              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark Anthony Robinson,                               :
                               Appellant             :
                                                     :
                       v.                            :   No. 1694 C.D. 2017
                                                     :   Submitted: April 20, 2018
Officer Fye, Marirosa Lamas,                         :
Jeffrey Horton, Robert Marsh,                        :
Timothy Miller, Lynn Eaton,                          :
Lieutenant Sutton, Lieutenant                        :
Davis and David Kuhn                                 :



BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
JUDGE COHN JUBELIRER                                     FILED: August 17, 2018


      Mark Anthony Robinson (Robinson), pro se, appeals an Order of the Court of
Common Pleas of Centre County (common pleas) dismissing Robinson’s causes of
action, which he filed under 42 U.S.C. § 1983 (Section 1983)1 alleging that his


      1
          Section 1983 provides, in relevant part:

      Every person who, under color of any statute, ordinance, regulation, custom, or
      usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United
      States or other person within the jurisdiction thereof to the deprivation of any rights,
      privileges, or immunities secured by the Constitution and laws, shall be liable to
      the party injured in an action at law, suit in equity, or other proper proceeding for
      redress, except that in any action brought against a judicial officer for an act or
      omission taken in such officer’s judicial capacity, injunctive relief shall not be
      granted unless a declaratory decree was violated or declaratory relief was
      unavailable. For the purposes of this section, any Act of Congress applicable
constitutional rights were violated by a number of Pennsylvania Department of
Corrections’ (DOC) employees while he was an inmate at the State Correctional
Institution at Rockview (SCI-Rockview). Pursuant to Section 6602(e) of the Prison
Litigation Reform Act (PLRA), 42 Pa. C.S. § 6602(e),2 common pleas dismissed
Robinson’s causes of action on the grounds that they were barred by the doctrines
of res judicata and collateral estoppel. This Court now affirms.


I.     Background
       Robinson commenced this action on March 8, 2013. Preliminary objections
to Robinson’s complaint were filed, as was a motion for leave to amend the
complaint, both of which common pleas granted. Robinson filed an Amended


       exclusively to the District of Columbia shall be considered to be a statute of the
       District of Columbia.

42 U.S.C. § 1983.
       2
         Section 6602(e) of the PLRA states the following:

       (e) Dismissal of litigation.--Notwithstanding any filing fee which has been paid,
       the court shall dismiss prison conditions litigation at any time, including prior to
       service on the defendant, if the court determines any of the following:

       (1) The allegation of indigency is untrue.

       (2) The prison conditions litigation is frivolous or malicious or fails to state a claim
       upon which relief may be granted or the defendant is entitled to assert a valid
       affirmative defense, including immunity, which, if asserted, would preclude the
       relief.

       The court may reinstate the prison conditions litigation where the dismissal is based
       upon an untrue allegation of indigency and the prisoner establishes to the
       satisfaction of the court that the untrue information was not known to the prisoner.

42 Pa. C.S. § 6602(e) (emphasis in original).



                                                  2
Complaint on July 5, 2013.3 In his Amended Complaint, Robinson named nine
employees of SCI-Rockview as defendants:                     Superintendent Marirosa Lamas;
Deputy Superintendents and Program Review Committee (PRC) members Jeffrey
Horton and Robert Marsh; Corrections Classification and Inmate Program Manager
and PRC member Timothy Miller; Security Captain and PRC member Lynn Eaton;
Lieutenants Davis and Sutton; Officer Fye; and Hearing Examiner David Kuhn
(collectively Defendants).            Robinson alleged that Defendants violated his
constitutional rights under the First, Eighth, and Fourteenth Amendments to the
United States Constitution4 in retaliation for the grievances and lawsuits that he filed
against employees of SCI-Rockview. Specifically, Robinson alleged that he was
subjected to unwarranted misconduct charges for which he was found guilty by a
biased hearing examiner; an unwarranted transfer to the Special Management Unit
(SMU) at SCI-Camp Hill; an unjust placement into the restrictive housing unit
(RHU) at SCI-Rockview; and a denial of needed psychological care during his time
at SCI-Rockview from March 2009 to August 2011. Robinson also alleged that
Deputy Superintendent Marsh initiated a “champaign [sic] of retaliation, instructing,
ordering and approving SCI-Rockview’s staff and employees [sic] filing of
retaliatory misconduct reports against [Robinson] designed to cause [Robinson]



       3
           Preliminary objections were filed to the Amended Complaint, which were sustained in
part and overruled in part.
         4
           The First Amendment to the United States Constitution states that “Congress shall make
no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.” U.S. CONST. amend. I. The Eighth
Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII. The Fourteenth Amendment
states, in relevant part, “nor shall any State deprive any person of life, liberty, or property, without
due process of law.” U.S. CONST. amend. XIV, § 1.


                                                   3
unjust and unwarranted time inside of the RHU . . . .” (Amended Complaint (Am.
Compl.) ¶ 9.)
       On May 23, 2016, Defendants filed an Answer with New Matter, denying the
allegations.    The New Matter asserted the defenses of lack of administrative
exhaustion, failure to state a claim upon which relief can be granted, and qualified
immunity. (Defendants’ Answer to Am. Compl. ¶¶ 47-51.) The New Matter did not
assert res judicata or collateral estoppel as bases for dismissing the claim.
       Defendants subsequently filed a Motion for Dismissal Pursuant to 42 Pa. C.S.
§ 6602(e) (Motion) on March 8, 2017. The Motion asserted that the doctrines of res
judicata and/or collateral estoppel applied to Robinson’s claims because they were
“nearly identical to the allegations and claims raised” in a federal court action that
Robinson previously filed in 2012, in which judgment was entered in Defendants’
favor (Federal Court Action). (Motion ¶¶ 12-15.) Robinson had filed his complaint
in federal court (Federal Complaint)5 under Section 1983, alleging that his
constitutional rights protected by the First, Eighth, and Fourteenth Amendments
were violated by employees of SCI-Rockview during his incarceration at that prison
from March 2009 to August 2011 and his subsequent transfer to the SMU at SCI-
Camp Hill. The Federal Complaint named five defendants, four of whom are also
named as defendants in the present action:                 Superintendent Lamas; Deputy
Superintendents Marsh and Horton; and PRC member Miller.6 The defendants had
moved for summary judgment, which the United States District Court for the Middle


       5
          Robinson subsequently filed an Amended Complaint in the Federal Court Action, which
will hereinafter be referred to as the “Federal Complaint” and abbreviated as “(Fed. Am. Compl.).”
The Federal Complaint, the docket in the Federal Court Action, and the federal courts’ decisions
were attached to the Motion.
        6
          The fifth defendant named in Robinson’s Federal Court Action was John Wetzel, who is
the Secretary of Corrections. Secretary Wetzel is not named as a defendant in the current action.


                                                4
District of Pennsylvania (District Court) granted. The District Court found, as a
matter of law, that: (1) no First Amendment claim could lie for the misconduct
charges or placement into the SMU because these actions were not retaliatory; (2)
placement into the SMU program was not “cruel and unusual” in violation of the
Eighth Amendment; and (3) Robinson’s right to due process under the Fourteenth
Amendment was not violated when he was placed into the SMU without a hearing.
Robinson v. Wetzel, No. 3:11-CV-2194, 2014 WL 11456082, at *7-11 (M.D. Pa.
June 25, 2014), recommendation adopted, 2014 WL 11456595 (M.D. Pa. Sept. 29,
2014) (Robinson I). The United States Court of Appeals for the Third Circuit (Third
Circuit), in an unreported, per curiam opinion, affirmed the District Court’s order
dismissing Robinson’s constitutional claims. Robinson v. Wetzel, 617 F. App’x 120,
122 (3d Cir. 2015).
      In response to the Motion, Robinson argued that res judicata and collateral
estoppel were waived under the Pennsylvania Rules of Civil Procedure because
Defendants did not assert these defenses in their New Matter.
      On October 20, 2017, common pleas granted the Motion and dismissed the
action. Common pleas found that the doctrines of res judicata and collateral estoppel
applied to Robinson’s claim, “[i]n light of the thorough review and treatment of
[Robinson’s] causes of action in the Federal Court Action . . . .” (Common Pleas
Order, Oct. 20, 2017.) Finding that Robinson “is not prejudiced by the procedural
irregularity, [common pleas] conclude[d] that substantive justice and judicial
economy are best served by treating the allegations in Defendants’ Motion . . . as an
amendment of Defendants’ original New Matter by leave of court.” (Id.)
      Robinson timely appealed common pleas’ Order, claiming that res judicata
and collateral estoppel do not apply. Robinson further argues that Defendants



                                         5
waived the defenses of res judicata and collateral estoppel by failing to assert these
defenses in their New Matter, and that the trial court committed an error of law,
abused its discretion, and prejudiced him by sua sponte treating the Motion as an
addendum to Defendants’ New Matter.7 We address these issues in turn.


II.       Analysis
          1.    Applicability of Res Judicata and Collateral Estoppel
          Common pleas found that res judicata and collateral estoppel applied and
barred Robinson’s action because the underlying issues in this action had already
been adjudicated with finality in the Federal Court Action he brought in 2012. The
entirety of Robinson’s argument that this was error is: “The standards for res
judicata and collateral estoppel simply do not apply in the [sic] case,” a statement
which Robinson follows up with two citations to case law. (Robinson’s Brief (Br.)
at 9.)8
          Defendants contend that res judicata and collateral estoppel are applicable and
bar this action because Robinson’s claims and allegations are the same as those he
asserted in the Federal Court Action, which the District Court dismissed after a
thorough review, and the Third Circuit upheld. Defendants concede that some
specifically named Defendants in the present action were not named as defendants


          7
          We have consolidated the waiver issue and the sua sponte addendum issue because the
analysis for both is inseparable and substantially similar. In addition, we have reordered the issues
on appeal to first examine the applicability of res judicata and collateral estoppel before we
determine whether Robinson’s action was properly dismissed.
        8
          In Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014), the Pennsylvania Supreme
Court found that “to the extent the appellant’s claims fail to contain developed argument or citation
to supporting authorities and the record, they are waived . . . .” Although Robinson’s argument on
this issue is neither developed nor contains citation to the record, it does cite case law. Thus, we
will not find that Robinson has waived this issue.


                                                 6
in the Federal Court Action. Nevertheless, Defendants contend that res judicata still
applies because the DOC administrators named as defendants in the Federal Court
Action sufficiently represented these new Defendants’ interests.             Moreover,
Defendants claim that some of the newly named Defendants are, or were,
subordinates of defendants named in the Federal Court Action.
      At the outset, we note that technical res judicata (claim preclusion) and
collateral estoppel (issue preclusion) are “related, yet distinct” components of the
doctrine known as res judicata. J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936,
939 (Pa. Cmwlth. 2002) (citation omitted). Res judicata, or claim preclusion, applies
only when there exists a “coalescence of 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.” Id. When res judicata applies, “[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.” Balent v. City of Wilkes-Barre, 669 A.2d
309, 313 (Pa. 1995). Beyond precluding just those claims that were “actually
litigated” in the first adjudication, res judicata also precludes those “claims which
could have been litigated during the first proceeding if they were part of the same
cause of action.” Id. (emphasis added). Relevant to this case, res judicata can apply
in such a way as to bar suits brought in state court that involve claims that were
litigated or should have been litigated in a previous federal suit. See London v. City
of Phila., 194 A.2d 901, 902-03 (Pa. 1963) (holding that claim that could have been
asserted in previous federal court action could not be litigated in subsequent state
court action). Moreover, where “the same evidence is required to support a final
determination in a former action and in a subsequent action, res judicata bars the



                                           7
second action.” Commonwealth ex rel. Bloomsburg State Coll. v. Porter, 610 A.2d
516, 520 (Pa. Cmwlth. 1992).
      Collateral estoppel or issue preclusion renders issues of fact or law, McNeil v.
Owens-Corning Fiberglas Corporation, 680 A.2d 1145, 1147-48 (Pa. 1996),
incapable of relitigation in a subsequent suit if, in a prior suit, these (1) same issues
were (2) “necessary to [a] final judgment on the merits . . . [and (3)] the party against
whom [issue preclusion] is asserted [was] . . . a party, or [was] . . . in privity with a
party[] to the prior action and . . . [(4)] had a full and fair opportunity to litigate the
issue in question,” Balent, 669 A.2d at 313. Collateral estoppel is designed to
“protect[] litigants from assuming the burden of re-litigating the same issue with the
same party . . . and [to] promot[e] judicial economy through preventing needless
litigation.” McNeil, 680 A.2d at 1148.
      In evaluating the effect of the decision in Robinson’s prior federal suit, we
must consider that “[a] judgment is deemed final for purposes of res judicata or
collateral estoppel unless or until it is reversed on appeal.” Shaffer v. Smith, 673
A.2d 872, 874 (Pa. 1996) (emphasis omitted) (citation omitted). In addition, the
Pennsylvania Supreme Court has found that, with regard to collateral estoppel, a
“final judgment includes any prior adjudication of an issue in another action that is
determined to be sufficiently firm to be accorded conclusive effect.” Id. at 875
(citing Restatement (Second) of Judgments § 13 (Am. Law Inst. 1980)) (quotation
omitted).
      Under the first element of res judicata, we evaluate whether the things that
Robinson sued upon or for in both the present suit and the Federal Court Action are
identical. In the present suit, Robinson sued Defendants under Section 1983 alleging
certain of their actions violated his First, Eighth, and Fourteenth Amendment rights



                                            8
during his incarceration at SCI-Rockview from March 2009 to August 2011.
Robinson seeks declaratory relief and compensatory and punitive damages for
mental and emotional harm.           In the Federal Complaint, he similarly sought
declaratory judgment for constitutional violations based on the allegedly wrongful
acts of the defendants during Robinson’s incarceration at SCI-Rockview from March
2009 to August 2011, as well as compensatory and punitive damages for the mental
and emotional harm caused by the defendants’ actions. Because these are identical
in both this lawsuit and Robinson’s Federal Court Action, the first element of res
judicata is satisfied.
       We next address the second element of res judicata, which involves an
evaluation of whether the present cause of action is identical to the Federal
Complaint. Identity of the causes of action under the second element of res judicata
exists “when the subject matter and the ultimate issues are the same in both the old
and new proceedings.” Cellucci v. Laurel Homeowners Ass’n, 142 A.3d 1032, 1049
(Pa. Cmwlth. 2016) (citation omitted). In Robinson’s amended complaints from
both his Federal Court Action and the present action, he claims that various
employees of SCI-Rockview violated his First, Eighth, and Fourteenth Amendment
rights during his incarceration from March 2009 to August 2011. The Federal
Complaint focused on the constitutional violations that he claimed arose from the
circumstances surrounding his allegedly retaliatory transfer from SCI-Rockview to
the SMU at SCI-Camp Hill on August 23, 2011. In contrast, Robinson’s Amended
Complaint in the present action made little mention of this allegedly retaliatory
transfer into the SMU;9 instead, it focused on the alleged constitutional violations
arising from other actions carried out by Defendants during the same time period.

       9
       However, in the present suit, Robinson also alleges that his transfer to the SMU at SCI-
Camp Hill was retaliatory.


                                              9
      However, a closer inspection of the Federal Complaint reveals that Robinson
also alleged there the same conduct that forms the basis of his Amended Complaint
here. In particular, the Federal Complaint alleged that, during Robinson’s time at
SCI-Rockview, Deputy Superintendent Marsh masterminded an initiative to: subject
Robinson to unwarranted and false misconduct charges, which caused Robinson to
spend inordinate amounts of time in the RHU; to influence Hearing Examiner Kuhn
to ensure that Robinson was found guilty at misconduct hearings; and to deny
Robinson the psychological care he needed. (Fed. Am. Compl. ¶¶ 14-15, 17.) The
Federal Complaint also claimed that Deputy Superintendent Marsh’s initiative
aimed to retaliate against Robinson for the lawsuits and grievances that Robinson
previously filed. (Id. ¶ 15.) Furthermore, the Federal Complaint generally alleged
that all of these actions were “constitutional violations” and that the PRC members,
superintendents, and Secretary of Corrections John Wetzel failed to remedy these
alleged violations when Robinson appealed to them. (Id. ¶¶ 18-20.)
      Just as in the Federal Court Action, Robinson’s Amended Complaint here
alleges that, in retaliation for his filing of lawsuits and grievances against SCI-
Rockview employees, Deputy Superintendent Marsh launched an initiative to:
subject Robinson to constant, false misconduct charges, which led to Robinson’s
constant confinement in the RHU; ensure that Hearing Examiner Kuhn consistently
found him guilty of these charges; and ensure that Robinson did not receive the
psychological care he needed. (Am. Compl. ¶¶ 9, 11, 14-16.) Similar to Robinson’s
Federal Court Action, here he also alleges that his appeals to members of the PRC
and the superintendents to remedy the constitutional violations were ignored. (Id.
¶¶ 13, 17, 20.)




                                        10
      Overall, Robinson’s constitutional claims in this case were set forth in his
Federal Court Action, which the District Court dismissed as a matter of law. In the
present suit, Robinson more specifically details the allegedly unlawful conduct. (Id.
¶¶ 24-32.) However, Robinson essentially made the same allegations in his Federal
Complaint when he generally claimed that these same actions violated his
constitutional rights. (Fed. Am. Compl. ¶¶ 18-19.) Robinson’s prior Federal Court
Action covered the same subject matter as the present action: his disciplinary record;
conditions of confinement; and his mental health while he was an inmate at SCI-
Rockview from March 2009 to August 2011. Furthermore, the ultimate issues in
this action were included in the Federal Court Action. These are whether, in
retaliation for his filing of lawsuits and grievances, Robinson was subjected to and
found guilty of false misconduct charges by a biased hearing examiner; unwarranted
disciplinary confinement resulting from those guilty findings; unwarranted denial of
proper psychological treatment; and an unwarranted failure on the part of the
administrators to remedy all of this wrongdoing. In granting the defendants’ motion
for summary judgment, the District Court found Robinson’s claims meritless.
Robinson I, 2014 WL 11456082, at *7-11. Furthermore, since Robinson’s claims in
this action were also set forth in his Federal Court Action and such claims center on
his time at SCI-Rockview from March 2009 to August 2011, a decision in both
actions must essentially be made on the same set of facts. This includes Robinson’s
misconduct findings and his appeals of those findings during that time period. The
evidence relevant to a resolution of both actions is, thus, substantially the same.
Robinson’s cause of action here is the same as in his prior Federal Court Action,
thus satisfying the second element of res judicata (claim preclusion).




                                         11
       With regard to identity of the parties, the third element of res judicata, this
Court has held that privity between the parties to past and present suits under both
claim and issue preclusion can exist when the parties to such suits bear an agency
relationship. See Montella v. Berkheimer Assocs., 690 A.2d 802, 804 (Pa. Cmwlth.
1997) (“Generally, parties are in privity if one is vicariously responsible for the
conduct of another, such as principal and agent or master and servant.”) (citation
omitted).   Overall, privity between parties lies when there exists “mutual or
successive relationships to the same right of property, or such an identification of
interest of one person with another as to represent the same legal right.” Id.
(quotation omitted).
       Superintendent Lamas, Deputy Superintendents Marsh and Horton, and PRC
member Miller are Defendants named in the present suit who were also defendants
in Robinson’s Federal Court Action. The Amended Complaint here alleges that they
failed to remedy the wrongdoing of their “subordinate staff.” (Am. Compl. ¶¶ 24-
27.) Security Captain Eaton, a Defendant named in the present action but not the
Federal Complaint, is an administrative officer and PRC member who allegedly
failed to remedy the wrongdoing of subordinate employees at SCI-Rockview. (Id. ¶
28.) Therefore, Security Captain Eaton was in privity with the federal defendants
because they, as administrators, similarly were accused of failing to remedy the
wrongdoing of their subordinates. The other new Defendants named in this suit are
Lieutenants Davis and Sutton, Officer Fye, and Hearing Examiner Kuhn. (Id. ¶¶ 29-
32.)   They were also in privity with the federal defendants because they are
subordinates of those defendants. Therefore, all of the new Defendants in the present
suit were in privity to the defendants in Robinson’s Federal Court Action, thus
satisfying the third element of res judicata.



                                          12
      Finally, the fourth element of res judicata, identity of the capacity in which
the parties are sued, is met. The defendants named in the Federal Court Action and
the present case are being sued in their official capacity as DOC employees.
Furthermore, the new Defendants that were in privity with the federal defendants are
also being sued in their official capacity. Therefore, all of the Defendants are being
sued in the same official capacity as the defendants in Robinson’s Federal Court
Action, thus satisfying the fourth element of res judicata.
      Because we agree with common pleas that res judicata bars Robinson’s suit
in this action, we technically need not also examine the applicability of collateral
estoppel, or issue preclusion, to Robinson’s suit. However, we do so for the sake of
completion. As stated above, collateral estoppel renders issues of fact or law,
McNeil, 680 A.2d at 1147-48, incapable of relitigation in a subsequent suit if, in a
prior suit, these (1) same issues were (2) “necessary to [a] final judgment on the
merits . . . [and (3)] the party against whom [issue preclusion] is asserted [was] . . .
a party, or [was] . . . in privity with a party[] to the prior action and . . . [(4)] had a
full and fair opportunity to litigate the issue in question,” Balent, 669 A.2d at 313.
The first element of collateral estoppel is met because the issues in the Federal Court
Action are identical to the issues in this case. These issues are: whether Robinson
was subjected to false misconduct charges; subsequent disciplinary actions
stemming from those misconduct charges; and the denial of psychological treatment
at SCI-Rockview from March 2009 to August 2011, all in retaliation for Robinson’s
filing of lawsuits and grievances against DOC employees. Furthermore, the issues
were necessary to the final judgment in the Federal Court Action, satisfying the
second element of collateral estoppel. The third element of collateral estoppel is met
because Robinson was a party to the Federal Court Action and he is the party against



                                            13
whom collateral estoppel is now being asserted. Lastly, Robinson had a full and fair
opportunity to litigate these issues in the Federal Court Action, and he was afforded
an opportunity to amend his complaint. Yet, the District Court found Robinson’s
claims were meritless. While Robinson more specifically details the lawsuits and
grievances that allegedly prompted the retaliation in his Amended Complaint here,
he is estopped from relitigating the issues regarding whether he was subjected to
retaliatory acts by Defendants.
      The District Court reviewed the misconduct charges and subsequent
disciplinary sanctions that Robinson faced from March 2009 to August 2011 and
found these actions were neither false nor retaliatory. The District Court also found
that Robinson’s transfer to the SMU was not retaliatory and that the staff at SCI-
Rockview actually demonstrated considerable concern for his mental health as
indicated by their efforts to have him evaluated by mental health professionals so
that his needs could be met. Robinson I, 2014 WL 11456082, at *7-11. Because the
elements of collateral estoppel are also satisfied, Robinson is barred from relitigating
these issues here.


      2.     Waiver of the Affirmative Defenses
      Having concluded that res judicata and collateral estoppel apply, we must
determine whether Defendants waived the defenses by not raising them in their New
Matter. Robinson claims they have, and in support of this argument, he cites
Pennsylvania Rules of Civil Procedure 1030 and 1032, Pa.R.C.P. Nos. 1030 and
1032, which require affirmative defenses to be raised as new matter to avoid waiver.
(Robinson’s Br. at 8.) Robinson also argues that it was an abuse of discretion, an
error of law, and prejudicial to him for common pleas to sua sponte treat the



                                          14
affirmative defenses in Defendants’ Motion as an addendum to their New Matter.
He argues that Defendants should have instead sought leave of court to amend their
New Matter. (Id. at 9.)
      Defendants argue that Section 6602(e) of the PLRA permits the dismissal of
Robinson’s claims because, under this statute, the affirmative defenses of res
judicata and collateral estoppel warrant dismissal at any time if these defenses could
validly be asserted during the course of prison conditions litigation.10 (Defendants’
Br. at 6-7.) Defendants argue that the PLRA’s goal is to promote judicial economy
by the swift dismissal of meritless claims. (Id. at 6.) Overall, Defendants contend
that Section 6602(e) of the PLRA provides them with the leeway they need to avoid
waiver despite their assertion of these defenses in a motion to dismiss, rather than as
new matter in a responsive pleading.
      In order to determine whether Defendants waived their defenses of res
judicata and collateral estoppel, or whether the PLRA permits the trial court to
dismiss the case based on those defenses, we first examine Rules 1030 and 1032 of
the Pennsylvania Rules of Civil Procedure and Section 6602(e) of the PLRA. Rule
1030(a) states:

      (a) Except as provided by subdivision (b), all affirmative defenses
      including but not limited to the defenses of accord and satisfaction,
      arbitration and award, consent, discharge in bankruptcy, duress,
      estoppel, failure of consideration, fair comment, fraud, illegality,
      immunity from suit, impossibility of performance, justification, laches,
      license, payment, privilege, release, res judicata, statute of frauds,
      statute of limitations, truth and waiver shall be pleaded in a responsive
      pleading under the heading “New Matter”. A party may set forth as
      new matter any other material facts which are not merely denials of the
      averments of the preceding pleading.


      10
           Robinson does not dispute that this suit qualifies as prison conditions litigation.


                                                  15
Pa.R.C.P. No. 1030(a) (emphasis added).
      Rule 1032(a) provides:

      (a) A party waives all defenses and objections which are not
      presented either by preliminary objection, answer or reply, except
      a defense which is not required to be pleaded under Rule 1030(b), the
      defense of failure to state a claim upon which relief can be granted, the
      defense of failure to join an indispensable party, the objection of failure
      to state a legal defense to a claim, the defenses of failure to exercise or
      exhaust a statutory remedy and an adequate remedy at law and any
      other nonwaivable defense or objection.

Pa.R.C.P. No. 1032(a) (emphasis added).
      Section 6602(e)(2) of the PLRA states:

      (e) Dismissal of litigation.--Notwithstanding any filing fee which has
      been paid, the court shall dismiss prison conditions litigation at any
      time, including prior to service on the defendant, if the court
      determines any of the following:

                                         ***

      (2) The prison conditions litigation is frivolous or malicious or fails to
      state a claim upon which relief may be granted or the defendant is
      entitled to assert a valid affirmative defense, including immunity,
      which, if asserted, would preclude the relief.

42 Pa. C.S. § 6602(e)(2) (first emphasis in original; subsequent emphasis added).
      In the absence of the PLRA, res judicata and the related principle of collateral
estoppel would be defenses that must be pleaded under Rule 1030 as new matter in
a responsive pleading, lest the defenses be waived under Rule 1032. However,
Section 6602(e) of the PLRA permits a court to dismiss prison conditions litigation
at any time if the court finds that an affirmative defense, such as res judicata and
collateral estoppel, could be validly raised.




                                          16
      That the PLRA allows for dismissal of prison conditions litigation without
strict compliance with Rules 1030 and 1032 is supported by case law and the policy
behind the PLRA. In Payne v. Department of Corrections, a group of inmates
claimed that a number of PLRA provisions, including Section 6602(e), violated the
Pennsylvania Supreme Court’s “exclusive authority to prescribe rules of practice
and procedure pursuant to Article V, Section 10(c) of the Pennsylvania
Constitution.” 871 A.2d 795, 799 (Pa. 2005). The Supreme Court rejected the
inmates’ claim, holding that, “[r]ather than establishing a method or procedure to
enforce a substantive right, Section 6602(e) regulates the substantive right to file
prison conditions litigation due to the Legislature’s belief that such claims are
particularly prone to being frivolous and therefore subject to summary dismissal.”
Id. at 802. Thus, the Pennsylvania Supreme Court indicated that Section 6602(e) of
the PLRA provides grounds for the swift dismissal of often frivolous cases, despite
the strictures of the Court’s rules of procedure.
      We have also previously held that a trial court could sua sponte dismiss prison
conditions litigation when a defense was not raised. Paluch v. Palakovich 84 A.3d
1109, 1110 (Pa. Cmwlth. 2014). In Paluch, an inmate sued to recover damages
against prison employees for property belonging to the inmate that was allegedly
lost or damaged during the inmate’s incarceration. The inmate challenged the trial
court’s sua sponte dismissal on the basis of the statute of limitations because the
defendants did not raise the statute of limitations as a defense. Id. at 1111-12. We
held that “Section 6602(e)(2) required the trial court to consider any valid
affirmative defenses that would preclude relief, and this includes the statute of
limitations.” Id. at 1112. Therefore, “the trial court did not err in raising the issue
sua sponte.” Id.



                                          17
      Similarly, in Shore v. Pennsylvania Department of Corrections, we granted
the DOC’s preliminary objections in the nature of a demurrer and dismissed the
inmate’s First Amendment and procedural due process claims. 168 A.3d 374, 382,
386 (Pa. Cmwlth. 2017). We noted that, under Section 6602(e)(2) of the PLRA, we
could have sua sponte dismissed the inmate’s suit because the DOC was shielded by
the affirmative defense of sovereign immunity, despite the absence of any such
defense in the DOC’s preliminary objections. Id. at 386 n.8.
      As demonstrated by our reasoning in Paluch and Shore, Section 6602(e)(2) of
the PLRA supports common pleas’ dismissal of Robinson’s Amended Complaint
based on the defenses of res judicata and collateral estoppel “which, if asserted,
would preclude the relief.” 42 Pa. C.S. § 6602(e)(2). The PLRA grants considerable
discretion to trial courts to dismiss suits based on applicable affirmative defenses,
such as those here, without strict compliance with Rules 1030 and 1032.
Accordingly, common pleas’ decision to treat the Motion and the defenses raised
therein as an amendment to Defendants’ New Matter, and not to find waiver, was an
exercise of common pleas’ discretion under the PLRA and was not an error of law.
      As to Robinson’s assertion that he was prejudiced by common pleas’ decision
to treat the Motion and the defenses raised therein as an amendment to Defendants’
New Matter, it is first worth noting that “[t]he decision to allow an amendment to a
pleading is clearly within the discretion of the trial court.” City of Philadelphia v.
Spencer, 591 A.2d 5, 7 (Pa. Cmwlth. 1991). In addition, with regard to amendments,
“[t]he possible prejudice . . . must stem from the fact that the new allegations are
offered late rather than in the original pleading, and not from the fact that the
opponent may lose his [or her] case on the merits if the [amendment] is allowed.”
Id. (quoting Bata v. Central-Penn Nat’l Bank of Phila., 293 A.2d 343 (Pa. 1972)



                                         18
(emphasis in original) (quotation and citation omitted)). “To constitute prejudice,
the amendment must compromise [the opposing party’s] ability to present [its] case.”
Id. It cannot be said that the affirmative defenses were asserted so late as to prejudice
Robinson because Section 6602(e)(2) of the PLRA enables affirmative defenses to
be raised if the trial court, “at any time,” 42 Pa. C.S. § 6602(e)(2), deemed these
defenses valid. Overall, treating the Motion as an amendment to Defendants’ New
Matter did not limit Robinson’s ability to present this case because common pleas
afforded him the opportunity to amend his Complaint and the District Court had
already thoroughly evaluated the merits of this case. Therefore, this decision by
common pleas was not prejudicial to Robinson.

III.   Conclusion
       We hold that common pleas properly ruled that res judicata and collateral
estoppel bar Robinson from proceeding with this suit. We also hold that it was not
an abuse of discretion, not an error of law, and not prejudicial to Robinson for
common pleas to treat Defendants’ Motion as an amendment to their New Matter,
and, pursuant to the PLRA, not find that Defendants waived the defenses of res
judicata or collateral estoppel. Accordingly, we affirm the Order of common pleas
granting Defendants’ Motion and dismissing Robinson’s suit.




                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                           19
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark Anthony Robinson,                  :
                         Appellant      :
                                        :
                  v.                    :   No. 1694 C.D. 2017
                                        :
Officer Fye, Marirosa Lamas,            :
Jeffrey Horton, Robert Marsh,           :
Timothy Miller, Lynn Eaton,             :
Lieutenant Sutton, Lieutenant           :
Davis and David Kuhn                    :


                                     ORDER
      NOW, August 17, 2018, the October 20, 2017 Order of the Court of Common
Pleas of Centre County is AFFIRMED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
