IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin M. Kaplafka, Jr., :
Appellant :
v. :
:
Pennsylvania State Police, :
Col. Tyree Blocker, Lt. Col. Robert :
Evanchick, Lt. Col. Lisa Christie, Lt. :
William Bowan, Capt. Margaret :
Dropinski, Capt. Maurice Tomlinson, : No. 505 C.D. 2021
and Jeremy M. Richards : Submitted: December 4, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: January 3, 2024
Kevin M. Kaplafka, Jr. (Kaplafka) appeals from the July 31, 2020,
order of the Court of Common Pleas of Dauphin County (trial court). The trial court
granted preliminary objections (POs) filed by the Pennsylvania State Police (PSP),
Colonel Tyree Blocker, Lieutenant Colonel Robert Evanchick, Lieutenant Colonel
Lisa Christie, Lieutenant William Bowan, Captain Margaret Dropinski, Captain
Maurice Tomlinson, and Jeremy M. Richards (collectively, Appellees). Appellees’
PO’s sought dismissal of Kaplafka’s petition for review (Complaint), which was
filed in this Court’s original jurisdiction, as were Appellees’ POs. In that phase of
this litigation, this Court granted Appellees’ POs in part, dismissed two of the four
claims in Kaplafka’s Complaint, and transferred Kaplafka’s two remaining claims
to the trial court for resolution. Upon review, we vacate the trial court’s order and
remand for further proceedings in accordance with this opinion.
I. Factual and Procedural Background
The facts underlying this matter were presented in our previous opinion,
Kaplafka v. Pennsylvania State Police (Pa. Cmwlth., No. 634 M.D. 2018, filed Feb.
7, 2020), aff’d 255 A.3d 384 (Pa. 2021), 2020 WL 598235 (unreported), (Kaplafka
I). To summarize, Kaplafka graduated from the PSP Academy (Academy) in
December 2015 and began working as a PSP trooper on a probationary basis, which
by statute was to last 18 months. Id., slip op. at 3 & 11, 2020 WL 598235, at **2 &
5 (citing Section 205(f) of the Administrative Code of 1929 (Administrative Code),
71 P.S. § 65(f)).1 In October 2016, Kaplafka resigned from the PSP after being
implicated in a cheating scandal when a document he wrote at the Academy as a
senior cadet was used by junior cadets as an exam “cheat sheet.” Id., slip op. at 3-5,
2020 WL 598235, at *2. In February 2017, the Commonwealth’s Office of Inspector
General (OIG) concluded an investigation into the matter and issued a public report
assigning the majority of blame for the scandal to Academy staff and instructors
1
Section 205(f) of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended
states:
All new cadets and troopers shall serve a probationary period of
eighteen months from the date of original enlistment, during which
time they may be dismissed by the Commissioner for violations of
rules and regulations, incompetency, and inefficiency without action
of a court martial board or the right of appeal to a civil court.
71 P.S. § 65(f).
2
rather than to individual cadets (including Kaplafka). Id., slip op. at 5-6, 2020 WL
598235, at *3.
In December 2018, Kaplafka filed his Complaint in this Court’s original
jurisdiction. Reproduced Record (R.R.) at 15a-45a. He asserted that Appellees had
constructively discharged him wrongfully (Count I), deprived him of his liberty
interest in his reputation (Count II, which Kaplafka alleged pursuant to 42 U.S.C.
§ 1983 (Section 1983)), and tortiously interfered with his extant and potential
contractual relations necessary to find work as a law enforcement officer (Counts III
and IV). Id. Kaplafka sought mandamus relief, specifically reinstatement of his
position as a trooper with regard to Count I and a hearing to clear his name with
regard to Count II. Id. He also sought money damages with regard to Counts III
and IV. Id.
Appellees filed POs with this Court, asserting that (1) Kaplafka’s
Complaint should be dismissed in its entirety because, as a probationary officer, he
was an at-will employee who by statute (Section 205(f) of the Administrative Code)
could be terminated without recourse to the courts (PO I); (2) Count I should be
dismissed because Kaplafka failed to file his Complaint within the six-month statute
of limitations (PO II); (3) Count II should be dismissed because Kaplafka failed to
assert actual reputational harm and because he already had an opportunity at the PSP
level to refute the charges against him and failed to do so (PO III); (4) in the
alternative, Count II should be dismissed because Section 1983 claims cannot be
brought against the PSP, a state agency, or the individual appellees, who were acting
in their official capacities (PO IV); and (5) Appellees are not subject to Kaplafka’s
tort claims in Counts III and IV on the basis of sovereign immunity (PO V). R.R. at
105a-21a.
3
In response to Appellees’ POs, Kaplafka filed POs with this Court
requesting that Appellees’ POs asserting affirmative defenses based on the statute of
limitations and sovereign immunity (PO II & PO V) be stricken because they were
premature and could not be resolved at the PO phase. R.R. at 329a-35a.
The following list encapsulates our conclusions and holdings in
Kaplafka I2 as to the counts in Kaplafka’s Complaint:
1. Count I (wrongful discharge): stricken based on
sustaining Appellees’ PO I (failure to state claim
because Kaplafka was a statutory at-will employee of
PSP).
2. Count II (Section 1983 reputational harm): stricken
based on sustaining Appellees’ PO III (failure to state
claim because Kaplafka failed to establish actual
harm).
3. Count III (tortious interference with extant contractual
employment relations): transferred to trial court due to
lack of original jurisdiction.
4. Count IV (tortious interference with prospective
contractual employment relations): transferred to trial
court due to lack of original jurisdiction.
Kaplafka 1, slip op. at 19, 2020 WL 598235, at **4-8. Similarly, the following list
encapsulates our conclusions and holdings as to PSP’s POs:
1. PO I (applicable to all Counts, Kaplafka was a statutory
at-will employee of the PSP): sustained as to Count I
(see above) and not otherwise addressed.
2. PO II (statute of limitations barred Count I): stricken as
a prematurely asserted affirmative defense.
2
Our Supreme Court affirmed Kaplafka I. Kaplafka v. Pa. State Police, 255 A.3d 384 (Pa.
2021).
4
3. PO III (failure to state claim in Count II as to actual
reputational harm): sustained as to Count II (see
above).
4. PO IV (PSP and individual officers not subject to
Section 1983 claim (Count II): not reached in light of
sustaining of PO III.
5. PO V (sovereign immunity as to tort claims in Counts
III and IV): stricken as a prematurely asserted
affirmative defense.
Id., 2020 WL 598235, at **4-8.
On July 31, 2020, the trial court issued an order granting Appellees’
POs as to Kaplafka’s tort allegations at Counts III and IV on the basis of sovereign
immunity.3 R.R. at 501a. The trial court explained that the Complaint failed to set
forth factual allegations that the individual Appellees acted outside the scope of their
official duties when they investigated and constructively discharged him. Id.
Kaplafka appealed to the Superior Court and in his statement of errors complained
of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b),
Pa.R.A.P. 1925(b) (Rule 1925(b) Statement), he asserted that the trial court erred in
dismissing his remaining claims on the basis of sovereign immunity because this
Court had previously struck as premature Appellees’ assertion of that affirmative
defense at the PO stage. Id. at 517a-20a & 527a-31a.
On September 21, 2020, the trial court issued its opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a) (Rule
1925(a) Opinion). Original Record (O.R.) #2. The trial court agreed with
Kaplafka’s Rule 1925(b) Statement and acknowledged that it had “improperly
disposed of [POs] that the Commonwealth Court had previously stricken.” Id. at 1-
3
Kaplafka previously filed a certificate of readiness with the trial court declining oral
argument and asserting that the matter was ready for disposition on the pleadings and associated
documentary filings. Original Record (O.R.) #5.
5
2. The trial court added that upon “reacquiring jurisdiction” over the case, it would
“address the remaining [POs] to Counts III and IV, as directed by the
Commonwealth Court.” Id. at 2. Then, on April 1, 2021, the Superior Court
transferred the matter to this Court in our appellate jurisdiction.4 Kaplafka v. Pa.
State Police (Pa. Super., No. 1110 MDA 2020, filed Apr. 1, 2021), 2021 WL
1235218 (unreported).
II. Parties’ Arguments
Kaplafka asserts that in light of the trial court’s acknowledgement in its
Rule 1925(a) Opinion that it erred in its July 31, 2020, order granting Appellees’
POs to Counts III and IV of the Complaint on the basis of sovereign immunity, this
Court should vacate or reverse the trial court’s order; Appellees agree. Kaplafka’s
Br. at 24-25; Appellees’ Br. at 14.
Regarding further disposition, Kaplafka argued in his initial brief that
once the trial court’s order is vacated or reversed, no further POs to his Complaint
will remain pending and the trial court should be directed to order Appellees to
answer the Complaint. Kaplafka’s Br. at 28-29. Appellees responded that their PO
I, which seeks to dismiss Kaplafka’s entire Complaint on the basis that he was a
probationary trooper employed on an at-will basis, applies to Kaplafka’s tort claims
4
Section 762(a)(1)(i) of the Judicial Code provides that this Court has exclusive
jurisdiction of appeals from final orders of the courts of common pleas in Commonwealth civil
cases in which original jurisdiction is vested in another tribunal by virtue of any of the exceptions
to section 761(a)(1) (relating to original jurisdiction). 42 Pa.C.S. § 762(a)(1)(i). Under Section
761(a)(1)(v) of the Judicial Code, this Court did not have original jurisdiction over Counts III and
IV of Kaplafka’s Complaint because those claims raised an action “in the nature of trespass as to
which the Commonwealth government formerly enjoyed sovereign or other immunity.” 42 Pa.C.S.
§ 761(a)(1)(v); Kaplafka I, slip op. at 18-19, 2020 WL 598235, at *8. Therefore, this matter is
properly before this Court in its appellate jurisdiction.
6
at Counts III and IV of the Complaint and still needs to be resolved by the trial court
“in the first instance.” Appellees’ Br. at 15-17. Appellees pointed out that in
Kaplafka I, we struck Appellees’ statute of limitations and sovereign immunity POs
as premature but transferred the matter to the trial court to address Counts III and IV
“along with [Appellees’] [POs] to those counts,” meaning that PO I remained open.
Id. Appellees noted that the trial court also recognized the pending status of PO I
when it asked in its Rule 1925(a) Opinion for the matter to be returned to it for
disposition of “the remaining [POs]” to Counts III and IV. Id. Appellees posited
that PO I is responsive to Kaplafka’s tort claims because those claims are based on
the existence of a contractual employment relationship between Kaplafka and PSP,
which PO I denies as a matter of law pursuant to Section 205(f) of the Administrative
Code of 1929. Id.
In his reply brief, Kaplafka apparently acknowledges Appellees’
position that PO I remains pending. He now asserts that on remand, the trial court
should be directed to “issue a schedule for refiling and briefing of those discrete
remaining POs specifically directed to Counts III and IV” of the Complaint.
Kaplafka’s Reply Br. at 5. In the alternative, Kaplafka asks this Court to “simply
remand for further proceedings” so that the trial court can independently set such a
schedule. Id. Kaplafka explains that briefing to the trial court would serve judicial
economy and efficiency by focusing the dispute on the applicability of PO I to
Counts III and IV of the Complaint. Id. at 6. This way, both sides will have the
opportunity for advocacy concerning a theory that has not been addressed by either
this Court or the trial court. Id.
7
III. Discussion
Pursuant to Pennsylvania Rule of Appellate Procedure 1701(a), “after
an appeal is taken or review of a quasijudicial order is sought, the trial court or other
government unit may no longer proceed further in the matter.” Pa.R.A.P. 1701(a).
The trial court may still “correct formal errors in papers relating to the matter, . . .
and take other action permitted or required by these rules or otherwise ancillary to
the appeal or petition for review proceeding.” Pa.R.A.P. 1701(b)(1). However, the
power to clarify or correct does not extend to substantive modifications and is
limited to, for instance, “non-substantial technical amendments to an order.”
Lancaster Cnty. Agric. Pres. Bd. v. Fryberger, 257 A.3d 192, 201 (Pa. Cmwlth.
2021) (quoting Pa.R.A.P. 1701, Official Note). Rule 1701 is jurisdictional and
even if a tribunal wishes to rescind or reverse its order on the basis of a substantive
defect in its reasoning for that order, it cannot do so once an appeal has been filed.
Ettelman v. Dep’t of Transp., Bureau of Driver Licensing, 92 A.3d 1259, 1262 (Pa.
Cmwlth. 2014).
Here, the trial court’s July 31, 2020, order granted Appellees’ POs to
Counts III and IV of Kaplafka’s Complaint on the basis of sovereign immunity. R.R.
at 501a. In his Rule 1925(b) Statement in support of his appeal to the Superior Court,
Kaplafka pointed out that in Kaplafka I, this Court struck as premature Appellees’
PO asserting sovereign immunity. Id. at 529a-30a. The trial court agreed in its
subsequent Rule 1925(a) Opinion. O.R. #2 at 1-2. However, pursuant to Rule 1701,
the trial court could not act further on its order at that point because the matter had
been appealed and was no longer within the trial court’s jurisdiction.
We agree with Kaplafka, Appellees, and the trial court that the trial
court erred in granting Appellees’ POs to Counts III and IV of the Complaint on the
8
basis of sovereign immunity. As noted, we previously struck as premature
Appellees’ PO raising the defense because Kaplafka properly objected to it in his
responsive POs. Kaplafka I, slip op. at 8-9, 2020 WL 598235, at *4. As such, the
trial court could not rely on sovereign immunity as a basis to dismiss Counts III and
IV of the Complaint. Therefore, the trial court’s July 31, 2020, order is vacated.
We must also consider the appropriate disposition of this case in the
absence of the trial court’s order. Previously, we granted Appellees’ PO I (asserting
that as an at-will employee, Kaplafka had no judicial remedy against PSP) as to
Kaplafka’s wrongful discharge claim (Count I), which we therefore dismissed.
Kaplafka I, slip op. at 11-13, 2020 WL 598235, at **5-6. Due to our lack of
jurisdiction over the tort claims in Counts III and IV of Kaplafka’s Complaint, we
were unable to consider PO I as it related to those claims. See id. at 18-19, 2020 WL
598235, at *8. However, we recognized PO I’s potential applicability to Counts III
and IV when we transferred those claims to the trial court, “along with the remaining
[POs] filed by [Appellees] to these counts.” Id. at 19, 2020 WL 598235, at *8
(emphasis added).
Likewise, the trial court recognized the potential applicability of
Appellees’ PO I to Counts III and IV of Kaplafka’s Complaint in its Rule 1925(a)
Opinion. O.R. #2. After acknowledging its error in dismissing those claims on the
basis of sovereign immunity, the trial court, apparently assuming that this Court
would remand, stated that upon “reacquiring jurisdiction,” it would “address the
‘remaining [POs]’ to Counts III and IV, as directed by the Commonwealth Court [in
Kaplafka I].” Id. at 1-2. As noted, both sides agree that the matter should return to
the trial court for consideration of PO I as applied to Counts III and IV of the
Complaint. Appellees’ Br. at 15-17; Kaplafka’s Reply Br. at 5-6. We therefore
9
remand this matter to the trial court for further proceedings in accordance with this
opinion.5
IV. Conclusion
In light of the above discussion, the trial court’s July 31, 2020, order is
vacated, and this matter is remanded to the trial court for further proceedings in
accordance with this opinion.
___________________________________
CHRISTINE FIZZANO CANNON, Judge
5
As noted, Counts I and II of Kaplafka’s Complaint have already been stricken by this
Court. As such, the trial court’s determination on the application of Appellees’ PO I to Kaplafka’s
remaining Counts III and IV may be dispositive of his cause of action in its entirety.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin M. Kaplafka, Jr., :
Appellant :
v. :
:
Pennsylvania State Police, :
Col. Tyree Blocker, Lt. Col. Robert :
Evanchick, Lt. Col. Lisa Christie, Lt. :
William Bowan, Capt. Margaret :
Dropinski, Capt. Maurice Tomlinson, : No. 505 C.D. 2021
and Jeremy M. Richards :
ORDER
AND NOW, this 3rd day of January, 2024, the July 31, 2020, order of
the Court of Common Pleas of Dauphin County (trial court) is VACATED. This
matter is REMANDED to the trial court for further proceedings in accordance with
the foregoing opinion.
Jurisdiction is relinquished.
___________________________________
CHRISTINE FIZZANO CANNON, Judge