NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4405

_____________

FRANK REYNOLDS, 

Appellant

v.

THE UNIVERSITY OF PENNSYLVANIA; THE SCHOOL OF ENGINEERING & 

APPLIED SCIENCE OF THE UNIVERSITY OF PENNSYLVANIA; THE WHARTON 

SCHOOL OF THE UNIVERSITY OF PENNSYLVANIA; LYLE UNGAR; ZIV 

KATALAN; JOEL ADLER

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 06-cv-01237)

District Judge: Hon. Thomas N. O‟Neill, Jr.

Submitted Pursuant to Rule 34.1 on September 19, 2011

Before: AMBRO, CHAGARES, and ROTH, Circuit Judges.

(Filed: May 25, 2012)

____________

OPINION

____________

CHAGARES, Circuit Judge.

Frank Reynolds appeals the District Court‟s orders (1) granting a new trial based 

on its reversal of its decision to exclude evidence under Federal Rule of Evidence 403 in 

the first trial, (2) excluding other evidence in the second trial as subsequent remedial 
2

measures under Federal Rule of Evidence 407 and prohibiting Reynolds‟s attempt to 

impeach a witness based on that evidence, (3) granting appellees‟ (collectively 

“University of Pennsylvania” or “Penn”) motion for judgment as a matter of law

following the second trial, and (4) entering sanctions against Reynolds for failure to 

admit a request for admission. For the reasons that follow, we will affirm the orders of 

the District Court. 

I. 

We write for the parties‟ benefit and recite only the facts essential to our 

disposition. Reynolds applied to and enrolled in the Executive Masters in Technology 

Management (“EMTM”) program at the University of Pennsylvania in 2002 and claims 

that at that time he was told that the EMTM students would be considered graduates and 

alumni of Wharton, Penn Engineering and the University of Pennsylvania. Supplemental 

Appendix (“Supp. App.”) 1941-61. In Fall 2003, Reynolds claims he was informed that 

he would be considered a graduate of Penn Engineering only and could not represent 

himself as a Wharton student or Wharton alumnus upon graduation. Supp. App. 1986-

93.

Reynolds filed his complaint against the University of Pennsylvania and several 

individuals1in the Philadelphia County Court of Common Pleas in March 2006 and Penn 

removed the case to the United States District Court for the Eastern District of 

Pennsylvania. Reynolds asserted claims for (1) breach of contract, (2) unjust enrichment,

 

1 Reynolds dismissed the individual defendants by stipulation before the start of the first 

trial. Appendix (“App.”) 3 n.2. 
3

(3) negligence, (4) negligent misrepresentation, (5) intentional misrepresentation, (6) 

common law fraud, (7) violations of Pennsylvania‟s Unfair Trade Practices and 

Consumer Protection Law, 73 Pa. Cons. Stat. Ann. § 201-1 et seq., and (8) violations of 

the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c), 

(d). 

Another EMTM student, Anurag Harsh, filed a case alleging similar conduct and 

the cases proceeded together but were never consolidated. App. 3. During discovery, 

Penn alleges it found evidence that Harsh had modified documents that he relied on for 

his claim, namely a PowerPoint presentation given by EMTM Admissions Director Joel 

Adler to prospective students and an email to Harsh from Adler. Reynolds alleged in his 

complaint that he relied upon the PowerPoint presentation and incorporated Harsh‟s 

email exchange with Adler in his complaint as well. App. 124-25,128-29. Harsh filed a 

motion to dismiss his claims with prejudice, which was granted by the District Court on 

September 15, 2008. App. 5.

During discovery, Penn requested an admission from Reynolds that the Adobe 

Acrobat 6.0, Adobe Acrobat Distiller 6.0.1 and Adobe Acrobat PDFMaker 6.0 software

that Penn‟s analysis showed had been used to save the PowerPoint slides that Reynolds 

alleged he relied on in 2002, were not available to the public until after April 1, 2003. 

Supp. App. 631-32. Reynolds initially refused to admit the request for admission based 

on lack of personal knowledge. Supp. App. 635. Penn then sent Reynolds an April 7, 

2003 press release from Adobe announcing the upcoming introduction of the Adobe 

Acrobat 6.0 product line. Supp. App. 638-41. Penn informed Reynolds that if he refused 
4

to admit the release date of the software, it would travel to California to depose an Adobe 

representative and would seek to recover the costs of the deposition under Federal Rule 

of Civil Procedure 37(c)(2). Supp. App. 638-39. Penn did take the deposition of an 

Adobe representative, who stated that Adobe Acrobat 6.0 and related software were not 

available to the public until May 2003. App. 478-82. Penn read this testimony to the 

jury at the second trial. See App. 82 n.3.

The day before the start of the first trial, September 28, 2009, Reynolds moved to 

exclude the exhibits that Penn alleged to be fraudulent and any mention of Harsh and his 

lawsuit. The District Court granted the motion, over Penn‟s opposition, although the 

issue was not fully briefed due to the time constraints of the impending trial. App. 5-6. 

At the first trial, the jury found in favor of Reynolds on the breach of contract claim and 

awarded him $435,678. App. 2. On January 27, 2010, however, the District Court 

granted Penn‟s motion for a new trial, based on what the District Court determined to be 

its own erroneous exclusion of the allegedly altered documents. App. 1.

Before the second trial, the District Court granted Penn‟s motion to exclude as 

inadmissible under Federal Rule of Evidence 407 as subsequent remedial measures 

evidence of a November 1, 2003 Town Hall meeting of students and Penn administrators, 

where administrators explained the place of the EMTM program within the University 

and then took questions from students about the nature of the program, and a version of 

Penn‟s website revised in 2004, in which Penn clarified the benefits it expected to grant 

EMTM students. App. 20. 
5

The jury in the second trial found that Penn had been unjustly enriched and 

awarded Reynolds $66,000. App. 35. Reynolds moved for a new trial based on the 

exclusion of the Town Hall meeting and revised website evidence, which the District 

Court denied. App. 34. Penn moved for judgment as a matter of law on the unjust 

enrichment claim, which the District Court granted because an express contract governed 

the relationship between the parties. App. 34. Reynolds timely appealed. 

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 as Reynolds‟s

complaint included claims of RICO violations under 18 U.S.C. § 1962(c) and (d). On 

September 1, 2009, Reynolds voluntarily stipulated to the dismissal of his RICO claim 

and then moved to remand the case to state court. The District Court denied the motion 

and retained jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. App. 48. 

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. 

III.

A.

Reynolds contends the District Court erred when it ordered a new trial based on its 

evidentiary ruling under Federal Rule of Evidence 403 to exclude all references to the 

Harsh case and the allegedly altered documents in the first trial. We review the District 

Court‟s decision to grant a new trial for an abuse of discretion. Blancha v. Raymark 

Indus., 972 F.2d 507, 512 (3d Cir. 1992). We note that “[p]articular deference is 

appropriate . . . because the decision to grant a new trial rested on an evidentiary ruling 

that was itself entrusted to the trial court‟s discretion. Indeed, a trial judge‟s decision to 
6

admit or exclude evidence under Federal Rule of Evidence 403 may not be reversed 

unless it is „arbitrary and irrational.‟” Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 

187 (3d Cir. 1990) (footnote omitted). Applying this standard of review, we will affirm 

the District Court‟s decision to grant a second trial in this case. 

During discovery, Penn uncovered evidence that it contends shows that the 

versions of the documents incorporated into Reynolds‟s complaint had been altered. 

Penn argues the PowerPoint presentation that Reynolds alleges he relied on in 2002,

when deciding whether to enroll in the EMTM program, contains a Wharton logo that 

was not available until March 2003. Penn also argues that the PowerPoint presentation 

was saved using Adobe software that was not available until 2003. Finally, Penn alleges 

that its expert found several versions of the email from Adler to Harsh on Reynolds‟s

computer that were altered from the version on Adler‟s computer. 

Federal Rule of Evidence 403 allows the court to exclude relevant evidence “if its 

probative value is substantially outweighed by a danger of one or more of the following: 

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” The District Court found that the probative 

value of this evidence was high because the evidence bore directly on Reynolds‟s

credibility. Reynolds‟s complaint incorporated the allegedly altered documents, the 

PowerPoint presentation, and an email from Adler to Harsh. App. 124-25, 128-31. At 

his February 6, 2007 deposition, Reynolds identified specific elements of the PowerPoint 

presentation on which he relied. Supp. App. 738-46. The District Court found that 

Reynolds‟s case depended on his recollection of the agreement he had with Penn and the 
7

alleged breach of that agreement. The District Court further found that the probative 

value of the excluded evidence was not substantially outweighed by the danger of unfair 

prejudice. Fed. R. Evid. 403; see also Harbor Ins. Co. v. Schnabel Foundation Co., 946 

F.2d 930, 935 (D.C. Cir. 1991) (“Particularly where a party is seeking to impeach a 

witness whose credibility could have an important influence on the outcome of the trial, 

the district court should be cautious in limiting cross-examination.”).

Thus, “[h]aving identified this incorrect evidentiary ruling, the trial judge was 

required . . . to grant a new trial unless it was „highly probable‟ that the error did not 

affect any „substantial rights.‟” Bhaya, 922 F.2d at 189 (citation omitted). The District 

Court did not abuse its discretion when it determined that Penn‟s substantial rights were 

affected when it was not allowed to probe Reynolds‟s credibility on documents that he 

relied on initially to support his claim. 

Because the District Court did not abuse its discretion in granting a new trial based 

on its conclusion that the limits it placed on Penn‟s impeachment of Reynolds by 

excluding all references to the Harsh case and the allegedly altered documents were in 

error and it was not highly probable that the error did not affect Penn‟s substantial rights, 

we will affirm its ruling. 

B.

1.

Reynolds contends the District Court erred when it excluded under Federal Rule of 

Evidence 407 as subsequent remedial measures evidence of the November 1, 2003 Town 

Hall meeting and alterations to Penn‟s website in 2004. We review denial of a motion for 
8

new trial based on admissibility of evidence for abuse of discretion. Shade v. Great 

Lakes Dredge & Dock Co., 154 F.3d 143, 151-52 (3d Cir. 1998). “However, where „the 

district court‟s decision rests on the application of legal precepts, we exercise plenary 

review.‟” Id. at 152 (quoting Failla v. City of Passaic, 146 F.3d 149, 153 (3d Cir. 1998)). 

Federal Rule of Evidence 407 provides:

When measures are taken that would have made an earlier injury or harm 

less likely to occur, evidence of the subsequent measures is not admissible 

to prove:

• negligence; 

• culpable conduct; 

• a defect in a product or its design; or 

• a need for a warning or instruction. 

But the court may admit this evidence for another purpose, such as 

impeachment or—if disputed—proving ownership, control, or the 

feasibility of precautionary measures.

The District Court relied on the “plain text” of Rule 407, noting that the Rule used 

“culpable conduct” rather than a more narrow phrase such as “tortious conduct,” and 

therefore the Rule applied in contract cases in addition to tort cases. App. 55. Black‟s 

Law Dictionary (9th ed. 2009) defines culpable as “guilty; blameworthy” and as 

“[i]nvolving the breach of a duty.” 

The Court of Appeals for the Seventh Circuit has applied Rule 407 in a contract 

case. Pastor v. State Farm Mutual Automobile Insurance Company,487 F.3d 1042 (7th 

Cir. 2007). In Pastor, the plaintiff sought to represent a class of individuals insured by 

State Farm who received payment for damage to their cars, but not under the clause in the 

policy that provided that State Farm would pay $10 per day if the insured did not rent a 

car while their car was not usable. Id. at 1044. The plaintiff sought to introduce evidence 
9

that in subsequent versions of its policy State Farm explicitly stated that “day” meant 24 

hours. Id. at 1045. The plaintiff argued that the change in the policy was a “confession” 

that her interpretation of the clause in the prior policy — that “day” meant any part of a 

day — was correct. Id. The court in Pastor held that “to use at trial a revision in a 

contract to argue the meaning of the original version would violate Rule 407 . . . by 

discouraging efforts to clarify contractual obligations, thus perpetuating any confusion 

caused by unclarified language in the contract.” Id. It held that “Rule 407 is not limited 

to „repair‟ in the literal sense.” Id.2 “[The plaintiff] wants to use the evidence that State 

Farm, to avert future liability to persons in the position of the plaintiff, changed the 

policy, to establish State Farm‟s „culpable conduct.‟ That is one of the grounds that 

evidence of subsequent corrective action may not be used to establish.” Id. In addition, 

the Court of Appeals for the Tenth Circuit in Hickman v. Gem Insurance Company, 299 

 

2 Changes in contract language may be considered subsequent remedial measures or 

“repairs,” pursuant to Rule 407. Two cases from our sister courts of appeals held that 

changes made to subsequent contracts that contained allegedly unlawful provisions could 

not be introduced, as they were subsequent remedial measures. R.M. Perlman, Inc. v. 

New York Coat, Suit, Dresses, Rainwear & Allied Workers‟ Union Local 89-22-1, 33

F.3d 145, 156 (2d Cir. 1994) (holding that letter with suggested revisions to standard 

form contract was a subsequent remedial measure and could not be used to show Union‟s 

intent to apply the contract to the employer-plaintiff in an unlawful way, constituting an 

unfair labor practice); Noble v. McClatchy Newspapers, 533 F.2d 1081, 1090 (9th Cir. 

1975) (“It was not error to exclude evidence that McClatchy deleted allegedly 

anticompetitive provisions in the distributorship contracts after plaintiffs‟ termination. 

Plaintiffs argue that „an inference of guilt or wrongdoing may be drawn‟ from such 

evidence; but it is well settled that evidence of subsequent remedial measures is not 

admissible to prove culpability of prior conduct.”). Although in these cases the evidence 

was being introduced to prove an unfair labor practice and an antitrust violation, 

respectively, rather than a breach of contract, these cases support the argument that 

changes to contract language may be considered subsequent repairs and may be barred by 

Rule 407 when introduced for an impermissible purpose. 
10

F.3d 1208 (10th Cir. 2002), similarly held that Rule 407 barred the admission of evidence 

of subsequent changes to an insurance contract. Id. at 1214 (holding that medical 

benefits insurer‟s change in reimbursement policy was not admissible to establish 

liability for abusing its discretion under the federal pension statute in applying prior 

plan‟s language). Likewise in our case, admitting the Town Hall meeting and website 

revisions would discourage those in Penn‟s situation from clarifying contractual 

obligations and thus would perpetuate confusion.3 

In this case, the changes to the website in January 2004 were similar to the 

changes in the subsequent contracts in Pastor and Hickman. The website changes appear

on the Frequently Asked Questions section of the EMTM admissions website. App. 

1469, 1473. The January 2004 website stated: 

As a co-sponsor of the program, the Wharton School has also invited 

graduates of EMTM to become, in effect, „honorary‟ members of the 

Wharton alumni network and online community. EMTM graduates can 

obtain a lifelong e-mail forwarding address, register to be included in the 

Wharton alumni directory, and take part in Wharton alumni clubs and 

events. (This association is extended as a privilege, and is not an official 

alumni status. For all purposes of identification and records, including 

 

3

The Court of Appeals for the Eighth Circuit held that Rule 407 did not bar a jury 

instruction permitting evidence of a later improved design as proof of a defective product 

under the defendant‟s express warranty in a breach of warranty cause of action because 

“plaintiffs were not required to establish that [the defendant] was negligent or engaged in 

culpable conduct in order to establish a breach of [the defendant‟s] warranty.” R.W. 

Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266, 274 (8th Cir. 1985). The Court 

relied on its precedents that held that Rule 407 did not apply in products liability cases 

because those cases did not require proof of negligence or culpable conduct. Id. 

However, Rule 407 was amended in 1997 to reflect the majority view that it is to be 

applied in products liability cases. Fed. R. Evid. 407 advisory comm. note (1997); see

also Kelly v. Crown Equip. Co., 970 F.2d 1273, 1275 (3d Cir. 1992) (“This court has 

consistently held that Rule 407 applies to strict liability suits even though the language in 

the rule refers to inadmissibility to prove negligent or culpable conduct.”). 
11

transcripts, EMTM students and alumni are affiliated with Penn 

Engineering.)

App. 1473. In November 2003, however, the website stated: 

As EMTM alumni, you have the full advantages of being Penn Engineering 

alumni, Wharton alumni and Penn alumni. Perhaps the most significant 

benefit is the opportunity to join the alumni network; and the most 

important tools to enable that network are the alumni directories. There are 

actually 2 alumni directories. The Penn alumni directory is available to all 

graduates of the University. The only school that provides a distinct alumni 

network in Wharton, in which you are included as an EMTM graduate . . . 

In addition to alumni directories, you have access to 2 separate lifelong email addresses, an unchanging e-mail address that you can use throughout 

your lifetime . . . The standard address formats are 

firstname.lastname.class@wharton.upenn.edu and 

firstname.lastname@aolumni.upenn.edu. The „class‟ used in your Wharton 

address is WTyy; WT stands for Wharton Technology and yy is the years 

of your graduation.

Supp. App. 1003. The changes to the website are similar to the changes in later insurance 

contracts that the Court of Appeals for the Seventh Circuit barred in Pastor as subsequent 

remedial measures, because they will prevent future confusion. 487 F.3d at 1045. 

The District Court did not abuse its discretion when it determined that if the 

revisions to the website and the Town Hall meeting had occurred before Reynolds 

enrolled, they would have reduced the likelihood of any possible confusion about what 

benefits Reynolds would receive as an EMTM student, and, thus, were subsequent 

remedial measures under Rule 407. Further, the District Court did not err in holding that 

Rule 407 barred evidence of the Town Hall meeting and the website revisions as 

subsequent remedial measures in this breach of contract action. 

2.
12

Reynolds also contends that the District Court erred in failing to grant him a new 

trial after prohibiting impeachment based on the changes to the website during crossexamination of EMTM co-director Katalan. Reynolds contends that he should have been 

allowed to offer the changes to the website in 2004 to impeach Katalan‟s testimony. 

Federal Rule of Evidence 407 provides that “evidence of subsequent measures” may be 

admitted when offered for “another purpose, such as impeachment.” 

Impeachment based on subsequent remedial measures is proper “when the 

defendant opens up the issue.” Kenny v. Se. Pa. Transp. Auth., 581 F.2d 351, 356 (3d 

Cir. 1978). This Court has recognized that “Rule 407‟s impeachment exception must not 

be used as subterfuge to prove negligence or culpability of the defendant.” Petree v. 

Victor Fluid Power, Inc., 887 F.2d 34, 39 (3d Cir. 1989). “Under Rule 407, together with 

the Rule 403 unfair prejudice/probative value weighing, the trial court retains broad 

power to insure that remedial measures evidence is not improperly admitted under the 

guise of the impeachment exception.” Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 

408, 416 (3d Cir. 2002) (footnote omitted).4 “[A] court must interpret the impeachment 

exception to Rule 407 circumspectly because „any evidence of subsequent remedial 

measures might be thought to contradict and so in a sense impeach [a party‟s] testimony . 

. . .‟” Complaint of Consolidation Coal Co., 123 F.3d 126, 136 (3d Cir. 1997) (quoting 

Flaminio v. Honda Motor Co., 733 F.2d 463, 468 (7th Cir. 1984)). 

 

4

The District Court in this case also correctly relied on Federal Rule of Evidence 403 to 

find that the probative value of the impeachment evidence was substantially outweighed 

by its prejudicial effect. App. 62-63. 
13

The District Court limited cross-examination of Katalan when Reynolds‟s counsel 

attempted to create an opportunity for impeachment by asking questions that Katalan 

could not answer without reference to the clarifications on the website that were taken as 

subsequent remedial measures, even though the District Court had ruled them 

inadmissible, in order to elicit an impeachable statement from Katalan. Supp. App. 2293-

2301. Penn did not open the issue, Kenny, 581 F.2d at 356, so Reynolds‟s counsel

should not have been allowed to create an impeachment opportunity and then impeach 

Katalan using the subsequent remedial measures. 

* * * * *

We will affirm the District Court‟s decision to exclude evidence of the website 

changes and Town Hall meeting as subsequent remedial measures and to prevent 

Reynolds‟s counsel from impeaching Katalan based on the changes to the website. 

C.

Reynolds contends the District Court erred in granting Penn‟s motion for 

judgment as a matter of law on his claim for unjust enrichment following the second trial. 

We exercise plenary review of the District Court‟s order granting judgment as a matter of 

law and apply the same standard applied by the district court. Lightning Lube, Inc. v. 

Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). “Such a motion should be granted only 

if, viewing the evidence in the light most favorable to the nonmovant and giving it the 

advantage of every fair and reasonable inference, there is insufficient evidence from 

which a jury reasonably could find liability.” Id. at 1166. “In determining whether the 

evidence is sufficient to sustain liability, the court may not weigh the evidence, determine 
14

the credibility of witnesses, or substitute its version of the facts for the jury‟s version.” 

Id.

During the second trial, the District Court proposed instructing the jury to return a 

verdict on the unjust enrichment claim regardless of the verdict on the contract claim in 

case the jury returned a verdict in favor of Reynolds on the breach of contract claim and 

that verdict was overturned by the District Court at the post-trial motion stage or on 

appeal by this Court. The jury found that Penn had not breached its contract with 

Reynolds, but awarded $66,000 to Reynolds because it found that Penn had been unjustly 

enriched. The District Court granted Penn‟s motion for judgment as a matter of law 

pursuant to Federal Rule of Civil Procedure 50(b) because the relationship between the 

parties was governed by an express contract. App. 34.5 

Under Pennsylvania law,6“the doctrine of unjust enrichment is inapplicable when 

the relationship between parties is founded upon a written agreement or express 

contract.” Wilson Area Sch. Dist. v. Skepton, 895 A.2d 1250, 1254 (Pa. 2006).

Reynolds contends there was an issue of fact whether there was a contract because there 

was conflicting evidence presented at trial about certain of its terms. The District Court 

did not usurp the jury‟s role when it found that “a reasonable jury would not have a 

 

5

The District Court noted that the jury verdict form did not include a question of whether 

an enforceable contract had been formed because, until Reynolds‟s response to Penn‟s 

motion for judgment as a matter of law, the parties had not disputed the existence of a 

contract. Each party told the jury there was a contract in their closing arguments. 

Reynolds‟s counsel stated: “I told you at the beginning of the case that this case was 

simple, that it was a matter of a contract which Mr. Reynolds had with the University of 

Pennsylvania, that the University of Pennsylvania failed to fulfill, that they had 

breached.” Supp. App. 2475.

6

 The parties agree that Pennsylvania law applies to this case, as do we. 
15

legally sufficient evidentiary basis to find for” Reynolds on the unjust enrichment claim, 

because they could not have found that there was not a contract. Fed. R. Civ. P. 50(a)(1). 

Under Pennsylvania law, to decide if a contract is enforceable, it must be 

determined “(1) whether both parties manifested an intention to be bound by the 

agreement; (2) whether the terms of the agreement are sufficiently definite to be 

enforced; and (3) whether there was consideration.” ATACS Corp. v. Trans World 

Commc‟ns, Inc., 155 F.3d 659, 666 (3d Cir. 1998). The first and third requirements are 

met. Viewing the evidence in the light most favorable to Penn, there was sufficient 

evidence for a reasonable jury to find that the parties manifested an intent to be bound: 

Reynolds applied to the EMTM program, paid tuition and attended classes; Penn 

accepted Reynolds‟s application, accepted his tuition payments and educated him in

classes. Further, there was sufficient evidence that a reasonable jury could have found 

that there was consideration: Reynolds paid tuition and Penn accepted that tuition in 

exchange for educating Reynolds. 

Reynolds contends that dispute over the essential terms of the contract means that 

no contract existed. However, under Pennsylvania law the issue of whether the terms are 

sufficiently definite to be enforced is a question of law. Am. Eagle Outfitters v. Lyle & 

Scott Ltd., 584 F.3d 575, 585 (3d Cir. 2009). Although the parties disputed certain terms 

of the contract, namely the relationship between the School of Engineering and the 

Wharton School and the exact meaning of “cosponsor,” “student,” “alumnus,” and 

“graduate,” this ambiguity did not make the contract too indefinite to be enforceable. 

The parties agreed to the essential terms of the contract: the price, $100,000, Supp. App. 
16

1959; the number of course units of instruction Penn would provide in exchange for the 

tuition paid, Supp. App. 945, 1972; the period during which Reynolds would earn his 

degree, Supp. App. 945, 1973; the degree he would earn, a master‟s in engineering, Supp. 

App. 1957; and that, upon completion of the degree, Reynolds would receive master‟s 

degree from the University of Pennsylvania as well as a certificate signed by the deans of 

both the Wharton School and the School of Engineering, Supp. App. 1957-58, 2207-14. 

In this case, “[t]he agreement reached between [the parties] covered all the necessary 

bases — there are no undetermined matters — and the agreement is not impossible to 

understand.” Am. Eagle Outfitters, 584 F.3d at 585. Like the contract at issue in 

American Eagle Outfitters, the ambiguity in the contract is “the more garden-variety type 

of ambiguity relating to contractual interpretation.” Id. “Disputes over the meaning of a 

given phrase are common in contract disputes; the presence of such interpretative 

ambiguity, however, does not go to whether the contract is enforceable, but rather who 

(the judge or the jury) must decide what the given clause means.” Id. at 585-86. 

Here, because there was an express enforceable contract, we will affirm the 

District Court‟s decision to grant judgment as a matter of law in favor of Penn because

Reynolds could not recover on a theory of unjust enrichment. 7

D.

 

7 Penn‟s brief also argues this Court should affirm the District Court on the alternative 

ground that Reynolds committed fraud on the court by attaching the alleged fraudulent 

PowerPoint presentation and email to his complaint. Because we affirm the District 

Court on the grounds discussed above, which are the grounds that the District Court itself 

rested its decision on, we need not reach Penn‟s suggested alternative holding. 
17

Reynolds‟s final contention is that the District Court erred in imposing sanctions 

for Reynolds‟s failure to admit Penn‟s request for admission. We review the decision to 

impose sanctions for discovery violations for abuse of discretion. Bowers v. Nat‟l 

Collegiate Athletic Ass‟n, 475 F.3d 524, 538 (3d Cir. 2007). 

Federal Rule of Civil Procedure 37 provides:

If a party fails to admit what is requested under Rule 36 and if the 

requesting party later proves a document to be genuine or the matter true, 

the requesting party may move that the party who failed to admit pay the 

reasonable expenses, including attorney‟s fees, incurred in making that 

proof. The court must so order unless: (A) the request was held 

objectionable under Rule 36(a); (B) the admission sought was of no 

substantial importance; (C) the party failing to admit had a reasonable 

ground to believe that it might prevail on the matter; or (D) there was other 

good reason for the failure to admit.

Rule 37 applies to Reynolds‟s conduct and none of the exceptions to the application of 

the Rule apply. At trial, Penn proved the requested matter true, that the software was not 

available to the public until after April 1, 2003. Penn read the Adobe representative‟s 

deposition testimony to the jury. App. 82 n. 3. The deposition testimony confirmed that

the Adobe software was not publicly available until at least May 2003. App. 477-84. 

Further, the evidence of the public release date was “substantially important” to Penn‟s 

case, because Reynolds alleged in his complaint that the PowerPoint was evidence of the

terms of his contract with Penn. If the presentation in his complaint was created with

Adobe software not available until 2003, it could not have been the presentation given by 

Adler that contained the terms of the contract. The evidence was also “substantially 

important” because it reflected on Reynolds‟s credibility, which Penn sought to impeach 
18

at trial. Reynolds did not have a reasonable ground to believe he might prevail on the 

release date of the software at trial. 

Because the District Court did not abuse its discretion in awarding attorney‟s fees 

and costs incurred to prove the release date of software occasioned by Reynolds‟s failure 

to admit Penn‟s request for admission, we will affirm.

IV.

For the foregoing reasons, we will affirm the orders of the District Court.