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 Drive r 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; W illiam 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 p reliminary o bjections filed by t he Commonwealth

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

other defendants in thi s action (collectively

, PennDOT ) to Count I of Patrick J.2

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

bars Petitioner from bringin g this action because th e matter s in controversy were

previously decided. For the fo llowing reasons, we grant PennDOT ’s p reliminary

o bjection s and dismiss Petitioner’s c omplaint

.

I

.
A.

In 2013, Petitioner was convicted of driving under the influence

(DUI) 1 and aggravated assault wh ile driving under the influence (AA

- DUI). 2 On

July 3, 2 013, he received two separate s uspension n otices from PennDOT

, each

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

convictions. One of the s uspension n otices 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

t o driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802 commits a felony of the second degree when t he 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 assum ed 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 AA

DUI convictions, his driving privi leges would be restored on August 7, 2015.

Petitioner then filed a p etit ion with the Court of C ommon Pleas of Allegheny

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

tunc

, which was granted.

B efore 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.3 d 1005, 1019

-
20 (Pa. 2014)

, which h eld that multiple operating privilege suspensions of listed

violat ions under 75 Pa.C.S. § 1532(a) 3 of the Vehicle Code

, that are imposed

3 Section 1532(a) of the Vehicle Code provides:

The departme nt 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) A ny 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 c an be orde red for each conviction t o be served consecutively

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

forth in Bell

. . . and the absence of any language in the Motor Vehicle Code 4

suggesting merger of the two s uspensions, the Court found that the doctrine of

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

B.

Petitio ner then appealed to this Court

, again contending that he should

have been subject to a sing le one

- year suspension under Zimmerman v.

Departm ent of Transportation , Bureau of Driver Licensing , 759 A.2d 9 53 (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 con struction of violations under Section 1532(a) and (a .1)

(continued...)

(3) A ny 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) 6 of the Vehicle Code

.

I n that appeal, PennDOT contended that we should never get to the

merits of the appeal bec ause 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 Supre me Court

, which was denied.

II.

Petitioner then filed a four

- count

, 260 paragraph civil action in the

com mon pleas court

, seeking monetary damages for violations of his civil rights

pursuant to 42 U.S.C. § 1983 7 and 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 rece ived the one suspension, Petitioner

se eks the f

ollowing equitable and/or injunctive relief:

a. Order that the DUI Sus pension 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 secon d 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. G rant a special and perm anent injunction against [PennDOT] that specifically pr ohibits [PennDOT] from issuing consecutively

- running suspensions of operator ’ s privileges to lice nsees convicted of both felony

- grade and misdemeanor DUI convictions arising out of the same motor vehicle accident, unless and until the General Assembly amen ds the Vehicle Code in such a manner as to require or permit the consecutive issuance and/or service of such suspensions;

c. O rder that the July 3, 2013 DUI Sus pension Notice issued by [PennDOT] to Plaintiff be vacated and/or rescinded;

d. O rder that [Pe nnDOT] remove, fr om 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 . O rder 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 ha ving 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. )

P ennDOT then had th e matter moved to the United States District

Court for the W estern District of Pennsylvania (district court)

. After Petitioner

filed a f irst a mended c omplaint to the district court, PennDOT filed a m otion to7

d ismiss the f

irst a mended c omplaint, which the district court granted, dismissing

the action in its entirety with prejudice.

Petitioner then filed a m otion for r econsideration and to a lter or

a mend j udgment p ursuant to Fed. R. Civ. P. 59(e)

, seeking to have the district

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

previous dismissal order to reflect that Count I of the f irst a mended c omplaint

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

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

state law. The federal district court then remanded Count I of the f irst a mended

c omplaint to the common pleas court

.

PennDOT then filed p reliminary o bjection s in the common pleas court

arguing, inter alia

, tha t 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 matte r was then transferred to this C ourt. Before

us now are PennDOT ’s remaining preliminary objections. 10

9 P ursuant to 42 Pa.C.S. §§ 761(a)& (b)

, the Commonwealth Court has original and exclusive jurisdiction in any civil action or proceeding against the Commonwealt h, unless an exception applies.

10 P reliminary objections should only be sustained if the law says with certainty that no recovery is p ossible. 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

claim s Pet itioner raises here

– that he should have receive d a one

- year suspension

rather than two con secutive one

- year suspensions

– were already decided when he

failed to timely appeal the notice of suspension. 11 P etitioner

, however, contends

that the do ctrine 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 gra nting Petitioner nunc pro tunc relief. We

, therefore

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

preclude s him from bringing a challenge in our original jurisdiction.

Under the doctri ne of administrative finality , if an appeal is not take n

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.2 d 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 ac tion. ”) (emphasis in original) (citing

Allen v. McCurr

y , 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 ca pacity 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 part y 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 Admi nistrative 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 6 01, 603 (Pa. Cmwlth.

2001). In Department of Environmental Resources v. Wheeling

- Pittsburgh Steel

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

doctrine of administrative finality, holding that:

We agree that an aggrieved pa rty 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 indefi nitely the vitality of administrative orders and frustrate the orderly operations of administrative law.

Id. at 767.

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

c omplaint a re all m atters that were effectively decided against him when he failed

(continued...)

Any final o rder, 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. § 10 1. 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 PennD OT ’s suspension of Petitioner’s license affects his personal rights and is subject to judicial review, that suspensio n constitutes a final admin istrative 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 brin ging any action to challenge the effect s of them.

Accordi ngly, we grant PennD O T ’s p reliminary o bjections seeking

dismissal of Petitioner’s a mended c omplaint. 13

_________________________________ DAN PELLEGRINI, Senior Judge

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

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

need to reach PennDOT ’s other pr eliminary objection that this action is barred by sovereign immunity. See Pa. Constitutio n, a rt. 1 , § 1 1.IN THE CO MMONWEALTH 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 indivi dual; and Philip Murray : Bricknell, an adult individual, :

Respondents:

O R D E R

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

p reliminary o bjections are granted and Count I of Peti tioner’s c omplaint is

dismissed . The Chief Clerk is dir ected to mark th e case as closed

.

_________________________________ DAN PELLEGRINI, Senior Judge