J-A26015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.S. SADLER, INC. T/D/B/A TSF GLOBAL, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ELOOP, LLC,

Appellee No. 1905 WDA 2015

Appeal from the Order Entered November 4, 2015

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): G.D. 12-003134

BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 12, 2016

Appellant, L.S. Sadler, Inc. t/d/b/a TSF Global (referred to herein as 

“Sadler”), appeals from the trial court’s November 4, 2015 order granting 

Appellee’s, eLoop, LLC (referred to herein as “eLoop”), motion for leave to 

amend new matter and motion for summary judgment. After careful review, 

we affirm.

Sadler sets forth the facts and procedural history of this case as 

follows:1

____________________________________________

1 We rely upon Sadler’s recitation of the background of this case because 

“[w]hen considering a motion for summary judgment, the trial court must 

take all facts of record and reasonable inferences therefrom in a light most 

favorable to the non-moving party. ... [T]he trial court must resolve all 

doubts as to the existence of a genuine issue of material fact against the 

moving party....” Summers v. Certainteed Corporation, 997 A.2d 1152, 

1159 (Pa. 2010) (citations omitted). 
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Appellant, L.S. Sadler, Inc., t/d/b/a TSF Global [], 

commenced this action by filing [] a Complaint in the Court of 

Common Pleas of Allegheny County on February 14, 2012, 

arising out of a March 1, 2010 Letter of Intent [(hereinafter the 

“LOI”)] between [Sadler] and [] [Appellee], eLoop, LLC .... 

Following a series of preliminary objections and other procedural 

events, [Sadler] filed a Second Amended Complaint on 

September 17, 2012, which became the operative initial pleading 

in this action. The Second Amended Complaint asserted seven 

(7) separate Counts against ... eLoop ..., including Breach of 

Contract (Count I); Breach of Implied In-Fact Contract (Count 

II); Promissory Estoppel (Count III); Quantum Meruit (Count 

IV); Fraud in the Inducement (Count VII); Misrepresentation in 

the Inducement (Count VIII); and Action for Declaratory 

Judgment (Count X). 

[eLoop] filed its Answer to [Sadler’s] Second Amended 

Complaint and New Matter on or about October 11, 2012, in 

which it asserted multiple boilerplate defenses, including but not 

limited to “fraud”, “no legally cognizable and/or enforceable 

interest” in the LOI; and “the equitable doctrines of estoppel 

and/or unclean hands.” However, nowhere in its Answer to the 

Second Amended Complaint did [eLoop] allege that [Sadler] 

committed “bankruptcy fraud;” or that [Sadler’s] claims were 

barred by the doctrine of “judicial estoppel” on the basis of 

[Sadler’s] allegedly having failed to make proper disclosures of 

assets in previous or ongoing bankruptcy proceedings.[2] These 

defenses were simply absent from [eLoop’s] original New Matter, 

let alone pled in a manner consistent with the requirements of 

____________________________________________

2 Sadler does not dispute that this lawsuit should have been included in its 

asset disclosures to the bankruptcy court. See Sadler’s Brief at 33 

(acknowledging its “failure to include its claims in the present action in its 

asset disclosures filed in Chapter 11 bankruptcy proceedings...”). By statute, 

“[t]he bankruptcy estate includes all legal or equitable interests of the 

debtor in property as of the commencement of the case.” Morrison 

Informatics, Inc. v. Members of 1st Credit Union, 97 A.3d 1233, 1239 

(Pa. Super. 2014) (citing 11 U.S.C. § 541(a)(1)) (quotations omitted), aff’d, 

139 A.3d 1241 (Pa. 2016). “This includes causes of action, which are 

considered property of the bankruptcy estate ‘if the claim existed at the 

commencement of the filing and the debtor could have asserted the claim on 

his own behalf under state law.’” Id. (citation omitted). 
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Pa. R.C.P. 1019(b), which requires that averments of fraud or 

mistake to be “averred with particularity.” [eLoop], in fact, 

made no reference whatsoever in its original New Matter to any 

previous Chapter 11 bankruptcy filing by [Sadler], let alone to 

any alleged misconduct by [Sadler] in the filing of its asset 

disclosures in those proceedings. 

On or about June 29, 2015, more than three (3) years 

after [Sadler] commenced this action, and more than five (5) 

years after [Sadler] had filed for Chapter 11 reorganization, 

[eLoop] filed a Motion for Summary Judgment (hereinafter the 

“MSJ”). [eLoop’s] MSJ was the first filing of record in this action 

to allege that [Sadler’s] claims should be barred on the basis of 

“bankruptcy fraud” or “judicial estoppel” arising out of failure to 

disclose the LOI between the parties to this action as an asset in 

[Sadler’s] previous Chapter 11 bankruptcy proceedings, more 

than three (3) years after [Sadler] commenced this action, and 

more than five (5) years after [Sadler] filed for Chapter 11 

reorganization. 

On September 9, 2015, [Sadler] filed its Brief in 

Opposition to [eLoop’s] Motion for Summary Judgment, in which 

[Sadler], in addition to opposing the merits of [eLoop’s] Motion, 

advised the Trial Court that [eLoop] had never previously raised 

or asserted any of the purported defenses pursuant to which 

[eLoop] was seeking summary judgment, in that said defenses 

appeared nowhere in [eLoop’s] Answer to [Sadler’s] Second 

Amended Complaint and New Matter. In response, on October 

13, 2015, [eLoop] filed a Motion for Leave to Amend its New 

Matter, in which [eLoop], for the first time in the three (3) years 

and eight (8) months this action had been pending, sought to 

raise, among other, the defense that [Sadler’s] claims should be 

barred pursuant to the doctrine of judicial estoppel based upon 

[Sadler’s] failure to disclose its LOI with [eLoop] as an asset in 

prior Chapter 11 bankruptcy proceedings.[3] On October 28, 

____________________________________________

3

eLoop maintains that it “only moved for leave to file its Amendment to New 

Matter so as to more specifically plead ... defenses because [Sadler] raised it 

as a main feature of its response to eLoop’s motion for summary judgment.” 

eLoop’s Brief at 15. Thus, eLoop contends that it “merely sought to remove 

that obstacle, if it even was one, from the trial court’s consideration of the 

merits of otherwise well-framed summary judgment issues. [e]loop by no 

(Footnote Continued Next Page)
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2015, the day of the hearing on [eLoop’s] Motion for Summary 

Judgment, [Sadler] filed its Brief in Opposition to [eLoop’s] 

Motion for Leave to Amend New Matter. 

On November 2, 2015, the Trial Court entered a 

Memorandum and Order, docketed on November 4, 2015, 

granting both [eLoop’s] Motion for Leave to Amend New Matter 

and Motion for Summary Judgment. The Trial Court based its 

entry of summary judgment in favor of [eLoop] solely upon 

judicial estoppel grounds, finding that [Sadler] had “played fast 

and loose” with the bankruptcy court by failing to list [Sadler’s] 

Agreement with [eLoop] (upon which this action was based) in 

[Sadler’s] Chapter 11 asset disclosures. [Sadler] thereafter 

timely filed a Notice of Appeal to this Honorable Court, along 

with a Concise Statement of Matters Complained of on Appeal, 

on December 4, 2015. 

Sadler’s Brief at 5-8 (internal citations omitted). 

In its appeal, Sadler raises two issues for our review: 

1. Did the Trial Court abuse its discretion when, three (3) 

years and two days after [eLoop] filed its original New 

Matter, it granted [eLoop’s] Motion for Leave to Amend 

New Matter, where the record established that [eLoop], 

over a period of years, had deliberately waived the 

defenses sought to be raised in the proposed Amended 

New Matter, and that [eLoop] and its counsel lied to the 

Trial Court regarding when [eLoop] purportedly 

“discovered” the newly proffered evidence?

2. Did the Trial Court commit an error of law and/or abuse its 

discretion when, in granting [eLoop’s] Motion for Summary 

Judgment solely on the basis of judicial estoppel, it found 

that [Sadler] had “played fast and loose with the courts” 

by failing to disclose the value of [Sadler’s] claims in this 

action to the bankruptcy court in prior Chapter 11 

proceedings, where the Trial Court did not cite, the record 

was completely devoid of, and [eLoop] had actively 

(Footnote Continued) _______________________

means conceded (and still does not) that such an amendment was even 

necessary, given the prior general manner of pleading” in its Answer to the 

Second Amended Complaint. Id.
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concealed from [Sadler] any verified information 

confirming any value of [Sadler’s] claims in this action? 

Id. at 4. 

Initially, we note that under the Pennsylvania Rules of Civil Procedure, 

“[a] party, either by filed consent of the adverse party or by leave of court, 

may at any time change the form of action, add a person as a party, correct 

the name of a party, or otherwise amend the pleading.” Pa.R.C.P. 1033. 

This Court has stated that “[a] decision to grant a motion to amend a 

pleading is a matter for the exercise of judicial discretion in the trial court.” 

Schroeder v. Accelleration Life Ins. Co. of Pennsylvania, 547 A.2d

1184, 1185 (Pa. Super. 1988) (citation omitted). “However, amendments to 

pleadings should be liberally allowed in order to secure a determination of 

cases on their merits, except in those instances where surprise or prejudice 

to the other party would result, or where the proposed amendment is 

against a positive rule of law.” Id. at 1185-86 (citation omitted). 

Additionally, “summary judgment is appropriate only in those cases 

where the record clearly demonstrates that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as a matter 

of law.” Summers, 997 A.2d at 1159 (citations omitted). “[A]n appellate 

court may reverse a grant of summary judgment if there has been an error 

of law or an abuse of discretion.” Id. (citations omitted). 

We first consider Sadler’s claim that the trial court abused its 

discretion by granting eLoop’s Motion for Leave to Amend New Matter. 

Specifically, Sadler argues that “the Trial Court, in granting [eLoop] leave to 
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amend its New Matter to assert a judicial estoppel defense it had known 

about for years, but had affirmatively waived, allowed [eLoop] to benefit 

from its own fraud.” Sadler’s Brief at 28. It contends that eLoop 

“deliberately waived asserting the defense of judicial estoppel, then 

deliberately sandbagged [Sadler] and its counsel by first attempting to 

assert the judicial estoppel defense in March 2015, only weeks after 

[Sadler’s] ability to do anything about it had expired with the closing of the 

bankruptcy docket [on February 19, 2015].” Id. at 31. We disagree.

In granting eLoop’s Motion for Leave to Amend New Matter, the trial 

court reasoned that “the defense[] of ... judicial estoppel did not become 

available until February 19, 2015, when Sadler’s bankruptcy was finally 

closed without disclosure of Sadler’s claim against eLoop. eLoop’s Motion to 

Amend was filed on October 13, 2015, just short of eight months later.” 

Trial Court Opinion (TCO), 1/29/2016, at 3. The trial court “did not find this 

delay sufficient to presume prejudice under ... Supreme and Superior Court 

cases[,]” nor was it “otherwise convinced that other prejudice to [Sadler] 

would result from the granting of this amendment” notwithstanding “the 

general prejudice that comes from an opposing party presenting a 

meritorious claim or defense[, which] is not sufficient to deny amendment, 

or substantially every amendment would be denied.” Id. at 3-4, 4 n.1. 
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We cannot conclude that the trial court abused its discretion by 

granting eLoop’s Motion for Leave to Amend New Matter, although we depart 

somewhat from its reasoning for doing so.4 The crux of Sadler’s argument is 

that eLoop waived its right to raise the defense of judicial estoppel because 

of its delay in moving for an amendment of its New Matter. See Sadler’s 

____________________________________________

4 We diverge from the trial court in that it based its analysis on the premise 

that “the defense[] of ... judicial estoppel did not become available until 

February 19, 2015, when Sadler’s bankruptcy was finally closed without 

disclosure of Sadler’s claim against eLoop.” TCO at 3. Sadler argues, on the 

other hand, that the judicial estoppel defense “became viable for assertion 

as soon as October 2012, when Sadler filed its asset disclosures ... and 

certainly no later than January 3, 2013, when the Bankruptcy Court 

approved Sadler’s plan for Chapter 11 reorganization ... when the amount of 

money to be paid out to creditors was established[.]” Sadler’s Brief at 30 

(emphasis omitted). We note that our Supreme Court has determined that 

the doctrine of judicial estoppel does not require “adjudication” or that “the 

underlying issue was actually litigated.” In re Adoption of S.A.J., 838 

A.2d 616, 636, 636 n.4 (Pa. 2003). See also Tops Apparel 

Manufacturing Company v. Rothman, 244 A.2d 436, 438 (Pa. 1968) 

(“Admissions of this type, i.e., those contained in pleadings, stipulations, 

and the like, are usually termed ‘judicial admissions' and as such cannot 

later be contradicted by the party who has made them.”); Marazas v. 

W.C.A.B. (Vitas Healthcare Corporation), 97 A.3d 854, 859 (Pa. Cmwlth. 

2014) (“[J]udicial estoppel does not require actual litigation to a final 

order.”) (citation omitted). Accordingly, we are not convinced that eLoop 

had to wait for the close of Sadler’s bankruptcy docket before it could assert 

a judicial estoppel defense in this matter, as the trial court and eLoop 

deduced. See eLoop’s Brief at 17 (“eLoop could not have pled a defense 

that only arose upon the completion of bankruptcy, until said completion 

actually occurred.”) (emphasis in original). However, we need not resolve 

this issue here, as we determine that the trial court did not abuse its 

discretion in allowing eLoop’s amendment of New Matter for other reasons 

discussed infra. See, e.g., Staub v. Staub, 960 A.2d 848, 853 (Pa. Super. 

2008) (“[N]otwithstanding the trial court's stated grounds, if its result is 

correct, this Court can affirm the trial court on any basis.”) (citation 

omitted). 
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Brief at 26. This Court has held that “[a]lthough the time of the amendment 

is a factor to be considered, it appears that it is to be considered only insofar 

as it presents a question of prejudice to the opposing party.” Carpitella by 

Carpitella v. Consolidated Rail Corporation, 533 A.2d 762, 764 (Pa. 

Super. 1987). See also Kenney v. Southeastern Pennsylvania 

Transportation Authority, 551 A.2d 614, 616 (Pa. Cmwlth. 1988) 

(“[U]nreasonable delay alone will not ordinarily justify the denial of leave to 

amend a pleading in the absence of prejudice to the opposing party.”) 

(citations omitted); Brooks v. McMenamin, 503 A.2d 446, 448 (Pa. Super. 

1986) (concluding that trial court abused its discretion “by denying the 

petition to amend, based on nothing more than unreasonable delay”). 

Here, regardless of the length of any delay, we deem the prejudice 

suffered by Sadler due to the timing of eLoop’s amendment — if any exists 

at all — as insufficient to preclude eLoop from amending its New Matter. 

Sadler suggests that, because eLoop asserted its judicial estoppel defense 

after Sadler’s bankruptcy docket was closed, Sadler now has its hands tied 

in taking any corrective action. See Sadler’s Brief at 31. We are not 

persuaded by this argument. As eLoop points out, the fact that Sadler 

“failed ... to honor its bankruptcy obligations is the fault of [Sadler] alone,” 

and claiming prejudice now is akin to arguing that “I may have robbed the 

bank, but only because you failed to stop me.” eLoop’s Brief at 20. eLoop 

also points out that Sadler could have explored re-opening its bankruptcy to 

include this lawsuit, but has not done so. Id. Moreover, the trial court’s 
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decision is consistent with well-established precedent to liberally allow 

amendments. Thus, we find that the trial court did not abuse its discretion 

in permitting eLoop’s amendment. 

Second, we address whether the trial court committed an error of law 

and/or abused its discretion when, by granting eLoop’s motion for summary 

judgment on the basis of judicial estoppel, it determined that Sadler “had 

‘played fast and loose with the courts’ by failing to disclose the value of 

[Sadler’s] claims in this action to the bankruptcy court in prior Chapter 11 

proceedings.” Sadler’s Brief at 21. Our Supreme Court has described 

judicial estoppel as follows:

Judicial estoppel is an equitable, judicially-created doctrine 

designed to protect the integrity of the courts by preventing 

litigants from “playing fast and loose” with the judicial system by 

adopting whatever position suits the moment. Unlike collateral 

estoppel or res judicata, it does not depend on relationships 

between parties, but rather on the relationship of one party to 

one or more tribunals. In essence, the doctrine prohibits parties 

from switching legal positions to suit their own ends.

Sunbeam Corporation v. Liberty Mutual Insurance Company, 781 A.2d 

1189, 1192 (Pa. 2001) (citations omitted). Thus, “judicial estoppel is 

properly applied only if the court concludes the following: (1) that the 

appellant assumed an inconsistent position in an earlier action; and (2) that 

the appellant's contention was successfully maintained in that action.”5 

____________________________________________

5 Our Supreme Court has stated that “[w]hether successful maintenance of 

the prior inconsistent position of litigant is strictly necessary to implicate 

judicial estoppel in every case, or whether success should instead be treated 

as a factor favoring the doctrine's application, is the subject of some 

(Footnote Continued Next Page)
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Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super. 2010) 

(citations omitted) (emphasis in original). 

In granting Eloop’s motion for summary judgment on the basis of 

judicial estoppel, the trial court concluded:

Sadler regarded the case as having some monetary value while 

[it], over the course of years, failed to report the action on [its] 

bankruptcy disclosures, failed to inform the bankruptcy court of 

the progress of the action, and ultimately failed to allow for any 

possible recovery from the action in [its] plan of reorganization. 

All this adds up to a very clear instance of “playing fast and 

loose” with the bankruptcy court. The Allegheny County Court of 

Common Pleas will not allow Sadler to profit from this behavior, 

not only to the detriment of eLoop, which ... was essentially 

unimportant to the judicial estoppel analysis, but to the 

detriment of the United States Bankruptcy Court and of Sadler’s 

creditors in the Chapter 11 action. 

TCO at 7-8. 

On appeal, Sadler blames eLoop, asserting that “[eLoop], who was in 

sole possession of the ... information that would establish the monetary 

value of [Sadler’s] claims in this action, consistently obstructed [Sadler’s] 

access to ... such information,” which consequently “preclud[ed] [Sadler] 

from being able to provide the bankruptcy court with information confirming 

the value, if any, of [Sadler’s] claims in this action.”6 Sadler’s Brief at 22. 

(Footnote Continued) _______________________

uncertainty.” In re Adoption of S.A.J., 838 A.2d at 620 n.3 (citations 

omitted). 

6 According to Sadler, it and eLoop effectively had a contingency fee 

agreement, and eLoop was “in exclusive possession and control of the 

information concerning the amount of material [eLoop] has processed, and 

(Footnote Continued Next Page)
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As a result, Sadler’s “ability to disclose the value of the LOI and/or this 

lawsuit as an asset in the bankruptcy proceedings was significantly inhibited 

by virtue of [eLoop’s] own bad faith ... and claiming that the LOI is, 

essentially, ‘worthless.’” Id. at 41. Additionally, Sadler contends that “there 

is simply no evidence whatsoever that [Sadler] intended to mislead, or 

actually misled, either the bankruptcy court, [Sadler’s] creditors, or [eLoop] 

in this action by failing to list the LOI or the present lawsuit based on the 

LOI in [its] prior bankruptcy disclosures.” Id. at 40. 

Again, we find Sadler’s arguments to be unpersuasive, and conclude 

that the trial court properly applied the doctrine of judicial estoppel. It is 

undisputed that Sadler assumed an inconsistent position in its prior 

bankruptcy action; Sadler admits that it failed “to include its claims in the 

present action in its asset disclosures filed in Chapter 11 bankruptcy 

proceedings before the [bankruptcy court].” See Sadler’s Brief at 33; see 

also Black, 995 A.2d at 879. Thus, in the bankruptcy proceedings, Sadler 

represented that it had no claim against eLoop, which is obviously 

inconsistent with the mere existence of this lawsuit. 

It is also clear that Sadler’s representation that no claim existed 

against eLoop — and, consequently, that the LOI underlying this action did 

not have any potential value — was successfully maintained in the 

(Footnote Continued) _______________________

the corresponding compensation it may owe to [Sadler].” Sadler’s Brief at 

21-22.
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bankruptcy court. Sadler’s bankruptcy docket was closed on February 19, 

2015. See Sadler’s Brief at 30-31; eLoop’s Brief at 13. Significantly, by not 

disclosing this lawsuit to the bankruptcy court, no recovery from this lawsuit 

could be distributed to Sadler’s creditors.7 

Further, Sadler’s arguments that place blame on eLoop do not sway 

us. As the trial court discerned, “Sadler, not eLoop, was the party required 

to make disclosures to the bankruptcy court, and it is clear that Sadler 

believed the claim had merit.” TCO at 7. Further, it is unsurprising, if not 

foreseeable, that a defendant in litigation would claim that an adversary’s 

lawsuit is without merit and of no value. See id. Similarly, Sadler’s 

argument that it did not intend to mislead the bankruptcy court about the 

value of this case is unconvincing and arguably irrelevant. Our review of 

Pennsylvania case law uncovers no explicit requirement that a party must 

intend to mislead, or actually mislead, for judicial estoppel to apply; 

however, we agree that there are undertones of bad faith and deception in 

cases discussing judicial estoppel. See In re Adoption of S.A.J., 838 A.2d 

at 633 (“[W]hen a man alleges a fact in a court of justice, for his advantage, 

he shall not be allowed to contradict it afterwards. It is against good morals 

to permit such double dealing in the administration of justice.”) (citation 

omitted); Trowbridge v. Scranton Artificial Limb Company, 747 A.2d 

____________________________________________

7 Sadler admits that “the LOI...[, which] underlies this action, may be worth 

hundreds of thousands of dollars a year to [Sadler]....” Sadler’s Brief at 17. 
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862, 865 (Pa. 2000) (“The purpose of this doctrine is to uphold the integrity 

of the courts by preventing parties from abusing the judicial process by 

changing positions as the moment requires.”) (citation omitted). See also 

Marazas, 97 A.3d at 859-60 (“The reason for applying the equitable remedy 

of estoppel is the maintenance of two seemingly inconsistent positions, and 

thus a lack of candor with the tribunal and an affront to the integrity of the 

courts.”). 

In any event, the trial court did not err or abuse its discretion by 

finding that Sadler ‘played fast and loose with the courts.’ The trial court 

observed:

In the time between the filing of the Motion to Employ Special 

Counsel and the close of the Chapter 11 action, our docket 

indicated that Sadler made eight filings in this case in the 

Allegheny County Court of Common Pleas, argued preliminary 

objections, amended [its] complaint twice, made stipulations, 

and hired new counsel. Further, [Sadler] made at least one 

demand for settlement in the amount of $600,000. We could 

hardly imagine that, for the entire period of the bankruptcy, 

Sadler on one hand pursued this litigation in the Allegheny 

County Court of Common Pleas while on the other, simply, and 

in good faith, forgot about it when it came time to appear before 

the Western District Bankruptcy Court.

TCO at 6 (internal citations omitted). We agree.8 Accordingly, the trial 

court properly granted eLoop’s motion for summary judgment on the basis 

of judicial estoppel.9

____________________________________________

8 We take note that Sadler apparently made known another pending lawsuit 

and several contracts to the bankruptcy court as assets, which indicates that 

Sadler knew of its obligation to disclose such assets. See eLoop’s Brief at 30 

(Footnote Continued Next Page)
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2016

(Footnote Continued) _______________________

(“Clearly, [Sadler] was aware of the obligation to list such assets, having 

listed another [Sadler] lawsuit against an entity ... and several lease 

contracts as assets of the estate.”). 

9 We need not address eLoop’s argument that Sadler lacks standing. In re 

Paulmier, 937 A.2d 364, 368 n.1 (Pa. 2007) (“[S]tanding is not a 

jurisdictional question.”) (citation omitted).