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. Lu k s a : 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

O n 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 his2

arrest. This Court reversed the trial court’s denial of Holmes’ attempt to file an amended complaint. 1 O n June 3, 2019, Holmes filed his sixth amended complaint
that av erred 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 o f 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, o rder for return of his property, alleging that “not one singl e item has been returned

. ” Id. at Exhibit A at 2, ¶7. By order of April 13, 2018, the trial court granted the petition to enfo rce 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 addition al 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 Holme s’ petition to amend the complaint in the absence of evidence that grant ing 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 sha ll be filed in the court of common pleas for the judicial district in which the property was seized. P A

. R. C RIM

. P

. 588(A).3

Atto rney” 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, ¶1 1. 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 O ff ice 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 th e law of Pennsylvania. Therefore, his property should not have been forfeited

.

The sixth amended complaint include d eight counts. Count I asserted
a “ replevin” claim against all D efendants 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 Ame nded 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 D efendants and sought a decl aratory judg ment that the unlawful conversion violated Holmes’ “constitutional and statutory rights.” Id. at 16, ¶100. Count II also sought compensatory dama ges of4

$35,418.90 plus interest, punitive damages, and other relief deemed “reasonable and just.” Id

.

Counts III through VIII asserted a due pro cess claim against each of
the D efendants and sought the same relief a s 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 D istrict Attorney Defendants filed preliminary objections to the sixth amended complaint on variou s 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 P A

. R.C.P. N O

. 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
P A

. R.C.P. N O

. 1030(a) 4 and 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[.] P A

. R.C.P. N O

. 1028(a)(6) (emphasis added).

4 It states:5 The trial court, by order dated Septe mber 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 D efendants did not raise estoppel as a basis for their preliminary objections; rather, the “closest approx imation 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 objection s under P A

. R.C.P. N O

. 1028(a)(6)

. Trial Cou rt O rder, 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. Cmwlt h. 1985)). By order dated October 30, 2019, the trial court sustained the District Attorney Defendants’ preliminary objections raised under P A . R.C.P. N O

. 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 P A . R. C RIM

. 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. P A . R.C.P. N O

. 1030(a) (emphasis added).6

Court Order, 10/30/2019, at 3 n.1. By two order s 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 motion s to strike the Defendants’ preliminary ob jections because under P A . R.C.P. N O

. 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 P A . R.C.P. N O

. 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 appeale d. He did not do so.

Under P A . R.C.P. N O

. 1028(a)(6), a par ty 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

c ause of action at the same time ” and requires proof that the prio r 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 obje ctions determin es 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 recover y. 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 opini on. Id

.7

Hessenbruch v. Markle , 45 A. 669, 671 (Pa. 1900)). The three

- prong test mu st 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

pr ior 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 es toppel “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 System s, 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 ca se 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 litiga te 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 collateral8

esto ppel 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 st rike 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 objection s under P A

. R.C.P. N O

. 1028(a)(6)

. Further, preliminary objections “ are a proper vehicle for ra ising immunity where the defense is apparent on the face of the pleading under attack. ” Ziccardi , 498 A.2d at 453. Here, t he prelimina ry objections filed by the City, the County, and the District Attorney
Defendants show that, in each case, the defense o f 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 objection s filed by the
Defendants. However, the trial court erred by raising, sua sponte , collateral estoppel as a basis for dismissing Holmes’ sixth amended complaint. T he defense
of a pending action under P A

. R.C.P. N O

. 1028(a)(6) does not apply where the prior action had been litigated to conclusion and , thus , is no longer pending.
Never theless, 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. T he District Attorney Defendants did not

assert a defe nse of collateral estoppel, and t he 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

rec eived in the p rior action, the D efendants refused to return the prope rty as the
trial court ordered and , allegedly, have destroyed it and caused “ diminution in value and outright loss[.]” Sixth Amen ded Complaint at 3, ¶11. Contrary to the Defendants’ assertions, the s ixth 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 P A . R. C RIM

. 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, orde r 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 , i n its October 30, 2019, order and the P A

. 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. Lu k s a : Esq./Assistant District Attorney :

O R D E R

AND NOW, this 26 th 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 pre liminary 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 in sofar 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