          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Patrick J. Doheny, Jr., an adult       :
individual,                            :
                   Petitioner          :
                                       :
             v.                        : No. 253 M.D. 2017
                                       : Submitted: August 25, 2017
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing,            :
a governmental agency;                 :
Janet L. Dolan, an adult               :
individual; Kara N. Templeton,         :
an adult individual; William A.        :
Kuhar, Jr., an adult individual;       :
Terrance M. Edwards, an adult          :
individual; Donald J. Smith, an        :
adult individual; William J. Cressler, :
an adult individual; and Philip Murray :
Bricknell, an adult individual,        :
                    Respondents        :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                    FILED: September 19, 2017


             Before us are the preliminary objections filed by the Commonwealth
of Pennsylvania, Department of Transportation, Bureau of Driver Licensing and
other defendants in this action (collectively, PennDOT) to Count I of Patrick J.
Doheny, Jr.’s (Petitioner) complaint, arguing, among other things, that res judicata
bars Petitioner from bringing this action because the matters in controversy were
previously decided. For the following reasons, we grant PennDOT’s preliminary
objections and dismiss Petitioner’s complaint.


                                                I.
                                                A.
               In 2013, Petitioner was convicted of driving under the influence
(DUI)1 and aggravated assault while driving under the influence (AA-DUI).2 On
July 3, 2013, he received two separate suspension notices from PennDOT, each
informing him that his license would be revoked for one year on the basis of his
convictions. One of the suspension notices specified that the suspension was
“effective 08/07/13” and the other specified that it was “effective 08/07/14.”
(Preliminary Objections ¶ 7.) Each of the suspension notices informed Petitioner

      1
          Section 3802(b) of the Vehicle Code, 75 Pa.C.S. § 3802(b), provides:

               An individual may not drive, operate or be in actual physical
               control of the movement of a vehicle after imbibing a sufficient
               amount of alcohol such that the alcohol concentration in the
               individual’s blood or breath is at least 0.10% but less than 0.16%
               within two hours after the individual has driven, operated or been
               in actual physical control of the movement of the vehicle.

      2
          Section 3735.1(a) of the Vehicle Code, 75 Pa.C.S. § 3735.1(a), provides:

               Any person who negligently causes serious bodily injury to
               another person as the result of a violation of section 3802 (relating
               to driving under influence of alcohol or controlled substance) and
               who is convicted of violating section 3802 commits a felony of the
               second degree when the violation is the cause of the injury.




                                                2
that he had a right to appeal within 30 days of the mail date. Petitioner did not
appeal either of the suspension notices because, purportedly, he assumed that one
of the two notices was redundant.


               By letter dated August 20, 2013, PennDOT informed Petitioner that
because he had consecutive one-year suspensions as a result of the DUI and AA-
DUI convictions, his driving privileges would be restored on August 7, 2015.
Petitioner then filed a petition with the Court of Common Pleas of Allegheny
County (common pleas court) seeking to appeal the suspension notices nunc pro
tunc, which was granted.


               Before the common pleas court, Petitioner contended that he should
only receive a one-year suspension, not the two consecutive one-year suspensions.
The common pleas court followed our Supreme Court’s decision in Bell v.
Department of Transportation, Bureau of Driver Licensing, 96 A.3d 1005, 1019-
20 (Pa. 2014), which held that multiple operating privilege suspensions of listed
violations under 75 Pa.C.S. § 1532(a)3 of the Vehicle Code, that are imposed

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

               The department shall suspend the operating privilege of any driver
               for one year upon receiving a certified record of the driver’s
               conviction of or an adjudication of delinquency based on any of
               the following offenses:

                      (1) Any felony in the commission of which a court
               determines that a vehicle was essentially involved…

                                              ***

(Footnote continued on next page…)

                                               3
following a conviction of each enumerated offense, are not merged and a
suspension can be ordered for each conviction to be served consecutively.
Accordingly, the common pleas court opinion held, “[in] light of the principles set
forth in Bell . . . and the absence of any language in the Motor Vehicle Code4
suggesting merger of the two suspensions, the Court found that the doctrine of
merger does not apply to the within civil penalties.”5


                                                  B.
                Petitioner then appealed to this Court, again contending that he should
have been subject to a single one-year suspension under Zimmerman v.
Department of Transportation, Bureau of Driver Licensing, 759 A.2d 953 (Pa.
Cmwlth. 2000), overruled by Bell v. Department of Transportation, 96 A.3d 1005
(Pa. 2014). Petitioner argued that Bell did not overrule Zimmerman because Bell
addressed the statutory construction of violations under Section 1532(a) and (a.1)




(continued…)

                         (3) Any violation of the following provisions:

                               Section 3735.1 (relating to aggravated assault by
                vehicle while driving under the influence).

75 Pa. C.S. § 1532(a).

       4
           The Vehicle Code, 75 Pa. C.S. §§ 101 – 9805.

       5
           The common pleas court opinion is docketed at No. SA 13 – 943, Commonwealth v.
Doheny.




                                                  4
of the Vehicle Code, while his DUI suspension was imposed under Section
3804(e)(2)(i)6 of the Vehicle Code.


                 In that appeal, PennDOT contended that we should never get to the
merits of the appeal because the common pleas court erred in allowing Petitioner’s
appeal nunc pro tunc. We agreed, holding that the common pleas court erred in
addressing the merits by granting nunc pro tunc relief. Petitioner petitioned for
allowance of an appeal to the Supreme Court, which was denied.


                                                   II.
                 Petitioner then filed a four-count, 260 paragraph civil action in the
common pleas court, seeking monetary damages for violations of his civil rights
pursuant to 42 U.S.C. § 19837 and 1985(3),8 as well as injunctive relief, all of
which arose out of his original claim that he was only subject to a single one-year
suspension rather than two consecutive one-year suspensions. In Count I, which
raises the issue that he should have only received the one suspension, Petitioner
seeks the following equitable and/or injunctive relief:

                 a. Order that the DUI Suspension Notice issued by
                 [PennDOT] to Plaintiff on July 3, 2013 was null and
                 void, ab initio;
       6
         Section 3804(e)(2)(i) of the Vehicle Code provides that suspension shall be “12 months
for an ungraded misdemeanor or misdemeanor of the second degree under this chapter.” 75
Pa.C.S. § 3804(e)(2)(i).

       7
           42 U.S.C. § 1983, relating to civil actions for the deprivation of rights.

       8
           42 U.S.C. § 1985(3), relating to depriving persons of rights or privileges.




                                                    5
            b. Grant a special and permanent injunction against
            [PennDOT] that specifically prohibits [PennDOT] from
            issuing consecutively-running suspensions of operator’s
            privileges to licensees convicted of both felony-grade and
            misdemeanor DUI convictions arising out of the same
            motor vehicle accident, unless and until the General
            Assembly amends the Vehicle Code in such a manner as
            to require or permit the consecutive issuance and/or
            service of such suspensions;

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

            d. Order that [PennDOT] remove, from Plaintiff’s
            permanent driver’s record, any reference to the July 3,
            2013 DUI Suspension Notice ever having been issued by
            [PennDOT] to Plaintiff;

            e. Order that [PennDOT] rescind and remove from
            Plaintiff’s permanent driver’s record any period(s) of
            suspension, points, fines or any other penalties related to
            the July 3, 2013 DUI Suspension Notice;

            f. Order that [PennDOT] immediately return physical
            custody of Plaintiff’s driver’s license to Plaintiff free of
            charge, without Plaintiff having to pay any restoration
            fee, penalty, or any other charge or fee associated with
            the return of Plaintiff’s driver's license to Plaintiff.

            g. Enter any other relief that the Court deems to be just
            and proper.


(Complaint, ¶ 224.)


            PennDOT then had the matter moved to the United States District
Court for the Western District of Pennsylvania (district court). After Petitioner
filed a first amended complaint to the district court, PennDOT filed a motion to


                                         6
dismiss the first amended complaint, which the district court granted, dismissing
the action in its entirety with prejudice.


              Petitioner then filed a motion for reconsideration and to alter or
amend judgment pursuant to Fed. R. Civ. P. 59(e), seeking to have the district
court reconsider and vacate its dismissal order. The district court amended its
previous dismissal order to reflect that Count I of the first amended complaint,
pertaining to the statutory appeal, should not have been dismissed with prejudice,
but declined to extend supplemental jurisdiction over it, as it was purely based in
state law. The federal district court then remanded Count I of the first amended
complaint to the common pleas court.


              PennDOT then filed preliminary objections in the common pleas court
arguing, inter alia, that the common pleas court lacked jurisdiction because the
Commonwealth Court has exclusive and original jurisdiction in matters against the
Commonwealth and its agencies.9 Petitioner stipulated that the common pleas
court lacked jurisdiction and the matter was then transferred to this Court. Before
us now are PennDOT’s remaining preliminary objections.10


       9
         Pursuant to 42 Pa.C.S. §§ 761(a)&(b), the Commonwealth Court has original and
exclusive jurisdiction in any civil action or proceeding against the Commonwealth, unless an
exception applies.

       10
          Preliminary objections should only be sustained if the law says with certainty that no
recovery is possible. Foster v. Peat Marwick Main & Co., 587 A.2d 382 (Pa. Cmwlth. 1991).
Where a preliminary objection presents a question of law, our standard of review is de novo and
our scope of review is plenary. Russo v. Allegheny County, 125 A.3d 113, 122 n.5 (Pa. Cmwlth.
2015).




                                               7
                                              III.
               In its preliminary objections, PennDOT contends that this action
should be dismissed because it is barred under the doctrine of res judicata as the
claims Petitioner raises here – that he should have received a one-year suspension
rather than two consecutive one-year suspensions – were already decided when he
failed to timely appeal the notice of suspension.11 Petitioner, however, contends
that the doctrine of res judicata does not apply because, even though he did not
appeal and the common pleas court addressed the merits, there was never a final
judgment upon the merits because we vacated the common pleas court order when
we held that it erred in granting Petitioner nunc pro tunc relief. We, therefore,
address the issue of whether Petitioner’s failure to appeal his license suspensions
precludes him from bringing a challenge in our original jurisdiction.


               Under the doctrine of administrative finality, if an appeal is not taken
from a final administrative decision,12 claim preclusion prevents a collateral attack

       11
           The doctrine of res judicata, also known as claim preclusion, bars a subsequent action
between the same parties on any claim that was the subject of an earlier adjudication on the
merits. See Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995) (holding that “[a]ny
final, valid judgment on the merits by a court of competent jurisdiction precludes any future suit
between the parties or their privies on the same cause of action.”) (emphasis in original) (citing
Allen v. McCurry, 449 U.S. 90, 94 (1980)). In order for a litigant’s claim to be barred under this
principle, there must be a concurrence of (1) identity of the thing sued upon, (2) identity of the
cause of action, (3) identity of the parties, and (4) identity of the capacity of the parties.
Stevenson v. Silverman, 208 A.2d 786, 787-88 (Pa. 1965). However, the principle of res judicata
may not be defeated by minor differences of form, parties or allegations when these differences
are contrived for the purpose of a party obtaining a second trial on the same cause between the
same parties. Tobias v. Halifax Township, 28 A.3d 223, 226 (Pa. Cmwlth. 2011).

       12
        Final administrative decisions, or “adjudications,” are defined under the Administrative
Agency Law as:

(Footnote continued on next page…)

                                                8
to challenge the effects of the administrative order. Department of Environmental
Protection v. Peters Township Sanitary Authority, 767 A.2d 601, 603 (Pa. Cmwlth.
2001). In Department of Environmental Resources v. Wheeling-Pittsburgh Steel
Corporation, 348 A.2d 765, 767 (Pa. Cmwlth. 1975), this Court discussed the
doctrine of administrative finality, holding that:

               We agree that an aggrieved party has no duty to appeal
               but disagree that upon failure to do so, the party so
               aggrieved preserves to some indefinite future time in
               some indefinite future proceedings the right to contest an
               unappealed order.       To conclude otherwise, would
               postpone indefinitely the vitality of administrative orders
               and frustrate the orderly operations of administrative law.


Id. at 767.


               In this case, the claims and relief Petitioner seeks in Count I of his
complaint are all matters that were effectively decided against him when he failed


(continued…)

               Any final order, decree, decision, determination or ruling by an
               agency affecting personal or property rights, privileges,
               immunities, duties, liabilities or obligations of any or all of the
               parties to the proceeding in which the adjudication is made.

2 Pa.C.S. § 101. This Court has held that administrative actions are “adjudications” when they
result in final determinations which affect personal or property rights. Shaulis v. Pennsylvania
State Ethics Commission, 739 A.2d 1091, 1099 (Pa. Cmwlth. 1999). It is well-settled that if an
agency action is not an “adjudication,” then it is not subject to judicial review by way of appeal.
Id. Because PennDOT’s suspension of Petitioner’s license affects his personal rights and is
subject to judicial review, that suspension constitutes a final administrative decision.




                                                9
to appeal the license suspension notices. Because he failed to timely appeal the
final administrative decisions which gave rise to this action, Petitioner is precluded
from bringing any action to challenge the effects of them.


              Accordingly, we grant PennDOT’s preliminary objections seeking
dismissal of Petitioner’s amended complaint.13



                                          _________________________________
                                          DAN PELLEGRINI, Senior Judge




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




       13
         Because we determine that Petitioner’s claims are barred by res judicata, we do not
need to reach PennDOT’s other preliminary objection that this action is barred by sovereign
immunity. See Pa. Constitution, art. 1, § 11.



                                            10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Patrick J. Doheny, Jr., an adult       :
individual,                            :
                   Petitioner          :
                                       :
             v.                        : No. 253 M.D. 2017
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing,            :
a governmental agency;                 :
Janet L. Dolan, an adult               :
individual; Kara N. Templeton,         :
an adult individual; William A.        :
Kuhar, Jr., an adult individual;       :
Terrance M. Edwards, an adult          :
individual; Donald J. Smith, an        :
adult individual; William J. Cressler, :
an adult individual; and Philip Murray :
Bricknell, an adult individual,        :
                    Respondents:


                                   ORDER


             AND NOW, this 19th day of September, 2017, Respondents’
preliminary objections are granted and Count I of Petitioner’s complaint is
dismissed. The Chief Clerk is directed to mark the case as closed.



                                      _________________________________
                                      DAN PELLEGRINI, Senior Judge
