IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Duane Holmes, :

Appellant :

:

v. : No. 1663 C.D. 2019

: Submitted: May 1, 2020

City of Allentown, Lehigh County, :

Lehigh County District Attorney’s :

Office, James B. Martin Esq./ :

District Attorney, Steven M. Luksa :

Esq./Assistant District Attorney :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: August 26, 2020

Duane Holmes, pro se, appeals an order of the Court of Common 

Pleas of Lehigh County (trial court) that sustained the preliminary objections of the 

Lehigh County District Attorney’s Office, District Attorney James B. Martin, and 

Assistant District Attorney Steven M. Luksa (District Attorney Defendants) and 

dismissed Holmes’ sixth amended complaint in replevin. Upon review, we reverse 

the order insofar as it sustained the preliminary objections, vacate the order insofar 

as it dismissed Holmes’ sixth amended complaint, and remand for further 

proceedings.

Background

On August 7, 2017, Holmes filed a civil complaint in replevin against 

the City of Allentown, Lehigh County, and the District Attorney Defendants

(together, Defendants), seeking return of his property seized in connection with his 
2

arrest. This Court reversed the trial court’s denial of Holmes’ attempt to file an 

amended complaint.1 On June 3, 2019, Holmes filed his sixth amended complaint 

that averred the following. 

In 2015, Holmes was convicted of receiving stolen property. During 

their investigation, police seized a number of items from Holmes’ home and 

vehicle. Holmes then sought return of the seized property pursuant to 

Pennsylvania Rule of Criminal Procedure 588(A).2 On September 29, 2015, the 

trial court issued an order directing the return of 39 of the 45 items enumerated in 

Holmes’ motion, valued at $14,603.90. Sixth Amended Complaint, 6/3/2019, at 2, 

¶6.

In April of 2018, Holmes filed a petition to enforce the trial court’s 

September 29, 2015, order for return of his property, alleging that “not one single 

item has been returned.” Id. at Exhibit A at 2, ¶7. By order of April 13, 2018, the 

trial court granted the petition to enforce and further instructed Holmes, who was 

incarcerated, to send an authorization letter to the “First Assistant District 

 

1 Holmes filed a petition for leave to amend his complaint to include a civil rights claim under 42 

U.S.C. §1983 (Section 1983) and additional factual averments. By two separate orders dated 

December 13, 2017, and January 2, 2018, the trial court dismissed Holmes’ complaint with 

prejudice and denied his petition to amend. On appeal, this Court held that the trial court erred in 

denying Holmes’ petition to amend the complaint in the absence of evidence that granting his 

petition would “contravene a positive rule of law or cause prejudice to an opposing party.” 

Holmes v. City of Allentown (Pa. Cmwlth., No. 102 C.D. 2018, filed August 9, 2018), slip op. at 

13. 

2

It provides: 

(A) A person aggrieved by a search and seizure, whether or not executed pursuant 

to a warrant, may move for the return of the property on the ground that he or she 

is entitled to lawful possession thereof. Such motion shall be filed in the court of 

common pleas for the judicial district in which the property was seized.

PA. R. CRIM. P. 588(A).
3

Attorney” so that a third party could pick up the property on his behalf. Id. at 

Exhibit A at 7 n.1.

Holmes’ sixth amended complaint averred that despite the trial court’s 

orders, the District Attorney Defendants and the City have “intentionally and 

maliciously destroyed and recklessly mishandled [Holmes’] private property, 

causing diminution in value and outright loss[.]” Id. at 3, ¶11. The complaint

alleged that his two cell phones, worth $1,000, were destroyed by the City “one 

week after the [trial court] ordered [Holmes’] private property returned to him.” 

Id. at 2, ¶8. The complaint further alleged that the Public Defender’s Office has 

declined to handle Holmes’ forfeiture case.

Holmes asserted that under this Court’s decision in Commonwealth v. 

Irland, 153 A.3d 469 (Pa. Cmwlth. 2017), aff’d, 193 A.3d 370 (Pa. 2018), the 

doctrine of common law forfeiture has never been part of the law of Pennsylvania. 

Therefore, his property should not have been forfeited. 

The sixth amended complaint included eight counts. Count I asserted

a “replevin” claim against all Defendants and requested a declaratory judgment 

that their failure to return his property, valued at $14,603.90, despite the trial 

court’s orders of September 29, 2015, and April 13, 2018, violated Holmes’ 

“constitutional and statutory rights[.]” Sixth Amended Complaint at 12, ¶75. 

Count I sought compensatory damages of $14,603.90 plus interest, punitive 

damages, and other relief deemed “reasonable and just.” Id. Count II asserted a 

claim of conversion of chattels against all Defendants and sought a declaratory 

judgment that the unlawful conversion violated Holmes’ “constitutional and 

statutory rights.” Id. at 16, ¶100. Count II also sought compensatory damages of 
4

$35,418.90 plus interest, punitive damages, and other relief deemed “reasonable 

and just.” Id. 

Counts III through VIII asserted a due process claim against each of 

the Defendants and sought the same relief as in Count II. Count V asserted, in 

addition to the due process claim, an equal protection claim against the County and 

alleged that it has implemented its forfeiture policy “based on [an individual’s] 

inability to pay for an attorney[,]” which “take[s] advantage of poor legally 

unrepresented individuals with impunity.” Id. at 24, 25, ¶¶141, 145. Count V 

sought a declaratory judgment that the County’s forfeiture policy is 

unconstitutional and requested that the County be enjoined from implementing the 

policy.

The City, the County, and the District Attorney Defendants filed 

preliminary objections to the sixth amended complaint on various grounds 

including failure to conform to law, insufficient specificity, legal insufficiency 

(demurrer), and immunity. The District Attorney Defendants’ joint preliminary 

objections also asserted pendency of a prior action under PA. R.C.P. NO. 

1028(a)(6).3 In response, Holmes moved to strike the preliminary objections and 

asserted that immunity and estoppel defenses must be raised as “new matter” under 

PA. R.C.P. NO. 1030(a)4and are improper preliminary objections. 

 

3

It states:

(a) Preliminary objections may be filed by any party to any pleading and are 

limited to the following grounds:

* * *

(6) pendency of a prior action or agreement for alternative dispute 

resolution[.]

PA. R.C.P. NO. 1028(a)(6) (emphasis added).

4

It states:
5

The trial court, by order dated September 9, 2019, denied Holmes’ 

motions and directed him to file a response to the preliminary objections within 20 

days. The trial court held that the Defendants did not raise estoppel as a basis for 

their preliminary objections; rather, the “closest approximation to an estoppel 

argument” is the District Attorney Defendants’ assertion that there exists a pending 

prior action, a defense allowed to be raised by preliminary objections under PA.

R.C.P. NO. 1028(a)(6). Trial Court Order, 9/9/2019, at 2 n.1. The trial court held 

that the immunity defense was properly raised through preliminary objections 

because the defense was “apparent on the face of the sixth amended complaint.” 

Id. (citing Ziccardi v. School District of Philadelphia, 498 A.2d 452 (Pa. Cmwlth. 

1985)).

By order dated October 30, 2019, the trial court sustained the District 

Attorney Defendants’ preliminary objections raised under PA. R.C.P. NO. 

1028(a)(6) and dismissed Holmes’ sixth amended complaint with prejudice. The 

trial court opined that the instant action sought to circumvent the prior rulings on 

Holmes’ petitions for return of his property. Thus, the trial court concluded that its 

disposition of Holmes’ petitions under PA. R. CRIM. P. 588(A) “collaterally 

estopped” Holmes from filing a “substantially similar action in civil court.” Trial 

 

(a) Except as provided by subdivision (b) [regarding assumption of the risk, 

comparative negligence and contributory negligence], all affirmative defenses 

including but not limited to the defenses of accord and satisfaction, arbitration and 

award, consent, discharge in bankruptcy, duress, estoppel, failure of 

consideration, fair comment, fraud, illegality, immunity from suit, impossibility of 

performance, justification, laches, license, payment, privilege, release, res 

judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded 

in a responsive pleading under the heading “New Matter.” A party may set forth 

as new matter any other material facts which are not merely denials of the 

averments of the preceding pleading.

PA. R.C.P. NO. 1030(a) (emphasis added).
6

Court Order, 10/30/2019, at 3 n.1. By two orders dated November 1, 2019, the 

trial court dismissed the City and the County’s preliminary objections as moot in 

light of its prior dismissal of the action. The trial court’s November 1, 2019, 

orders were not appealed.

Appeal

On appeal,5 Holmes raises two issues, which we reorder for review. 

Holmes first argues that the trial court erred in denying his motions to strike the 

Defendants’ preliminary objections because under PA. R.C.P. NO. 1030(a), 

estoppel and immunity must be raised as “new matter” in an answer. He also 

argues that the trial court erred in sustaining the District Attorney Defendants’ 

preliminary objections raised under PA. R.C.P. NO. 1028(a)(6). The Defendants 

counter that Holmes’ motion for return of property had been ruled upon by the trial 

court and, if Holmes was dissatisfied with that prior ruling, he could have 

appealed. He did not do so.

Under PA. R.C.P. NO. 1028(a)(6), a party may raise preliminary 

objections based on the pendency of a prior action. The doctrine of lis pendens is

“designed to protect a defendant from having to defend several suits on the same 

cause of action at the same time” and requires proof that the prior case is the same, 

the parties are the same, and the relief requested is the same. Hillgartner v. Port 

Authority of Allegheny County, 936 A.2d 131, 137 (Pa. Cmwlth. 2007) (citing 

 

5 This Court’s review of a trial court’s order sustaining preliminary objections determines

whether the trial court committed an error of law or abused its discretion. Kull v. Guisse, 81 

A.3d 148, 154 n.3 (Pa. Cmwlth. 2013). A trial court may sustain preliminary objections only if it 

appears with certainty that the law will not allow recovery. Id. All well-pled facts in the 

complaint and all reasonable inferences from those facts are accepted as true. Id. However, a 

court need not accept as true unwarranted inferences, conclusions of law, argumentative 

allegations, or expressions of opinion. Id.
7

Hessenbruch v. Markle, 45 A. 669, 671 (Pa. 1900)). The three-prong test must be 

strictly applied when a party seeks to dismiss a claim under the doctrine of lis 

pendens. Id. at 137-38 (citing Norristown Automobile Co., Inc. v. Hand, 562 A.2d 

902, 904 (Pa. Super. 1989)). Further, the doctrine of lis pendens requires that the 

prior action be pending. Norristown Automobile Co., 562 A.2d at 903. Under 

Pennsylvania law, determining whether there is a pending prior action “is purely a 

question of law determinable from an inspection of the pleadings.” Davis Cookie 

Company, Inc. v. Wasley, 566 A.2d 870, 871 (Pa. Super. 1989) (quoting 

Hessenbruch, 45 A. at 671).

The collateral estoppel doctrine, on the other hand, bars further action 

on an issue that has already been litigated. Often referred to as issue preclusion, 

collateral estoppel “is designed to prevent relitigation of an issue in a later action, 

despite the fact that the later action is based on a cause of action different from the 

one previously litigated.” Weney v. Workers’ Compensation Appeal Board (Mac 

Sprinkler Systems, Inc.), 960 A.2d 949, 954 (Pa. Cmwlth. 2008) (quoting Pucci v. 

Workers’ Compensation Appeal Board (Woodville State Hospital), 707 A.2d 646, 

647-48 (Pa. Cmwlth. 1998)). The collateral estoppel doctrine applies where:

(1) the issue decided in the prior case is identical to the one 

presented in the later case; (2) there was a final judgment on the 

merits; (3) the party against whom the doctrine is asserted was a 

party or in privity with a party in the prior case and had a full 

and fair opportunity to litigate the issue; and (4) the 

determination in the prior proceeding was essential to the 

judgment.

Id. (quoting Pucci, 707 A.2d at 648). Unless the facts needed to establish 

collateral estoppel “appear from the complaint itself, the defense of collateral 
8

estoppel may not be raised by preliminary objections.” 220 Partnership v. 

Philadelphia Electric Company, 650 A.2d 1094, 1097 (Pa. Super. 1994).

In denying Holmes’ motions to strike the preliminary objections, the

trial court explained that the Defendants did not assert a defense of collateral 

estoppel but, rather, pendency of a prior action. This issue may be raised by 

preliminary objections under PA. R.C.P. NO. 1028(a)(6). Further, preliminary 

objections “are a proper vehicle for raising immunity where the defense is apparent 

on the face of the pleading under attack.” Ziccardi, 498 A.2d at 453. Here, the 

preliminary objections filed by the City, the County, and the District Attorney 

Defendants show that, in each case, the defense of immunity from suit was

apparent on the face of the pleadings. Accordingly, the trial court did not err in 

denying Holmes’ motions to strike the preliminary objections filed by the 

Defendants.

However, the trial court erred by raising, sua sponte, collateral 

estoppel as a basis for dismissing Holmes’ sixth amended complaint. The defense 

of a pending action under PA. R.C.P. NO. 1028(a)(6) does not apply where the 

prior action had been litigated to conclusion and, thus, is no longer pending. 

Nevertheless, the trial court stated that Holmes is “collaterally estopped from 

advancing his claims” because he “received a favorable ruling” in the prior action. 

Trial Court Order, 10/30/2019, at 3 n.1. The District Attorney Defendants did not 

assert a defense of collateral estoppel, and the trial court erred in raising this

defense on their behalf. MacGregor v. Mediq Inc., 576 A.2d 1123, 1128 (Pa. 

Super. 1990). 

Even so, a review of the facts alleged in the sixth amended complaint 

does not support the trial court’s dismissal under the doctrine of collateral estoppel. 
9

The sixth amended complaint averred that, despite the “favorable ruling” Holmes 

received in the prior action, the Defendants refused to return the property as the 

trial court ordered and, allegedly, have destroyed it and caused “diminution in 

value and outright loss[.]” Sixth Amended Complaint at 3, ¶11. Contrary to the 

Defendants’ assertions, the sixth amended complaint did not seek return of 

property but, rather, compensatory and punitive damages. The sixth amended 

complaint further averred that the seizure of Holmes’ property was void and illegal 

under this Court’s ruling in Irland, 153 A.3d 469, and raised due process and equal 

protection claims. The sixth amended complaint does not raise the same issues as 

those filed by Holmes under PA. R. CRIM. P. 588(A) or those decided by the trial 

court in the prior case.6

Conclusion

Because the collateral estoppel defense was not raised by the District 

Attorney Defendants, the trial court’s dismissal of Holmes’ sixth amended 

complaint cannot be sustained on this ground. Accordingly, we reverse the trial 

court’s October 30, 2019, order insofar as it sustained the preliminary objections of 

the District Attorney Defendants on the basis of collateral estoppel, vacate the 

order insofar as it dismissed Holmes’ sixth amended complaint with prejudice, and 

remand for further proceedings on the District Attorney Defendants’ remaining 

preliminary objections.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

 

6 The trial court, in its October 30, 2019, order and the PA. R.A.P. 1925(a) opinion, recited facts 

that were not alleged in Holmes’ sixth amended complaint. To the extent the trial court relied on 

records of prior actions, it was error. The trial court’s review should be restricted to the facts 

alleged in the complaint; it may not “take judicial notice in one case of the records of another 

case, whether in another court or its own, even though the contents of those records may be 

known to the court.” 220 Partnership, 650 A.2d at 1097 (citation and quotations omitted). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Duane Holmes, :

Appellant :

:

v. : No. 1663 C.D. 2019

:

City of Allentown, Lehigh County, :

Lehigh County District Attorney’s :

Office, James B. Martin Esq./ :

District Attorney, Steven M. Luksa :

Esq./Assistant District Attorney :

O R D E R

AND NOW, this 26th day of August, 2020, the order of the Court of 

Common Pleas of Lehigh County dated October 30, 2019, is REVERSED insofar 

as it sustained the preliminary objections of the Lehigh County District Attorney’s 

Office, District Attorney James B. Martin, and Assistant District Attorney Steven 

M. Luksa (District Attorney Defendants) on the basis of collateral estoppel, and 

VACATED insofar as it dismissed Appellant’s sixth amended complaint with 

prejudice. This matter is REMANDED for further proceedings on the District 

Attorney Defendants’ remaining preliminary objections.

Jurisdiction is relinquished. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge