          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Duane Holmes,                             :
                           Appellant      :
                                          :
               v.                         :   No. 1663 C.D. 2019
                                          :   Submitted: May 1, 2020
City of Allentown, Lehigh County,         :
Lehigh County District Attorney’s         :
Office, James B. Martin Esq./             :
District Attorney, Steven M. Luksa        :
Esq./Assistant District Attorney          :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                  FILED: August 26, 2020

               Duane Holmes, pro se, appeals an order of the Court of Common
Pleas of Lehigh County (trial court) that sustained the preliminary objections of the
Lehigh County District Attorney’s Office, District Attorney James B. Martin, and
Assistant District Attorney Steven M. Luksa (District Attorney Defendants) and
dismissed Holmes’ sixth amended complaint in replevin. Upon review, we reverse
the order insofar as it sustained the preliminary objections, vacate the order insofar
as it dismissed Holmes’ sixth amended complaint, and remand for further
proceedings.
                                    Background
               On August 7, 2017, Holmes filed a civil complaint in replevin against
the City of Allentown, Lehigh County, and the District Attorney Defendants
(together, Defendants), seeking return of his property seized in connection with his
arrest. This Court reversed the trial court’s denial of Holmes’ attempt to file an
amended complaint.1 On June 3, 2019, Holmes filed his sixth amended complaint
that averred the following.
               In 2015, Holmes was convicted of receiving stolen property. During
their investigation, police seized a number of items from Holmes’ home and
vehicle.     Holmes then sought return of the seized property pursuant to
Pennsylvania Rule of Criminal Procedure 588(A).2 On September 29, 2015, the
trial court issued an order directing the return of 39 of the 45 items enumerated in
Holmes’ motion, valued at $14,603.90. Sixth Amended Complaint, 6/3/2019, at 2,
¶6.
               In April of 2018, Holmes filed a petition to enforce the trial court’s
September 29, 2015, order for return of his property, alleging that “not one single
item has been returned.” Id. at Exhibit A at 2, ¶7. By order of April 13, 2018, the
trial court granted the petition to enforce and further instructed Holmes, who was
incarcerated, to send an authorization letter to the “First Assistant District



1
  Holmes filed a petition for leave to amend his complaint to include a civil rights claim under 42
U.S.C. §1983 (Section 1983) and additional factual averments. By two separate orders dated
December 13, 2017, and January 2, 2018, the trial court dismissed Holmes’ complaint with
prejudice and denied his petition to amend. On appeal, this Court held that the trial court erred in
denying Holmes’ petition to amend the complaint in the absence of evidence that granting his
petition would “contravene a positive rule of law or cause prejudice to an opposing party.”
Holmes v. City of Allentown (Pa. Cmwlth., No. 102 C.D. 2018, filed August 9, 2018), slip op. at
13.
2
  It provides:
        (A) A person aggrieved by a search and seizure, whether or not executed pursuant
        to a warrant, may move for the return of the property on the ground that he or she
        is entitled to lawful possession thereof. Such motion shall be filed in the court of
        common pleas for the judicial district in which the property was seized.
PA. R. CRIM. P. 588(A).


                                                 2
Attorney” so that a third party could pick up the property on his behalf. Id. at
Exhibit A at 7 n.1.
             Holmes’ sixth amended complaint averred that despite the trial court’s
orders, the District Attorney Defendants and the City have “intentionally and
maliciously destroyed and recklessly mishandled [Holmes’] private property,
causing diminution in value and outright loss[.]” Id. at 3, ¶11. The complaint
alleged that his two cell phones, worth $1,000, were destroyed by the City “one
week after the [trial court] ordered [Holmes’] private property returned to him.”
Id. at 2, ¶8. The complaint further alleged that the Public Defender’s Office has
declined to handle Holmes’ forfeiture case.
             Holmes asserted that under this Court’s decision in Commonwealth v.
Irland, 153 A.3d 469 (Pa. Cmwlth. 2017), aff’d, 193 A.3d 370 (Pa. 2018), the
doctrine of common law forfeiture has never been part of the law of Pennsylvania.
Therefore, his property should not have been forfeited.
             The sixth amended complaint included eight counts. Count I asserted
a “replevin” claim against all Defendants and requested a declaratory judgment
that their failure to return his property, valued at $14,603.90, despite the trial
court’s orders of September 29, 2015, and April 13, 2018, violated Holmes’
“constitutional and statutory rights[.]”       Sixth Amended Complaint at 12, ¶75.
Count I sought compensatory damages of $14,603.90 plus interest, punitive
damages, and other relief deemed “reasonable and just.” Id. Count II asserted a
claim of conversion of chattels against all Defendants and sought a declaratory
judgment that the unlawful conversion violated Holmes’ “constitutional and
statutory rights.” Id. at 16, ¶100. Count II also sought compensatory damages of




                                           3
$35,418.90 plus interest, punitive damages, and other relief deemed “reasonable
and just.” Id.
                Counts III through VIII asserted a due process claim against each of
the Defendants and sought the same relief as in Count II. Count V asserted, in
addition to the due process claim, an equal protection claim against the County and
alleged that it has implemented its forfeiture policy “based on [an individual’s]
inability to pay for an attorney[,]” which “take[s] advantage of poor legally
unrepresented individuals with impunity.” Id. at 24, 25, ¶¶141, 145. Count V
sought a declaratory judgment that the County’s forfeiture policy is
unconstitutional and requested that the County be enjoined from implementing the
policy.
                The City, the County, and the District Attorney Defendants filed
preliminary objections to the sixth amended complaint on various grounds
including failure to conform to law, insufficient specificity, legal insufficiency
(demurrer), and immunity. The District Attorney Defendants’ joint preliminary
objections also asserted pendency of a prior action under PA. R.C.P. NO.
1028(a)(6).3 In response, Holmes moved to strike the preliminary objections and
asserted that immunity and estoppel defenses must be raised as “new matter” under
PA. R.C.P. NO. 1030(a)4 and are improper preliminary objections.


3
    It states:
           (a) Preliminary objections may be filed by any party to any pleading and are
           limited to the following grounds:
                                                  ***
                   (6) pendency of a prior action or agreement for alternative dispute
                   resolution[.]
PA. R.C.P. NO. 1028(a)(6) (emphasis added).
4
  It states:


                                               4
               The trial court, by order dated September 9, 2019, denied Holmes’
motions and directed him to file a response to the preliminary objections within 20
days. The trial court held that the Defendants did not raise estoppel as a basis for
their preliminary objections; rather, the “closest approximation to an estoppel
argument” is the District Attorney Defendants’ assertion that there exists a pending
prior action, a defense allowed to be raised by preliminary objections under PA.
R.C.P. NO. 1028(a)(6). Trial Court Order, 9/9/2019, at 2 n.1. The trial court held
that the immunity defense was properly raised through preliminary objections
because the defense was “apparent on the face of the sixth amended complaint.”
Id. (citing Ziccardi v. School District of Philadelphia, 498 A.2d 452 (Pa. Cmwlth.
1985)).
               By order dated October 30, 2019, the trial court sustained the District
Attorney Defendants’ preliminary objections raised under PA. R.C.P. NO.
1028(a)(6) and dismissed Holmes’ sixth amended complaint with prejudice. The
trial court opined that the instant action sought to circumvent the prior rulings on
Holmes’ petitions for return of his property. Thus, the trial court concluded that its
disposition of Holmes’ petitions under PA. R. CRIM. P. 588(A) “collaterally
estopped” Holmes from filing a “substantially similar action in civil court.” Trial


       (a) Except as provided by subdivision (b) [regarding assumption of the risk,
       comparative negligence and contributory negligence], 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.
PA. R.C.P. NO. 1030(a) (emphasis added).


                                                 5
Court Order, 10/30/2019, at 3 n.1. By two orders dated November 1, 2019, the
trial court dismissed the City and the County’s preliminary objections as moot in
light of its prior dismissal of the action. The trial court’s November 1, 2019,
orders were not appealed.
                                            Appeal
              On appeal,5 Holmes raises two issues, which we reorder for review.
Holmes first argues that the trial court erred in denying his motions to strike the
Defendants’ preliminary objections because under PA. R.C.P. NO. 1030(a),
estoppel and immunity must be raised as “new matter” in an answer. He also
argues that the trial court erred in sustaining the District Attorney Defendants’
preliminary objections raised under PA. R.C.P. NO. 1028(a)(6). The Defendants
counter that Holmes’ motion for return of property had been ruled upon by the trial
court and, if Holmes was dissatisfied with that prior ruling, he could have
appealed. He did not do so.
              Under PA. R.C.P. NO. 1028(a)(6), a party may raise preliminary
objections based on the pendency of a prior action. The doctrine of lis pendens is
“designed to protect a defendant from having to defend several suits on the same
cause of action at the same time” and requires proof that the prior case is the same,
the parties are the same, and the relief requested is the same. Hillgartner v. Port
Authority of Allegheny County, 936 A.2d 131, 137 (Pa. Cmwlth. 2007) (citing


5
  This Court’s review of a trial court’s order sustaining preliminary objections determines
whether the trial court committed an error of law or abused its discretion. Kull v. Guisse, 81
A.3d 148, 154 n.3 (Pa. Cmwlth. 2013). A trial court may sustain preliminary objections only if it
appears with certainty that the law will not allow recovery. Id. All well-pled facts in the
complaint and all reasonable inferences from those facts are accepted as true. Id. However, a
court need not accept as true unwarranted inferences, conclusions of law, argumentative
allegations, or expressions of opinion. Id.


                                               6
Hessenbruch v. Markle, 45 A. 669, 671 (Pa. 1900)). The three-prong test must be
strictly applied when a party seeks to dismiss a claim under the doctrine of lis
pendens. Id. at 137-38 (citing Norristown Automobile Co., Inc. v. Hand, 562 A.2d
902, 904 (Pa. Super. 1989)). Further, the doctrine of lis pendens requires that the
prior action be pending. Norristown Automobile Co., 562 A.2d at 903. Under
Pennsylvania law, determining whether there is a pending prior action “is purely a
question of law determinable from an inspection of the pleadings.” Davis Cookie
Company, Inc. v. Wasley, 566 A.2d 870, 871 (Pa. Super. 1989) (quoting
Hessenbruch, 45 A. at 671).
             The collateral estoppel doctrine, on the other hand, bars further action
on an issue that has already been litigated. Often referred to as issue preclusion,
collateral estoppel “is designed to prevent relitigation of an issue in a later action,
despite the fact that the later action is based on a cause of action different from the
one previously litigated.” Weney v. Workers’ Compensation Appeal Board (Mac
Sprinkler Systems, Inc.), 960 A.2d 949, 954 (Pa. Cmwlth. 2008) (quoting Pucci v.
Workers’ Compensation Appeal Board (Woodville State Hospital), 707 A.2d 646,
647-48 (Pa. Cmwlth. 1998)). The collateral estoppel doctrine applies where:

             (1) the issue decided in the prior case is identical to the one
             presented in the later case; (2) there was a final judgment on the
             merits; (3) the party against whom the doctrine is asserted was a
             party or in privity with a party in the prior case and had a full
             and fair opportunity to litigate the issue; and (4) the
             determination in the prior proceeding was essential to the
             judgment.

Id. (quoting Pucci, 707 A.2d at 648).         Unless the facts needed to establish
collateral estoppel “appear from the complaint itself, the defense of collateral




                                          7
estoppel may not be raised by preliminary objections.”           220 Partnership v.
Philadelphia Electric Company, 650 A.2d 1094, 1097 (Pa. Super. 1994).
              In denying Holmes’ motions to strike the preliminary objections, the
trial court explained that the Defendants did not assert a defense of collateral
estoppel but, rather, pendency of a prior action. This issue may be raised by
preliminary objections under PA. R.C.P. NO. 1028(a)(6). Further, preliminary
objections “are a proper vehicle for raising immunity where the defense is apparent
on the face of the pleading under attack.” Ziccardi, 498 A.2d at 453. Here, the
preliminary objections filed by the City, the County, and the District Attorney
Defendants show that, in each case, the defense of immunity from suit was
apparent on the face of the pleadings. Accordingly, the trial court did not err in
denying Holmes’ motions to strike the preliminary objections filed by the
Defendants.
              However, the trial court erred by raising, sua sponte, collateral
estoppel as a basis for dismissing Holmes’ sixth amended complaint. The defense
of a pending action under PA. R.C.P. NO. 1028(a)(6) does not apply where the
prior action had been litigated to conclusion and, thus, is no longer pending.
Nevertheless, the trial court stated that Holmes is “collaterally estopped from
advancing his claims” because he “received a favorable ruling” in the prior action.
Trial Court Order, 10/30/2019, at 3 n.1. The District Attorney Defendants did not
assert a defense of collateral estoppel, and the trial court erred in raising this
defense on their behalf. MacGregor v. Mediq Inc., 576 A.2d 1123, 1128 (Pa.
Super. 1990).
              Even so, a review of the facts alleged in the sixth amended complaint
does not support the trial court’s dismissal under the doctrine of collateral estoppel.



                                          8
The sixth amended complaint averred that, despite the “favorable ruling” Holmes
received in the prior action, the Defendants refused to return the property as the
trial court ordered and, allegedly, have destroyed it and caused “diminution in
value and outright loss[.]” Sixth Amended Complaint at 3, ¶11. Contrary to the
Defendants’ assertions, the sixth amended complaint did not seek return of
property but, rather, compensatory and punitive damages. The sixth amended
complaint further averred that the seizure of Holmes’ property was void and illegal
under this Court’s ruling in Irland, 153 A.3d 469, and raised due process and equal
protection claims. The sixth amended complaint does not raise the same issues as
those filed by Holmes under PA. R. CRIM. P. 588(A) or those decided by the trial
court in the prior case.6
                                          Conclusion
               Because the collateral estoppel defense was not raised by the District
Attorney Defendants, the trial court’s dismissal of Holmes’ sixth amended
complaint cannot be sustained on this ground. Accordingly, we reverse the trial
court’s October 30, 2019, order insofar as it sustained the preliminary objections of
the District Attorney Defendants on the basis of collateral estoppel, vacate the
order insofar as it dismissed Holmes’ sixth amended complaint with prejudice, and
remand for further proceedings on the District Attorney Defendants’ remaining
preliminary objections.
                                         _____________________________________
                                         MARY HANNAH LEAVITT, President Judge

6
  The trial court, in its October 30, 2019, order and the PA. R.A.P. 1925(a) opinion, recited facts
that were not alleged in Holmes’ sixth amended complaint. To the extent the trial court relied on
records of prior actions, it was error. The trial court’s review should be restricted to the facts
alleged in the complaint; it may not “take judicial notice in one case of the records of another
case, whether in another court or its own, even though the contents of those records may be
known to the court.” 220 Partnership, 650 A.2d at 1097 (citation and quotations omitted).


                                                9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Duane Holmes,                               :
                         Appellant          :
                                            :
            v.                              :   No. 1663 C.D. 2019
                                            :
City of Allentown, Lehigh County,           :
Lehigh County District Attorney’s           :
Office, James B. Martin Esq./               :
District Attorney, Steven M. Luksa          :
Esq./Assistant District Attorney            :



                                     ORDER

            AND NOW, this 26th day of August, 2020, the order of the Court of
Common Pleas of Lehigh County dated October 30, 2019, is REVERSED insofar
as it sustained the preliminary objections of the Lehigh County District Attorney’s
Office, District Attorney James B. Martin, and Assistant District Attorney Steven
M. Luksa (District Attorney Defendants) on the basis of collateral estoppel, and
VACATED insofar as it dismissed Appellant’s sixth amended complaint with
prejudice. This matter is REMANDED for further proceedings on the District
Attorney Defendants’ remaining preliminary objections.
            Jurisdiction is relinquished.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge
