IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sidelines Tree Service, LLC, :

Petitioner :

:

 v. : No. 716 C.D. 2021

: Submitted: September 15, 2022

Department of Transportation, :

Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WALLACE FILED: December 15, 2022

Sidelines Tree Service, LLC (Sidelines) petitions for review (Petition) of the 

June 15, 2021 final determination of the Secretary of Transportation (Secretary)1

denying Sidelines’ protest of the rejection of its bid submission in response to the 

invitation for bids (request for quotes or RFQ) issued by the Pennsylvania 

Department of Transportation (PennDOT). PennDOT motions to dismiss (Motion) 

Sidelines’ Petition asserting that Sidelines’ appeal is moot or, in the alternative, is

barred by collateral estoppel due to this Court’s decision in Sidelines Tree Service, 

1 The Acting Executive Deputy Secretary of Transportation served as designee for the 

Pennsylvania Secretary of Transportation in the present matter. According to Section 1711.1(f) of 

the Commonwealth Procurement Code (Procurement Code), 62 Pa. C.S. §§ 101-2311, the head of 

the purchasing agency or his designee shall issue a written determination within 60 days of a bid 

protest and this determination constitutes the final order of the purchasing agency. 62 Pa. C.S. § 

1711.1(f). Accordingly, we refer to the determination in this case as that of the Secretary. 
2

LLC v. Department of Transportation (Pa. Cmwlth., No. 134 C.D. 2021, filed 

September 20, 2021) (Sidelines I). For the following reasons, we deny PennDOT’s 

Motion and affirm the Secretary’s final determination. 

I. BACKGROUND

A. Eight County RFQs

A full recitation of the underlying facts may be found in Sidelines I, slip op. 

at 1-15. For our present analysis, we briefly summarize the litigation preceding the 

present appeal as follows. In August 2020, Sidelines responded to RFQs issued by 

PennDOT to procure line-clearance tree-trimming services in eight counties in the 

Commonwealth (Eight County RFQs). Sidelines I, slip op. at 2. Despite submitting 

the lowest bid for the projects, PennDOT determined that Sidelines was not a 

responsible bidder2for the award of the multiple purchase orders. Reproduced 

Record (R.R.) at 38a. Sidelines protested the non-responsibility determination, and 

the Secretary upheld PennDOT’s determination. Id. Sidelines appealed the final 

determination to this Court, and we affirmed. See Sidelines I.

In affirming the Secretary’s non-responsibility determination, we held that the 

Secretary’s determination was based on substantial evidence. Specifically, the 

record showed Sidelines’ history of poor performance precluded status as a 

responsible bidder. Sidelines I, slip op. at 19. Sidelines had performed work for 

PennDOT without ensuring its employees maintained required certifications. Id. 

Sidelines failed to meet its contractual requirements such as maintaining insurance 

coverage during its previous work for PennDOT. Id. at 20. Sidelines failed to 

2 According to Section 103 of the Procurement Code, a “responsible bidder” is defined as a “bidder 

that has submitted a responsive bid and that possesses the capability to fully perform the contract 

requirements in all respects and the integrity and reliability to assure good faith performance.” 62 

Pa. C.S. § 103. 
3

timely provide contracted personnel and services to PennDOT. Id. Notably, we 

considered that Sidelines provided PennDOT documentation of required Tree Care 

Industry Association (TCIA) membership and certifications that TCIA ultimately

disputed were valid. Id. Additionally, Sidelines acknowledged that employees had 

performed work on a prior PennDOT contract without necessary training or 

certifications. Id. at 21. Thus, the record showed substantial evidence to support 

PennDOT’s non-responsibility determination. 

In Sidelines I, we also concluded that the Secretary did not abuse her 

discretion by refusing to hold an evidentiary hearing. Sidelines argued that an 

evidentiary hearing would have allowed it to support its assertion that it could satisfy 

the requirements of the Eight County RFQs and cross-examine PennDOT personnel 

as to the reasons for its determination. We disagreed, holding that Sidelines failed 

to implicate any conflict or dispute of material fact and that it remained at the 

Secretary’s “sole discretion” to determine whether a hearing was necessary on a bid 

protest.3 

B. Clinton County RFQ

The relevant facts of the present litigation are as follows. In the Spring of 

2021, PennDOT sought tree trimming and stump removal services in Clinton County 

(Clinton County RFQ). R.R. at 37a-38a. To procure these services, PennDOT 

issued the Clinton County RFQ to providers qualified under the statewide Invitation 

to Qualify (ITQ). R.R. at 38a. In response to PennDOT’s Clinton County RFQ, 

Sidelines, which remained ITQ qualified, submitted the lowest quote for the Clinton 

County RFQ. R.R. at 38a. 

3 Where the record contains sufficient unchallenged facts to support the determination, a bid protest 

hearing is not required. Glasgow, Inc. v. Pa. Dep’t of Transp., 851 A.2d 1014 (Pa. Cmwlth. 2004). 
4

PennDOT rejected Sidelines’ quote and by letter dated April 9, 2021, notified 

Sidelines of its determination that Sidelines was not a responsible bidder for the 

Clinton County RFQ. R.R. at 5a. PennDOT reasoned that Sidelines did not provide 

sufficient documentation of the Occupational Safety and Health Administration 

(OSHA) training required to work near energized electrical lines, which was 

required by the Clinton County RFQ Statement of Work (SOW). R.R. at 163a. The 

SOW specified that “proper training and personnel needed to work around utility 

lines as required by . . . OSHA . . . [are] the responsibility of the Contractor.” R.R. 

at 163a. In addition, PennDOT noted that its determination was based, in part, on 

its communications with TCIA, which is responsible for the training, testing, and 

issuance of certificates for properly trained personnel. Id. PennDOT noted concern 

about the veracity of the information Sidelines submitted to PennDOT regarding its 

TCIA certifications and concern about Sidelines’ ability to meet the requirements of 

the contracts relative to personnel, good faith performance, and safety. R.R. at 5a6a. 

On April 16, 2021, Sidelines submitted its bid protest to the Secretary pursuant 

to Section 1711.1 of the Procurement Code, 62 Pa. C.S. § 1711.1.

4

 R.R. at 2a. 

Sidelines argued that PennDOT’s non-responsibility determination was “erroneous” 

because it relied on a purported failure of Sidelines to submit worker certifications. 

Id. However, Sidelines claimed it was not required to submit certifications with the 

bid proposal. Id. Sidelines asserted that it provided the required certifications by 

email to PennDOT. Id. Additionally, Sidelines asserted that PennDOT’s 

determination was improper because it was based on Sidelines’ performance during

4 According to Section 1711.1(a) of the Procurement Code, a “bidder . . . that is aggrieved in 

connection with the solicitation or award of a contract . . . may protest to the head of the purchasing 

agency in writing.” 62 Pa. C.S. § 1711.1(a). 
5

prior contracts. Id. Specifically, Sidelines claimed it was improper for PennDOT to 

rely on its admission during the Eight County RFQs that its employees had 

performed services without required certifications. Id. Sidelines requested a hearing 

regarding PennDOT’s “allegation” of non-responsibility. Id. Sidelines requested 

the opportunity to present evidence of its responsibility and professional 

qualifications to perform the work contemplated by the Clinton County RFQ. Id. at 

3a. 

On April 30, 2021, PennDOT responded to Sidelines’ protest, contending that 

Sidelines had demonstrated a lack of responsibility to be awarded the work 

requested. R.R. at 37a. PennDOT alleged that Sidelines failed to meet all Clinton 

County RFQ requirements, specifically with regards to safety and compliance with 

OSHA standards. R.R. at 41a. According to PennDOT, the work to be performed 

at the Clinton County RFQ site was to be performed adjacent to power lines. R.R. 

at 41a. Because Sidelines had previously submitted TCIA certifications to 

PennDOT that TCIA asserted were invalid and because Sidelines had previously 

admitted to not having required certifications, PennDOT reached out to TCIA 

regarding the submitted certifications. R.R. at 42a. Again, TCIA confirmed that the 

TCIA certifications Sidelines provided to PennDOT were not valid because test 

results and other conditions were not met. R.R. at 42a. 

PennDOT further argued that it necessarily considered Sidelines’ reliability 

in its responsibility determination and that it properly considered its past experiences 

with Sidelines and Sidelines’ past performance on its contracts. Id. PennDOT noted 

that Sidelines, during the Eight County RFQs, admitted that Sidelines’ employees 

engaged in tree trimming without the required certifications in contravention of 

OSHA requirements and the terms and conditions of their purchase orders with 
6

PennDOT. R.R. at 43a. In conclusion, PennDOT argued that Sidelines knew its 

employees were required to be trained and certified by TCIA, but that “it failed to 

do so in the past, and still [has] not obtained the certifications it needs; accordingly,

it lacks the responsibility to be awarded work[.]” R.R. at 43a. 

William G. Gipe (Gipe), Designated Senior Manager and Division Chief of 

the Materials and Services Management Division for PennDOT’s Bureau of Office 

Services, who served as contracting officer for purposes of Section 1711.1 of the 

Procurement Code, 62 Pa. C.S. § 1711.1, and as the custodian of records pertaining 

to the procurement at issue, attested in support of PennDOT as follows. R.R. at 44a.

Regarding the non-responsibility determination, Gipe attested that the determination

was, in part, premised on Sidelines’ admission that it had previously performed work 

for PennDOT with employees who lacked necessary certifications. R.R. at 46a. 

Because the work to be performed under the Clinton County RFQ was to take place

adjacent to or under overhead power lines, PennDOT requested proof from Sidelines 

that its employees had obtained TCIA certifications after the opening of the Clinton 

County RFQ. Id. at 47a. Again, Sidelines provided what it purported to be TCIA 

certifications; however, TCIA advised PennDOT that Sidelines never submitted 

required test results or other necessary materials and, therefore, the certifications 

were not valid. Id. 

Gipe also attested that he was aware of multiple occasions where Sidelines 

dropped required workers’ compensation and commercial general liability insurance 

coverage during its performance of work for PennDOT. Id. at 47a. Additionally, he 

attested that Sidelines failed to meet contractual obligations by failing and refusing 

to timely provide personnel and services to meet PennDOT’s needs. Id. Gipe
7

attested to Sidelines’ historic refusals and failures to meet contractual requirements 

in prior contracts with PennDOT. Id. 

On June 15, 2021, the Secretary issued a determination denying Sidelines’ 

protest. R.R. at 162a. The Secretary determined that Sidelines’ protest lacked merit 

under Section 1711.1 of the Procurement Code and that it failed to meet its burden 

of proving that PennDOT committed error, acted arbitrarily or capriciously, or 

abused its discretion, which was necessary to support a grant of relief under the 

Procurement Code. Id. at 168a-69a. The Secretary, in agreement with PennDOT, 

noted that it is “abundantly clear that it is imperative to consider the history of a 

vendor based on past performances and past experiences with contractors/vendors 

when making a determination of whether or not a vendor is ‘responsible.’” Id. at 

165a-66a. 

II. ISSUES ON APPEAL 

On appeal, Sidelines requests that this Court reverse the Secretary’s 

determination and remand this matter to PennDOT for an evidentiary hearing on the 

basis that (1) PennDOT’s determination is not based upon substantial evidence and 

(2) PennDOT abused its discretion by failing to grant Sidelines’ request for an 

evidentiary hearing. In its first argument, Sidelines argues that PennDOT’s nonresponsibility determination lacks support by substantial evidence, asserting that 

PennDOT’s only rationale for its determination in this case results from 

circumstances that occurred during the Eight County RFQs and previous contracts. 

Sidelines’ Br. at 12. Sidelines contends that PennDOT is attempting to use its 

admission that it performed contracts without the required certifications in the past 

“to justify rejection of Sidelines’ bid.” Id. at 13. In its second argument, Sidelines 

asserts that PennDOT abused its discretion by denying Sidelines’ request for an 
8

evidentiary hearing because “there is nothing in the record to connect the admitted 

and self-reported technical non-compliance by Sidelines on a different contract in 

2019 with its prospective ability to complete the performance of an entirely new one 

county contract[, the Clinton County RFQ,] one and a half years later.” Sidelines’

Br. at 14.

In response to Sidelines’ Petition, PennDOT motions to dismiss Sidelines’ 

appeal arguing that it is moot or, in the alternative, that it is barred by the doctrine 

of collateral estoppel. PennDOT contends that there are “no material differences in 

fact or law between the first and second appeals filed by Sidelines.” PennDOT’s Br.

at 6. Specifically, PennDOT alleges that in the two cases, the “services were the 

same, the facts were the same, the procurement protest was the same[,] and the final 

result in the first appeal supports the same result in the second appeal.” Id. at 6. 

In response to PennDOT’s Motion, Sidelines argues that its Petition cannot be 

dismissed for mootness because Sidelines I did not change the facts or law with 

respect to the present controversy. Sidelines’ Br. at 10. Additionally, Sidelines 

argues that its Petition is not barred by collateral estoppel because the issue in the 

present case “is not identical” to the issue litigated and decided in Sidelines I. 

Sidelines’ Br. at 12. Specifically, Sidelines points out that the Eight County RFQs

dealt with eight specific contracts, while the Clinton County RFQ involves a single 

contract and, therefore, issues regarding manpower and coverage are not raised in 

this case. Id. at 11. 

III. DISCUSSION

Section 1711.1(i) of the Procurement Code, 62 Pa. C.S. § 1711.1(i), sets forth 

this Court’s standard for deciding appeals from final determinations concerning bid 

protests. This Court will affirm the determination of the purchasing agency so long 
9

as it is clear from the record certified by the purchasing agency “that the 

determination is [not] arbitrary and capricious, an abuse of discretion or [ ] contrary 

to law.” Id. 

Initially, we do not agree with PennDOT’s assertion that Sidelines’ appeal is 

moot or barred by the doctrine of collateral estoppel. First, we address whether this 

case is moot. Generally, an actual case or controversy must exist at all stages of a 

proceeding or the case will be dismissed as moot. Fraternal Order of Police v. City 

of Phila., 789 A.2d 858 (Pa. Cmwlth. 2002). A case or controversy exists where 

there is a legal controversy that is not hypothetical, affects individuals in a concrete 

manner, and has sufficiently adverse parties. Dow Chemical Co. v. United States 

Env’t Prot. Agency, 605 F.2d 673, 678 (3d Cir. 1979). The issue of mootness often 

arises where litigants have standing at the outset of litigation, but changes in the facts 

or law during the pending litigation deprive a litigant of a necessary stake in the 

outcome. In re Gross, 382 A.2d 116, 119 (Pa. 1978). Where a change in the facts 

or law render it impossible for the Court to grant relief, the issue is moot. Id. at 120. 

No changes of fact or law in this pending litigation have occurred, and a controversy 

continues to exist which this Court can resolve. Accordingly, Sidelines’ appeal is 

not moot. 

Turning to PennDOT’s claim that collateral estoppel applies, collateral 

estoppel forecloses relitigating an issue, but only in cases where the following 

criteria are met: 

(1) the issue in the prior adjudication was identical to the one presented 

in the later action; (2) there was a final judgment on the merits; (3) the 

party against whom the plea is asserted was a party or in privity with a 

party to the prior adjudication; (4) the party against whom it is asserted 

has had a full and fair opportunity to litigate the issue in a prior action; 
10

and (5) the determination in the prior proceeding was essential to the 

judgment.

Callaghan v. Workers’ Comp. Appeal Bd. (City of Phila.), 750 A.2d 408, 412 (Pa. 

Cmwlth. 2000). Collateral estoppel is designed to “protect[ ] litigants from 

assuming the burden of re-litigating the same issue with the same party, and [to] 

promot[e] judicial economy through preventing needless litigation.” McNeil v. 

Owens-Corning Fiberglas Corp., 680 A.2d 1145, 1148 (Pa. 1996). Under the 

doctrine of collateral estoppel, where questions of fact that are “essential to the 

judgment” are litigated by the parties and “determined by a final valid judgment, the 

determination is conclusive between the parties in any subsequent action on a 

different cause of action.” Krouse v. Workers’ Comp. Appeal Bd. (Barrier Enter., 

Inc.), 837 A.2d 671, 675-76 (Pa. Cmwlth. 2003) (citation omitted). 

We acknowledge that Sidelines I and the present appeal concern nearly

identical claims regarding PennDOT’s determination of non-responsibility. Despite 

this fact, the contracts sought by Sidelines were separate contracts for different 

counties at different times. The Eight County RFQs and the Clinton County RFQ

each involve a separate and distinct contract opportunity for Sidelines. Sidelines 

maintains the right to appeal the Secretary’s non-responsibility determination for 

each RFQ. Accordingly, Sidelines’ appeal is not barred by the doctrine of collateral 

estoppel. 

We turn to the merits of Sidelines’ appeal. In its first issue, Sidelines appeals 

the Secretary’s determination, arguing that PennDOT’s reliance on its past contracts

did not produce substantial evidence sufficient to support its non-responsibility 

determination. 

Under Section 512(g) of the Procurement Code, which governs competitive 

sealed bidding, a purchasing agency shall award a contract to the “lowest responsible 
11

bidder.” 62 Pa. C.S. § 512(g). Under Section 103 of the Procurement Code, a 

“responsible bidder” is defined as a “bidder that has submitted a responsive bid and 

that possesses the capability to fully perform the contract requirements in all respects 

and the integrity and reliability to assure good faith performance.” 62 Pa. C.S. § 

103. As this Court has noted, the lowest responsible bidder is “not necessarily . . . . 

the one whose bid on its face is lowest in dollars, but includes financial 

responsibility, [and] also integrity, efficiency, industry, experience, promptness, and 

the ability to successfully carry out the particular undertaking[.]” Berryhill v. Dugan, 

491 A.2d 950, 952 (Pa. Cmwlth. 1985) (citation omitted). 

Here, substantial evidence supports the Secretary’s non-responsibility 

determination. As we outlined in Sidelines I, in previous contracts with PennDOT, 

Sidelines admittedly performed work without ensuring its employees maintained 

required safety certifications and insurance coverage. Sidelines failed to timely 

provide contracted personnel and services to PennDOT. Additionally, the record 

showed not only the previous issues with the TCIA certifications from the Eight 

County RFQs, but also that again with respect to the Clinton County RFQ, TCIA 

confirmed that the submitted certifications were not valid. See R.R. at 42a. Thus, 

Sidelines’ assertion that the Secretary only relied on information from its past 

contracts is without merit. Just as it did regarding the Eight County RFQs that we 

addressed in Sidelines I, Sidelines again provided PennDOT documentation of TCIA 

membership certifications that were not valid. The Secretary properly considered 

Sidelines’ contract history with PennDOT, as well as its conduct related to the 

Clinton County RFQ. Thus, substantial evidence supports the Secretary’s nonresponsibility determination. 
12

In its second issue, Sidelines argues the Secretary abused her discretion by 

refusing to hold an evidentiary hearing. Under Section 1711.1(e) of the Procurement 

Code, the Secretary has “sole discretion” to determine whether a hearing is necessary 

to decide a bid protest. 62 Pa. C.S. § 1711.1(e). The Secretary’s decision will not 

be reversed unless it is made “with bad faith, fraud, capricious action[,] or abuse of 

power.” Durkee Lumber Co. v. Dep’t of Conservation & Nat. Res., 903 A.2d 593, 

597 (Pa. Cmwlth. 2006). A hearing is not required where the record contains 

sufficient unchallenged facts necessary for the Secretary to make the determination. 

Id. (citation omitted). Where a protestant fails to dispute the contents of the 

submissions to the Secretary and does not raise any questions of material fact, the 

Secretary is not required to hold a hearing. Id. 

Here, as the Secretary properly noted, Sidelines fails to challenge or dispute 

any material facts. As the basis of its argument, Sidelines asserts that if “PennDOT 

is permitted to reject bids without a hearing on an ongoing basis as it has attempted 

to do here, it has in effect debarred Sidelines as a contractor without submitting that 

decision to the requirements of the debarment process as set forth in the 

[Procurement Code].” Sidelines’ Br. at 14-15. We reject this argument. The law 

permits the Secretary to consider more than just the facts related to the RFQ at issue. 

The Secretary is to consider additional factors including “integrity, efficiency, 

industry, experience, [and] promptness[,]” see Berryhill, 491 A.2d at 952, which 

necessarily includes factors related to PennDOT’s contractual history with Sidelines. 

Sidelines does not dispute the material facts relied upon by the Secretary. Therefore, 

the Secretary did not abuse her discretion in denying Sidelines’ request for an 

evidentiary hearing. 
13

Accordingly, we deny PennDOT’s Motion and affirm the Secretary’s June 15, 

2021 final determination. 

______________________________

STACY WALLACE, Judge
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sidelines Tree Service, LLC, :

Petitioner :

:

 v. : No. 716 C.D. 2021

:

Department of Transportation, :

Respondent :

O R D E R 

AND NOW, this 15th day of December 2022, the Department of 

Transportation’s Motion to Dismiss is DENIED and the June 15, 2021 final 

determination of the Secretary of Transportation for the Pennsylvania Department 

of Transportation is AFFIRMED. 

______________________________

STACY WALLACE, Judge