       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John DeRaffele,                          :
                         Appellant       :
                                         :
            v.                           :   No. 1559 C.D. 2018
                                         :   Submitted: March 15, 2019
City of Williamsport and                 :
Thomas Evansky, Code Inspector           :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                         FILED: August 12, 2019


            John DeRaffele (Appellant), pro se, appeals from the order of the Court
of Common Pleas of Lycoming County (trial court), dated August 10, 2018, which
sustained the preliminary objections of the City of Williamsport (City) and
dismissed Appellant’s complaint alleging malicious prosecution and civil rights
violations. We now affirm.
                              I. BACKGROUND
            For purposes of the instant appeal, the following facts are not disputed.
In July of 2015, Williamsport Bureau of Codes Enforcement Officer
Thomas Evansky (Evansky) investigated a complaint about the residence at
814 Hepburn Street in Williamsport, Pennsylvania, owned by Appellant. Upon
finding the structure to be without electricity, Evansky posted notice onto the
structure reflecting its condemnation and also mailed a notice of condemnation to
Appellant. On September 18, 2015, Evansky returned to the residence and, finding
it occupied by tenants and the notice of condemnation removed, cited Appellant for
permitting occupation of a condemned and placarded structure in violation of
Section 108.5 of the 2015 International Property Maintenance Code (Maintenance
Code) purportedly adopted by the City. On November 30, 2015, a Magisterial
District Judge convicted Appellant of a violation of Section 108.5 of the
Maintenance Code.       Appellant appealed to the trial court, which conducted
evidentiary hearings and, on April 8, 2016, denied his appeal.
             Appellant then appealed the trial court’s decision to this Court, and we
reversed Appellant’s conviction in a reported opinion. See City of Williamsport
Bureau of Codes v. DeRaffele, 170 A.3d 1270 (Pa. Cmwlth. 2017) (DeRaffele I).
In DeRaffele I, the City passed an ordinance in 2004 purporting to adopt all future
editions of the Maintenance Code. We concluded that the City never properly
adopted the 2015 version of the Maintenance Code, because Section 11018.13 of the
Third Class City Code, 11 Pa. C.S. § 11018.13, did not authorize the City to adopt a
future version of a code. As further support for our decision, we discussed our
Supreme Court’s then-recent decision in Protz v. Workers’ Compensation Appeal
Board (Derry Area School District), 161 A.3d 827 (Pa. 2017), which held that an
agency’s attempt to adopt future versions of a privately produced code by reference
constituted a constitutionally impermissible delegation of legislative authority.
             Prior to his conviction before the Magisterial District Judge and the
subsequent appeals, Appellant filed a suit in the United States District Court for the
Middle District of Pennsylvania (district court). His complaint in that action, as
ultimately amended, named the City as the sole defendant and alleged that the City


                                          2
prosecuted him under an invalid ordinance in violation of due process of law and as
retaliation for his lawful behavior.     The district court interpreted Appellant’s
complaint as asserting a claim under 42 U.S.C. § 1983 (Section 1983) and dismissed
the complaint with prejudice on May 4, 2018, subsequent to his conviction and this
Court’s decision in DeRaffele I. DeRaffele v. City of Williamsport, (M.D. Pa.,
No. 4:15-CV-02186, filed May 4, 2018) (DeRaffele II).
             Following our decision in DeRaffele I, but before the district court’s
dismissal of the complaint in DeRaffele II, Appellant filed with the trial court the
instant complaint against the City and Evansky (Complaint), alleging that they
prosecuted Appellant for violation of the Maintenance Code despite their knowledge
that the City never properly adopted it. Essentially, the Complaint alleges that the
City and Evansky used the Maintenance Code as a pretext in order to retaliate against
Appellant for his successful challenge to another of the City’s ordinances in a
separate action. The City filed preliminary objections to the Complaint, arguing,
inter alia, that (1) the Complaint failed to state a claim for malicious prosecution
because the record in this matter conclusively establishes the existence of probable
cause for the City’s prosecution of Appellant, and (2) the then-pending action before
the district court involves the same facts and claims as those in the Complaint, and
should, therefore, bar the Complaint under the doctrine of lis pendens. Following
the district court’s dismissal of Appellant’s complaint in DeRaffele II, the City filed
a supplemental brief, arguing that the trial court should sustain its preliminary
objections under a theory similar to the City’s initial lis pendens argument, but
relying instead on the doctrine of res judicata because the district court had rendered
a final judgment.




                                          3
                   In its opinion and order sustaining the City’s preliminary objections,
the trial court articulated two grounds for dismissing the Complaint. First, the trial
court reasoned that Appellant’s initial conviction establishes, as a matter of law, that
the City had probable cause to prosecute him for the violation—a conclusion not
altered by the subsequent reversal of Appellant’s conviction. On that basis, the trial
court concluded that Appellant failed to state a claim for malicious prosecution
because he cannot show one of the necessary elements of that claim—i.e., that he
was prosecuted without probable cause. Second, the trial court concluded that
Appellant’s claims are barred by res judicata because the district court had dismissed
claims based upon the same citation.
                                     II. ISSUES ON APPEAL
                   On appeal,1 Appellant argues that the trial court erred in sustaining the
City’s preliminary objections and dismissing the Complaint. First, 2 Appellant
argues that res judicata does not bar his claims here because the relevant prior action
(DeRaffele II) did not address malicious prosecution and did not name Evansky as a
defendant. He also maintains that parties “can bring an action in [f]ederal and [s]tate
[c]ourt regarding similar . . . and [the] same complaints,” (Appellant’s Br. at 7), and
insists that, under the doctrine of the law of the case, his instant claims are not
barred.3 In response, the City argues that res judicata bars all of the claims in the

          1
        In an appeal from a trial court decision sustaining preliminary objections in the nature of
a demurrer, our standard of review is de novo and our scope of review is plenary. Feldman v.
Hoffman, 107 A.3d 821, 826 n.7 (Pa. Cmwlth. 2014), appeal denied, 121 A.3d 497 (Pa. 2015).
          2
              For the purpose of analysis, we have reversed the sequence of Appellant’s arguments on
appeal.
         Appellant’s reliance on the doctrine of the law of the case is misplaced. That doctrine
          3

applies in later phases of a single action on appeal. Res judicata, by contrast, does not limit
arguments on appeal, but applies only when an action concerns the same cause of action as an


                                                   4
Complaint, including Appellant’s malicious prosecution claim, because such claims
either were raised or could have been raised in DeRaffele II.
              Second, Appellant insists that he has “supplied the elements for
malicious prosecution as a matter of law,” including the absence of probable cause
for his prosecution and malicious motivation, given the City’s knowledge that the
Maintenance Code was invalid. (Id. at 5-6.) In response, the City argues that the
trial court correctly concluded that Appellant cannot prevail on his malicious
prosecution claim because probable cause for his prosecution is conclusively
established in this matter.
                                   III. DISCUSSION
              Initially, we note that a court may sustain preliminary objections only
when it is clear that the plaintiff cannot succeed on his claim, even after all doubt is
resolved in the plaintiff’s favor.            Meier v. Maleski, 648 A.2d 595, 600
(Pa. Cmwlth. 1994). Recognizing Appellant’s pro se status, we will engage in a
liberal review of the Complaint to determine whether Appellant has pleaded facts—
however inartfully—that would entitle him to relief.                   Madden v. Jeffes,
482 A.2d 1162, 1165 (Pa. Cmwlth. 1984).
              Under the doctrine of technical res judicata, or claim preclusion,
“[a] final, valid judgment on the merits by a court of competent jurisdiction
precludes any future suit between the parties or their privies on the same cause of
action.” Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995). The doctrine
“requires the coalescence of four factors: (1) identity of the thing sued upon or for;
(2) identity of the causes of action; (3) identity of the persons or parties to the action;
and (4) identity of the quality or capacity of the parties suing or being sued.” J.S. v.

action in which a final judgment has been issued, as is the case here. See Burke v. Pittsburgh
Limestone Corp., 100 A.2d 595, 598 (Pa. 1953).
                                              5
Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa. Cmwlth. 2002), appeal denied,
818 A.2d 506 (Pa. 2003).
             When analyzing the first and second factors to determine whether the
former and present cases share a cause of action, we examine the similarities and
differences of certain aspects of the two. These include the transaction or occurrence
giving rise to liability, Fisher v. Hill, 81 A.2d 860, 864 (Pa. 1951); the fundamental
issues, Stevenson v. Silverman, 208 A.2d 786, 788 (Pa. 1965); the evidence
necessary to prevail, Robinson v. Fye, 192 A.3d 1225, 1231 (Pa. Cmwlth. 2018); and
the type of relief requested, Tobias v. Halifax Twp., 28 A.3d 223, 227
(Pa. Cmwlth. 2011), appeal denied, 47 A.3d 849 (Pa. 2012). This comparison is not
mechanical, and “we keep in mind that a party cannot avoid res judicata simply by
varying the legal theory for relief or by recasting the nomenclature for the relief
requested.” Id. “Generally, a cause of action will be considered identical when the
subject matter and the ultimate issues are the same in both proceedings.” Id. at 226.
Moreover, Pennsylvania law prohibits parties from splitting a cause of action based
on a single occurrence into multiple lawsuits against a single party, even if the first
forum is not a Pennsylvania court. See Hillgartner v. Port Auth. of Allegheny Cty.,
936 A.2d 131, 141 (Pa. Cmwlth. 2007) (“Failure to raise a claim in the first [federal]
forum and subsequently asserting it in a[ state court] action arising out of the same
facts constitutes a splitting of causes of action.”).
             Concerning identity of parties and their capacities under the third and
fourth factors, technical res judicata, or claim preclusion, bars future actions only
between the parties to the prior action (and their privies). Balent v. City of Wilkes–
Barre, 669 A.2d 309, 313 (Pa. 1995). “Privity for purposes of res judicata is not
established by the mere fact that persons may be interested in the same question or


                                            6
in proving the same facts.” Day v. Volkswagenwerk Aktiengesellschaft, 464 A.2d
1313, 1317 (Pa. Super. 1983). Where, however, one party is vicariously liable for
the acts of another—as an employer is for the acts of its employee—those parties are
in privity for purposes of res judicata. See id.; see also Montella v. Berkheimer
Assocs., 690 A.2d 802, 803 (Pa. Cmwlth.) (en banc) (holding that municipality is in
privity with its contractors for purposes of res judicata), appeal denied, 698 A.2d
597 (Pa. 1997). When parties are in privity with one another, they are considered to
be identical for purposes of res judicata. Balent, 669 A.2d at 313.
               Where res judicata applies, it “prohibits parties involved in a prior
litigation from subsequently asserting claims in a later action that were raised, or
could have been raised, in the previous adjudication.” Hillgartner, 936 A.2d at 141
(emphasis in original). Claims that “could have been raised” include state law claims
subject to the discretionary jurisdiction of the court in the first forum. In McArdle
v. Tronetti, 627 A.2d 1219 (Pa. Super. 1993), appeal denied, 641 A.2d 587 (Pa.
1994), the Pennsylvania Superior Court considered application of res judicata to
preclude a state law claim for, inter alia, malicious use of process. In a previous
suit, a federal district court had declined to exercise supplemental jurisdiction4 over
the same state law claims, which the plaintiff had raised along with claims arising
under federal law. The court concluded that res judicata did not bar the state law
claims because the federal district court’s refusal to exercise jurisdiction over them
prevented the plaintiff from pursuing those claims in the first forum. Id. at 1223.
To support its decision, the court relied on the Restatement (Second) of Judgments:


       4
          In any action in which a federal district court has subject matter jurisdiction over some
claims, the district court may, in its discretion, exercise (or decline to exercise) supplemental
jurisdiction over state law claims not otherwise within its subject matter jurisdiction. See
28 U.S.C. § 1367.

                                                7
                     A given claim may find support in theories or
             grounds arising from both state and federal law. When the
             plaintiff brings an action on the claim in a court, either
             state or federal, in which there is no jurisdictional obstacle
             to his advancing both theories or grounds, but he presents
             only one of them, and judgment is entered with respect to
             it, he may not maintain a second action in which he tenders
             the other theory or ground. If, however, the court in the
             first action would clearly not have had jurisdiction to
             entertain the omitted theory or ground (or, having
             jurisdiction, would clearly have declined to exercise it as
             a matter of discretion), then a second action in a competent
             court presenting the omitted theory or ground should not
             be held precluded.

McArdle, 627 A.2d at 1223 (quoting Restatement (Second) of Judgments § 25 cmt. e
(Am. Law Inst. 1980)). In a similar case, this Court noted the McArdle court’s
reliance on the Restatement and, consistent with McArdle, concluded that res
judicata applied because the federal district court had exercised supplemental
jurisdiction over the pendent state law claims in the first proceeding. See Callaghan
v. Haverford Twp. (Pa. Cmwlth., No. 1544 C.D. 2010, filed July 25, 2011), slip op.
at 4-5, appeal denied, 42 A.3d 1061 (Pa. 2012).5 Thus, whether the court in the first
forum actually exercises (or could exercise) discretionary jurisdiction is of
paramount importance in determining whether the instant claims are precluded
because they could have been raised in the first forum.
             Turning to the instant matter, the Complaint and Appellant’s arguments
on appeal make clear that, at a minimum, the Complaint asserts a claim for the
state-law tort of malicious prosecution based on the City and Evansky’s citation and
prosecution of Appellant under the Maintenance Code. The Complaint may also be

      5
          Pursuant to Section 414(a) of this Court’s Internal Operating Procedures,
210 Pa. Code § 69.414(a), an unreported panel decision issued by this Court after
January 15, 2008, may be cited “for its persuasive value, but not as binding precedent.”


                                           8
read to support claims beyond that of malicious prosecution, including claims under
Section 1983, arising from the City’s prosecution of Appellant under the
Maintenance Code.6 It is undisputed on appeal that, in DeRaffele II, the district court
rendered a final judgment on the merits by dismissing the complaint with prejudice.
We now proceed, therefore, to determine whether that final judgment precludes
Appellant’s claims here.
               The Complaint alleges that the City and Evansky “knew from the date
of the [citation] that the ticket was defective since the Maintenance Code was never
properly adopted,” and maliciously prosecuted Appellant despite that knowledge,
thereby “willfully violating [Appellant’s] civil rights and due process.”
(Supplemental Reproduced Record (Supp. R.R.) at 6b-7b.)                      The complaint in
DeRaffele II appears to be based on, inter alia, “the issuance of [the citation] . . .
charging [Appellant] with improperly allowing a tenant to occupy the property
without an inspection.”             DeRaffele v. City of Williamsport (M.D. Pa.
No. 4:15-CV-02186, signed Jan. 2, 2018) (Report and Recommendation of Schwab,
Mag. J.) (DeRaffele II Report) (describing Appellant’s conviction for violation of
the Maintenance Code).7 The events supporting both complaints are, therefore,
identical. Moreover, the two complaints raise the same fundamental issue: whether


       6
         “[A] plaintiff filing a complaint in the courts of this Commonwealth is not required to
specify the legal theory or theories underlying the complaint. He or she may merely allege the
material facts which form the basis of a cause of action.” Heinly v. Cmwlth., 621 A.2d 1212,
1215 n.5 (Pa. Cmwlth. 1993) (recognizing claim under Section 1983 in complaint that did not
mention that statute).
       7
           Although the record in this matter does not contain a copy of the complaint in
DeRaffele II, we note that United States District Judge Matthew W. Brann referred to and adopted
in full the DeRaffele II Report as part of the opinion and order in that case. The Report, authored
by Chief United States Magistrate Judge Susan E. Schwab and available at 2018 WL 817227, sets
forth in detail the nature of the claims in DeRaffele II.

                                                9
the City’s prosecution of Appellant under the Maintenance Code was unlawful
retaliation for Appellant’s lawful acts. See DeRaffele II Report at 2 (“[Appellant]
claims that the . . . citation was issued in retaliation for his suing the City and
Evansky in other lawsuits.”); (Supp. R.R. at 7b. (“The City . . . were [sic] seeking
revenge since [Appellant obtained relief against the City].”).) In order to prevail on
the claims in both cases, Appellant would need to submit evidence of the City’s
intent in citing and prosecuting him and the absence of a legitimate motive for doing
so. Finally, in both actions, Appellant seeks compensatory and punitive money
damages. See DeRaffele II Report at 2 (also seeking fees and costs); (Supp. R.R. at
7b.) Based on all of these similarities, we conclude that all of Appellant’s claims in
the instant action are part of the same cause of action he pursued in DeRaffele II.
             Appellant’s argument against res judicata based on the addition of
Evansky as a party in the instant suit is without merit. While Evansky was not a
named party in the ultimate amended complaint in DeRaffele II, he is in privity with
the City for purposes of res judicata. The Complaint contains no allegation that
Evansky, individually and not in his role as the City’s employee, violated
Appellant’s civil or due process rights. To the contrary, the Complaint admits that
“[t]he City[,] . . . through . . . Evansky, prosecuted [Appellant].” (Supp. R.R. at 6b.)
Given that clear language and the absence of any articulation in the Complaint to the
contrary, the instant claims are against Evansky only in his capacity as the City’s
employee. Furthermore, there is no difference between the City’s own capacities in
the two actions—in both, it acted in its municipal law enforcement function. The
two actions are, thus, against the same party in the same capacity.
             Appellant emphasizes that the prior action (DeRaffele II) raised only
claims under federal law and not a state law claim for malicious prosecution. That


                                          10
is true, but it is not the end of our inquiry. We must determine whether that claim
could have been raised in the earlier action. It is undisputed that the district court
could have exercised supplemental jurisdiction over the malicious prosecution
claim. 28 U.S.C. § 1367. To borrow the Restatement’s language, “there [was] no
jurisdictional obstacle to [Appellant’s] advancing both [federal and state law]
theories or grounds, but he present[ed] only one of them, and . . . he may not maintain
a second action in which he tenders the other theory or ground.” Restatement
(Second) of Judgments, § 25 cmt. e (Am. Law Inst. 1980). Additionally, Appellant
asserted civil rights claims beyond malicious prosecution against the City in
DeRaffele II and could have brought any similar claims in that action. See DeRaffele
II, slip op. at 3; DeRaffele II Report at 1-2. Accordingly, res judicata prevents the
relitigation of those claims and bars all of Appellant’s claims here.8
                                    IV. CONCLUSION
               For the reasons set forth above, we conclude that the trial court did not
err in sustaining the City’s preliminary objections and dismissing the Complaint.
Accordingly, we affirm the decision of the trial court.




                                                P. KEVIN BROBSON, Judge




       8
         Because we dispose of all of Appellant’s claims based on res judicata, we need not
consider his argument that the trial court improperly dismissed his malicious prosecution claim on
the merits, and we do not comment on the trial court’s substantive analysis of that claim.

                                               11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John DeRaffele,                     :
                      Appellant     :
                                    :
           v.                       :   No. 1559 C.D. 2018
                                    :
City of Williamsport and            :
Thomas Evansky, Code Inspector      :



                                  ORDER


           AND NOW, this 12th day of August, 2019, the order of the Court of
Common Pleas of Lycoming County, dated August 10, 2018, is AFFIRMED.




                                    P. KEVIN BROBSON, Judge
