasively connected with the claims of the litigants that no 

relief can be granted without infringing on those rights or 

interests. The basic inquiry in determining indispensability 

concerns whether, in the absence of the person sought to be 

joined, justice can be done. Analysis of this claim requires 

reference to both the nature of the claim and the requested 

remedy.

Jacobs v. Schultz-Jacob, 923 A.2d 473, 480 (Pa. Super. 2007) (citations 

and quotation marks omitted).

Additionally, the Commonwealth Court5 has observed:

____________________________________________

5

“[T]his Court is not bound by decisions of the Commonwealth Court. 

However, such decisions provide persuasive authority, and we may turn to 

(Footnote Continued Next Page)
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the failure to join an indispensable party deprives the court of 

jurisdiction. In determining whether a party is indispensable to 

the action, we are guided by the following criteria enunciated by 

our Supreme Court . . . :

1. Do absent parties have a right or interest related to the claim?

2. If so, what is the nature of the right or interest?

3. Is that right or interest essential to the merits of the issue?

4. Can justice be afforded without violating due process rights of 

absent parties?

Bristol Twp. Water Auth. v. Lower Bucks County Joint Mun. Auth., 

567 A.2d 1110, 1112-113 (Pa. Cmwlth. 1989) (citations omitted).

In the present case, the Chester County action was pending at the 

time the trial court dismissed Appellant’s complaint. (See Trial Ct. Op., at 

2). Additionally, a review of the complaints reveals that the material 

allegations supporting both of them are the same where Appellant claims 

that Appellees’ actions, in complicity with Trotter, formed the basis for relief. 

(See Complaint, No. 12-24790, at 1-18; Chester County Complaint, at 1-8). 

In fact, Appellant admits that Appellees’ actions formed the basis of its 

lawsuit against Trotter in Chester County. (See Appellant’s Brief, at 16). 

Finally, both complaints seek compensatory and punitive damages, with the 

Berks County complaint differing only in that it also seeks the return of the 

(Footnote Continued) _______________________

our colleagues on the Commonwealth Court for guidance when appropriate.” 

Haan v. Wells, 2014 WL 5018462, at *12 n.2 (Pa. Super. filed Oct. 8, 

2014) (citation omitted).
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alleged proprietary information possessed by Appellees and their termination 

by Trotter. (See Complaint, No. 12-24790, at 10-11, 13-16; Chester 

County Complaint, at 9). Therefore, the trial court properly found that the 

prior pending action doctrine applies to this case. See Barren, supra at 

253; Crutchfield, supra at 1262.

Also, Appellant’s complaint alleged that Appellees acted on Trotter’s 

solicitation, at its discretion, and for its benefit. (See Complaint, No. 12-

24790, at 8-9 ¶¶ 58-59, 10 ¶¶ 68-70, 11-12 ¶¶ 73-80, 14 ¶ 83, 16 ¶ 93). 

Trotter is identified as a conspirator in the complaint, which seeks damages 

from Appellees on this basis. (See id. at 16 ¶ 93). Appellant also sought to 

have Appellees terminated by Trotter and the return of information that is 

now in Trotter’s possession. (See id. at 10-11, 13-16). Finally, Appellant 

would need access to Trotter’s confidential proprietary financial documents 

and sales information to calculate the alleged forfeiture of profits it sought. 

(See id.). Accordingly, the trial court properly found that Trotter was an 

indispensable party because, “in [its] absence . . . justice [could not] be 

done.” Jacobs, supra at 480; see also Bristol Twp. Water Auth., supra

at 1112-113.

Based on the foregoing, we conclude that the trial court correcly 

applied the doctrines of coordinate jurisdiction and law of the case. See 

Kroptovich, supra at 1054. Moreover, even if the trial court had 

improperly applied these rules it did not err when it sustained Appellees’ 
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preliminary objections on the bases of a prior pending action and Appellant’s 

failure to join an indispensable party. See Bargo, supra at 689; see also 

Barren, supra at 253; Jacobs, supra at 480; Crutchfield, supra at 1262; 

Bristol Tp. Water Auth., supra at 1112-113.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2014