J-S53016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LEI KE                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DREXEL UNIVERSITY                          :   No. 95 EDA 2018

               Appeal from the Order Entered December 19, 2017
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): June Term 2013 No. 03506


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 26, 2018

        Lei Ke appeals, pro se, from four orders, made final by the order entered

December 19, 2017, in the Philadelphia County Court of Common Pleas,

granting the motion for summary judgment filed by Drexel University and

dismissing Ke’s case against Drexel. Ke sued Drexel for, inter alia, breach of

contract, a violation of the Unfair Trade Practices and Consumer Protection

Law (“UTPCPL”),1 and concerted tortious conduct after he was dismissed from

the College of Medicine in April of 2011.          Ke lists ten issues in his brief,

challenging the order granting summary judgment based on res judicata

and/or collateral estoppel, the denial of his motion for partial summary

judgment, the denial of his motion to strike Drexel’s summary judgment
____________________________________________



    Retired Senior Judge assigned to the Superior Court.

1
    73 P.S. § 201-1 et seq.
J-S53016-18



motion, and the denial of his motion for clarification concerning the court’s

refusal to allow him to amend his complaint to add individual defendants. For

the reasons below, we affirm.

      The facts underlying Ke’s complaint are summarized by the trial court

as follows:

      [Ke] was admitted to Drexel University College of Medicine
      [“DUCOM”] on January 25, 2007 and he started his studies in
      August 2007. During his First Academic Year, [Ke] received a
      “Marginal Unsatisfactory” grade in Behavioral Science and an
      “Unsatisfactory” grade in Immunology, both of which required
      remediation over the summer.

            In his Second Academic Year from September 2008 to May
      2009, [Ke] received “Unsatisfactory” grades in all four major Year
      2 courses: Introduction to Clinical Medicine, Medical Microbiology,
      Pathology and Laboratory Medicine and Medical Pharmacology.

           According to the 2009 DUCOM Student Handbook, students
      who receive three or more grades of Unsatisfactory or Marginal
      Unsatisfactory in an Academic Year may be dismissed from
      DUCOM.

             The Pre-clinical Promotions Committee of DUCOM met with
      [Ke] on May 11, 2009 and decided that [he] should be dismissed
      from the School of Medicine. [Ke] appealed his dismissal to the
      Dean of DUCOM, Richard Homan, M.D., who reversed the decision
      of the Pre-Clinical Promotions Committee and reinstated [Ke]
      under a number of conditions. Two of those conditions were that
      the receipt of a grade below “Satisfactory” in repeating his Second
      Academic Year, or a grade below “Satisfactory” during his clinical
      training would be considered grounds for dismissal from DUCOM.

            During the next Academic Year (2009-2010), [Ke] repeated
      the four major Second Year courses that he had previously failed,
      and received a “Marginal Unsatisfactory” grade while retaking
      Microbiology.   While the grade of “Marginal Unsatisfactory”
      violated the terms of reinstatement as set forth by Dean Homan
      in his letter of July 21, 2009, the Pre-Clinical Promotions
      Committee granted leniency and did not dismiss [Ke]. Rather, he
      was granted permission to study for and sit for the National Board

                                     -2-
J-S53016-18


     of Medical Examiners [“NBME”] Shelf exam to remediate his
     “Marginal Unsatisfactory” grade in Microbiology, which he passed,
     resulting in a change of his grade in Microbiology to “Satisfactory.”

           Another academic requirement of DUCOM is that students
     are required to pass the United States Medical Licensing Step 1
     exam within 18 months of completing their Second Academic
     Year. [Ke] took the Step 1 exam on September 27, 2010 which
     meant that he had almost five months of time to study for that
     exam after completing the Second Academic Year. Around that
     same time, [Ke] also started a Family Medicine clerkship in the
     practice of Anthony Sahar, M.D., on September 28, 2010. This
     clerkship ended on November 3, 2010, and the Shelf exam for
     Family Medicine was scheduled for November 5, 2010.

           At some time between October 10 and October 20, 2010,
     [Ke] learned that he had failed the Step 1 exam. During the last
     week of the Family Medicine clerkship, he decided to defer taking
     the Family Medicine Shelf exam until December 29, 2010 and
     scheduled himself to take the Step 1 examination again on
     December 27, 2010, which was cancelled due to a snow storm.
     [Ke] could not start another clerkship until he took the Step 1
     exam again. He subsequently took the Step 1 exam on February
     10, 2011, but he again failed that exam.

           Additionally, [Ke] received a failing grade for the clinical
     portion [of the] Family Medicine clerkship. He also failed the
     Family Medicine shelf exam, receiving a grade in the lowest 1% of
     students nationally. Lastly, he received an “Unsatisfactory” grade
     for the Family Medicine clerkship with Dr. Sahar.

           Despite [Ke] having failed the Family Medicine clerkship,
     and, therefore, failed to comply with the conditions of his
     reinstatement at DUCOM by Dean Homan, the Clinical Promotions
     Committee decided that since he had received a favorable mid-
     clerkship evaluation, there were some ambiguities concerning
     communication to [Ke] and he was allowed to continue at DUCOM
     with the requirement being that he would repeat the Family
     Medicine clerkship, that he would serve the remainder of his
     clerkships in Philadelphia under the supervision of DUCOM active
     faculty members, and that the receipt of any grade below
     “Satisfactory” in the future would be grounds for his dismissal
     from the program. [Ke] agreed to all of these terms and
     conditions as part of his continued medical education.



                                     -3-
J-S53016-18


              Thereafter, [Ke] completed a clerkship in Ob/Gyn. Though
       he passed the clinical portion of the clerkship, he took the NBME
       Shelf exam in Obstetrics and Gynecology on March 25, 2011 and
       failed that examination, receiving a score that placed him below
       the 1st percentile (bottom 1%) nationally.

             Since [Ke’s] failure of the Obstetrics and Gynecology Shelf
       exam resulted in his receipt of a grade of “Marginal
       Unsatisfactory”, the Clinical Promotion Committee met on April 8,
       2011 and voted to dismiss [Ke] based on his overall poor academic
       performance.      He appealed this dismissal to the Clinical
       Promotions Committee which denied his appeal. He subsequently
       appealed to Dean Homan who also denied his appeal.

Trial Court Opinion, 4/13/2018, at 2-5.

       Thereafter, proceeding at all times pro se, Ke embarked on a legal

campaign seeking both his reinstatement as a third year medical student, as

well as compensatory and punitive damages.2 On November 18, 2011, Ke

filed suit in the United States District Court for the Eastern District of

Pennsylvania, naming Drexel and six individuals as defendants (“the federal

action”).    His final amended complaint, filed on July 30, 2013, included

allegations of intentional racial discrimination and retaliation under both Title

VI of the Civil Rights Act and 42 Pa.C.S. § 1981, a hostile educational

environment pursuant to Section 1981, violations of the Family Education

Rights and Privacy Act and the Pennsylvania Fair Education Opportunities Act,

conspiracy under 42 Pa.C.S. § 1985, intentional infliction of pain and suffering,

and breach of contract under Pennsylvania law.       See Motion for Summary

____________________________________________


2
 For the sake of brevity, we highlight only the key filings and rulings. We
note, however, Ke has moved for reconsideration, appealed, or attempted to
appeal nearly every ruling by every court in this matter.


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Judgment, 10/25/2017, Exhibit D (Complaint, Civil Action 11-6708, E.D. Pa).

Later, Ke was granted permission to add a claim for racially motivated breach

of contract pursuant to Section 1981, and discontinue his count for breach of

contract under Pennsylvania law. See id., Exhibits E (Order 12/6/2013, Civil

Action 11-6708), and G (Order 4/1/2014, Civil Action 11-6708).

      While the federal case was pending, on June 23, 2013, Ke initated the

present action in the Philadelphia County Court of Common Pleas by filing a

writ of summons and naming only Drexel as defendant.          However, in the

caption of subsequent motions, as well as his complaint, and without leave of

court, Ke named 12 additional, individual defendants.     The trial court first

noted this anomaly in an order entered December 23, 2013, which denied Ke’s

motion for pre-complaint discovery. In a footnote, the court stated, “The only

defendant in this action is Drexel University.     [Ke’s] insertion of various

individuals in the captions on his later filings is improper and of no effect.”

Order, 12/23/2013. Nevertheless, Ke filed an amended complaint on January

26, 2014, naming Drexel and 12 individuals as defendants, and including

counts for breach of contract, violations of the UTPCPL, retaliation, civil

conspiracy, concerted tortious conduct, violation of certain constitutional

rights, and negligent infliction of emotional distress. See Amended Complaint,

1/26/2014.    On February 18, 2014, Drexel filed preliminary objections to the

amended complaint.      By order entered March 31, 2014, the trial court

sustained in part and overruled in part Drexel’s preliminary objections.




                                     -5-
J-S53016-18



Relevant to the issues herein, the court first explained the only proper

defendant was Drexel:

       The docket does not indicate that [Ke] served any of the
       defendants with original process as required by Pa.R.C.P. 400 et
       seq. Drexel waived any defects to service on Drexel by having its
       attorneys enter an appearance on its behalf and by filing
       preliminary objections which did not raise any issues regarding
       service on Drexel.     The attorneys for Drexel entered their
       appearance on behalf of Drexel University only. They filed these
       preliminary objections on behalf of Drexel University only. The
       individual defendants are not represented in this case by Drexel’s
       attorney and neither Drexel nor its attorneys may act for them.
       Without proper service or original process or a waiver thereof, the
       individual defendants have not been made parties to this action.

Order 3/31/2014, at 1 n.1 (emphasis in original). The trial court overruled

Drexel’s preliminary objections based upon the pending federal action, but

sustained its objections to several counts in the complaint.            See id.

Accordingly, the only surviving claims against Drexel were for breach of

contract, a violation of the UTPCPL, and concerted tortious conduct.3 On April

7, 2014, the trial court entered an order staying the matter until the resolution

of the federal action.4
____________________________________________


3
  We note that on January 29, 2014, Ke filed a motion to join additional
defendants. However, he identified only one by name. Thereafter, on April
3, 2014, the trial court entered an order denying the motion without prejudice,
so that Ke could file a proper motion to amend. See Order, 4/3/2014 at n.1.
The court stated: “The motion must show that the amendment would not be
futile or be barred by the statute of limitations.” Id.

4
  Ke subsequently filed motions for reconsideration and clarification, and
sought to amend the stay order for a determination of finality so that he could
appeal it. Although all of his motions were denied, Ke still filed an appeal from
the April 7, 2014, order, which this Court ultimately quashed. See Docket No.
1279 EDA 2014.

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       On September 4, 2015, the federal district court granted summary

judgment in favor of all the defendants in the federal action. Ke appealed to

the Third Circuit, which affirmed on March 22, 2016, and the United States

Supreme Court denied his petition for certiorari on October 31, 2016. See Ke

v. Drexel University, 645 Fed.Appx. 161 (3d Cir. 2016), cert. denied, 137

S.Ct. 384 (U.S. 2016).         With regard to Ke’s claim based upon a “racially

motivated breach of contract,” the Third Circuit first determined “the record

presents no evidence, direct or circumstantial, of discrimination.” Id. at 165.

The court also opined Ke’s contract claim was similarly meritless, explaining:

       Ke argues that the Student Handbook allowed him to remediate a
       grade of “MU,” and thus he should not have been dismissed for
       the “MU” in his OB/GYN clerkship. But Ke’s contract with [Drexel]
       had been modified by the conditions imposed by the Dean on his
       initial re-enrollment, and the conditions imposed by the Promotion
       Committee after receiving a “U” in the Family Medicine clinical. Ke
       accepted those conditions each time by re-enrolling or continuing
       his enrollment in [Drexel]. Thus, Ke was subject to the more
       stringent condition that an “MU” was sufficient for his dismissal.

Id.

       Meanwhile, on November 4, 2015, the stay was lifted in the present

case. On November 9, 2015, Ke, once again, filed a motion to amend his

complaint in order to add the individual defendants. The trial court denied the

motion on December 16, 2015. While simultaneously attempting to appeal

the court’s ruling,5 Ke initiated a second civil action in Philadelphia County by

____________________________________________


5
 Ultimately, on February 29, 2016, this Court entered an order denying Ke’s
petition for review of the December 16, 2015, Order.


                                           -7-
J-S53016-18



writ of summons filed on January 6, 2016 (“second state action”). On March

9, 2016, Ke filed a complaint in the second state action, alleging violations of

the UTPCPL by the same individual defendants he sought to add to the present

action.6 On August 10, 2016, the trial court in the second state action granted

the defendants’ preliminary objections and dismissed the complaint.          Ke

appealed to this Court, which affirmed on June 15, 2017, in an unpublished

decision.    See Ke v. Fry, 174 A.3d 75 (Pa. Super. 2017) (unpublished

memorandum). Specifically, the panel concluded Ke’s claims were barred by

the doctrine of collateral estoppel, opining:

              [Ke] first raised his breach of contract claim in the United
        States District Court for the Eastern District of Pennsylvania,
        asserting that his dismissal from Drexel Medicine was a racially
        motivated breach of contract. The contract at issue was the 2006
        Student Handbook. The court rejected [Ke’s] claim, granting
        [Drexel] summary judgment.

                                      ****
               Despite the fact that [Ke] is now presenting his claim as a
        violation of the UTPCPL, the underlying issue is the same. In the
        instant case [Ke] asserts that “his single MU grade in his repeat
        second year would not warrant his expulsion under the 2006
        Student Handbook.” [Ke’s] Reply Brief at 3. Thus, his underlying
        claim here is that he was dismissed in violation of the terms set
        forth in the 2006 Student Handbook, and thus Drexel Medicine
        was in breach of contract. This first factor has already been
        resolved by the federal courts in favor of [the individual
        defendants].

              The second factor[,] that final judgment in the previous
        action was rendered on the merits of the issues[,] has also been
        met. …

____________________________________________


6
    See Docket No. 2073, January Term, 2016.


                                           -8-
J-S53016-18


             The third factor has been met as [Ke] was a party to both
      actions. The fourth factor[,] that the party against whom the
      defense is raised must have had a full and fair opportunity to
      litigate the issue[,] was also met. Here, [Ke] initiated the
      complaint in federal court, litigated his claim, and summary
      judgment was awarded. Further, the Third Circuit affirmed on
      appeal, and the U.S. Supreme Court denied further review. Id.

      Finally, the determination in the federal action was essential to
      the judgment thus satisfying the fifth factor. The [federal district]
      Court found that [Ke’s] breach of contract claim was without
      merit, reasoning that:

         [Ke] argues that the Student Handbook allowed him to
         remediate a grade of “MU,” and thus he should not have
         been dismissed for the “MU” in his OB/GYN clerkship. But
         [Ke]’s contract with [Drexel] had been modified by the
         conditions imposed by the Dean on his initial re-enrollment,
         and the conditions imposed by the Promotion Committee
         after receiving a “U” in the Family Medicine clinical. [Ke]
         accepted those conditions each time by re-enrolling or
         continuing his enrollment in [Drexel].        Thus, [Ke] was
         subject to the more stringent condition that a “MU” was
         sufficient for his dismissal. And we do not find any evidence
         in the record that racial animus, either direct or
         circumstantial, motivated the imposition of those
         conditions.

      Ke v. Drexel et. al., 645 Fed.Appx. at 165.

      It is clear that all issues have been litigated and determined
      finally; and [Ke] cannot relitigate them in this action. Thus, the
      trial court properly granted [the individual defendants’]
      preliminary objections.

Fry, supra, 174 A.3d 75 (unpublished memorandum *3-*4). Ke’s petition

for allowance of appeal by the Pennsylvania Supreme Court was denied, as

well as his petition for certiorari in the United States Supreme Court. See Ke

v. Fry, 183 A.3d 342 (Pa. 2018), cert. denied, ___ S.Ct. ___ (U.S. Oct. 1,

2018).



                                      -9-
J-S53016-18



      Meanwhile, on October 25, 2017, Drexel filed a motion for summary

judgment in the present action asserting Ke’s claims were barred by the

doctrines of lis pendens, res judicata, and/or collateral estoppel. Thereafter,

Ke filed the following motions: (1) on October 31, 2017, a motion for partial

summary judgment; (2) on November 2, 2017, a motion to join individual

defendants; (3) on November 6, 2017, a motion to strike certain exhibits

attached to Drexel’s summary judgment motion; and (4) on December 3,

2017, a motion for leave to seek reconsideration/reinstatement of his cause

of action for civil conspiracy.   The trial court denied Ke’s motion to join

individual defendants on December 4, 2017.          Ke then file a motion for

clarification on December 15, 2017, seeking a determination as to whether

the individual defendants were made part of his case on January 26, 2014,

when he named them in his amended complaint.

      On December 19, 2017, the trial court entered four orders: (1) denying

Ke’s motion for partial summary judgment; (2) denying Ke’s motion to strike

certain exhibits from Drexel’s summary judgment motion; (3) denying Ke’s

motion for clarification; and (4) granting Drexel’s motion for summary

judgment.   Ke filed a timely notice of appeal on December 21, 2017.        On

December 22, 2017, the court entered an order denying Ke’s motion to

reconsider/reinstate his cause of action for civil conspiracy.

      On February 9, 2018, Ke filed a motion for reconsideration of all of the

trial court’s orders, which the court denied on February 12, 2018, because it

no longer had jurisdiction as a result of Ke’s appeal. Thereafter, on February

                                     - 10 -
J-S53016-18



20, 2018, Ke filed a praecipe requesting the court direct him to file a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The court issued a Rule 1925(b) order on March 8, 2018, and a revised order

on March 14, 2018. Ke subsequently filed a Rule 1925(b) statement on March

27, 2018, indicating he was unable to “readily discern the basis for the judge’s

decision” pursuant to Pa.R.A.P. 1925(b)(4)(vi).         Plaintiff’s Generalized

Statement Pursuant to Rule 1925(b)(4)(VI), 3/27/2018, at 1 (citation

omitted).

      Ke now raises the following ten issues in his brief:

      1. Whether lis pendens, res judiciata, and collateral estoppel are
      applicable to the instant case at trial court.

      2. Whether fraud or collusion would disqualify res judicata or
      collateral estoppel.

      3. Whether Drexel’s argument that [Ke] could have sued his state
      causes of action in federal court is unavailing because it waived it
      as well as res judicata and collateral estoppel when it allowed dual
      proceedings in both federal and state courts for a full thirty-three
      (33) months[.]

      4. Whether collateral estoppel would apply when such issues as
      Drexel’s violations of Drexel’s Code of Conduct, Drexel’s Academic
      Policies, Drexel Medicine’s Family Medicine Clerkship Manual,
      Drexel Medicine’s clinical manuals, Drexel’s Disability Policy, and
      Drexel’s Official Grading Policy were never litigated in federal
      court.

      5. Whether the trial court should have granted [Ke’s] partial
      summary judgment motion.

      6. Whether a summary judgment motion must properly follow its
      mandatory requirements in both form and content or be stricken.

      7. Whether [Ke] has elected to litigate the “breach of contract
      under Pennsylvania law” claim in state court and both federal and
      state courts have preserved that claim for him.

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J-S53016-18


       8. Whether Pa.R.C.P. 1028(c)(1) allows adding of parties through
       its amendment clause.

       9. Whether under federal and state case law, [Ke’s] Count IV:
       “Civil Conspiracy for Retaliation Purposes against Sahar, Dalton,
       Hamilton, Fuchs, and Drexel University” should be reinstated.

       10. Whether a party has its due process right to amend his
       complaint under Pennsylvania law.

Ke’s Brief at 9-10 (some capitalization omitted).

       Ke’s first four issues challenge the trial court’s grant of summary

judgment in favor of Drexel. Our standard of review is well-established:

       Summary judgment is appropriate where the record clearly
       demonstrates there is no genuine issue of material fact and the
       moving party is entitled to judgment as a matter of law. Atcovitz
       v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218,
       1221 (2002); Pa. R.C.P. No. 1035.2(1). When considering a
       motion for summary judgment, the trial court must take all facts
       of record and reasonable inferences therefrom in a light most
       favorable to the non-moving party. Toy[ v. Metropolitan Life
       Ins. Co.], 928 A.2d [186,] 195 [(Pa. 2007)]. Whether there are
       no genuine issues as to any material fact presents a question of
       law, and therefore, our standard of review is de novo and our
       scope of review plenary. Weaver v. Lancaster Newspapers,
       Inc., 592 Pa. 458, 926 A.2d 899, 902–03 (2007).

Estate of Agnew v. Ross, 152 A.3d 247, 259 (Pa. 2017).

       Here, the trial court granted summary judgment on the basis that Ke’s

claims were barred by the doctrines of res judiciata and collateral estoppel.7
____________________________________________


7
  The trial court also found Ke’s claims were barred by the doctrine of lis
pendens. See Trial Court Opinion, 4/13/2018, at 8-10. However, we agree
with Ke’s assertion that lis pendens is inapplicable in the present case. “To
assert successfully the defense of lis pendens, i.e., the pendency of a prior
action, it must be shown that ‘the prior case is the same, the parties are the
same, and the relief requested is the same.’” Richner v. McCance, 13 A.3d
950, 957–958 (Pa. Super. 2011). Significantly, “[t]he doctrine of lis pendens



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See Trial Court Opinion, 4/13/2018, at 10-12.            This Court has held that

“[s]ummary judgment is properly granted on grounds of res judicata and/or

collateral estoppel[.]” Grant v. GAF Corp., 608 A.2d 1047, 1053-1054 (Pa.

Super. 1992), aff’d, 639 A.2d 1170 (Pa. 1994).

       The doctrine of res judicata “reflects the refusal of the law to tolerate a

multiplicity of litigation.”    Day v. Volkswagenwerk Aktiengesellschaft,

464 A.2d 1313, 1316 (Pa. Super. 1983).             The doctrine bars a subsequent

action when both lawsuits contain the following elements in common:

       (1) identity of the thing sued upon; (2) identity of the cause of
       action; (3) identity of the parties; (4) identity of the capacity of
       the parties. Additionally, res judicata will bar subsequent claims
       that could have been litigated in the prior action, but which
       actually were not[.]

Robinson Coal Co. v. Goodall, 72 A.3d 685, 689 (Pa. Super. 2013) (citations

and internal punctuation omitted). Moreover,

        “[i]n determining whether res judicata should apply, a court may
       consider whether the factual allegations of both actions are the
____________________________________________


requires that the prior action be pending.” Crutchfield v. Eaton Corp., 806
A.2d 1259, 1262 (Pa. Super. 2002). Here, the trial court found the doctrine
applied because of the federal action. However, that case concluded on
January 9, 2017, when the United States Supreme Court denied Ke’s petition
for a rehearing after its denial of certiorari on October 31, 2016. Furthermore,
the second state action was final on October 1, 2018, when the United States
Supreme Court dismissed Ke’s petition for certiorari. Accordingly, because
there are no pending actions, the doctrine of lis pendens is inapplicable here.
See Drexel’s Brief at 11 n.6 (noting it would not brief the lis pendens claim
because the federal action is “finally concluded”). Nevertheless, the trial court
also found summary judgment in favor of Drexel was warranted based upon
res judicata and/or collateral estoppel. We will focus our analysis on these
claims.


                                          - 13 -
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      same, whether the same evidence is necessary to prove each
      action and whether both actions seek compensation for the same
      damages.” “If the acts or transactions giving rise to causes of
      action are identical, there may be sufficient identity between two
      actions for the summary judgment in the first action to be res
      judicata in the second.”

Dempsey v. Cessna Aircraft Co., 653 A.2d 679, 681 (Pa. Super. 1995) (en

banc) (internal citations omitted), appeal denied, 663 A2d 684 (Pa. 1995).

      Closely related to res judicata, the doctrine of collateral estoppel is “a

broader concept,” which “operates to prevent a question of law or an issue of

fact which has once been litigated and adjudicated finally in a court of

competent jurisdiction from being relitigated in a subsequent suit.”           Day,

supra, 464 A.2d at 1318. Collateral estoppel, or issue preclusion,

      applies if (1) the issue decided in the prior case is identical to one
      presented in the later case; (2) there was a final judgment on the
      merits; (3) the party against whom the plea is asserted was a
      party or in privity with a party in the prior case; (4) the party or
      person privy to the party against whom the doctrine is asserted
      had a full and fair opportunity to litigate the issue in the prior
      proceeding and (5) the determination in the prior proceeding was
      essential to the judgment.

Chada v. Chada, 756 A.2d 39, 42-43 (Pa. Super. 2000) (quotation omitted).

Notably, the doctrine of collateral estoppel does not require either “identity of

causes of action or parties.” Id. at 43 (citation omitted).

      Here, the trial court found Ke’s claims in the present case were barred

by either res judicata or collateral estoppel based on the federal action. With

regard to res judicata, the court explained the parties in both actions are the

same, and both lawsuits were based upon a breach of contract claim resulting

in Ke’s dismissal from Drexel’s medical school.       See Trial Court Opinion,


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4/13/2018, at 9. The trial court noted Ke originally included a state law breach

of contract claim in his federal action, but later voluntarily dismissed that claim

and substituted it with a racially motivated breach of contract claim. See id.

However, the court found both claims “alleged the same contractual

violations.” Id. Furthermore, the trial court emphasized “res judicata bars

not only those issues actually raised but also those issues which could

have been litigated in the first action.” Id. at 11 (emphasis in original),

quoting Day, supra, 464 A.2d at 1318. The court opined:

      As a result, any claim[s] raised in [Ke’s] Amended Complaint that
      are different from those asserted in [Ke’s] Federal Court action
      [are] nevertheless barred because he could have brought them
      in the federal court action. In fact, [Ke] alleged breach of contract
      in his Federal Court Amended Complaint and then withdrew the
      claim after filing this action. There is nothing that precluded [Ke]
      from asserting his Violation of the [UTPCPL] and Consumer
      Protection Law or his Concerted Tortious Action claim in his
      Federal Court action. As a result, under the doctrine of res
      judicata, all claims remaining in this cause of action were properly
      dismissed as well.

Id. (emphasis in original).

      Similarly, the court found the doctrine of collateral estoppel barred

litigation of the claims in the present action as well. Because the parties were

the same in the federal action, and Ke had a full and fair opportunity to litigate

his claims there, the court explained the only question was whether “the issues

decided in the Federal Court action are the same as presented here.” Id. at

12. Comparing the claims raised in both the present complaint and the federal




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complaint, the court concluded “the issues which [Ke] wishes to re-litigate

were, in fact, raised, addressed and decided in the Federal Court action.” Id.

       Ke argues, however, that res judicata is “inapplicable per se” based upon

the trial court’s reasoning for overruling Drexel’s preliminary objections in its

March 31, 2014, order.         Ke’s Brief at 17.   Ke emphasizes the court found

Drexel did not “sustain its burden of proving that the state and federal cases

are the same, the parties are the same, and the rights asserted and relief

prayed for are the same[,]” particularly because the present action alleges

claims based only on state law, while the federal action included claims based

on state and federal law. Id. at 18, quoting Order, 3/31/2014. In any event,

Ke insists res judicata does not apply when, as here, there was “fraud and

collusion involved in the federal district court.” Id. at 22.

       With respect to collateral estoppel, Ke insists his state law breach of

contract claim was never litigated in the federal action, but rather, he

discontinued that claim after he filed the present action, and substituted a

racially motivated breach of contract cause of action.8          See id. at 19.

Moreover, Ke asserts the federal district court did not fully adjudicate the

breach of contract claim, finding simply it was duplicative of his intentional

discrimination claim. See id. at 19-20. Therefore, although the Third Circuit
____________________________________________


8
  We note Ke blurs the line between his discussion of the doctrines of res
judicata and collateral estoppel in his brief.      However, his argument
concerning both doctrines focuses on his assertion that the issues/causes of
action in the federal case were not the same as those herein.



                                          - 16 -
J-S53016-18



discussed the breach of contract claim independent of the discrimination issue,

Ke contends this “legal reasoning” should not have “estoppel effect.” Id. at

20.    Moreover, he notes he asserted violations of other contracts in his

present action (such as Drexel’s Code of Conduct, clinical manuals, and

academic policies), but those claims were “never litigated in federal court.”

Id.

      Lastly, Ke argues that while “[i]t may be true that [he] could have sued

his state claims in federal court,” the issue is waived because Drexel did not

object to the dual federal and state proceedings for 33 months, from “June

2013 through March 2016.” Id. at 30-31.

      Upon our review of the parties’ briefs, the voluminous certified record,

and the relevant case law, we find no error on the part of the trial court in

granting summary judgment based upon its conclusion that Ke’s present

action is barred by the principles of res judicata and collateral estoppel. First,

Ke’s reliance on the order denying Drexel’s preliminary objections is

misplaced. The language in that order upon which he relies is the trial court’s

rejection of Drexel’s lis pendens claim, not a discussion of the applicability

of res judicata. See Order, 3/31/2014, at ¶ 3 n.2. Drexel did not assert res

judicata and collateral estoppel in its preliminary objections because they are

affirmative defenses, which are properly raised in new matter. See Kelly v.

Kelly, 887 A.2d 788, 791 (Pa. Super. 2005) (“[U]nless the facts relied upon

to establish it appear from the complaint itself, the defense of res

judicata, may not be raised by preliminary objections.”), appeal denied, 905

                                     - 17 -
J-S53016-18



A.2d 500 (Pa. 2006). Accordingly, the trial court’s previous ruling on Drexel’s

preliminary objections has no bearing on its grant of summary judgment

based upon res judicata.

      Ke also asserts, however, res judicata does not apply when the prior

judgment was procured through fraud or collusion. See Ke’s Brief at 21. He

lists six examples of purported fraud/collusion that he claims tainted the

federal judgment. See Ke’s Brief at 23-29. Although Drexel maintains Ke did

not raise this issue in his response to its motion for summary judgment, we

find Ke did allude to collusion between the federal district court judge and

Drexel in his answer to Drexel’s motion for summary judgment. See Plaintiff’s

Answer to Defendant’s Motion for Summary Judgment, 11/23/2017, at ¶¶ 13-

16 n.3-4. Nevertheless, the only allegation he made was an assertion that

the federal judge’s wife “was the sole proprietor of her own medical business

and had privileges to practice medicine in many hospitals in Philadelphia

including Hahnemann and Friends Hospitals both of which are Drexel

Medicine’s campuses.”      Id. at ¶¶ 13-16 n.3.        He contends that this

demonstrates the judge had an “economic interest” in the outcome of this

case. Ke’s Brief at 27. We do not draw the same conclusion as Ke. This fact

alone does not suggest that either the judge or his wife had a financial interest

in the outcome of the case.      Therefore, we find no evidence of fraud or

collusion in the federal case that would bar the application of res judicata

herein.




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        Furthermore, we agree with the trial court that res judicata and/or

collateral estoppel bars Ke’s present claims.9 Ke admits “the operative facts

of both the federal and state suits are the same.”             Ke’s Brief at 21.

Nonetheless, he argues res judicata and/or collateral estoppel do not apply

because the “issue of ‘Breach of Contract under Pennsylvania Law’ was never

litigated in the federal court since it was discontinued.” Id. at 19. Although

he did litigate a racially motivated breach of contract claim, Ke insists the

federal district court judge simply rejected the claim because he could not

demonstrate racial discrimination, and never considered the breach of

contract issue. See id. at 19-20. He therefore discounts the Court of Appeals’

subsequent discussion of the issue as having no estoppel effect. See id. at

20.

        We disagree.      In affirming the district court’s grant of summary

judgment, the Third Circuit specifically addressed Ke’s contention that Drexel

breached the terms of the Student Handbook when it dismissed him from the

medical school. The Court opined:

        As noted, we agree with the District Court that the record presents
        no evidence, direct or circumstantial, of discrimination. Thus, Ke’s
        claims of a “racially-motivated breach of contract,” and his claim
        that he endured a hostile education environment must fail. As for
        the contract claim, Ke argues that the Student Handbook allowed
        him to remediate a grade of “MU,” and thus he should not have
        been dismissed for the “MU” in his OB/GYN clerkship. But Ke’s
        contract with DUCOM had been modified by the conditions
        imposed by the Dean on his initial re-enrollment, and the
____________________________________________


9
    As noted supra, Ke addresses these doctrines interchangeably.


                                          - 19 -
J-S53016-18


       conditions imposed by the Promotion Committee after receiving a
       “U” in the Family Medicine clinical. Ke accepted those conditions
       each time by re-enrolling or continuing his enrollment in DUCOM.
       Thus, Ke was subject to the more stringent condition that an “MU”
       was sufficient for his dismissal. And we do not find any evidence
       in the record that racial animus, either direct or circumstantial,
       motivated the imposition of those conditions.

Ke, supra, 645 F. App’x at 165. Therefore, the Third Circuit addressed both

Ke’s racial discrimination claim and his breach of contract claim.          The

operative facts of the present case are the same as those in the federal action.

Ke insists Drexel breached the terms of the Student Handbook when it

dismissed him from the medical college.            However, as the federal court

determined, Ke’s “contract” with Drexel was modified when he accepted the

terms of his re-enrollment. See id.

       With regard to Ke’s contention that the present action includes

allegations Drexel breached other contracts in addition to the Student

Handbook,10 we reiterate res judicata also bars “subsequent claims that could

have been litigated in the prior action, but which actually were not[.]”

Robinson Coal, supra, 72 A.3d at 689. See Chada, supra, 756 A.2d at 43

(second action alleging fraud in the transfer of real estate was barred by res

judicata based on judgment in equitable distribution action concern the same

real estate: “Although the two lawsuits embody differently entitled ‘causes of

action’ (equitable distribution vs. fraud), we cannot and will not elevate form
____________________________________________


10
   See Ke’s Brief at 20. Although Ke sets out this claim as the fourth issue in
his statement of the questions, he fails to present it as a separate argument
in his brief. Rather, he makes passing reference to it in his argument
regarding collateral estoppel. See id.


                                          - 20 -
J-S53016-18



over substance [because the] form in which two actions are commenced does

not determine whether the causes of action are identical”) (internal quotations

omitted). Ke referred to Drexel’s violation of its Code of Conduct and clinical

manuals numerous times in the factual section of his third amended federal

complaint, and specifically averred in the cause of action for breach of contract

under Pennsylvania law that “[i]n addition to the violation of the student

handbook, Defendants also violated their own Code of Conduct and DCM’s

clinical manuals[.]” Motion for Summary Judgment, 10/25/2017, Exhibit D

(Complaint, Civil Action 11-6708, E.D. Pa, at ¶ 204). Accordingly, not only

could Ke have included these other contract claims in his federal action, he

actually did so.

       With regard to the UTPCPL claim, which was not raised in the federal

action, we agree with the reasoning of the panel of this Court in the second

state action. In that case, which was filed against the individual defendants,

as opposed to Drexel, the allegations of misconduct were the same. The panel

found collateral estoppel barred the UTPCPL cause of action in the second state

action based upon the federal court’s rejection of Ke’s breach of contract

claim.   See Fry, supra, 174 A.3d 75 (unpublished memorandum at *4)

(“Despite the fact that [Ke] is now presenting his claim as a violation of the

UTPCPL, the underlying issue is the same.”).11

____________________________________________


11
  Ke presents no argument in his brief regarding the cause of action for
concerted tortious conduct. Therefore, any objection to the dismissal of that



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J-S53016-18



       Ke further argues Drexel’s assertion that he could have included his

present state causes of action in his federal complaint is waived because

Drexel allowed “dual proceedings” in federal and state court to continue from

June 2013 until March 2016, a period of 33 months. Ke’s Brief at 30-31. We

find this argument specious. The record reveals Ke filed his original complaint

on December 15, 2013, and Drexel filed timely preliminary objections. Ke

then filed an amended complaint on January 26, 2014, to which Drexel again

filed preliminary objections, specifically asserting the pendency of the pending

federal action barred the present suit.            See Preliminary Objections to

Amended Complaint, 2/18/2014, at ¶¶ 33-42.             The trial court denied the

preliminary objections on March 31, 2014, and one week later, entered an

order staying the present action until the resolution of the federal case. The

stay was lifted on November 4, 2015, and two days later, Drexel fled an

answer and new matter to the amended complaint, raising the defenses of res

judicata and collateral estoppel. See Answer and New Matter, 11/6/2015, at

¶¶ 266-268.      Therefore, Ke’s assertion that Drexel acquiesced in the dual

proceedings is preposterous. Consequently, we find no basis to disturb the

trial court’s ruling that res judicata and/or collateral estoppel barred the

present action.


____________________________________________


claim is waived. Pa.R.A.P. 2119. Although he addressed the claim in his reply
brief, as a response to Drexel’s assertion that he failed to state a cause of
action, we find his failure to object to the dismissal of that claim in his
appellate brief is dispositive.

                                          - 22 -
J-S53016-18



      In his seventh issue, Ke contends he had a constitutional right to litigate

his state law breach of contract claim in state court, and both the state and

federal courts “de facto preserved that right for him.” Ke’s Brief at 35. Citing

Bradley v. Pittsburgh Board of Education, 913 F.2d 1064 (3d. Cir. 1990),

Ke insists he was forced to litigate his discrimination claims in federal court,

but informed the federal court he wanted to reserve his right to adjudicate his

state claims in state court. See id. at 38. Our review of the record, however,

reveals no mention of this claim in Ke’s numerous filings in the trial court.

Accordingly, it is waived for our review. See Pa.R.A.P. 302(a).

      In his fifth, sixth, eighth and tenth issues, Ke challenges the three other

orders entered by the trial court on December 19, 2017. His fifth issue asserts

the court abused its discretion when it dismissed Ke’s motion for partial

summary judgment “without even looking at it.” Ke’s Brief at 39 (challenging

order denying motion for partial summary judgment). In his sixth claim, Ke

insists the federal court opinions Drexel attached to its motion for summary

judgment motion should have been stricken from the record. See id. at 39-

40 (challenging order denying motion to strike). Lastly, in his eighth and tenth

issues, Ke contends the court erred when it precluded him from joining the

individual defendants in the present action.        See id. at 40-41, 43-45

(challenging order denying motion for clarification with respect to the joinder

of individual defendants).

      We find the trial court thoroughly addressed and properly disposed of

these claims in its opinion.   See Trial Court Opinion, 4/13/2018, at 14-17

                                     - 23 -
J-S53016-18



(explaining (1) denial of motion for partial summary judgment was proper

because breach of contract claim was barred by res judicata and/or collateral

estoppel; (2) denial of motion to strike was proper because federal court

opinions were “not erroneous, as they go directly to the heart of this matter

and support [Drexel’s] claim as to the application of the doctrines preventing

continued re-litigation of [Ke’s] claims[;]”12 and (3) denial of motion for

clarification was proper because (a) the individual defendants were never

properly served, and (b) Pa.R.C.P. 1028(c) permits the amendment of a

pleading, not the addition of new parties). Accordingly, we rest on the trial

court’s well-reasoned basis.13

        The only remaining issue is Ke’s assertion that his cause of action for

civil conspiracy for retaliation purposes should be reinstated. See Ke’s Brief

at 41-43.     This claim was dismissed via preliminary objections in the trial

court’s March 31, 2014 order. On December 3, 2017, he filed a motion for

leave to reconsider the dismissal of the civil conspiracy claim, which the court

denied on December 22, 2017. Ke did not list the March 31, 2014, order, in

his notice of appeal filed on December 21, 2017, nor did he request to file an

amended notice after the trial court denied his reconsideration motion on

December 22, 2017. See Notice of Appeal, 12/21/2017 (“Ke hereby appeals
____________________________________________


12
     Trial Court Opinion, 4/13/2018, at 15.

13
   We note, too, that with respect to the issues involving the joinder of the
individual defendants, any claim now is moot since Ke was permitted to litigate
claims against those individuals in the second state action.


                                          - 24 -
J-S53016-18



to the Superior Court of Pennsylvania from the four orders … docketed on

December 19, 2017 [and] the court’s repeated denial of [Ke’s] motion to

amend under Rule 1033, with the latest dated December 4, 2017.”).

Moreover, his “generalized” Rule 1925(b) statement referred only to the

court’s “four bare orders,” previously listed on the notice of appeal, and did

not, in any way, alert the trial court or Drexel that Ke intended to appeal the

dismissal of the civil conspiracy claim.     Plaintiff’s Generalized Statement

Pursuant to Rule 1925(b)(4)(VI).      Accordingly, we find Ke’s ninth issue

waived.

      We recognize Ke has proceeded pro se throughout these proceedings.

Nonetheless, as the trial court succinctly explained:

      A party … is entitled to no indulgence by the Court because he or
      she has decided to proceed pro se. See Abraham Zion Corp. v.
      After Six, Inc., 607 A.2d 1105, 1109-10 (Pa. Super. 1992)[,
      appeal denied, 621 A.2d 576 (Pa. 1993)]. When a party decides
      to act on his own behalf, he assumes the risk of his own lack of
      professional legal training.” Wiegand v. Wiegand, 525 A.2d
      772, 774 ([Pa. Super.] 1987)[, appeal denied, 538 A.2d 877 (Pa.
      1987)]. It is well established in Pennsylvania that pro se parties
      proceed at their own risk. O’Neill v. Checker Motors Corp., []
      567 A.2d 680, 682 (Pa. Super. 1989).

Trial Court Opinion, 4/13/2018, at 13-14.

      Orders affirmed.




                                    - 25 -
J-S53016-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2018




                          - 26 -
