IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eddie L. Collins and Gary Dieffenbach, :

Appellants :

:

v. : No. 1876 C.D. 2016

: Submitted: June 2, 2017

Earl Crago, Thomas Scott, Mike :

Garman, Joe Craigwell, Paul Sload, :

Kim Glaser, Carrie Ferree, Allen :

Jones, Donald Patterson, Colleen :

Alviani, Brian Williams, Greg Fajt, :

Julia Sheridan, Molly Leach, Wilbur :

Hetrick, Sarah Yerger, Commonwealth :

of Pennsylvania, Department of Revenue:

and Office of Inspector General (OIG) :

and PA Office of Attorney General :

(OAG), James Honchar, Sandra Muma, :

Nancy Moskel, Mary Graham, Susan :

Price, Benita Martinez, Bill Olsen, :

Somchai Sae-Tong, Christine Fritto :

Easton :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: September 15, 2017

This case returns to us following our remand to the Court of Common 

Pleas of Dauphin County (trial court). See Dieffenbach v. Crago (Pa. Cmwlth., 

No. 308 C.D. 2014, filed December 5, 2014), 2014 WL 10298862 (unreported) 

(Dieffenbach I). In Dieffenbach I, we determined the trial court erred in sustaining 

the preliminary objections of the Department of Revenue (Department) and its 
2

former Secretary, Gregory Fajt,1on the ground that the suit filed by Gary 

Dieffenbach and Eddie L. Collins (collectively, Plaintiffs) was barred by the statute 

of limitations. We returned this matter to the trial court for consideration of the 

remaining preliminary objection of Defendants Fajt and the Department as well as 

consideration of whether Plaintiffs’ claims against defendants other than Fajt and 

the Department,

2 who filed separate preliminary objections, were barred by the 

statute of limitations.

On remand, the trial court sustained the preliminary objection of 

Defendants Fajt and the Department on the ground that Plaintiffs’ suit was barred

by res judicata based on the outcomes of prior federal lawsuits filed by Plaintiffs.

The trial court also sustained the preliminary objection of the other defendants on 

the ground that Plaintiffs’ claims against them were barred by the statute of 

limitations. Upon review, we affirm in part, reverse in part and remand for further 

proceedings.

I. Background

In Dieffenbach I, we set forth the following background to this matter. 

On March 15, 2005, Plaintiffs filed a writ of summons in the trial court naming the 

Department and Fajt as defendants. On March 23, 2005, the sheriff’s office served 

the writ of summons on Fajt and the Office of the Attorney General. Shortly 

 

1

Fajt served as Secretary of the Commonwealth’s Department of Revenue from 2003 

through 2007.

2

The other named defendants are the Office of Inspector General, the Pennsylvania 

Office of Attorney General and numerous current or former Commonwealth employees.
3

thereafter, counsel from the Attorney General’s Office entered his appearance on 

behalf of Fajt and the Department.

In 2006, Plaintiffs’ counsel filed a petition to withdraw, in which 

counsel averred Plaintiffs filed no complaint and there was no docket activity since 

the filing of the writ. After issuance of a rule to show cause, counsel was 

permitted to withdraw.

In November 2008, the trial court entered a Notice of Proposed 

Termination of Court Case in this matter. See Pa. R.C.P. No. 230.2. In January 

2009, Plaintiff Collins filed a Reply to Notice of Proposed Termination of Court 

Case, in which he indicated his intent to proceed with the case.

In March 2012, the trial court entered a second Notice of Proposed 

Termination of Court Case. On May 25, 2012, Plaintiffs filed a complaint against 

Fajt, the Department and 17 additional defendants. Plaintiffs alleged that, during 

their employment with the Department, they were subjected to racial 

discrimination, harassment and retaliation. They averred Plaintiff Collins, a black 

male, complained of and opposed discriminatory practices within the Department 

and was subjected to retaliation after doing so. They further alleged Plaintiff 

Dieffenbach was subjected to retaliation after he testified in support of Plaintiff 

Collins regarding the discrimination and retaliation.

In July 2012, Plaintiffs filed an amended complaint, which attempted 

to incorporate their entire original complaint by reference. Through their amended 
4

complaint, Plaintiffs sought to add an additional 13 defendants and include several 

additional allegations. In the complaint and the amended complaint, Plaintiffs 

purportedly raise claims pursuant to Title VII of the Civil Rights Act of 1964 (Title 

VII),

3

42 U.S.C. §§1981, 1983, 1985(3) and/or 1986, the Pennsylvania Human 

Relations Act (PHRA),

4

and the Pennsylvania Whistleblower Law.

5

Of further note, in between the filing of the writ of summons and the 

filing of the original and amended complaints, both Plaintiffs filed suit separately 

in federal court. In particular, Plaintiff Dieffenbach filed suit against Fajt and the 

Department as well as several additional defendants alleging violations of Title VII 

and raising claims under 42 U.S.C. §§1981 and 1983, and the PHRA stemming 

from his employment with the Department. Plaintiff Collins filed two suits in

federal court against Fajt and the Department as well as several other defendants 

stemming from his employment with the Department. He asserted claims under 

Title VII, 42 U.S.C. §§1981, 1983, 1985 and 1986, as well as the PHRA. All of 

Plaintiffs’ federal suits were unsuccessful.

In response to Plaintiffs’ complaint filed in state court, which is at 

issue here, Defendants Fajt and the Department filed preliminary objections in 

which they raised the statutes of limitations and res judicata as grounds for

dismissing the complaint. Numerous other defendants separately filed preliminary 

 

3

42 U.S.C. §§2000e–2000e–17.

4 Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.

5 Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§1421–1428.
5

objections in which they raised the statute of limitations as a basis for dismissing 

the complaint.

In Dieffenbach I, the trial court subsequently issued an opinion and 

order in which it sustained the preliminary objections of Defendants Fajt and the 

Department as well as the preliminary objections of the other defendants. The trial 

court determined Plaintiffs’ claims were barred by the statute of limitations. The 

trial court based its decision on the fact that Plaintiffs filed and served writs of 

summons on Defendants Fajt and the Department in 2005, but did not file their 

complaint until approximately seven years later, a period which exceeded the 

limitations periods for any of the causes of action alleged. The trial court noted 

that in this seven-year period, Plaintiffs did not reissue their writs. As such, the 

trial court did not reach the issue of whether Plaintiffs’ claims were barred by res

judicata. Also, in its opinion, the trial court did not separately address the 

preliminary objections of the defendants other than Fajt and the Department.

On appeal, this Court reversed and remanded. See Dieffenbach I. We 

determined the trial court erred in concluding Plaintiffs’ claims were barred by the 

applicable statutes of limitations. To that end, it was undisputed that Plaintiffs 

commenced their suit by filing and serving a writ of summons on Defendants Fajt 

and the Department in March 2005. This was sufficient to toll the statutes of 

limitations. Id. (citing Galbraith v. Gahagen, 204 A.2d 251 (Pa. 1964); Sheets v. 

Liberty Homes, Inc., 823 A.2d 1016 (Pa. Super. 2003)). As such, Plaintiffs were 

not required to reissue the timely-filed writ where they effectuated proper, prompt 

service of the writ on Defendants Fajt and the Department. Sheets.
6

We further explained that the fact that Plaintiffs did not file their 

initial complaint until May 2012 did not render their claims against Defendants 

Fajt and the Department barred by the applicable limitations periods. Defendants 

Fajt and the Department were served with the writ of summons in 2005; they could 

have required Plaintiffs to file their complaint earlier by ruling Plaintiffs to file a 

complaint under Pa. R.C.P. No. 1037. Galbraith; Sheets. If Plaintiffs failed to 

respond to the rule, the case could be dismissed for failing to respond to the rule, 

not based on a violation of the applicable statutes of limitations periods. The trial 

court erred to the extent it concluded otherwise.

However, as to defendants other than Fajt and the Department, despite 

the fact that these defendants filed separate preliminary objections also raising the 

statute of limitations, the trial court did not separately analyze those preliminary 

objections. Therefore, we reversed the trial court to the extent it held Plaintiffs’ 

claims against Defendants Fajt and the Department were barred by the statute of 

limitations, and we remanded for consideration of the remaining preliminary 

objection of Defendants Fajt and the Department, which was premised on res 

judicata. See Dieffenbach I. Additionally, we directed the trial court to consider 

whether Plaintiffs’ claims against objecting defendants other than Fajt and the 

Department, who filed separate preliminary objections, were barred by the 

applicable statutes of limitations.

On remand, the trial court first determined that Plaintiffs’ claims 

against the additional defendants were barred by the statute of limitations. More 

particularly, unlike Defendants Fajt and the Department, the additional defendants 
7

were neither named in nor served with the writ of summons in 2005; rather, they

first received notice of Plaintiffs’ suit against them in 2012 when Plaintiffs filed 

their complaint and amended complaint. The trial court explained that, while the 

applicable statute of limitations was tolled once the Department and Fajt were 

served with the writ of summons, the additional defendants were never served with 

the writ. Because Plaintiffs’ claims against the additional defendants carried a 

maximum statute of limitations period of 4 years, the trial court determined, the 

additional defendants correctly asserted the claims were time-barred.

As to the remaining preliminary objection raised by Defendants Fajt 

and the Department, that Plaintiffs’ suit against them was barred res judicata, the 

trial court explained the doctrine of res judicata precludes re-litigation of issues 

decided in a prior, valid judgment in any future suit between the parties on the 

same cause of action. Bell v. Twp. of Spring Brook, 30 A.3d 554 (Pa. Cmwlth. 

2011). The trial court further stated that for res judicata to apply the following 

criteria must be shown: the parties to the current suit are the same parties as in the 

prior lawsuit; the current claim arises out of the same “transaction or occurrence” 

underlying the first suit; and, the prior suit resulted in a valid, final judgment on the 

merits. See Roberts v. Estate of Pursley, 700 A.2d 475, 480 (Pa. Super. 1997).

Here, the trial court stated Dieffenbach filed a federal suit against the 

same defendants, alleging violations of Title VII, the First Amendment, and the 

PHRA. Those claims arose out of the same conduct for which he is currently suing

the same defendants in state court. The trial court stated, the federal suit, docketed 
8

at 4:09-CV-00967, was fully litigated and resulted in the entry of judgment in 

favor of all defendants in June 2011.

In addition, the trial court stated, Collins filed a federal suit, docketed 

at 1:99-CV-00829, against the same defendants, which involved the same claims as 

those currently before the trial court. The trial court explained this suit was also 

fully litigated and resulted in the entry of judgment in favor of the defendants in

February 2006. For these reasons, the trial court concluded the doctrine of res 

judicata applied, and it sustained the preliminary objection of Defendants Fajt and 

the Department. Plaintiffs, representing themselves, again appealed to this Court.6

 

6 After Plaintiffs filed their notice of appeal to this Court, the trial court directed them to 

file a concise statement of the errors complained of on appeal pursuant to Pa. R.A.P. 1925(b). 

Thereafter, in its opinion filed pursuant to Pa. R.A.P. 1925(a), the trial court noted that Plaintiffs 

did not file a concise statement of the errors complained of on appeal pursuant to Pa. R.A.P. 

1925(b). Nevertheless, the trial court did not state that Plaintiffs’ failure to file a 1925(b) 

Statement should result in waiver of the issues raised in Plaintiffs’ appeal. Rather, the trial court 

incorporated by reference its prior opinion sustaining the preliminary objections of all of the 

defendants. In their brief to this Court, the defendants do not raise any issue regarding Plaintiffs’ 

failure to comply with the trial court’s order directing them to file a concise statement of the 

errors complained of on appeal pursuant to Pa. R.A.P. 1925(b). Additionally, our review of the 

trial court’s docket sheet reveals no indication that the prothonotary gave Plaintiffs notice of the 

trial court’s order requiring Plaintiffs to file a 1925(b) Statement as required by Pa. R.C.P. No. 

236(b). Under these circumstances, we decline to find waiver. See Schlag v. Dep’t of Transp., 

Bureau of Driver Licensing, 963 A.2d 598 (Pa. Cmwlth. 2009) (where docket does not reflect 

that prothonotary provided notice of entry of a Rule 1925(b) order to appellant as required under 

Pa. R.C.P. No. 236 (b), this Court would not conclude appellant’s issues were waived for failure 

to file a Statement).
9

II. Discussion

A. Plaintiffs’ Claims Against Additional Defendants

On appeal,7 Plaintiffs primarily challenge the trial court’s 

determination that their claims against the defendants other than the Department 

and Fajt are barred by the applicable statutes of limitations.

The causes of action Plaintiffs purport to state in their complaint are 

based on Title VII, 42 U.S.C. §§1981, 1983, 1985(3) and/or 1986, the PHRA, and

the Pennsylvania Whistleblower Law.

With regard to claims brought pursuant to 42 U.S.C. §1983, “the 

[U.S.] Supreme Court has concluded that such claims are best characterized as 

personal injury actions for purposes of state statutes of limitations.” Burger v. 

Borough of Ingram, 697 A.2d 1037, 1041 (Pa. Cmwlth. 1997) (citing Wilson v. 

Garcia, 471 U.S. 261 (1985)). As such, claims brought pursuant to 42 U.S.C. 

§1983 are subject to a two-year statute of limitations in Pennsylvania. Id. (citing 

42 Pa. C.S. §5524). Similarly, claims asserted under 42 U.S.C. §1985(3) are 

 

7

In ruling on preliminary objections, courts must accept as true all well-pled allegations 

of material facts as well as all inferences reasonably deducible from the facts. Stilp v. 

Commonwealth, 910 A.2d 775 (Pa. Cmwlth. 2006), aff'd, 974 A.2d 491 (Pa. 2009). For 

preliminary objections to be sustained, it must appear with certainty that the law will permit no 

recovery, and any doubt must be resolved in favor of the non-moving party. Id.

Although the statute of limitations is to be pled as new matter, it may be raised in 

preliminary objections where the defense is clear on the face of the pleadings and the responding 

party does not file preliminary objections to the preliminary objections. Petsinger v. Dep’t of 

Labor & Indus., Office of Vocational Rehab., 988 A.2d 748 (Pa. Cmwlth. 2010). Similarly, “[a]s 

a general rule, res judicata is an affirmative defense and should be pleaded as new matter.” 

Phila. Fraternal Order of Corr. Officers v. Rendell, 701 A.2d 600, 607 (Pa. Cmwlth. 1997). 

However, if the opposing party does not challenge “the procedural propriety of another party’s 

preliminary objections raising res judicata” by filing preliminary objections thereto, the “defect 

is deemed waived.” Id.
10

subject to the same two-year limitations period. Bougher v. Univ. of Pittsburgh, 

882 F.2d 74 (3d Cir. 1989).

Further, “no action under the provisions of [42 U.S.C. §1986] shall be 

sustained which is not commenced within one year after the cause of action has 

accrued.” 42 U.S.C. §1986 (emphasis added). Additionally, 42 U.S.C. §1981 has 

a four-year statute of limitations. McGovern v. City of Phila., 554 F.3d 114 (3d 

Cir. 2009).

Under Section 4 of the Whistleblower Law, 43 P.S. §1424, an action 

must be filed within 180 days of the alleged violation of the Whistleblower Law. 

The 180-day time limit is mandatory; courts have no discretion to extend it. 

O’Rourke v. Pa. Dep’t of Corr., 730 A.2d 1039 (Pa. Cmwlth. 1999) (citing Perry v. 

Tioga Cnty., 649 A.2d 186 (Pa. Cmwlth. 1994)).

In addition, under Title VII, a private action must be filed within 90 

days of the date on which the complainant has notice of the Equal Employment 

Opportunity Commission’s decision not to pursue the administrative charge. See

42 U.S.C. §2000e-5(f)(1). The onset of the 90-day period is generally considered 

to be the date on which the complainant receives a right-to-sue letter. See Burgh v. 

Borough Council of Borough of Montrose, 251 F.3d 465 (3d Cir. 2001). The 90-

day period for filing a court action is treated as a statute of limitations. Id. The 

Third Circuit strictly construes the 90-day period, holding, in the absence of some 

equitable basis for tolling, a civil suit filed even one day late is time-barred and 

may be dismissed. Id.
11

“Like Title VII, the PHRA establishes two limitations periods: first, 

the administrative charge must be filed by a complainant with the [Pennsylvania 

Human Relations Commission (PHRC)] within 180 days of the alleged 

discrimination, see [Section 9(h) of the PHRA,] 43 [P.S.] § 959(h); second, a court 

action must be filed within two years of the date that the PHRC gives the 

complainant notice of the closing of the administrative complaint. See [Section 

12(c)(2) of the PHRA,] 43 [P.S.] § 962(c)(2).” Burgh, 251 F.3d at 475. “As in 

Title VII, these periods represent the complete legislative determination as to the 

appropriate timing provisions under the PHRA.” Id.

Here, the factual allegations in Plaintiffs’ complaint relate to events 

that occurred between 2004 and 2007. See Certified Record (C.R.), Item #13. 

However, Plaintiffs did not serve any defendants other than the Department and 

Fajt with either a writ of summons or the complaint and amended complaint until, 

at the earliest, more than four years later, in May and July 2012 when Plaintiffs 

filed their complaint and amended complaint, respectively. Plaintiffs cite no 

authority for their vague assertion that service of the writ of summons on the 

Department and Fajt in 2005 was sufficient to constitute service on the numerous 

other defendants named in Plaintiffs’ complaint and amended complaint.

Therefore, as the trial court properly determined because the causes of action 

against these additional defendants “carry a maximum statute of limitations period 

of 4 years, [the] [a]dditional [d]efendants are correct to assert such claims are 

barred.” Tr. Ct., Slip Op., 10/28/16, at 4.
12

Nevertheless, Plaintiffs argue that under the “continuing violations” 

doctrine they may bring suit on claims that would ordinarily be time-barred as long 

as they are sufficiently related to incidents that fall within the statute of limitations 

period or are part of a systemic policy or practice of discrimination that took place, 

at least in part, within the limitations period. This argument fails.

Under the continuing violation doctrine, discriminatory acts that are 

not individually actionable may be aggregated to make out a hostile work 

environment claim; such acts “can occur at any time so long as they are linked in a 

pattern of actions which continues into the applicable limitations period.” Mandel 

v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (citation omitted). 

To allege a continuing violation, “the plaintiff must show that all acts which 

constitute the claim are part of the same unlawful employment practice and that at 

least one act falls within the applicable limitations period.” Id. at 165-66 

(emphasis added) (citations omitted).

Here, none of the averments in Plaintiffs’ complaint relate to incidents 

that occurred after 2007. As explained above, Plaintiffs did not file their complaint 

(and amended complaint) until 2012, and Plaintiffs’ causes of action carry a 

maximum statute of limitations period of four years. Because none of the 

allegations in Plaintiffs’ complaint fall within the applicable limitations periods, 

the “continuing violations” doctrine does not apply here.
13

B. Remaining Preliminary Objection of Fajt and the Department

Plaintiffs next maintain the trial court erred in sustaining the 

preliminary objections of the Department and Fajt on the ground that Plaintiffs’ 

claims against them are barred by res judicata. Plaintiffs contend res judicata does 

not apply here because: the parties in the current suit are not the same parties as in 

the prior suit; and, the prior suit was not fully adjudicated. In particular, they argue 

Plaintiff Collins filed a federal suit, which was not fully adjudicated.

In Wilkins Township v. Wage Policy Committee of Wilkins 

Township Police Department, 162 A.3d 581, 586-87 (Pa. Cmwlth. 2017), we

recently explained:

Res judicata and collateral estoppel preclude 

parties from contesting claims and issues that have been 

previously litigated. In re Stevenson, 40 A.3d 1212, 

1222 (Pa. 2012). Our Supreme Court has explained the 

doctrine of res judicata as follows:

The term ‘res judicata’ is often sweepingly used, 

by courts and litigants alike, to refer to the various 

ways in which a judgment in one action will have a 

binding effect in a later action. ‘Res judicata’

encompasses the modern principle of issue 

preclusion (traditionally known as estoppel), which 

is the common law rule that a final judgment 

forecloses relitigation in a later action involving at 

least one of the original parties, of an issue of fact 

or law which was actually litigated and which was 

necessary to the original judgment.

Clark v. Troutman, 502 A.2d 137, 139 (Pa. 1985). To 

support a claim of res judicata, a party must show a 

concurrence of four conditions: (1) identity of the thing 

sued upon; (2) identity of the cause of action; (3) identity 

of persons and parties to the action; and (4) identity of 
14

the quality or capacity of the parties suing or sued. Itama 

Dev. Assocs., LP v. Zoning Hearing Bd. of Twp. of 

Rostraver, 132 A.3d 1040, 1049 (Pa. Cmwlth. 2016). 

‘The essential inquiry is whether the ultimate and 

controlling issues have been decided in a prior 

proceeding in which the present parties had an 

opportunity to appear and assert their rights.’ Takacs v. 

Indian Lake Borough, 10 A.3d 416, 418 (Pa. Cmwlth. 

2010).

The doctrine of collateral estoppel, or issue 

preclusion, precludes the relitigation of issues of fact or 

law determined in a prior proceeding. Mason v. 

Workmen's Comp. Appeal Bd. (Hilti Fastening Sys. 

Corp.), 657 A.2d 1020 (Pa. Cmwlth.), appeal denied, 668 

A.2d 1140 (Pa. 1995). Collateral estoppel applies if: (1) 

the issue decided in the prior case is identical to one 

presented in the later case; (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 in the prior 

case; (4) the party or person privy to the party against 

whom the doctrine is asserted had a full and fair 

opportunity to actually litigate the issue in the prior 

proceeding; and (5) the determination in the prior 

proceeding was essential to the judgment. Liberty Mut. 

Ins. Co. v. Bureau of Workers’ Comp., 37 A.3d 1264, 

1270 n.12 (Pa. Cmwlth.), appeal denied, 53 A.3d 51 (Pa. 

2012).

Res judicata prohibits parties involved in a prior litigation from 

subsequently asserting claims in a later action that were raised, or could have been 

raised, in the previous adjudication. Hillgartner v. Port Auth. of Allegheny Cnty., 

936 A.2d 131 (Pa. Cmwlth. 2007). Res judicata shields parties from the burden of 

re-litigating claims with the same parties, or parties in privity with the original 

litigant, and serves to protect the courts from inefficiency and confusion that relitigation fosters. Id.
15

Further, “[a] plaintiff must recover all damages arising from given 

operative facts in a single action when the first forum has the ability to give the 

relief sought in the second forum.” Id. at 141 (quoting Int’l Prisoners’ Union v. 

Rizzo, 356 F. Supp. 806, 810 (E.D. Pa. 1973)). Failure to raise a claim in the first 

forum and subsequently asserting it in an action arising out of the same facts 

constitutes a splitting of causes of action. Id.

1. Plaintiff Dieffenbach’s Prior Federal Suit

Here, both Plaintiffs filed separate, prior lawsuits in federal court. As

to Plaintiff Dieffenbach’s federal suit, he filed suit in the U.S. District Court for the 

Middle District of Pennsylvania against several defendants, including the 

Department and Fajt. C.R., Item #21, Ex. A. In that suit, Plaintiff Dieffenbach 

alleged violations of Title VII, the PHRA, and 42 U.S.C. §§1981 and 1983, 

relating to his employment with the Department, including claims of 

discrimination and retaliation. Id.; see also Dieffenbach v. Crago, Civil No. 4:09-

CV-0967 (M.D. Pa. filed June 10, 2011), 2011 WL 2601507. Further, that suit, 

which was litigated through the summary judgment stage, resulted in an entry of 

judgment in favor of all defendants, including Fajt and the Department, and that 

judgment was affirmed on appeal. C.R., Item #21, Ex. A; see Dieffenbach v. Dep’t 

of Revenue, 490 Fed. Appx. 433 (3d Cir. 2012). Therefore, no error is apparent in 

the trial court’s determination that Plaintiff Dieffenbach’s current suit against Fajt 

and the Department is barred by res judicata.
16

2. Plaintiff Collins’ Prior Federal Suits

With regard to Plaintiff Collins, however, Defendants Fajt and the 

Department candidly concede the trial court’s determination that Plaintiff Collins’ 

claims against them are barred res judicata and cannot be supported by the record.

More particularly, they explain, Collins filed two prior federal suits, 

which Fajt and the Department relied on in support of their preliminary objections. 

In 2007, he filed Collins v. Garman, No. 1:07-CV-1957 (M.D. Pa.). That suit was

dismissed for failure to timely prosecute. C.R., Item #21, Ex. C. Thus, Fajt and 

the Department assert, as the trial court correctly concluded, that suit could not bar 

the present suit because a dismissal for failure to prosecute is not a “final judgment 

on the merits” for res judicata purposes. See Municipality of Monroeville v. 

Liberatore, 736 A.2d 31 (Pa. Cmwlth 1999).

Fajt and the Department further maintain the other federal suit Collins

filed was Collins v. Sload, No. 1:CV-99-0829 (M.D. Pa.). They argue the federal 

trial court entered a final judgment in favor of the defendants in that suit by

memorandum opinion and order in February 2006. C.R. Item #21, Ex. B. Like the 

present case, Fajt and the Department contend Collins’ claims related to alleged 

acts of discrimination against him by the Department and its employees. However, 

they assert, in reviewing documents for preparing their brief to this Court, their 

counsel determined the claims in Sload, while involving Collins’ employment with 

the Department, were related to events that occurred in or before 1999. Fajt and 

the Department argue the present case involves Plaintiff Collins’ claims arising

from 2004 through 2007. Although final judgment was not entered in Sload until 
17

2006, Fajt and the Department maintain, Collins could not have raised the same 

issues as in his current suit because he filed his complaint in Sload in 1999.

For these reasons, Fajt and the Department assert Plaintiff Collins’

claims against them in the present suit cannot be barred res judicata based on the

judgment in Sload. As such, they ask that this Court reverse the trial court’s order 

to the extent it sustained the preliminary objections filed by Fajt and the 

Department to Plaintiff Collins’ suit on the ground of res judicata and remand for 

further proceedings on Plaintiff Collins’ claims against them. We agree.

To that end, in sustaining the preliminary objection of Defendants Fajt 

and the Department to Plaintiff Collins’ claims against them on the ground of res 

judicata, the trial court relied on the final judgment entered against Plaintiff 

Collins in Sload. However, the events giving rise to Plaintiff Collins’ claims in 

Sload occurred prior to the events that give rise to Plaintiff Collins’ claims in the 

current suit. To that end, Plaintiff Collins filed his original and amended 

complaints in Sload in 1999, and, as set forth above, the allegations in Plaintiff 

Collins’ current suit relate to events that occurred between 2004 and 2007. C.R. 

Item #21, Ex. B. Further, although final judgment was not entered until 2006 in 

Sload, clearly Collins could not have raised the same issues as in his current suit 

when he filed his complaint in Sload in 1999.

As a result, the trial court erred in sustaining the preliminary objection 

of Defendants Fajt and the Department to Plaintiff Collins’ claims against them on 

the ground of res judicata based on Sload. And, as the trial court noted, the 
18

judgment entered in Plaintiff Collins’ second federal suit, Garman, could not bar 

his current claims because Plaintiff Collins’ suit in Garman was dismissed for 

failure to prosecute, and, therefore did not constitute a final judgment on the 

merits. Liberatore, 736 A.2d at 34 (“It is clear from the case law that a dismissal, 

even with prejudice, for failure to prosecute a claim is not intended to be res 

judicata of the merits to the controversy.”). Thus, we reverse the trial court’s order 

to the extent it sustained the preliminary objection of Defendants Fajt and the 

Department to Plaintiff Collins’ claims against them, and we remand this matter to 

the trial court for further proceedings on Plaintiff Collins’ claims against Fajt and 

the Department.

III. Conclusion

Based on the foregoing, the trial court’s order is affirmed to the extent 

it sustained the preliminary objections of the defendants other than Defendants Fajt 

and the Department to Plaintiffs’ claims against those additional defendants 

because Plaintiffs’ suit against those defendants is barred by the applicable statutes 

of limitations. Additionally, the trial court’s order is affirmed to the extent it 

sustained the preliminary objections of Defendants Fajt and the Department to 

Plaintiff Dieffenbach’s claims against them as those claims are barred res judicata. 

However, the trial court’s order is reversed to the extent it sustained the 

preliminary objections of Defendants Fajt and the Department to Plaintiff Collins’ 

claims against them on the ground those claims are barred res judicata. Noting 

with approbation the candid arguments on behalf of Defendants Fajt and the 
19

Department, we remand this matter to the trial court for further proceedings on 

Plaintiff Collins’ claims against Defendants Fajt and the Department.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eddie L. Collins and Gary Dieffenbach, :

Appellants :

:

v. : No. 1876 C.D. 2016

:

Earl Crago, Thomas Scott, Mike :

Garman, Joe Craigwell, Paul Sload, :

Kim Glaser, Carrie Ferree, Allen :

Jones, Donald Patterson, Colleen :

Alviani, Brian Williams, Greg Fajt, :

Julia Sheridan, Molly Leach, Wilbur :

Hetrick, Sarah Yerger, Commonwealth :

of Pennsylvania, Department of Revenue:

and Office of Inspector General (OIG) :

and PA Office of Attorney General :

(OAG), James Honchar, Sandra Muma, :

Nancy Moskel, Mary Graham, Susan :

Price, Benita Martinez, Bill Olsen, :

Somchai Sae-Tong, Christine Fritto :

Easton :

O R D E R

AND NOW, this 15th day of September, 2017, the order of the Court 

of Common Pleas of Dauphin County is AFFIRMED in part and REVERSED 

in part and this matter is REMANDED to the Court of Common Pleas of Dauphin 

County for proceedings consistent with the foregoing opinion. Jurisdiction is 

relinquished.

 

ROBERT SIMPSON, Judge