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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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Retired Senior Judge assigned to the Superior Court.
1
73 P.S. § 201-1 et seq.
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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
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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.
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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
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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.
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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
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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
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5
Ultimately, on February 29, 2016, this Court entered an order denying Ke’s
petition for review of the December 16, 2015, Order.
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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. …
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6
See Docket No. 2073, January Term, 2016.
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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).
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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
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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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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
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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
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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.
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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
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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.
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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
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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.
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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
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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.
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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
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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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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.
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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
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(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.
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2018
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