IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patrick J. Doheny, Jr., an adult :

individual, :

Petitioner :

:

v. : No. 253 M.D. 2017

: Submitted: August 25, 2017

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

a governmental agency; :

Janet L. Dolan, an adult :

individual; Kara N. Templeton, :

an adult individual; William A. :

Kuhar, Jr., an adult individual; :

Terrance M. Edwards, an adult :

individual; Donald J. Smith, an :

adult individual; William J. Cressler, :

an adult individual; and Philip Murray:

Bricknell, an adult individual, :

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: September 19, 2017

Before us are the preliminary objections filed by the Commonwealth 

of Pennsylvania, Department of Transportation, Bureau of Driver Licensing and 

other defendants in this action (collectively, PennDOT) to Count I of Patrick J. 
2

Doheny, Jr.’s (Petitioner) complaint, arguing, among other things, that res judicata

bars Petitioner from bringing this action because the matters in controversy were 

previously decided. For the following reasons, we grant PennDOT’s preliminary 

objections and dismiss Petitioner’s complaint.

I.

A.

In 2013, Petitioner was convicted of driving under the influence 

(DUI)1and aggravated assault while driving under the influence (AA-DUI).2 On 

July 3, 2013, he received two separate suspension notices from PennDOT, each 

informing him that his license would be revoked for one year on the basis of his 

convictions. One of the suspension notices specified that the suspension was 

“effective 08/07/13” and the other specified that it was “effective 08/07/14.” 

(Preliminary Objections ¶ 7.) Each of the suspension notices informed Petitioner 

 

1

Section 3802(b) of the Vehicle Code, 75 Pa.C.S. § 3802(b), provides:

An individual may not drive, operate or be in actual physical 

control of the movement of a vehicle after imbibing a sufficient 

amount of alcohol such that the alcohol concentration in the 

individual’s blood or breath is at least 0.10% but less than 0.16% 

within two hours after the individual has driven, operated or been 

in actual physical control of the movement of the vehicle.

2

Section 3735.1(a) of the Vehicle Code, 75 Pa.C.S. § 3735.1(a), provides:

Any person who negligently causes serious bodily injury to 

another person as the result of a violation of section 3802 (relating 

to driving under influence of alcohol or controlled substance) and 

who is convicted of violating section 3802 commits a felony of the 

second degree when the violation is the cause of the injury.
3

that he had a right to appeal within 30 days of the mail date. Petitioner did not 

appeal either of the suspension notices because, purportedly, he assumed that one 

of the two notices was redundant.

By letter dated August 20, 2013, PennDOT informed Petitioner that 

because he had consecutive one-year suspensions as a result of the DUI and AADUI convictions, his driving privileges would be restored on August 7, 2015. 

Petitioner then filed a petition with the Court of Common Pleas of Allegheny 

County (common pleas court) seeking to appeal the suspension notices nunc pro 

tunc, which was granted.

Before the common pleas court, Petitioner contended that he should 

only receive a one-year suspension, not the two consecutive one-year suspensions. 

The common pleas court followed our Supreme Court’s decision in Bell v. 

Department of Transportation, Bureau of Driver Licensing, 96 A.3d 1005, 1019-

20 (Pa. 2014), which held that multiple operating privilege suspensions of listed 

violations under 75 Pa.C.S. § 1532(a)3of the Vehicle Code, that are imposed 

 

3

Section 1532(a) of the Vehicle Code provides:

The department shall suspend the operating privilege of any driver 

for one year upon receiving a certified record of the driver’s 

conviction of or an adjudication of delinquency based on any of 

the following offenses:

(1) Any felony in the commission of which a court

determines that a vehicle was essentially involved...

* * *

(Footnote continued on next page...)
4

following a conviction of each enumerated offense, are not merged and a 

suspension can be ordered for each conviction to be served consecutively. 

Accordingly, the common pleas court opinion held, “[in] light of the principles set 

forth in Bell . . . and the absence of any language in the Motor Vehicle Code4

suggesting merger of the two suspensions, the Court found that the doctrine of 

merger does not apply to the within civil penalties.”5

B.

Petitioner then appealed to this Court, again contending that he should 

have been subject to a single one-year suspension under Zimmerman v. 

Department of Transportation, Bureau of Driver Licensing, 759 A.2d 953 (Pa. 

Cmwlth. 2000), overruled by Bell v. Department of Transportation, 96 A.3d 1005 

(Pa. 2014). Petitioner argued that Bell did not overrule Zimmerman because Bell

addressed the statutory construction of violations under Section 1532(a) and (a.1) 

 

(continued...)

(3) Any violation of the following provisions:

Section 3735.1 (relating to aggravated assault by 

vehicle while driving under the influence).

75 Pa. C.S. § 1532(a).

4

The Vehicle Code, 75 Pa. C.S. §§ 101 – 9805.

5

The common pleas court opinion is docketed at No. SA 13 – 943, Commonwealth v. 

Doheny.
5

of the Vehicle Code, while his DUI suspension was imposed under Section 

3804(e)(2)(i)6of the Vehicle Code.

In that appeal, PennDOT contended that we should never get to the 

merits of the appeal because the common pleas court erred in allowing Petitioner’s 

appeal nunc pro tunc. We agreed, holding that the common pleas court erred in 

addressing the merits by granting nunc pro tunc relief. Petitioner petitioned for 

allowance of an appeal to the Supreme Court, which was denied.

II.

Petitioner then filed a four-count, 260 paragraph civil action in the

common pleas court, seeking monetary damages for violations of his civil rights 

pursuant to 42 U.S.C. § 19837and 1985(3),

8

as well as injunctive relief, all of 

which arose out of his original claim that he was only subject to a single one-year 

suspension rather than two consecutive one-year suspensions. In Count I, which 

raises the issue that he should have only received the one suspension, Petitioner 

seeks the following equitable and/or injunctive relief:

a. Order that the DUI Suspension Notice issued by 

[PennDOT] to Plaintiff on July 3, 2013 was null and 

void, ab initio;

 

6

Section 3804(e)(2)(i) of the Vehicle Code provides that suspension shall be “12 months 

for an ungraded misdemeanor or misdemeanor of the second degree under this chapter.” 75 

Pa.C.S. § 3804(e)(2)(i).

7

42 U.S.C. § 1983, relating to civil actions for the deprivation of rights.

8

42 U.S.C. § 1985(3), relating to depriving persons of rights or privileges.
6

b. Grant a special and permanent injunction against 

[PennDOT] that specifically prohibits [PennDOT] from 

issuing consecutively-running suspensions of operator’s 

privileges to licensees convicted of both felony-grade and 

misdemeanor DUI convictions arising out of the same 

motor vehicle accident, unless and until the General 

Assembly amends the Vehicle Code in such a manner as 

to require or permit the consecutive issuance and/or 

service of such suspensions;

c. Order that the July 3, 2013 DUI Suspension Notice 

issued by [PennDOT] to Plaintiff be vacated and/or 

rescinded;

d. Order that [PennDOT] remove, from Plaintiff’s 

permanent driver’s record, any reference to the July 3, 

2013 DUI Suspension Notice ever having been issued by 

[PennDOT] to Plaintiff;

e. Order that [PennDOT] rescind and remove from 

Plaintiff’s permanent driver’s record any period(s) of 

suspension, points, fines or any other penalties related to 

the July 3, 2013 DUI Suspension Notice;

f. Order that [PennDOT] immediately return physical 

custody of Plaintiff’s driver’s license to Plaintiff free of 

charge, without Plaintiff having to pay any restoration 

fee, penalty, or any other charge or fee associated with 

the return of Plaintiff’s driver's license to Plaintiff.

g. Enter any other relief that the Court deems to be just 

and proper.

(Complaint, ¶ 224.)

PennDOT then had the matter moved to the United States District 

Court for the Western District of Pennsylvania (district court). After Petitioner 

filed a first amended complaint to the district court, PennDOT filed a motion to 
7

dismiss the first amended complaint, which the district court granted, dismissing 

the action in its entirety with prejudice.

Petitioner then filed a motion for reconsideration and to alter or 

amend judgment pursuant to Fed. R. Civ. P. 59(e), seeking to have the district 

court reconsider and vacate its dismissal order. The district court amended its 

previous dismissal order to reflect that Count I of the first amended complaint,

pertaining to the statutory appeal, should not have been dismissed with prejudice, 

but declined to extend supplemental jurisdiction over it, as it was purely based in 

state law. The federal district court then remanded Count I of the first amended 

complaint to the common pleas court.

PennDOT then filed preliminary objections in the common pleas court 

arguing, inter alia, that the common pleas court lacked jurisdiction because the 

Commonwealth Court has exclusive and original jurisdiction in matters against the 

Commonwealth and its agencies.9 Petitioner stipulated that the common pleas

court lacked jurisdiction and the matter was then transferred to this Court. Before 

us now are PennDOT’s remaining preliminary objections.10

 

9

Pursuant to 42 Pa.C.S. §§ 761(a)&(b), the Commonwealth Court has original and 

exclusive jurisdiction in any civil action or proceeding against the Commonwealth, unless an 

exception applies.

10 Preliminary objections should only be sustained if the law says with certainty that no 

recovery is possible. Foster v. Peat Marwick Main & Co., 587 A.2d 382 (Pa. Cmwlth. 1991). 

Where a preliminary objection presents a question of law, our standard of review is de novo and 

our scope of review is plenary. Russo v. Allegheny County, 125 A.3d 113, 122 n.5 (Pa. Cmwlth. 

2015).
8

III.

In its preliminary objections, PennDOT contends that this action 

should be dismissed because it is barred under the doctrine of res judicata as the 

claims Petitioner raises here – that he should have received a one-year suspension 

rather than two consecutive one-year suspensions – were already decided when he 

failed to timely appeal the notice of suspension.11 Petitioner, however, contends 

that the doctrine of res judicata does not apply because, even though he did not 

appeal and the common pleas court addressed the merits, there was never a final 

judgment upon the merits because we vacated the common pleas court order when 

we held that it erred in granting Petitioner nunc pro tunc relief. We, therefore,

address the issue of whether Petitioner’s failure to appeal his license suspensions 

precludes him from bringing a challenge in our original jurisdiction.

Under the doctrine of administrative finality, if an appeal is not taken

from a final administrative decision,

12 claim preclusion prevents a collateral attack 

 

11 The doctrine of res judicata, also known as claim preclusion, bars a subsequent action 

between the same parties on any claim that was the subject of an earlier adjudication on the 

merits. See Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995) (holding that “[a]ny 

final, valid judgment on the merits by a court of competent jurisdiction precludes any future suit 

between the parties or their privies on the same cause of action.”) (emphasis in original) (citing 

Allen v. McCurry, 449 U.S. 90, 94 (1980)). In order for a litigant’s claim to be barred under this 

principle, there must be a concurrence of (1) identity of the thing sued upon, (2) identity of the 

cause of action, (3) identity of the parties, and (4) identity of the capacity of the parties. 

Stevenson v. Silverman, 208 A.2d 786, 787-88 (Pa. 1965). However, the principle of res judicata

may not be defeated by minor differences of form, parties or allegations when these differences 

are contrived for the purpose of a party obtaining a second trial on the same cause between the 

same parties. Tobias v. Halifax Township, 28 A.3d 223, 226 (Pa. Cmwlth. 2011).

12 Final administrative decisions, or “adjudications,” are defined under the Administrative 

Agency Law as:

(Footnote continued on next page...)
9

to challenge the effects of the administrative order. Department of Environmental 

Protection v. Peters Township Sanitary Authority, 767 A.2d 601, 603 (Pa. Cmwlth. 

2001). In Department of Environmental Resources v. Wheeling-Pittsburgh Steel 

Corporation, 348 A.2d 765, 767 (Pa. Cmwlth. 1975), this Court discussed the 

doctrine of administrative finality, holding that:

We agree that an aggrieved party has no duty to appeal 

but disagree that upon failure to do so, the party so 

aggrieved preserves to some indefinite future time in 

some indefinite future proceedings the right to contest an 

unappealed order. To conclude otherwise, would 

postpone indefinitely the vitality of administrative orders 

and frustrate the orderly operations of administrative law.

Id. at 767.

In this case, the claims and relief Petitioner seeks in Count I of his 

complaint are all matters that were effectively decided against him when he failed 

 

(continued...)

Any final order, decree, decision, determination or ruling by an 

agency affecting personal or property rights, privileges, 

immunities, duties, liabilities or obligations of any or all of the 

parties to the proceeding in which the adjudication is made.

2 Pa.C.S. § 101. This Court has held that administrative actions are “adjudications” when they 

result in final determinations which affect personal or property rights. Shaulis v. Pennsylvania 

State Ethics Commission, 739 A.2d 1091, 1099 (Pa. Cmwlth. 1999). It is well-settled that if an 

agency action is not an “adjudication,” then it is not subject to judicial review by way of appeal. 

Id. Because PennDOT’s suspension of Petitioner’s license affects his personal rights and is 

subject to judicial review, that suspension constitutes a final administrative decision.
10

to appeal the license suspension notices. Because he failed to timely appeal the 

final administrative decisions which gave rise to this action, Petitioner is precluded 

from bringing any action to challenge the effects of them.

Accordingly, we grant PennDOT’s preliminary objections seeking 

dismissal of Petitioner’s amended complaint.13

_________________________________

DAN PELLEGRINI, Senior Judge

Judge Cosgrove did not participate in the decision of this case.

 

13 Because we determine that Petitioner’s claims are barred by res judicata, we do not 

need to reach PennDOT’s other preliminary objection that this action is barred by sovereign 

immunity. See Pa. Constitution, art. 1, § 11.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patrick J. Doheny, Jr., an adult :

individual, :

Petitioner :

:

v. : No. 253 M.D. 2017

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

a governmental agency; :

Janet L. Dolan, an adult :

individual; Kara N. Templeton, :

an adult individual; William A. :

Kuhar, Jr., an adult individual; :

Terrance M. Edwards, an adult :

individual; Donald J. Smith, an :

adult individual; William J. Cressler, :

an adult individual; and Philip Murray:

Bricknell, an adult individual, :

Respondents:

O R D E R

AND NOW, this 19th day of September, 2017, Respondents’

preliminary objections are granted and Count I of Petitioner’s complaint is 

dismissed. The Chief Clerk is directed to mark the case as closed.

_________________________________

DAN PELLEGRINI, Senior Judge