NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JIMI ROSE : IN THE SUPERIOR COURT OF
HOFFMAN INSURANCE : No. 743 EDA 2020
CONSULANTS, MARK HOFFMAN, :
RYAN STOCKER, AND BASHKIM :
Appeal from the Order Entered February 4, 2020
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 05, 2020
Appellant, Jimi Rose, appeals pro se from the order entered on February
4, 2020 sustaining preliminary objections filed by Hoffman Insurance
Consultants, Mark Hoffman, Ryan Stocker, and Bashkim Bobby Husenaj
(collectively, Hoffman Insurance) and dismissing Appellant’s complaint with
prejudice. The trial court determined that the doctrine of res judicata barred
relitigation of issues previously decided by the United States District Court for
the Eastern District of Pennsylvania (District Court) and subsequently affirmed
by the Third Circuit Court of Appeals in Rose v. Hoffman Ins. Consultants,
(E.D. Pa. July 18, 2018), aff'd,
Cir. Jan. 30, 2019). Upon careful review, we affirm.
* Retired Senior Judge assigned to the Superior Court.
We briefly summarize the facts and procedural history of this case as
follows. Appellant filed a pro se complaint against Hoffman Insurance in the
Civil Division of the Court of Common Pleas for Lehigh County on August 27,
2019. Hoffman Insurance filed preliminary objections to the complaint and
the trial court held argument on December 30, 2019. On February 4, 2020,
the trial court sustained the preliminary objections and dismissed Appellant’s
complaint with prejudice.
In an opinion accompanying the February 4, 2020 order, the trial court
reviewed Rose v. Hoffman Ins. Consultants, LLC,
(E.D.Pa. July 18, 2018) wherein the District Court dismissed a federal
complaint filed by Appellant against the same parties herein. In the federal
action, the District Court set forth the underlying facts as follows:
[The] claims stem[med] from a fire at a property located [along]
Hanover Avenue, Allentown, Pennsylvania, that [Appellant] owned
and leased to [Bashkim Bobby] Husenaj so that Husenaj could
operate an exotic night club. The property was damaged by the
fire and  Hoffman Insurance did not pay out the claim because
it believed that [Appellant] set the fire.
Rose v. Hoffman Ins. Consultants, LLC,
, at *1 (E.D.Pa.
July 18, 2018). The District Court further stated:
Upon review of the [a]mended [c]omplaint, which comprises long,
single-spaced paragraphs and rambling, stream-of-conscious
narrative, it is difficult to discern what claims are being alleged
against whom. From what the [District] Court can decipher from
the [a]mended [c]omplaint, construing it liberally, it appears to
allege the following claims: violations of  civil rights under 42
U.S.C. §§ 1981, 1985(3), 1986; violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962; [c]ommon [l]aw [f]raud; Pennsylvania’s Unfair Insurance
Practices Act (UIPA), 40 P.S. § 1171.4; and Pennsylvania’s Unfair
Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S..
Id. The District Court
then addressed and dismissed each alleged federal
cause of action separately.
Moreover, relevant to the instant appeal, the District Court also
considered and dismissed Appellant’s state law claims, including alleged
common law fraud and violations of the UIPA and UTPCPL, for failure to state
a claim. More specifically, the District Court determined that Appellant lacked
standing under the UIPA.
Id. at *5
. In rejecting Appellant’s common law
fraud claim, the District Court determined that Appellant failed to “clearly state
that there was a misrepresentation of material fact that led to the procurement
of an insurance policy that did not pay out on a claim after a suspicious fire
[or] that there was knowledge by [Hoffman Insurance] that the procured
insurance policy would not pay out on a claim after a suspicious fire.”
Id. Finally, the District
[the complaint] fails to plead a UTPCPL claim. [The] allegations
relevant to this claim include only conclusory statements such as
“[Hoffman Insurance] used deceptive means to defraud” him and
they “swindled tricked bamboozled [him] into believing he was
merely the beneficiary of the policy and not the actual owner.”
[The complaint], however, pleads no particularized facts to
support a claim that [Hoffman Insurance] made a representation
that [was] justifiably relied on and  harm  result[ed from] that
reliance. Construing the pleading liberally, the allegations in the
[a]mended [c]omplaint do not plausibly give rise to an entitlement
for relief under the UTPCPL.
The District Court further noted that, although it gave Appellant
significant leeway to correct the deficiencies in his complaint, he nevertheless
failed to state viable claims even after filing a third amended complaint and
that additional amendment would not cure the defects.
Id. Moreover, the District
Court chronicled Appellant’s history of frivolous federal litigation to
support its conclusion barring future litigation of the same or similar frivolous
Id. at *5
n.5, citing Rose v. Soc. Sec. Admin, No. 15-6578
(E.D.Pa. Dec. 10, 2015); Rose v. Morning Call Newspaper, No. 15-2002
(E.D.Pa. Apr. 15, 2015); Rose v. Pa. Liquor Control Bd., No. 13-5194
(E.D.Pa. Aug. 29, 2013); Rose v. Pennsylvania, 12-5765 (E.D.Pa. Oct. 9,
2012). Accordingly, the District Court dismissed, with prejudice, Appellant’s
federal complaint against Hoffman Insurance.
In the current matter, upon preliminary objection by Hoffman
Insurance, the trial court compared the complaint filed herein with the
complaint filed in District Court. It determined that, because the District Court
considered and addressed all of Appellant’s state law claims, the doctrine of
res judicata applied and, therefore, it was proper to dismiss Appellant’s
complaint in this matter with prejudice. More specifically, the trial court
[t]he District Court found, and the Third Circuit Court of Appeals
ultimately affirmed, that [Appellant], after given significant
leeway to correct deficiencies, failed to state a claim and
dismissed [Appellant’s a]mended [c]omplaint in its entirety with
prejudice. Additionally, the District Court took judicial notice of
[Appellant’s] history of frivolous litigation which supported its
conclusion that [Appellant] should not be given another
opportunity to plead the same or similar frivolous claims.
* * *
Upon review, it is clear that [Appellant’s] complaint in [this
matter] practically mirrors his complaints filed in the prior federal
action and uses the same long, single-spaced paragraphs and
rambling, stream-of-conscious narratives. Undoubtedly, the
claims are based on the same underlying facts and parties as the
prior action which the District Court dismissed with prejudice.
Indeed, [Appellant] specifically states in his [c]omplaint that “this
[c]ase was pending first in the United States District Court Eastern
District of Pennsylvania” which indicates that he also believes the
claims and causes of action are the same.
Therefore, [the trial c]ourt [found] the doctrine of res judicata 
applicable and [dismissed Appellant’s complaint].
Trial Court Opinion, 2/4/2020, at 3. Accordingly, by order entered on
February 4, 2020, the trial court sustained Hoffman Insurance’s preliminary
objections and dismissed Appellant’s complaint with prejudice. This timely
pro se appeal resulted.1
On appeal pro se,2 Appellant argues, “the claims raised in federal court
and the claims raised [herein] in state court were distinct.” Appellant’s Brief
1 Appellant filed a pro se notice of appeal on February 27, 2020. Pursuant
to Pa.R.A.P. 1925(a), the trial court filed an opinion relying upon its February
4, 2020 decision.
2 Initially, we note that Hoffman Insurance, in its brief to this Court, argues
that that we should quash this appeal because Appellant’s brief fails to adhere
to various rules of appellate procedure. “We exercise our discretion by
declining to take such action because effective appellate review has not been
precluded by the deficiencies of [A]ppellant's brief.” O'Neill v. Checker
, 681–682 (Pa. Super. 1989) (citation omitted).
However, we are also mindful that “[w]hile this [C]ourt is willing to liberally
at 10. Appellant maintains that “[t]here was no reason to conclude the [c]ase
was barred by the [d]octrine of res judicata[.]”
Id. Appellant claims that
“never raised any state court claims in federal court.”
Id. at 7
omitted). Alternatively, Appellant contends that “even if [he] had raised state
court claims in federal court[,] the federal judge ought to have declined to
consider those claims[.]”
Id. at 8.
Finally, Appellant claims the trial court
merely assumed that Appellant believed the claims were the same when it
cited his current complaint without holding “a [d]iscussion to find out what 
Appellant was thinking.”
Id. at 6.
This Court has stated:
our standard of review of an order of the trial court overruling or
granting preliminary objections is to determine whether the trial
court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
construe materials filed by a pro se litigant, we note that [an] appellant is not
entitled to any particular advantage because he lacks legal training.”
Id. “[A]ny layperson choosing
to represent [himself] in a legal proceeding must,
to some reasonable extent, assume the risk that [his] lack of expertise and
legal training will prove [his] undoing.”
Id. (citation omitted). -6-
should be resolved in favor of overruling the preliminary
Feingold v. Hendrzak,
, 941 (Pa. Super. 2011) (citation and
Furthermore, we have explained:
Underlying the doctrine of res judicata is the principle that:
Where parties have been afforded an opportunity to litigate
a claim before a court of competent jurisdiction, and where
the court has finally decided the controversy, the interests
of the state and of the parties require that the validity of the
claim and any issue actually litigated in the action not be
Application of the doctrine of res judicata requires that the two
actions possess the following common elements: (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.
* * *
A fundamental test applied for comparing causes of action, for the
purpose of applying principles of res judicata, is whether the
primary right and duty, and delict or wrong, are the same in each
action. Under this test, there is but one cause of action where
there is but one right in the plaintiff and one wrong on the part of
the defendant involving that right.
Identity of two causes of action may be determined by considering
the similarity in the acts complained of and the demand for
recovery as well as the identity of the witnesses, documents and
facts alleged. In determining whether res judicata should apply,
a court may consider whether the factual allegations of both
actions are the same, whether the same evidence is necessary to
prove each action and whether both actions seek compensation
for the same damages.
* * *
The application of the doctrine of res judicata to identical causes
of action does not depend upon the identity or differences in the
forms of the two actions. A judgment upon the merits bars a
subsequent suit upon the same cause, though brought in a
different form of action, and a party therefore cannot, by varying
the form of action or adopting a different method of presenting his
case, escape the operation of the principle that one and the same
cause of action shall not be twice litigated.
Kelly v. Kelly,
, 792 (Pa. Super. 2005) (internal citations and
Moreover, we have stated:
Under the doctrine of res judicata, or claim preclusion, a
final judgment on the merits by a court of competent
jurisdiction will bar any future action on the same cause of
action between the parties and their privies. The doctrine
therefore forbids further litigation on all matters
which might have been raised and decided in the
former suit, as well as those which were actually
raised therein. Similarly, [t]he doctrine of collateral
estoppel or issue preclusion prevents a question of law or
an issue of fact that has once been litigated and fully
adjudicated in a court of competent jurisdiction from being
relitigated in a subsequent suit.
Mariner Chestnut Partners, L.P. v. Lenfest,
(Pa. Super. 2016) (internal citations and quotation marks
While res judicata and collateral estoppel apply to bar relitigation
of claims or issues in a subsequent action that were subject to a
final judgment in a prior action, the law of the case doctrine exists
to prevent a party from relitigating claims or issues that have been
resolved previously within the same action, either in a prior appeal
or by a judge of coordinate jurisdiction. Zane v. Friends Hosp.,
, 29 (Pa. 2003) (“Among rules that comprise the law
of the case doctrine are that: (1) upon remand for further
proceedings, a trial court may not alter the resolution of a legal
question previously decided by the appellate court in the matter;
(2) upon a second appeal, an appellate court may not alter the
resolution of a legal question previously decided by the same
appellate court; and (3) upon transfer of a matter between trial
judges of coordinate jurisdiction, the transferee trial court may
not alter the resolution of a legal question previously decided by
the transferor trial court.” (internal quotation marks and citation
All three doctrines are based upon similar policy determinations,
including the idea that a party should not get a second bite at the
apple when he or she had a full and fair opportunity the first time.
See, e.g., Lebeau v. Lebeau,
, 482 (Pa Super.
1978) (“The policies underlying both [res judicata and collateral
estoppel] are the same: to minimize the judicial energy devoted
to individual cases, establish certainty and respect for court
judgments, and protect the party relying on the prior adjudication
from vexatious litigation.”); Plaxton v. Lycoming Cty. Zoning
, 208 (Pa. Cmwlth. 2009) (“Collateral
estoppel is based on the policy that a losing litigant deserves no
rematch after a defeat fairly suffered, in adversarial proceedings,
on an issue identical in substance to the one he subsequently
seeks to raise.”) (citation and internal quotation marks omitted);
Commonwealth v. Gacobano,
, 419–420 (Pa.
Super. 2013) (“The various rules which make up the law of the
case doctrine serve not only to promote the goal of judicial
economy ... but also operate (1) to protect the settled
expectations of the parties; (2) to insure uniformity of decisions;
(3) to maintain consistency during the course of a single case; (4)
to effectuate the proper and streamlined administration of justice;
and (5) to bring litigation to an end.”).
Pollock v. Nat'l Football League,
, 781–782 (Pa. Super. 2017)
Finally, “[w]here [a] complaint makes repeated references to [a] prior
 action and contains facts and issues pleaded by the prior action, the
affirmative defense of res judicata is properly raised by preliminary
objections.” Del Turco v. Peoples Home Sav. Ass'n,
(Pa. Super. 1984).
Initially, we note the District Court determined that, in his federal
complaint, Appellant pled state claims of common law fraud and violations of
the UIPA and UTPCPL. These causes of action are state claims. See Fazio v.
Guardian Life Ins. Co. of Am.,
, 411 (Pa. Super. 2012)
(common law fraud and claims brought pursuant to the UTPCPL are separate
and legally distinct under Pennsylvania law); 73 P.S. § 201; 40 P.S. § 1171.1.
Moreover, the United States Supreme Court has determined “a federal court
has jurisdiction over an entire action, including state-law claims, whenever
the federal-law claims and state-law claims in the case ‘derive from a common
nucleus of operative fact’ and are ‘such that [a plaintiff] would ordinarily be
expected to try them all in one judicial proceeding.’” Carnegie-Mellon Univ.
, 725 (1966). Here, the District Court exercised its jurisdiction and
considered Appellant’s state law claims. The Third Circuit found no error in
those decisions. Thus, we reject Appellant’s claims that he did not raise state
claims before the District Court, or that the District Court lacked jurisdiction
over his state law causes of action.
Furthermore, we reject Appellant’s claim that he presented distinct
causes of action in his federal and state complaints. Here, there is no dispute
that Appellant’s current complaint and his federal complaint share the same
identity of parties, capacity of parties, and thing sued upon pursuant to the
first, third, and fourth elements of the res judicata test, as set forth above.
Regarding the identity of the causes of action, the trial court determined that
Appellant’s current complaint “practically mirror[ed]” his federal complaint.
Trial Court Opinion, 2/4/2020, at 3. Upon side-by-side comparison of the
federal action with the complaint herein, we agree. In both actions, there is
- 10 -
factual identity in terms of the acts complained of and the demand for
recovery, as well as the identity of the witnesses, documents, and the facts
alleged. Similar to his federal lawsuit, the complaint sub judice stemmed from
a fire at a property located along Hanover Avenue, Allentown, Pennsylvania,
a property owned by Appellant. Complaint, 8/27/2019, at *1, ¶5
(unpaginated). Appellant alleges that the same parties named in the federal
complaint engaged in fraudulent conduct in the issuance of insurance
coverage for that property and that he did not recover the full value of his
damages from the fire, as a result.
Finally, it is clear that Appellant sought compensation for the same
damages demanded in the District Court action.
The District Court dismissed Appellant’s federal complaint and
specifically examined, and rejected, the state claims Appellant presented
therein, determining that Appellant failed to raise cognizable causes of action.
Any challenge to the District Court’s decision, in this regard, was properly
before the Third Circuit Court of Appeals. This Court ought not revisit those
federal decisions. Moreover, while Appellant baldly claims on appeal that he
raised distinct federal and state claims in his two complaints, he does not
identify them. In fact, Appellant does not rely upon his current complaint to
show there were purportedly unresolved claims. Instead, Appellant faults the
trial court for making assumptions about the record. Notwithstanding, our
- 11 -
own straight-forward comparison of Appellant’s two complaints reveals that
Appellant raised identical causes of action seeking identical damages against
identical parties. Hence, the trial court properly dismissed the current
complaint under the principle of res judicata. Accordingly, Appellant is not
entitled to relief.
Joseph D. Seletyn, Esq.
- 12 -