J-S39016-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JIMI ROSE                                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    HOFFMAN INSURANCE                          :   No. 743 EDA 2020
    CONSULANTS, MARK HOFFMAN,                  :
    RYAN STOCKER, AND BASHKIM                  :
    BOBBY HUSENAJ

                Appeal from the Order Entered February 4, 2020
     In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                               No. 2017-C-1106


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,

LLC, 

2018 WL 3454930

(E.D. Pa. July 18, 2018), aff'd, 

2019 WL 451277

(3d

Cir. Jan. 30, 2019). Upon careful review, we affirm.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      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, 

2018 WL 3454930

(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, 

2018 WL 3454930

, 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

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      Practices Act (UIPA), 40 P.S. § 1171.4; and Pennsylvania’s Unfair
      Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S..
      § 201-1.

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

Court opined:

      [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.

Id. -3-

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      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

federal claims.

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

noted:

      [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

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       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
Motors Corp., 

567 A.2d 680

, 681–682 (Pa. Super. 1989) (citation omitted).
However, we are also mindful that “[w]hile this [C]ourt is willing to liberally



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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

he

“never raised any state court claims in federal court.”

Id. at 7

(capitalization

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-

J-S39016-20


     should be resolved in favor of overruling the preliminary
     objections.

Feingold v. Hendrzak, 

15 A.3d 937

, 941 (Pa. Super. 2011) (citation and

brackets omitted).

     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
        litigated again.

     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

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     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, 

887 A.2d 788

, 792 (Pa. Super. 2005) (internal citations and

quotations omitted).

     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, 

152 A.3d 265

, 286
     (Pa. Super. 2016) (internal citations and quotation marks
     omitted).

     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.,
     

836 A.2d 25

, 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


                                     -8-
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     the transferor trial court.” (internal quotation marks and citation
     omitted)).

     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, 

393 A.2d 480

, 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
     Hearing Bd., 

986 A.2d 199

, 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, 

65 A.3d 416

, 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, 

171 A.3d 773

, 781–782 (Pa. Super. 2017)

(emphasis added).

     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, 

478 A.2d 456

, 461

(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.


                                    -9-
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Guardian Life Ins. Co. of Am., 

62 A.3d 396

, 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.

v. Cohill, 

484 U.S. 343

, 349 (1988), citing Mine Workers v. Gibbs, 

383 U.S. 715

, 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 -
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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.

Id. at ¶¶ 5-30.

In fact, in the current

complaint, Appellant uses language identical to that employed in his federal

complaint, i.e. that he was “swindled, tricked, [and] bamboozled[.]”

Id. at ¶ 9.

  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 -
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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.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/20




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