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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


JOAN M. CICCHIELLO,                        :     IN THE SUPERIOR COURT OF
               Appellant                   :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
SERVICE EMPLOYEE INTERNATIONAL             :
UNION HEALTHCARE PENNSYLVANIA              :
                                           :     No. 579 MDA 2016

                 Appeal from the Order Entered March 22, 2016
            In the Court of Common Pleas of Northumberland County
                       Civil Division at No(s): 2015-1307


BEFORE: OTT, DUBOW, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 13, 2017

        Appellant, Joan M Chicchiello, appeals from the Order entered on

March 22, 2016, in the Northumberland County Court of Common Pleas

granting the Motion to Dismiss filed by Service Employee International Union

Healthcare Pennsylvania (“SEIU” or “Appellee”), and dismissing Appellant’s

Complaint pursuant to Pa.R.C.P. No. 233.1.1          The trial court properly

concluded that Appellant had alleged the same or related claims as those

she raised in a prior action against the same or related defendants and that

those claims have already been resolved pursuant to a court proceeding.

Therefore, after careful review, we affirm.


*
    Retired Senior Judge Assigned to the Superior Court.
1
   Pa.R.C.P. No. 233.1 pertains to dismissal of a pro se litigant’s repetitive
litigation.
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      The facts as gleaned from the Certified Record are as follows.

Appellant was a Pennsylvania Department of Corrections (“DOC”) nurse at

SCI-Muncy and SCI-Frackville. Appellant alleges that in January 2007, the

DOC terminated her employment in retaliation for her serving as a

representative of Appellee.

      Following   her    termination,    Appellant    filed    a   grievance      through

Appellee.    In October 2010, after several years of negotiations, Appellee’s

Member Resources Center Director Wilfredo Tellado resolved Appellant’s

grievance by entering into a settlement agreement with the DOC (the “First

Settlement    Agreement”)       on    Appellant’s    behalf,    through     the    DOC’s

representative Timothy A. Holmes.

      Two months later, a new settlement agreement (the “Second

Settlement Agreement”) replaced the First Settlement Agreement.                      The

Second Settlement Agreement added Appellant as a party and signatory, but

left the substantive provisions of the First Agreement intact.

      In    February    2013,   the   DOC    rescinded    the      Second   Settlement

Agreement, stating that it could not fulfill its essential terms.2 The DOC thus


2
  Specifically, the DOC noted that Paragraph 2 of the Second Settlement
Agreement, “awarding Appellant whatever time was necessary for her to
attain twenty-five years of service with the Commonwealth,” was
unenforceable because Pennsylvania law prohibits Commonwealth
employees from receiving credit for service without making contributions to
the State Employees’ Retirement System.          Given that requirement,
Paragraph 2 was inconsistent with Paragraph 3 of the Second Settlement
Agreement, affording Appellant “one year’s salary at her last prevailing



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offered Appellant a new settlement agreement (the “Third Settlement

Agreement”). It appears, however, that Appellant refused to sign the Third

Settlement Agreement.

     In February 2015, the DOC and Appellee signed a new settlement

agreement (the “Fourth Settlement Agreement”), which was substantially

similar to the terms offered in the Third Settlement Agreement. Appellant

did not sign the Fourth Settlement Agreement and disapproves of its terms.

Accordingly, Appellant has yet to receive benefits from any of the settlement

agreements.

     Since the rescission of the Second Settlement Agreement in February

2013, Appellant has brought litigation against Appellee and other defendants

in multiple forums challenging the DOC’s actions and seeking to enforce

what she considers to be the terms of the Second Settlement Agreement.

Relevant for purposes of disposition of the instant appeal, on June 18, 2015,

wage,” as one year’s salary would only be a sufficient contribution to the
State Employees’ Retirement System to credit Appellant with fifteen years of
service and neither party agreed to make contributions for the additional ten
years of service.

      This illegal provision appears to have been inserted under the
mistaken belief that Appellant needed twenty-five years of service in order
to qualify for medical benefits, when in actuality she only needed fifteen.
The DOC thus offered Appellant a new settlement agreement in February of
2013 that would credit her with the time needed to accrue fifteen years of
service (the “Third Settlement Agreement”). It appears that Appellant
refused to sign the Third Settlement Agreement, which maintains that
Appellant is entitled to one year’s salary, and accordingly adjusts her
credited years of service down to fifteen.




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Appellant filed Civil Action No. 1:15-cv-01201 in the United States District

Court for the Middle District of Pennsylvania.    Then on August 31, 2015,

Appellant filed Civil Action No. 1:15-cv-01682 in the United States District

Court for the Middle District of Pennsylvania.    Appellant filed both federal

cases against Appellee and others, and alleged in her Complaints, among

other things, that Appellee violated federal and state labor laws.

        On July 14, 2015, Appellant filed a pro se3 Complaint in the

Northumberland County Court of Common Pleas against Appellee, Wilfredo

Tellado, and Timothy A. Holmes.       In this Complaint, Appellant alleged a

violation of 42 U.S.C. § 1983 based on purported violations of the First

Amendment, Fourteenth Amendment, and “all other Amendments,” a

violation of Pennsylvania’s Whistleblower Act,4 a violation of the Preamble to

the Declaration of Independence based on a “disparity of treatment” relating

to a purported “settlement agreement,” and a conspiracy to violate “any and

all fair Labor Practice Acts/Laws.”        See Complaint, 7/14/15, at 7-8

(unpaginated).    Appellant filed Amended Complaints on August 14, 2015,

September 4, 2015, January 19, 2016, and February 19, 2016. The details

of the amendments are largely immaterial to disposition of this matter. Of

note, however, is that in the Amended Complaint filed on January 19, 2016,


3
  Appellant proceeded pro se at all times until April 12, 2016, when she filed
a counseled Notice of Appeal.
4
    See 42 Pa.C.S. § 1421 et seq.



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Appellant asserted a claim for breach of duty of fair representation5

essentially averring that Appellee had a duty of fair representation to

Appellant which it breached when it failed to ensure that the settlement it

negotiated with the DOC on Appellant’s behalf was enforced.           Amended

Complaint, 1/19/16, at 3-4 (unpaginated).

      On March 9, 2016, Appellee notified the trial court that on March 8,

2016, the U.S. District Court for the Middle District of Pennsylvania, at No.

1:15-cv-1682, granted Appellee’s Motion to Dismiss Appellant’s federal and

state labor law claims, as well as her civil rights claims, with prejudice as

barred by the doctrine of res judicata. Appellee asked the trial court to take

judicial notice of the Order pursuant to Pa.R.E. 201.6 Adopting the Report

and Recommendation (“R&R”) prepared by a U.S. Magistrate Judge, the

District Court concluded that the claims Appellant raised in her Complaint

were “virtually identical to claims arising from the same underlying events

against [Appellee] in a concurrent action brought before [the court] on June

18, 2015, [Cicchiello v. Wetzel, No. 1:15-cv-01201 (M.D. Pa. filed June

5
   Appellant continued to assert this claim in her final Amended Complaint,
titled “Complaint as Ordered,” filed on February 19, 2016.
6
   Pa.R.E. 201 governs judicial notice of adjudicative facts. The rule states:
“The court may judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court's territorial
jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned. The court: (1) may take
judicial notice on its own; or (2) must take judicial notice if a party requests
it and the court is supplied with the necessary information.” Pa.R.E. 201(b),
(c).



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18, 2015),] which was recently resolved on its merits [on February 2,

2016].” R&R, 2/5/16, at 7. The District Court concluded that the doctrine of

res judicata applied to bar Appellant’s action because: (1) the previous suit

was subject to a final adjudication on the merits based on the statute of

limitations; (2) there was complete identity of the parties sufficient to bar

re-litigation of Appellant’s claims; and (3) both suits asserted the same

causes of action, namely, violations of federal and state labor laws and 42

U.S.C. § 1983 resulting from the rescission of the Second Settlement

Agreement. See R&R, 2/15/16, at 8-9.

      On March 15, 2016, Appellee filed a Motion to Dismiss Appellant’s

Complaint in the instant case pursuant to Pa.R.C.P. No. 233.1, and to deny

Appellant leave to file any additional amendments to her Complaint. In the

Motion, in addition to referencing the District Court Order dismissing

Appellant’s action at No. 1:15-cv-01682, Appellee argued that Appellant’s

February 19, 2016 Amended Complaint failed to cure the defects in her

previous Complaints; rather, the amendment merely slightly altered the

language of the averments and put forth the same conclusory arguments.

See Mot. to Dismiss, 3/15/16, at ¶ 24. Appellee noted that Appellant had

been “[d]isaffected by prior failures to litigate her spurious claims, she

continues to file a series of duplicative lawsuits and numerous amended

pleadings seeking relief for the same alleged injuries over and over again.”

Id.



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      On March 22, 2016, the trial court entered an Order granting

Appellee’s Motion to Dismiss.      The court concluded that dismissal was

required because Appellant was “alleging the same or related claims which

[she] raised in a prior action against the same or related defendants and

which claims have already been resolved pursuant to a court proceeding.”

Trial Ct. Order, 3/22/16 (citing Pa.R.C.P. No. 233.1(a)).     The court noted

that the pleadings in this matter “raise an identical claim against the

identical defendant as are raised in the action filed in the United States

District Court to Cicchiello v. SEIU 1199P Union et al., 1:15-cv-1682

(M.D. Pa.), and that claim has been resolved by the Order entered by the

District Court on March 8, 2016 dismissing the claim as barred by the

statute of limitations.” Id.

       Appellant, proceeding with counsel for the first time, filed a Notice of

Appeal on April 12, 2016. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant raises the following issue on appeal:

         Did the trial court abuse its discretion by misapplying the
         law when it dismissed Appellant’s Complaint due to a
         finding that Appellant raised an identical claim against
         identical Appellees in an action in U.S. District Court[,]
         which was also dismissed?

Appellant’s Brief at 4.

      In support of this issue, Appellant claims that the trial court erred

when it dismissed this case based on a finding that the claims she raised in



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this case were identical to those she raised in her federal court Complaint at

Case No. 1:15-cv-01682. Id. at 7. She notes: “[T]he [t]rial [c]ourt claims

that Appellant specifically raised a claim of duty of fair representation owed

by a labor union to its members in her Middle District Court Complaint.

However, it appears that the [t]rial [c]ourt is referencing [in its March 22,

2016 Order dismissing this case] a different federal case at No. 1:15-cv-

01201 in its Opinion [pursuant to Pa.R.A.P. 1925.]”7 Id. Appellant denies

that she raised a claim in the Complaint she filed at No. 1:15-cv-01682

premised on a breach of the duty of fair representation.         Therefore, she

claims that the court erred in dismissing her Complaint. Id.

      Our review of the Order granting Appellee’s Motion to Dismiss

Appellant’s claims pursuant to Pa.R.C.P. 233.1 requires us to interpret and


7
  Appellant’s claim of error appears not so much to impugn the trial court’s
conclusion that her breach of the duty of fair representation claim had been
previously litigated and resolved in the federal court, but rather that the trial
court referenced different federal cases in its Order granting Appellee’s
Motion to Dismiss, and its Opinion pursuant to Pa.R.A.P. 1925.

       In its Order dismissing this case, the trial court cites No. 1:15-cv-
01682 as the basis for concluding that Appellant raised identical claims
against identical defendants in that matter, which claims had been resolved.
However, in its Rule 1925(a) Opinion, the trial court relies on the District
Court’s R&R in No. 1:15-cv-01201 in support of its Order granting the
Motion to Dismiss. This may be a typographical error, but even if it is not,
this reliance is of no moment because of the interrelatedness of the two
federal cases. In the first, the U.S. District Court dismissed Appellant’s
claims arising from the duty of fair representation as barred by the statute of
limitations. In the second, the district court found those same claims barred
by res judicata. Thus, the trial court’s ultimate determination—that the
same or related claims were resolved in a prior proceeding—is correct.



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apply a Pennsylvania Rule of Civil Procedure; therefore, we are presented

with a question of law for which our standard of review is de novo, and our

scope of review is plenary.    See Gray v. Buonopane, 53 A.3d 829, 834

(Pa. Super. 2012).

       Pennsylvania Rule of Civil Procedure No. 233.1 governs a defendant’s

motion to dismiss frivolous or repetitive claims brought by a pro se plaintiff.

It provides, in relevant part, that, in an action filed by a pro se plaintiff, a

defendant may file a Motion to Dismiss if, in its Complaint, “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 the

claims have been resolved in a court proceeding. Pa.R.C.P. No. 233.1(a)(1)-

(2) (emphasis added).

       This Court, in Gray, supra, examined Rule 233.1, and concluded that

by the Rule’s use of the term “related,” it eschewed the technical precision

associated with the doctrines of res judicata or collateral estoppel.” Id. at

836.   The Gray Court found that Rule 233.1 imposes a far less exacting

standard on a defendant who seeks relief; rather than mandate that the

plaintiff’s claims be identical, the Rule merely requires that they be related.

Id.

       Here, the trial court determined that, “[t]he pleadings in this matter

raise an identical claim against the identical defendant as are [sic] raised in

the action filed in the United States District Court [in] Cicchiello v. SEIU



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1199P Union et al., 1:15-cv-1682 (M.D. Pa), and that claim has been

resolved by the Order entered by the District Court on March 8, 2016.” Trial

Ct. Order, 3/22/16.       As an initial matter, we note that Appellant does not

challenge the trial court’s conclusion that, for purposes of Pa.R.C.P. No.

233.1, the defendants in her federal court actions and the instant case are

“the same or related defendants[.]” Pa.R.C.P. 233.1(a)(1).               Therefore, we

confine our discussion to the nature of the claims raised by Appellant.

        After carefully reviewing the Certified Record, including Appellant’s

federal Complaints, we agree with the trial court that the issues raised by

Appellant in her state court Complaint were “the same or related claims [as

those] raised in a prior action” and that “have already been resolved

pursuant     to   [   ]   a   court   proceeding.”        Pa.R.C.P.   233.1(a)(1)-(2).

Furthermore, relying on the holding in Gray, supra, we reject the premise

of Appellant’s argument that she is entitled to relief because the claims she

set forth in her Complaint in No. 1:15-cv-01682 are not identical to those in

her Complaint in the instant matter. Gray clearly stands for the proposition

that the entitlement to relief pursuant to Rule 233.1 is not limited to

identical claims; rather, the Rule requires only that the claims are related.

        In support of its dismissal Order, the trial court relied on the federal

Magistrate Judge’s findings, as affirmed by the U.S. District Court by its

adoption of the R&R, that Appellant’s claims included a “hybrid § 301 [of the

Labor    Management       Relations    Act   of   1947,    29   U.S.C.   §   1985]/fair



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representation claim[.]” Trial Ct. Op., 5/16/16, at 2 (citing R&R of the U.S.

District Court for the Middle District of Pennsylvania, No. 1:15-cv-01201,

1/5/16, at 11-12 (emphasis omitted)). By way of explanation, in its R&R,

the federal court noted that where a “union representing an employee in the

grievance/arbitration procedure acts in such a [way] . . . as to breach its

duty of fair representation, the employee may bring suit against [ ] the

union.” R&R, 1/5/16, at 11-12. It further explained that in DelCostello v.

Int’l Brotherhood of Teamsters, 462 U.S. 151, 164 (1983), the U.S.

Supreme Court found that causes of action arising in these circumstances

are “hybrid” claims because a plaintiff has a claim against his employer

pursuant to § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.

§ 1985, and a cause of action against the union under the National Labor

Relations Act arising from the union’s alleged breach of its duty of fair

representation. Id. at 12.

      Next, the trial court concluded that in her state court Complaint,

Appellant raised claims arising generally from a union’s duty to its members

in both her state federal court and state court actions, including a claim that

Appellee breached its duty of fair representation to Appellant. Trial Ct. Op.

at 2-3. Appellant does not argue in her brief that she did not raise a duty of

fair representation claim in her state court Complaint, and, thus, she has

conceded this point.




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        Our review further indicates that in her federal Complaint at No. 1:15-

cv-01682, Appellant claimed at Count 1 that Appellee “[c]onspired against

[Appellant] and conspired against any and all [F]air Labor Practice

Acts/Laws.” Appellant’s Complaint in Case No. 1:15-cv-01682, 8/31/15, at

¶ 33.    Although arguably stated more generally than the claim Appellant

raised in Case No. 1:15-cv-01201, the claim in No. 1:15-cv-01682 was

sufficiently similar and related to the claim she raised in Case No. 1:15-cv-

01201 that the U.S. District Court dismissed it as barred by the doctrine of

res judicata.

        We agree with the trial court that the record shows that, contrary to

Appellant’s argument, she raised a claim of breach of the duty of fair

representation owed by a labor union to its members in federal court. The

mere fact that the trial court referenced Case No. 1:15-cv-1682 in its Order,

and referenced the case at No. 1:15-cv-01201 in its Opinion, is not

indicative of anything more than a typographical error.      The U.S. District

Court dismissed Appellant’s Complaints in both of her federal cases.       The

resolution of those federal cases provided a proper basis to conclude that

dismissal of Appellant’s state court action was appropriate as having been

brought by a “pro se plaintiff [] alleging the same or related claims which

the pro se plaintiff raised in a prior action against the same or related

defendants,” and already resolved in a court proceeding. See Pa.R.C.P. No.

233.1(a)(1)-(2).



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     Because the parties and claims in the federal court actions and in the

present action were sufficiently related to inform the trial court that

Appellant’s duty of fair representation claim had been considered and

resolved, Appellant has failed to establish that the trial court erred as a

matter of law by dismissing her Complaint pursuant to Pa.R.C.P. No. 233.1.

Accordingly, we conclude that Appellant’s issue on appeal lacks merit.

     Order affirmed.



 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2017




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