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 , 201 4 ), 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 its2

former Secretary, Gregory Fajt, 1 on the ground that the suit filed by G ar y Dieffen bach and Eddie L. Collins (collectively, Plaintiffs) was barred by the statute
of limitations . We returned this matter to the tri al 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 bas ed 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 follow ing background to this matter.
On March 15, 2005, Plaintiffs filed a writ of summons in the trial court naming the Department an d 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 Of fice 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 Depar tment.

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 with draw.

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 indic ated 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. T hey averred Plaintiff Collins, a black male, complained of and opposed discriminatory practices within the Department

a nd 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 amended4

complaint, Plaintiffs sought to add an additional 13 defendants and include several additional allegati ons. 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 Pen nsylvania 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 ag ainst Fajt and the Department as well as several additional defendants alleging violations of Title VII
and raisin g claims under 42 U.S.C. §§1981 and 1983 , and the PHRA stemming from his employment with the Department. Plaintiff Collins filed two suit s 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’ federa l 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 statute s 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 , t he 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 th e limitations periods for any of the causes of action alleged . The trial court noted
that in th is 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, i n its opinion, the trial court did not separately address the preliminary objections of the d efendants other than Fajt and the Department.

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

. W e determined the trial court erred in concluding Plaintiffs’ claims were barred by the applicable statutes of limitations. To that end, it wa s 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 w here 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 s ummons in 2005; they c ould have required P laintiffs 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 applicab le statute s of limita tions periods. The trial
court erred to the extent it concluded otherwise.

However, as to d efendants other than Fajt and the Department, de spite
the fact that these d efendants filed separate preliminary objections also raising the

s tatute of limitations, the trial court did not separately analyze those preliminary objections. Th erefore , we reverse d the trial court to the extent it held Plaintiffs’ claims against Defendants Fajt and the Department we re barred by the statute of
limita tions, and we remand ed for consider ation 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 d efendants other than Fajt and the Department, who filed separate preliminary objections, we re 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 a dditional defendants7

were neither named in nor served with the writ of summons in 2005; rather, the y first received notice of Plainti ffs’ suit against them in 2012 when Plaintiffs filed
the ir c omplaint and a mended c omplaint. The trial court explained that, while t he applicable statute of limitations was tolled once the Department and Fajt were served with the writ of summons, the a dditional d efendants were never served with
the writ . Because Plaintiffs’ claims against the a dditional defendants carried a maximum statute of limitations period of 4 years, the trial court determined, the

a dditional defendants correct ly assert ed th e cla ims we re time

- barred.

As to the remaining preliminary objection raised by Defendants Fajt and the Department, that Plaintiffs ’ suit against them was barred res judica ta , the trial court explained t he doctrine of res judicata precludes re

- litigation of is sues decided in a prior, valid judgment in any future suit between the parties on the
same cause of action. Bell v. Twp. o f 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 curren t claim arises out of the same “transaction or occurrence” underlying the first suit; and , the prior suit resulted in a valid, fi nal 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. Th o se claims arose out of the same conduct for which he is currently suing
the same defendants in state court

. The trial court stated, t h e federal suit , docketed8

at 4:09

- CV

- 00967, was fully litigated and resulted in the entry of judgment in
favor o f all defendants in June 2011.

In addition, the trial court stated, Collins filed a fe deral suit, docketed
at 1 :99

- CV

- 00829, against the same defendants , which involved the same clai ms as those currently before the trial c ourt. The trial court explained t his 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 applie d , and it sustained the prelim inary 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 sustain ing the preliminary objections of all of the defendants. In their brief to this Court, the d efendants d o 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). Addit ionally, 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 circumst ances, 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 appli cable 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 purpo ses 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 limitation s in Pennsylvania. Id. (citing
42 Pa. C.S. § 5524 )

. Similarly , c laims 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 r easonably 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 b e 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 pre liminary 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 sho uld be pleaded as new mat ter.” 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.” I d.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).

U nder Section 4 of t he Whistleblower Law, 43 P.S. § 1424, an action must be filed within 180 days of the alleged violation of the Whistleblower Law.
T h e 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 C nty

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

.

In addition, u nder 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 statu te of limitations. Id. The Third Circuit strictly construe s 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 establis hes two limitations periods: first, the administrative charge must be filed by a complainant with the [ P ennsylvania
H uman R elations C ommission (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 Jul y 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 num erous 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

- barr ed 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 limitation s period. This argument fail s.

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. 20 13 ) ( cit ation 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) (cit ations omitted )

.

Here, none of the averments in Plaintiffs’ complaint relate to incidents
that o ccurred 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 Plaintiff s’ 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 prelim inary 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 Cour t 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 fa ct 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
sue d upon; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of14 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, 104 9 (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 pl ea 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 de termination 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).

R es judicata prohibits parties involved in a prior litigat ion 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 burde n 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 re

litigation 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 th e 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 allege d 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, 201 1), 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 Suit s 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 rel ied 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, th at suit could not bar the present suit because a dismissal for failure to prosecute i s 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 D epartment 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 i n that suit by

m emorandum opinion and o rder in February 2006. C.R. Item #21, Ex. B. Like the present case, Fajt and th e Department contend Col lins’ 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 Col lins’ employment with the Department, we re related to events that occurred in or before 1999. Faj t and the Department argue t he present case involves Plaintiff Collins’ claims arising
from 2004 through 2007. Although final judgment was not entered in Sload until17

2006, Fajt and the Department maintain , Collins could not have raised the s ame 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 Co llins’ suit on the ground of res judicata and remand for further proceedings on Plaintiff Collins’ claims against them

. W e agree.

To that end, in sustaining the preliminary objection of Defendants Fajt and the Department to Plaintiff Collins’ claims aga inst them on the ground of res judicata , the trial court relied on the final judgment entered against Plaintiff
Collins in Sload

. H owever, 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 rel ate to events that occurred between 2004 and 2007. C.R. Item #21, Ex. B. Further, a lthough 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 Slo ad 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, the18

judgm ent 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 susta ined 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. Conclus ion

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 th os e 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 Dieff

enbach’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 the19

Department, we remand this matter to the trial court for further proceedings on Plaintiff Collins’ claims against Defendants Fa jt and the Department.

ROBERT SIMPSON, JudgeIN 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 15 th 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