R.J. Coppola, Jr. v. Bureau of Motor Vehicles ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard J. Coppola, Jr., :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 687 C.D. 2021
Bureau of Motor Vehicles : Submitted: March 25, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 29, 2022
Richard J. Coppola, Jr. (Coppola) appeals, pro se, from the Bucks
County Common Pleas Court’s (trial court) May 11, 2021 order sustaining the
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor
Vehicles’ (DOT) Preliminary Objections to Coppola’s First Amended Complaint
(Amended Complaint) and dismissing the Amended Complaint with prejudice.
Essentially, Coppola presents five issues for this Court’s review:1 whether the trial
1
Coppola’s brief does not contain the requisite Statement of Questions Involved.
Pennsylvania Rule of Appellate Procedure (Rule) 2111(a)(4) requires that an appellant’s brief
contain, inter alia, a “[s]tatement of the questions involved.” Pa.R.A.P. 2111(a)(4). Rule 2116(a)
mandates, in relevant part:
The statement of the questions involved must state concisely the
issues to be resolved, expressed in the terms and circumstances of
the case but without unnecessary detail. The statement will be
deemed to include every subsidiary question fairly comprised
therein. No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby. Each
question shall be followed by an answer stating simply whether the
court erred, abused its discretion, denied Coppola’s due process rights and right to
access to the courts, and prejudiced him by: (1) sustaining DOT’s boilerplate and
unsupported Preliminary Objections and dismissing the case with prejudice in the
face of DOT’s admission of fault and liability; (2) violating the Code of Judicial
Conduct (Code), and demonstrating bias, animus, and discrimination against
Coppola; (3) ignoring Coppola’s concern for his health and safety, and conducting
in-person, rather than remote hearings; (4) dismissing the case with prejudice before
Coppola could conduct discovery to prepare and support his case, and failing to
weigh the relevance of Coppola’s motions, requests, and exhibits that would have
led to admissible evidence of DOT’s misconduct and his damage recovery; and (5)
dismissing the case with prejudice despite that original service was properly made
on DOT. After review, this Court affirms.
Background
The facts in this case are undisputed. Coppola sent DOT a $17.00 check
to maintain the vehicle registration on his 2018 Load Rite trailer. By May 1, 2020
notice, DOT informed Coppola that his bank had returned the check as uncollectable
because Coppola’s Wells Fargo branch account had been sold. DOT also assessed
a return check penalty.
By May 11, 2020 letter, Coppola explained to DOT that his bank had
not received the subject check for processing and, perhaps, DOT input an incorrect
routing number. Coppola also requested copies of the front and back of the subject
court or government unit agreed, disagreed, did not answer, or did
not address the question.
Pa.R.A.P. 2116(a). Although “an appellant’s violations of the [Rules] may result in waiver of the
issue[s,]” Interest of N.B., 260 A.3d 236, 241 n.6 (Pa. Super. 2021), where Coppola fixed other
errors about which this Court made him aware, this Court will nevertheless address what it gleans
as Coppola’s issues presented, as the trial court addressed and both Coppola and DOT argued in
their briefs to this Court.
2
check. In its May 20, 2020 response, DOT declared: “WE DIDN[’]T MAKE AN ERROR.
THE CUSTOMER BANK BRANCH WAS SOLD. PLEASE GET AT [SIC] BANK LETTER IF THE
BANK MADE AN ERROR.” Coppola Amended Complaint Ex. 3. On May 27, 2020,
Coppola responded that DOT’s claim was absurd, and he again requested copies of
both sides of the subject check. On June 13, 2020, DOT issued an Official Notice
to Coppola stating that, because his financial institution failed to clear his check due
to insufficient funds, his vehicle registration was suspended effective that day
(Official Notice).
Statutory Appeal
Coppola appealed from the Official Notice to the trial court (Docket
No. 2020-2562). On June 18, 2020, the trial court scheduled a hearing for August
20, 2020. Coppola served interrogatories and a request for production of documents
on DOT. On June 26, 2020, Coppola filed a motion to continue the hearing.
On July 23, 2020, Coppola filed a motion to compel DOT’s
answers/responses to his discovery requests, which DOT opposed. On July 22,
2020, DOT’s assistant counsel Shannon M. Vecchio, Esquire (Counsel) emailed
Coppola stating that, although pre-trial discovery does not apply to statutory appeals
like this one, she was supplying certified documents, including the subject check.
Upon his review, Coppola discovered that DOT processed his check under PNC
bank identification number 031000053, when his Wells Fargo bank identification
number was 031000503.
On August 7, 2020, Counsel emailed Coppola to memorialize her
conversation with him earlier that week, during which she admitted that DOT had
made an error while inputting his check, DOT waived the return check fee, and “the
client” could not waive the statutorily mandated $17.00 registration fee, but DOT
would rescind the suspension (pending his appeal) once he repaid the $17.00
3
registration fee.2 Supplemental Reproduced Record (S.R.R.) at 427b. Counsel also
stated that DOT was reviewing its payment and investigation processes to avoid such
errors in the future. On September 14, 2020, the trial court denied Coppola’s motion
to compel.
On September 1, 2020, DOT administratively rescinded Coppola’s
suspension and reinstated his vehicle registration. At a November 23, 2020 de novo
appeal hearing,3 the trial court dismissed the appeal as moot because DOT had
already rescinded Coppola’s suspension. Although the appeal was resolved in his
favor, Coppola was dissatisfied that he could not obtain discovery and he believed
he was entitled to damages for DOT’s error, so he filed a motion for reconsideration
on November 25, 2020, which the trial court denied on December 2, 2020.
On January 4, 2021, Coppola appealed from the trial court’s order to
this Court (Pa. Cmwlth. No. 1297 C.D. 2020). On August 24, 2021, DOT filed a
motion to dismiss Coppola’s appeal because Coppola had been afforded the relief
he requested (i.e., rescission of the registration suspension). On August 27, 2021,
this Court dismissed Coppola’s appeal as moot.
Civil Action
On August 11, 2020, Coppola filed a complaint in the trial court
(Docket No. 2020-4010), wherein he asserted that DOT’s failure and refusal to
investigate and resolve its check input error was negligent and/or willful, DOT’s
issuance of the Official Notice was malicious under the circumstances, and DOT
cannot hide behind a shield of immunity in the face of such abhorrent behavior.
Coppola demanded $50,000.00 in damages, plus expenses, costs of suit, attorney’s
2
DOT explained that because Coppola received a supersedeas of the suspension, he was
permitted to continue normal use of the vehicle until the suspension was rescinded. See DOT Br.
at 14.
3
Coppola did not attend the hearing.
4
fees, and $190.80 per hour for lost wages, plus other consequential damages and
interest. On August 15, 2020, DOT filed preliminary objections to Coppola’s
complaint, to which Coppola filed a response on August 19, 2020.
Thereafter, Coppola served additional discovery requests upon DOT.
On September 19, 2020, Coppola notified Counsel by email of his intent to take her
deposition. On September 21, 2020, Coppola filed a motion to compel DOT to
respond to his discovery requests. On September 22, 2020, Counsel informed
Coppola that, as an attorney in the matter, she was not authorized to submit to a
deposition. On September 23, 2020, Coppola filed a notice of his intention to take
Counsel’s deposition on October 8, 2020, by Zoom, and for Counsel to identify: (1)
all DOT employees who took part in the investigation of this matter; (2) all DOT
employees who communicated and/or replied to his May 11 and May 27, 2020
letters; (3) all DOT employees who replied to him through DOT’s May 1, 2020
Return Check Notice; (4) all DOT employees who replied on May 1, 2020, that DOT
did not commit an error; and (5) all individuals Counsel identified as “the client” in
her August 7, 2020 email.
On October 1, 2020, DOT filed a motion to quash the subpoena for
Counsel’s deposition and requested a protective order (Motion to Quash). On
October 6, 2020, the trial court issued a Rule to Show Cause. On October 7, 2020,
Coppola filed an answer to the Motion to Quash. Neither party filed the requisite
praecipe for the trial court to decide the Motion to Quash.
On November 17, 2020, the trial court sustained DOT’s preliminary
objections and dismissed the original complaint, but allowed Coppola to file an
amended complaint within 20 days. On November 30, 2020, Coppola filed the
Amended Complaint.
On December 17, 2020, DOT filed the Preliminary Objections to the
Amended Complaint on substantially the same grounds as the preliminary objections
5
to Coppola’s original complaint, arguing that the Amended Complaint, inter alia,
was virtually identical to the original complaint that was previously determined to
lack merit, and that the Amended Complaint failed to state a valid claim against
DOT because DOT was immune from suit.4 DOT added a request that the trial court
dismiss Coppola’s Amended Complaint with prejudice. On December 18, 2020,
Coppola filed preliminary objections to DOT’s Preliminary Objections.
On February 12, 2021, DOT filed a praecipe for the trial court to rule
on the Preliminary Objections and Coppola’s preliminary objections thereto. On
March 23, 2021, Coppola also filed a praecipe for the trial court to rule on the
Preliminary Objections. On May 13, 2021, the trial court sustained DOT’s
Preliminary Objections and dismissed Coppola’s Amended Complaint with
prejudice. Coppola appealed to this Court.5
On August 13, 2021, the trial court directed Coppola to file a Concise
Statement of Errors Complained of on Appeal pursuant to Rule 1925(b) (Rule
1925(b) Statement). Coppola filed his Rule 1925(b) Statement on August 26, 2021.
See Coppola Br. Attachment D. On October 20, 2021, the trial court filed its opinion
pursuant to Rule 1925(a) (Rule 1925(a) Opinion). See Coppola Br. Attachment F.
Discussion
In reviewing preliminary objections, the [C]ourt must
accept well-pleaded facts as true. Preliminary objections
are only sustained in cases that are free from doubt and
when it appears with certainty that the law permits no
recovery under the allegations made. A preliminary
objection in the nature of a demurrer presents a question
4
“Sovereign immunity is an affirmative defense which ordinarily should be raised as new
matter, but may be raised in preliminary objections when to delay a ruling thereon would serve no
purpose.” Stackhouse v. Pa. State Police, 892 A.2d 54, 60 n.7 (Pa. Cmwlth. 2006).
5
“Our review of a trial court’s order sustaining preliminary objections and dismissing a
complaint determines whether the trial court committed an error of law or abused its discretion.”
Circle of Seasons Charter Sch. v. Nw. Lehigh Sch. Dist., 273 A.3d 23, 28 n.7 (Pa. Cmwlth. 2022).
6
of law; thus, our standard of review is de novo and our
scope of review is plenary.
Circle of Seasons Charter Sch. v. Nw. Lehigh Sch. Dist., 273 A.3d 23, 28 n.7 (Pa.
Cmwlth. 2022) (citations omitted).
Preliminarily, in its Rule 1925(a) Opinion, the trial court declared:
Coppola failed to provide a concise statement as defined
under [Rule] 1925[(b)]. The [Rule 1925(b)] Statement is
void of structure, clear statements of errors, and case law
support for his position.
To the extent possible, the trial court has gleaned from the
“[Rule 1925(b) S]tatement” that Coppola avers the [trial
c]ourt erred when it,
1. violated to [sic] Code of Conduct for Judges and
showed actual bias, discrimination, prejudice,
impropriety, or lack of impartiality in deciding this
case;
2. abused its discretion and prejudiced Coppola in
failing to hold hearings remotely;
3. issued a final order before Coppola completed
discovery; [and]
4. sustained []DOT’s Preliminary Objections to
Coppola’s Amended Complaint.
....
. . . First, this [trial c]ourt must address the following
issues which are potentially fatal to this appeal[: sovereign
immunity, one basis on which the trial court had
previously determined that Coppola’s original complaint
failed to state a claim upon which relief may be granted].
Trial Ct. Rule 1925(a) Op. at 4.
Coppola argues that the trial court erred, abused its discretion, denied
Coppola’s due process rights and his right to access the courts, and prejudiced him
by sustaining DOT’s boilerplate and unsupported Preliminary Objections and
7
dismissing the Amended Complaint with prejudice in the face of DOT’s admission
of fault and liability.
In the Amended Complaint, as in his original complaint, Coppola
asserted that, despite his representation that his check was collectable because his
bank branch had not been sold, DOT willfully refused to respond to his requests for
DOT to correct its error or provide him with a copy of the check so he could resolve
the issue, declared that DOT had not made an error, and issued the Official Notice
suspending his registration. See Amended Complaint ¶¶ 4-9 (S.R.R. at 142b-143b).
Coppola contended that DOT’s refusal to conduct a simple investigation was
negligent, wrongful, and an abuse of power. See Amended Complaint ¶¶ 23-27
(S.R.R. at 148b-150b). Coppola avowed that “[]DOT chose to maliciously prosecute
and punish [Coppola] with [its] suspension with the clear intent to damage and harm
[Coppola].” Amended Complaint ¶ 26 (S.R.R. at 149b-150b). Coppola also
declared that DOT’s refusal to respond to his discovery requests was an effort to
conceal its abhorrent and illegal conduct. See Amended Complaint ¶ 21 (S.R.R. at
145b). Finally, Coppola also averred that sovereign immunity does not shield DOT
from liability for willful misconduct, fraud, or malice, particularly when DOT
admitted fault. See Amended Complaint ¶ 28 (S.R.R. at 150b-151b).
1. Sovereign Immunity
In the Preliminary Objections, DOT challenged Coppola’s Amended
Complaint, inter alia, on the basis that DOT enjoys immunity from his claims.
Article I, section 11 of the Pennsylvania Constitution declares:
All courts shall be open; and every man for an injury done
him in his lands, goods, person or reputation shall have
remedy by due course of law, and right and justice
administered without sale, denial or delay. Suits may be
brought against the Commonwealth in such manner, in
8
such courts and in such cases as the Legislature may by
law direct.
PA. CONST. art. I, § 11.
Pursuant to section 11 of [a]rticle I of the Constitution of
Pennsylvania, it is hereby declared to be the intent of the
General Assembly that the Commonwealth, and its
officials and employees acting within the scope of their
duties, shall continue to enjoy sovereign immunity and
official immunity and remain immune from suit except as
the General Assembly shall specifically waive the
immunity. When the General Assembly specifically
waives sovereign immunity, a claim against the
Commonwealth and its officials and employees shall be
brought only in such manner and in such courts and in such
cases as directed by the provisions of Title 42 (relating to
judiciary and judicial procedure) or 62 (relating to
procurement) unless otherwise specifically authorized by
statute.
1 Pa.C.S. § 2310.
In Section 8522 of what is commonly referred to as the Sovereign
Immunity Act,6 the General Assembly expressly waived sovereign immunity for
Commonwealth parties in limited cases. See 42 Pa.C.S. § 8522. Section 8522 of the
Sovereign Immunity Act provides:
(a) Liability imposed.--The General Assembly, pursuant
to section 11 of [a]rticle I of the Constitution of
Pennsylvania, does hereby waive, in the instances set forth
in subsection (b) only and only to the extent set forth in
this subchapter and within the limits set forth in [S]ection
8528 [of the Judicial Code, 42 Pa.C.S. § 8528] (relating to
limitations on damages), sovereign immunity as a bar to
an action against Commonwealth parties, for damages
arising out of a negligent act where the damages would be
recoverable under the common law or a statute creating a
cause of action if the injury were caused by a person not
having available the defense of sovereign immunity.
(b) Acts which may impose liability.--The following acts
by a Commonwealth party may result in the imposition of
6
42 Pa.C.S. §§ 8521-8527.
9
liability on the Commonwealth and the defense of
sovereign immunity shall not be raised to claims for
damages caused by: (1) Vehicle liability.--The operation
of any motor vehicle in the possession or control of a
Commonwealth party. . . . [;] (2) Medical-professional
liability. . . . [;] (3) Care, custody or control of personal
property.--The care, custody or control of personal
property in the possession or control of Commonwealth
parties, including Commonwealth-owned personal
property and property of persons held by a
Commonwealth agency . . . [;] (4) Commonwealth real
estate, highways and sidewalks. . . . [;] (5) Potholes and
other dangerous conditions. . . . [;] (6) Care, custody or
control of animals. . . . [;] (7) Liquor store sales. . . . [;] (8)
National Guard activities. . . . [;] (9) Toxoids and
vaccines. . . . [;] [and] (10) Sexual abuse. . . .
42 Pa.C.S. § 8522 (text emphasis omitted). Accordingly,
“[t]o impose liability on a Commonwealth party, (1) the
alleged negligent act must involve a cause of action that is
recognized at common law or by a statute, and (2) the case
must fall within one of [the] exceptions to sovereign
immunity listed in Section 8522(b)” of . . . the Sovereign
Immunity Act.[7]
Young v. Wetzel, 260 A.3d 281, 289 (Pa. Cmwlth. 2021) (emphasis added); see also
LaChance v. Michael Baker Corp., 869 A.2d 1054 (Pa. Cmwlth. 2005); Bufford v.
Pa. Dep’t of Transp., 670 A.2d 751 (Pa. Cmwlth. 1996).
Section 8501 of the Judicial Code defines “Commonwealth party” as
“[a] Commonwealth agency and any employee thereof, but only with respect to an
act within the scope of his office or employment.” 42 Pa.C.S. § 8501. “[DOT] has
been recognized as a Commonwealth agency for purposes of the Sovereign
Immunity Act.” Mullin v. Dep’t of Transp., 870 A.2d 773, 779 n.4 (Pa. 2005).
7
“Because of our General Assembly’s clear intent to insulate government from exposure
to tort liability, courts must strictly construe the exceptions to sovereign immunity.” Manning v.
Dep’t of Transp., 144 A.3d 252, 256 (Pa. Cmwlth. 2016).
10
Th[erefore], when an employee of a Commonwealth
agency, such as a [DOT] employee, is acting within the
scope of his or her duties, the employee is shielded by the
doctrine of sovereign immunity from liability for tort
claims arising from negligent acts that do not fall within
the statutory exceptions listed in Section 8522(b) of the
Sovereign Immunity Act. 1 Pa.C.S. § 2310; 42 Pa.C.S. §
8522(a)-(b).
Paluch v. Pa. Dep’t of Corr., 175 A.3d 433, 438 (Pa. Cmwlth. 2017).
“To state a negligence claim [in the first instance], ‘the plaintiff must
demonstrate that the defendant owed a duty of care to the plaintiff, the defendant
breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff
suffered an actual loss or damage.’” Young, 260 A.3d at 289 (emphasis added)
(quoting Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998)). Here, while DOT’s error
in processing Coppola’s vehicle registration check and DOT’s subsequent delay in
recognizing the error and correcting it may have constituted a breach of a duty to
take reasonable action in response to Coppola’s representations, nowhere in the
Amended Complaint does Coppola claim that he was injured by the breach and/or
suffered actual loss or damage as a result.8 In the absence of injury caused by a
breach and resultant actual loss or damage, Coppola did not and cannot state a valid
common law negligence claim against DOT that would satisfy the first prerequisite
under Section 8522(a) of the Sovereign Immunity Act to defeat DOT’s sovereign
immunity defense.9
[B]ecause [Coppola] fail[ed] to meet his initial burden of
setting forth a cause of action for negligence against
8
Nor could the trial court or this Court glean such damage from circumstances in which
DOT lifted the suspension, and Coppola was not cited for the temporary, erroneous suspension.
9
See Coppola v. Dep’t of Lab. & Indus., State Workers’ Ins. Fund (Pa. Cmwlth. No. 693
C.D. 2020, filed Aug. 6, 2021) (wherein this Court affirmed the trial court’s dismissal of Coppola’s
complaint with prejudice, in part, because the complaint failed to assert any negligent act that
would fall under Section 8522(b) of the Sovereign Immunity Act and, thus, his tort claims were
barred by sovereign immunity).
11
[DOT] for which damages would be recoverable, it is not
necessary to [further] consider whether any particular
exception to [DOT’s] immunity is applicable under the
circumstances sub judice.[10] See 42 Pa.C.S. § 8522(a); see
also LaChance . . . .
Young, 260 A.3d at 290.
Moreover, “[u]nder Pennsylvania law, sovereign immunity applies to
negligent and intentional torts.” Flagg v. Int’l Union, Sec., Police, Fire Pros. of Am.,
Local 506, 146 A.3d 300, 309 (Pa. Cmwlth. 2016). Specifically,
the doctrine of sovereign immunity bars intentional tort
claims [(like malicious prosecution and willful
misconduct)] against Commonwealth parties. See
Williams v. Stickman, 917 A.2d 915, 917 (Pa. Cmwlth.
2007) (affirming the trial court’s dismissal of an inmate’s
intentional tort claim against prison employees, reasoning
that where “an employee of a Commonwealth agency [is]
acting within the scope of his or her duties, the
Commonwealth employee is protected by sovereign
immunity from the imposition of liability for intentional
tort claims”); La Frankie v. Miklich, . . . 618 A.2d 1145,
1149 ([Pa. Cmwlth.] 1992) (same).
Young, 260 A.3d at 290 n.15. Conversely, if “a Commonwealth employee was not
acting within the scope of employment, he cannot claim the affirmative defense of
sovereign immunity.” Schell v. Guth, 88 A.3d 1053, 1067 (Pa. Cmwlth. 2014). This
Court has specifically ruled that “conduct constituting . . . actual malice or willful
misconduct is considered to be outside [a Commonwealth] employee’s scope of
10
Notwithstanding, Coppola did not claim in the Amended Complaint that DOT’s conduct
fell under any of the statutory exceptions listed in Section 8522(b) of the Sovereign Immunity Act.
Further, strictly construing the only potentially applicable exception, “care, custody, or control of
personal property,” 42 Pa.C.S. § 8522(b)(3), would not apply in this case. See Bufford (wherein
this Court concluded that, even when DOT was clearly negligent and the licensee suffered injury
and damages as a result, DOT’s administrative error did not fall under the personal property
exception). Thus, even if Coppola had properly pled a valid negligence claim in the Amended
Complaint, because he did not and could not allege that DOT’s actions fell under any of the
exceptions set forth in Section 8522(b) of the Sovereign Immunity Act, he could not satisfy the
second waiver prerequisite. See Young; Bufford.
12
employment for immunity purposes.” Kull v. Guisse, 81 A.3d 148, 154 (Pa. Cmwlth.
2013). Therefore, “the issue of whether [DOT’s employees were] protected by
sovereign immunity depends on whether they were acting within the scope of their
employment in [processing Coppola’s vehicle registration check, responding to his
inquiries, and/or investigating the error].”11 Id. at 157.
Under Pennsylvania law, an action falls within the scope
of employment if: (1) it is the kind that the employee is
employed to perform; (2) it occurs substantially within the
job’s authorized time and space limits, and; (3) it is
motivated at least in part by a desire to serve the employer.
Flagg, 146 A.3d at 309.
Here, Coppola’s Amended Complaint specified that his references to
DOT therein included unnamed employees who “are person(s) who acted on behalf
of [DOT] . . . .” Amended Complaint ¶ 2. The Amended Complaint is
devoid of any factual allegations to suggest that [DOT or
its employees] engaged in conduct while ‘off duty’ or
outside their obligations as employees of [DOT, nor does
the Amended Complaint contain allegations from which
to infer such action]. Instead, the [Amended C]omplaint
suggests that any purported actions occurred while serving
in their respective roles as Commonwealth employees.
Smart v. Dep’t of Corr. (Pa. Cmwlth. No. 631 C.D. 2017, filed June 27, 2018),12 slip
op. at 12. Accordingly, sovereign immunity also bars Coppola’s intentional tort
claims against DOT and/or its employees.
11
“Generally, the scope of [an employee’s] employment is a fact question for the jury.
Where the facts are not in dispute, however, the question of whether . . . the [employee] is within
the scope of his [] employment is for the court.” Ludwig v. McDonald, 204 A.3d 935, 943 (Pa.
Super. 2019) (quoting Ferrell v. Martin, 419 A.2d 152, 155 (Pa. Super. 1980) (citation omitted)).
12
Unreported decisions of this Court issued after January 15, 2008, may be cited as
persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210
Pa. Code § 69.414(a).
13
It is clear on the face of the Amended Complaint that “[e]ach of the . . .
claims that [Coppola] assert[ed] . . . are either intentional torts or they do not fall
within the exceptions in Section 8522 of the Sovereign Immunity Act that would
permit [Coppola] to maintain a suit against [DOT]. 42 Pa.C.S. § 8522(b).” Paluch,
175 A.3d at 438. Because sovereign immunity bars Coppola’s negligence, willful
misconduct, and malicious prosecution claims against DOT, the trial court properly
sustained DOT’s Preliminary Objections and dismissed Coppola’s Amended
Complaint on that basis. In light of the fact that the Amended Complaint was nearly
identical to his original complaint, and Coppola still failed to allege circumstances
to overcome DOT’s sovereign immunity defense, the trial court properly dismissed
the Amended Complaint with prejudice.
2. Trial Court Bias, Animus, Discrimination, and Prejudice
Coppola also contends that the trial court erred by violating the Code,
and demonstrating bias, animus, and discrimination against Coppola, who was pro
se. In particular, Coppola points to the trial court’s refusal to permit argument by
Zoom rather than in person, denying his right to discovery, dismissing his case with
prejudice, and dismissing his case as frivolous.13
Preliminarily, the Pennsylvania Supreme Court has explained:
Under Pennsylvania law, pro se defendants are subject to
the same rules of procedure as are represented defendants.
See Commonwealth v. Williams, . . . 896 A.2d 523, 534
([Pa.] 2006) (pro se defendants are held to same standards
as licensed attorneys). Although the courts may liberally
construe materials filed by a pro se litigant, pro se status
confers no special benefit upon a litigant, and a court
cannot be expected to become a litigant’s counsel or find
13
In his brief to this Court, Coppola includes arguments regarding the conduct of the
statutory appeal in the trial court. Because Coppola’s statutory appeal has been resolved and is
not currently before this Court, we will not address it herein.
14
more in a written pro se submission than is fairly conveyed
in the pleading.
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) (italics omitted); see also
Young v. Est. of Young, 138 A.3d 78 (Pa. Cmwlth. 2016).
Moreover, relative to Coppola’s claims that the trial court violated the
Code, Pennsylvania courts have explained that the Code merely establishes a norm
of judicial conduct without imposing substantive legal duties and, thus, this Court is
not the proper forum in which to adjudicate Code violations. See Reilly by Reilly v.
Se. Pa. Transp. Auth., 489 A.2d 1291 (Pa. 1985); see also Tindal v. Workers’ Comp.
Appeal Bd. (City of Phila.), 799 A.2d 219 (Pa. Cmwlth. 2002).
In addition, when Coppola observed circumstances under which he felt
the trial court should have recused itself due to bias or impartiality, he was required
to ask the trial court to do so. See Tindal, 799 A.2d at 223 (“Because recusal is a
matter of individual discretion for a judge, a party must normally raise the issue of
recusal before a decision has been rendered in a case or that issue will be deemed
waived.”). Coppola does not state, nor does the record before this Court reflect, any
instance in which Coppola made a motion for the trial court judge to recuse. By
failing to raise the issue to the trial court in the first instance, Coppola waived the
argument.
However, even if the issue were not waived, [Coppola] has
failed to allege facts that would necessitate the trial judge’s
recusal. “The party who asserts a trial judge must be
disqualified bears the burden of producing evidence
establishing bias, prejudice, or unfairness necessitating
recusal.” Commonwealth v. Druce, . . . 848 A.2d 104, 108
([Pa.] 2004); see also Reilly by Reilly . . . . “Adverse
rulings alone do not, however, establish the requisite bias
warranting recusal, especially where the rulings are legally
proper.” Commonwealth v. Abu-Jamal, . . . , 720 A.2d 79,
90 ([Pa.] 1998).
City of Phila. v. Shih Tai Pien, 224 A.3d 71, 86 (Pa. Cmwlth. 2019).
15
Finally, Coppola argues that the trial court’s conclusion that dismissal
of his case was also proper because it was frivolous also reflected the trial court’s
bias. The trial court ruled:
Coppola claims the Preliminary Objections were absurd
and unsupported. This [trial c]ourt sustained the
Preliminary Objections to the Amended Complaint
because the Amended Complaint failed to address the
legal insufficiencies of the original [c]omplaint. The
Amended Complaint was almost identical to the original
[complaint].
Coppola’s Amended Complaint contained all the same
claims this [trial c]ourt previously ruled upon.
[Pennsylvania Rule of Civil Procedure (Civil Rule)] 233.1
provides the following:
[Civil Rule] 233.1 addresses frivolous litigation by
pro se plaintiffs. The [Civil] Rule states-
(a) Upon the commencement of any action filed by
a pro se plaintiff in the court of common pleas, a
defendant may file a motion to dismiss the action
on the basis that:
(1) the pro se plaintiff is alleging the same or
related claims which the pro se plaintiff
raised in a prior action against the same or
related defendants, and
(2) these claims have already been resolved
pursuant to a written settlement agreement or
a court proceeding.
(b) The court may stay the action while the motion
is pending.
(c) Upon granting the motion and dismissing the
action, the court may bar the pro se plaintiff from
pursuing additional pro se litigation against the
same or related defendants raising the same or
related claims without leave of court. [Pa.R.Civ.P.
233.1.]
16
This [trial c]ourt’s November 17, 2020[] [o]rder addressed
Coppola’s original claims therefore, pursuant to [Civil
Rule] 233.1, dismissal with prejudice is proper.
Trial Ct. Rule 1925(a) Op. at 9-10.
The Comment to Civil Rule 233.1 provides:
It has come to the attention of the Supreme Court that
certain litigants are abusing the legal system by repeatedly
filing new litigation raising the same claims against the
same defendant even though the claims have been
previously adjudicated either through settlement or
through court proceedings. New [Civil] Rule 233.1
provides relief to a defendant [that] has been subjected to
this type of repetitive litigation. While attorneys are
subject to the rules of disciplinary procedure, no analogous
rule exists to curb this type of abuse when done by a pro
se party.
Upon the filing of an action by a pro se plaintiff, a
defendant may file a motion to dismiss a pending action
provided that (1) the pro se plaintiff is alleging the same
or related claims against the same or related defendants,
and (2) the claims have already been resolved pursuant to
a settlement agreement or a court proceeding. The new
rule also gives the trial court discretion to bar the pro se
litigant from filing further litigation against the same or
related defendants raising the same or related claims
without leave of court.
Pa.R.Civ.P. 233.1, Explanatory Comment (italics omitted).
Coppola refused to correct the original complaint’s infirmities with his
Amended Complaint. He admits in his brief to this Court: “I had no obligation to
materially change my [original c]omplaint . . . [,]” Coppola Br. at 2, and “there were
no substantive revisions necessary to be made.” Coppola Br. at 19. Where Coppola
admits that his Amended Complaint was substantively identical to his original
complaint, which is precisely the circumstance that the Supreme Court intended
Civil Rule 233.1 to ameliorate, the trial court’s determination that the Amended
17
Complaint should be dismissed as frivolous under Civil Rule 233.1 was clearly not
based on bias.
Accordingly, the trial court properly determined that Coppola’s claims
that the trial court violated the Code, or showed actual bias, discrimination,
prejudice, impropriety, or lack of impartiality in deciding this case lacked merit.
3. Trial Court Hearings
Coppola further asserts that the trial court erred and abused its
discretion, denied his due process rights and his rights to access to the courts, and
prejudiced him by ignoring his health concerns during the COVID-19 pandemic by
forcing him to attend hearings in person despite preexisting health conditions.
The trial court explained:
Coppola’s claims surrounding hearing[s] . . . are irrelevant
in this case. Coppola argues this [trial c]ourt was biased
and prejudicial and abused it[s] discretion [by] not
allowing him to attend hearings remotely. However, there
were no hearings scheduled at any point in this instant
case. Coppola may have been referring to his statutory
appeal against []DOT.
Trial Ct. Rule 1925(a) Op. at 7. Coppola admits in his brief to this Court that the
trial court did not conduct hearings relative to the civil proceeding, but claims “THIS
trial court ignored [his] request for oral argument by remote [(i.e., by Zoom)],” and
cited to Exhibit “CCA-11, Par. 4)[.]”14 Coppola Br. at 24. However, there is no
document marked either CCA-11 or Exhibit 11 in Coppola’s Reproduced Record
(R.R.), and there is no document behind the Exhibit 11 face sheet in either the
Coppola explained in his brief to this Court: “‘CCA’ Exhibit prefix denotes
14
Commonwealth Court Appeal with the Exhibit number to follow. EX: ‘CCA-1’.” Coppola Br. at
1.
18
Reproduced Record or Supplemental Reproduced Record. See R.R. at 615;15 S.R.R.
at 122b.
In the absence of support for Coppola’s contention that the trial court
in this civil action refused to allow him to attend oral argument remotely, this Court
rules that the trial court properly concluded that Coppola’s claims that it erred and
abused its discretion by forcing him to attend hearings in person also lacked merit.
4. Pre-Trial Discovery/Dismissal With Prejudice
Coppola argues that the trial court erred, abused its discretion, denied
him due process and discovery rights, and prejudiced him by ignoring and ultimately
dismissing the case with prejudice before he could conduct pre-trial discovery to
support his case, prepare for hearings and trial, and assess his monetary and other
damages.
The trial court expounded:
In Pennsylvania[,] the trial court is responsible for
overseeing discovery between the parties. [See Rohm &
Haas Co. v Lin, 992 A.2d 132 (Pa. Super. 2010).]
Pursuant to [Civil Rule] 4012, a court may, upon motion
by a party and for good cause, “make any order which
justice requires to protect a party or person from
unreasonable annoyance, embarrassment, oppression,
burden or expense.” [Pa.R.Civ.P. 4012.] Further, [Civil
Rule] 4013 provides that a court may stay or halt all
proceedings for good cause. [See Pa.R.Civ.P. 4013.]
On September 23, 2020, Coppola filed a Notice of Intent
to Take Deposition of [DOT’s] Counsel. During this civil
action, []DOT’s Counsel had confidential communication
with her client through communications with []DOT’s
15
Rule 2173 requires a reproduced record to “be numbered . . . in Arabic figures . . .
followed in the reproduced record by a small a . . . .” Pa.R.A.P. 2173. Because Coppola’s
Reproduced Record pages are not numbered at all, the page numbers referenced in this Opinion
reflect electronic pagination.
19
employees. Pursuant to [Section 5928 of the Judicial
Code,] 42 Pa.C.S. § 5928, taking an attorney’s testimony
is prohibited if doing so would violate the attorney-client
privilege.
On October 1, 2020, []DOT filed [the] Motion to Quash
and for a Protective Order in response to numerous
discovery requests. This [M]otion [to Quash] was filed
contemporaneously with a Praecipe Under Bucks County
Rule [of Civil Procedure [(B.C.R.C.P) No.] 208.3(b).[16]
On October 6, 2020, this [trial c]ourt issued a Rule to
Show Cause.[FN]24 On October 7, 2020, Coppola filed an
Answer to the Motion to Quash but failed to file the
necessary praecipe under [B.C.R.C.P. No.] 206.4(c)(4)(a).
[FN]25
During the interim, on November 17, 2020, this [trial
c]ourt issued an [o]rder sustaining []DOT’s [p]reliminary
[o]bjections and permitted Coppola to file an [a]mended
[c]omplaint within twenty (20) days. [On November 30,
2020,] Coppola filed [the] Amended Complaint which was
substantially the same as the original [c]omplaint. [On
December 17, 2020,] []DOT filed [the] Preliminary
Objections to the Amended Complaint. [On December 18,
2020, Coppola filed preliminary objections to the
Preliminary Objections. On February 12, 2021, DOT filed
a B.C.R.C.P. No. 208.3(b) praecipe and, on March 23,
2021, Coppola filed a B.C.R.C.P. No. 208.3(b) praecipe.
On May 13, 2021, t]his [trial c]ourt issued an [o]rder
sustaining the Preliminary Objections and dismissed the
Amended Complaint with [p]rejudice.
The interests of justice are furthered by a court order
barring discovery until the plaintiff’s complaint has been
filed, the defendant’s preliminary objections to the
plaintiff’s complaint have been resolved, and the
defendant has filed an answer to the complaint.
16
B.C.R.C.P. No. 208.3(b)(1)(a) (Alternative Procedures) states: “Note: See B.C.R.C.P.
No[s]. 208.3(a)(2) and 206.4(c)(4)(a).” www.
buckscounty.gov/DocumentCenter/View/3552/Rule-2083b?bidId= (last visited Aug. 26, 2022).
B.C.R.C.P. No. 208.3(a) specifies, in relevant part: “When the Court issues a rule on a motion, it
shall be governed by the provisions of [Civil Rules] 206.5 and 206.7.”
www.buckscounty.gov/DocumentCenter/View/3553/Rule-2083a?bidId= (last visited Aug. 26,
2022).
20
Therefore, this [trial c]ourt did not deny [d]ue [p]rocess
o[r] [p]rejudice Coppola by issuing a final [o]rder
sustaining [the] Preliminary Objections and dismissing
[his] Amended Complaint.
[FN]24
The Rule [to Show Cause] ordered: (2) On
or before November 2, 2020, [] [DOT] may file a
response to [the M]otion [to Quash]; (3) In event
o[f] a response, the matter shall be decided under
[Civil Rule] 206.7[17] and [B.C.R.C.P. No.]
208.3(b); (4) All discovery and depositions shall
cease pending disposition of this [M]otion [to
Quash].
[FN]25
B.C.R.C.P. [No.] 206.4. When a rule is
issued and a response is filed in opposition, the
petition shall be submitted under B.C.R.C.P. [No.]
208.3(b).
Trial Ct. Rule 1925(a) Op. at 8-9 (footnotes omitted). Thus, before either party
sought resolution of the Motion to Quash, DOT and Coppola moved for the trial
court to rule on the Preliminary Objections, and the trial court sustained the
Preliminary Objections, thereby rendering the discovery issue moot.
17
Civil Rule 206.7 provides:
(a) If an answer is not filed, all averments of fact in the petition may
be deemed admitted for the purposes of this subdivision and the
court shall enter an appropriate order.
(b) If an answer is filed raising no disputed issues of material fact,
the court on request of the petitioner shall decide the petition on the
petition and answer.
(c) If an answer is filed raising disputed issues of material fact, the
petitioner may take depositions on those issues, or such other
discovery as the court allows, within the time set forth in the order
of the court. If the petitioner does not do so, the petition shall be
decided on petition and answer and all averments of fact responsive
to the petition and properly pleaded in the answer shall be deemed
admitted for the purpose of this subdivision.
(d) The respondent may take depositions, or such other discovery as
the court allows.
Pa.R.Civ.P. 206.7.
21
Further, this Court has held:
Where, as here, a defendant files preliminary objections to
a plaintiff’s complaint in the nature of a demurrer, see
Pa.R.Civ.P. 1028(a)(4), the court’s review is confined to
the content of the complaint and any attachments
thereto. Thomas v. Corbett, 90 A.3d 789 (Pa. Cmwlth.
2014). Thus, the court may determine only whether, on
the basis of the plaintiff’s allegations, he or she possesses
a cause of action recognized at law. Id.Fraternal Ord. of Police Lodge No. 5, by McNesby v. City of Phila., 267 A.3d 531,
541 (Pa. Cmwlth. 2021) (emphasis added).
Coppola admits that his sole purpose for discovery was to assess his
damages:
The simple admission of fault does not relieve []DOT of
[its] subsequent liability from [its] admitted malicious
prosecution of [Coppola]. What []DOT’[s] admission
does do however is support and set the foundation for
[Coppola’s] damage[s] claim[] which are permissible by
Pennsylvania statute and law which was the basis for
[Coppola’s civil action] which has been appealed herein.
Coppola Br. at 12. Although Coppola sought damages, nowhere in the Amended
Complaint did he aver that DOT’s error caused him injury for which he could be
entitled to damages.
Moreover,
[Civil] Rule 1033 . . . [, Pa.R.Civ. P. 1033,] allows a party
to amend his or her pleadings with either the consent of
the adverse party or leave of the court. Leave to amend
lies within the sound discretion of the trial court and
“the right to amend should be liberally granted at any stage
of the proceedings unless there is an error of law or
resulting prejudice to an adverse party.”
Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996) (emphasis added) (quoting
Connor v. Allegheny Gen. Hosp., 461 A.2d 600, 602 (Pa. 1983)). Further, one
22
purpose of Civil Rule 233.1 is to afford trial courts “discretion to bar the pro se
litigant from filing further litigation against the same or related defendants raising
the same or related claims without leave of court.” Pa.R.Civ.P. 233.1, Explanatory
Comment (italics omitted).
The trial court in the instant matter reviewed Coppola’s allegations in
the Amended Complaint and the documents attached thereto and determined, “on
the basis of [Coppola’s] allegations,” the Amended Complaint did not make out any
viable claims. McNesby, 267 A.3d at 541.
[A] court is not required to allow amendment of a pleading if
a party will be unable to state a claim on which relief could
be granted. See Spain v. Vicente, . . . 461 A.2d 833, 837 ([Pa.
Super.] 1983) (trial court did not err in refusing to permit
amendment of defamation complaint to allow more specific
details since no formal motion to amend was ever made and
plaintiff’s deposition militated against likelihood of
establishing claim). Thus, [Coppola’s] claim must fail.
Werner, 681 A.2d at 1338. Accordingly, Coppola’s argument that the trial court
erroneously dismissed his claims with prejudice before he was afforded pre-trial
discovery is meritless.
5. Service of Original Process
Finally, Coppola argues that the trial court erred, abused its discretion,
denied Coppola’s due process rights and right to access to the courts, and prejudiced
him by dismissing the case with prejudice despite that original service was properly
made on DOT.18 However, the trial court did not specifically dismiss the Amended
Complaint on the basis that Coppola failed to properly serve it on DOT. Moreover,
this Court has held that an appellant waives any issue that is not included in his
18
DOT addresses the matter extensively in its brief to the Court. See DOT Br. at 20-28.
In his brief to this Court, Coppola argues only that he properly served his Notice of Appeal and
Rule 1925(b) Statement on the trial court. See Coppola Br. at 19.
23
Statement of Questions Involved and addressed in the Argument portion of his brief.
See Penn Beverage Distrib. Co. v. Workers’ Comp. Appeal Bd. (Rebich), 901 A.2d
1097 (Pa. Cmwlth. 2006). Here, Coppola’s brief did not contain a Statement of
Questions Involved, and he states in the Argument portion of his brief only that he
properly served his Notice of Appeal and Rule 1925(b) Statement on the trial court.
See Coppola Br. at 19. Because Coppola failed to argue that the trial court erred by
dismissing the case with prejudice despite that original service was properly made
on DOT, that issue is waived.
Conclusion
Based on the foregoing, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard J. Coppola, Jr., :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 687 C.D. 2021
Bureau of Motor Vehicles :
ORDER
AND NOW, this 29th day of August, 2022, the Bucks County Common
Pleas Court’s May 11, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge