IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of East McKeesport :

:

v. : No. 488 C.D. 2017

: ARGUED: November 13, 2017

Eugene R. Grove and :

Mary R. Mechelli, :

Appellants :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: January 3, 2018

Eugene R. Grove and Mary R. Mechelli (collectively, Appellants) 

appeal from an order of the Court of Common Pleas of Allegheny County (common 

pleas) that dismissed their motion to stay demolition of real property located at 900 

Josephine Street, East McKeesport, PA, (Subject Property) and barred them from 

pursuing any further litigation with regard to that property without leave of court. 

Further, common pleas ordered as follows regarding the possibility of new 

ownership of the Subject Property:

However, if the property does indeed sell on April 20, 

2017, or before, I will hear a motion to stay from any new 

buyer. But the motion of plaintiffs to stay is denied due to 

their history of inaction. Demolition may occur on May 1, 

2017 or thereafter and will be stayed only if property is 

conveyed to a new buyer who can demonstrate a current 

ability to abate the nuisance.
2

March 15, 2017, Order of Common Pleas.

The pertinent facts are as follows. After the Subject Property fell into 

a state of disrepair, the Borough of East McKeesport (Borough) in August 2014 

declared it a nuisance and placed it on the Borough’s demolition list. Appellants, 

acting pro se, filed a statutory appeal in September 2014. Subsequently, the Borough 

filed its certified record of the demolition proceedings and writ of certiorari. After 

rescheduling conferences several times, common pleas met with the parties in 

January 2015 at which time Appellants sought more time to raise funds for needed 

repairs or to locate a bona fide buyer for the property. After conducting several 

hearings, however, it became apparent to the court that Appellants had been unable 

to make any meaningful repairs or to sell the property. Accordingly, after reviewing 

both the record made below and the additional testimony from the hearings, common 

pleas dismissed Appellants’ appeal in April 2015, based on its determination that 

there was substantial evidence in the record that the property was a nuisance and 

should be razed to protect the health and welfare of the citizens.

In October 2015, Appellants appealed to this Court. We dismissed their 

appeal in April 2016, citing their failure to file a proper brief. Grove v. Borough of 

East McKeesport, (Pa. Cmwlth., No. 1825 C.D. 2015, filed April 28, 2016). After 

denying their application for reconsideration, we remitted the record to common 

pleas in August 2016. No appeal was taken from our disposition, and common pleas’ 

order became final.

In August 2016, Appellants, once again acting pro se, filed the motion 

to stay demolition presently at issue at the same common pleas docket number as the 

statutory appeal. In response, the Borough filed a motion to dismiss, asserting, inter 
3

alia, that Appellants were “clouding the record.”1 In March 2017, common pleas 

held a hearing at which time Appellants, still proceeding pro se, represented that 

they had a buyer and requested a stay of the demolition in light of a real estate closing 

scheduled for April 2017. Common pleas dismissed their motion to stay demolition 

in March 2017, but added the additional language regarding the right of a buyer to 

file a subsequent motion requesting a stay. In the absence of such a motion, common 

pleas in its subsequent June 2017 opinion reaffirmed its April 2015 dismissal of the 

statutory appeal. Appellants’ pro se appeal to this Court followed in April 2017. In 

August 2017, counsel entered an appearance on behalf of Appellants.

On appeal, we consider whether Appellants should be barred from 

bringing the present action. This Court has described res judicata as follows:

Res judicata encompasses two related . . . 

principles: technical res judicata and collateral estoppel. 

Technical res judicata provides that where a final 

judgment on the merits exists, a future lawsuit on the same 

cause of action is precluded. Collateral estoppel acts to 

foreclose litigation in a subsequent action where issues of 

law or fact were actually litigated and necessary to a 

previous final judgment.

Technical res judicata requires . . . four factors: (1) 

identity of the thing sued upon or for; (2) identity of the 

causes of action; (3) identity of the persons or parties to 

the action; and (4) identity of the quality or capacity of the 

parties suing or being sued. Res judicata applies to claims 

that were actually litigated as well as those matters that 

should have been litigated. Generally, causes of action are 

identical when the subject matter and the ultimate issues 

are the same in both the old and new proceedings.

Similarly, collateral estoppel bars a subsequent 

lawsuit where (1) an issue decided in a prior action is 

 

1 According to the Borough, it filed a motion to dismiss Appellants’ motion to stay demolition 

“as a way of removing the cloud on the title that appeared when it was discovered that [they] had 

filed [their motion].” Borough’s Brief at 8.
4

identical to one presented in a later action, (2) the prior 

action resulted in a final judgment on the merits, (3) the 

party against whom collateral estoppel is asserted was a 

party to the prior action, or is in privity with a party to the 

prior action, and (4), the party against whom collateral 

estoppel is asserted had a full and fair opportunity to 

litigate the issue in the prior action. [(citations omitted) 

(emphasis added).]

J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa. Cmwlth. 2002).

In the instant appeal, Appellants averred that the property should not be 

demolished because it did not meet the criteria for a dangerous structure and did not 

constitute a nuisance. August 11, 2016, Appeal; Reproduced Record (R.R.) at 2a. 

In their statutory appeal, which this Court dismissed in April 2016, they similarly 

challenged the Borough’s determination that their property constituted a public 

nuisance and should be demolished. See October 5, 2015, Notice of Appeal filed in 

Grove v. Borough of East McKeesport, (Pa. Cmwlth., No. 1825 C.D. 2015). 

Accordingly, Appellants are precluded from pursuing the present litigation.2

Nonetheless, Appellants contend that common pleas lacked authority 

under Pa. R.C.P. No. 233.1 to enter an order dismissing their motion to stay 

demolition when that motion did not constitute commencement of a new action 

within the meaning of the Pennsylvania Rules of Civil Procedure. Rule 233.1 

pertains to motions to dismiss frivolous litigation filed by pro se plaintiffs.3 

Accordingly, asserting that Rule 233.1 is inapplicable, Appellants maintain that this 

 

2 Given the fact that Appellants were permitted to file their second action at the same common 

pleas docket number as the first, the doctrine of law of the case, arguably, could apply rather than 

res judicata. We do not need to address that issue, however, given the fact that it is clear that 

Appellants are foreclosed from pursuing the present litigation under either theory.

3 Mindful that disciplinary rules apply to an attorney who has abused the legal system by 

repeatedly filing new litigation raising the same claims against the same defendant, despite the 

adjudication of such claims, Rule 233.1 was adopted in 2010 to curb this type of abuse when done 

by a pro se party. Civil Procedural Committee Explanatory Comment to Rule 233.1.
5

Court should vacate the order dismissing their motion to stay demolition and barring 

them from filing similar requests in the future without leave of court. Appellants’ 

position is without merit.

In relevant part, Rule 233.1 provides:

(a) Upon the commencement of any action filed by 

a pro se plaintiff in the court of common pleas, a defendant 

may file a motion to dismiss the action on the basis that

(1) the pro se plaintiff is alleging the same or related 

claims which the pro se plaintiff raised in a prior action 

against the same or related defendants, and

(2) these claims have already been resolved 

pursuant to a written settlement agreement or a court 

proceeding.

. . . .

(c) Upon granting the motion and dismissing the 

action, the court may bar the pro se plaintiff from pursuing 

additional pro se litigation against the same or related

defendants raising the same or related claims without 

leave of court.

By way of analysis, regardless of what Appellants called their new 

litigation and what docket number under which they filed it, both appeals involved 

claims that were already addressed and resolved in favor of the Borough. This is 

true regardless of the fact that they were permitted to file a motion at a docket 

number that should have been marked closed or discontinued. In any event, the 

content of the filing rules, not the name given to it.

Accordingly, we affirm the order dismissing Appellants’ motion to stay 

demolition and barring them from pursuing litigation regarding the Subject Property 

absent leave of court. The court’s directive permitting a new owner to file a motion 
6

to stay demolition is moot given the passage of both triggering dates: April 20, 2017, 

and May 1, 2017.4

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

 

4 To the extent that common pleas exceeded its jurisdiction in entertaining Appellants’ motion 

to stay demolition after the prior order had become final, we nonetheless affirm in light of the fact 

that the result would not change. Appellants are barred from pursuing further litigation regarding 

a property that remains an adjudicated nuisance and danger to the community approximately three 

years after it was first condemned.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of East McKeesport :

:

v. : No. 488 C.D. 2017

:

Eugene R. Grove and :

Mary R. Mechelli, :

Appellants :

O R D E R

AND NOW, this 3

rd day of January, 2018, the order of the Court of 

Common Pleas of Allegheny County is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge