Petition for Writ of Certiorari — Lei Ke, Petitioner v. John Fry, et al.

OCTOBER TERM 2017

No.

IN THE SUPREME COURT OF THE UNITED STATES

Lei Ke

Petitioner,

V.

John Fry, Jennifer Hamilton, Amy

Fuchs, Samuel Parrish, Richard

Homan, Marianne Sahar (on

behalf of Anthony Sahar,

Deceased), John Dalton, Joseph

Salornone, Barbara Schindler,

Eugene Hong and John

Gyllenhammer,

Respondents

On Petition for a Writ of Certiorari to

The Supreme Court of Pennsylvania

PETITION FOR A WRIT OF CERTIORARI

Lei Ke

4025 Roosevelt Blvd.

Philadelphia, PA 19124

215-459-.8490

theleike3@gmaiLcom

REöjVED

JUN 1 5 2018

The Superior Court of Pennsylvania erred in assigning collateral estoppel effect to

a claim "rejected" on a technicality in petitioner's federal suit and also to legal reasoning

in a Third Circuit Court's opinion on petitioner's appeal of the district court's summary

judgment.

Questions:

Whether a claim "rejected" in summary judgment in federal court on a

technicality is fairly and fully litigated or litigated at all and is therefore accorded

collateral estoppel effect in state court.

Whether legal reasoning in the Third Circuit Court's opinion on petitioner's

appeal of the district court's summary judgment is judgement per se to have any

collateral estoppel effect in state court.

TABLE OF CONTENTS

Page(s)

QUESTIONSPRESENTED ................................................................................................i

TABLEOF AUTHORITIES ............................................................................................... iv

PETITION FOR WRIT OF CERTIORARI.........................................................................1

OPINIONSBELOW............................................................................................................1

JURISDICTION.................................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED ................................................................2

INTRODUCTION................................................................................................................2

STATEMENTOF THE CASE ............................................................................................4

REASONS FOR GRANTING THE WRIT..........................................................................7

A. The Superior Court Of Pennsylvania Erred In Assigning Collateral Estoppel

Effect To A Claim "Rejected" In Federal Court Because Of A Technicality And Also

To Legal Reasoning In A Circuit Court's Opinion On Petitioner's Appeal Of The

District Court's Summary Judgment...................................................................... 7

A Claim "Rejected" In Summary Judgment In Federal Court Because Of A

Technicality Is Not Fairly And Fully Litigated Or Litigated At All And

Therefore Is Not Accorded Any Collateral Effect In State Court..................... 7

Legal Reasoning In The Third Circuit Court's Opinion On Petitioner's Appeal

Of The District Court's Summary Judgment Is Not Judgement Per Se To Have

Any Collateral Estoppel Effect In State Court................................................11

B. The Superior Court Of Pennsylvania's Determination That A Count "Rejected" On

A Technicality Has Collateral Estoppel Effect Or That Legal Reasoning Is

Judgment Itself To Have Collateral Estoppel Effect In State Court Conflicts With

Other State Or Federal Courts' Holdings And Warrants This Court's Review... 13

CONCLUSION..................................................................................................................18

INDEX TO APPENDICES

APPENDIX A: Decision of the Superior Court of Pennsylvania ........................... la-lOa

APPENDIX B: Decision of the Philadelphia Court of Common Pleas ...............12a-23a

APPENDIX C: Decision of the Supreme Court of Pennsylvania................................24a

APPENDIX D:

Other Essential Evidence ............................................................25a-33a

TABLE OF AUTHORITIES

Page(s)

Cases

American Con tin ental Ins. Co. v. American Casualty Co.,

(2001) 86 Ca1.App.4th 929 .....................................................................................15

Berner v. British Commonwealth Pac. Airlines, Ltd.,

346 F.2d (2d Cir. 1965) ............................................................................................ 9

Bines v. Kulaylat, 215 F.3d 381 (3d Cir. 2000)..................................................2, 9, 13, 16

Bruszewskiv. United States, 181 F.2d 419 (3d Cir. 1950) ...............................................9

Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Iii. 2d 1.....14

Commissioner v. Simnen, 333 U.S. 591 (1948) ............................................................2, 17

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ...............................................Passim

In re Microsoft Corp. Antitrust Liti., 355 F.3d 322 (4th Cir. 2004) ..............................15

In Re Stevenson, 40 A.3d 1212 (Pa. 2012)........................................................3, 11, 12, 14

John G. & Marie Stella Kenedy Mem 7 Found. v. Dewh urst,

90 S.W.3d 268 (Tex. 2002) .....................................................................................14

Koon v. United States, 518 U.S. 81 (1996) ......................................................................10

Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982) .................................................10

Law v. Siegel, Chapter 7 Trustee, 134 S.Ct. 1188 (2014) ................................................11

Lawlor v. National Screen Serv. Corp., 349 U.S. 322 (1955).......................................2, 17

Marrama v. Citizens Bank ofMass., 549 U.S. 365 (2007)...............................................11

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,

584

(2018).......................................................................................................13

U.S. -

Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796 (Tex. 1994) ....................................14

Transtech Indus., Inc. v. A & ZSeptic Clean, 5 F.3d 51 (3d Cir. 1993) ..................2, 9, 16

UnitedAirLines, Inc. v. United States, 379 U.S. 951 (1964)............................................9

United Air Lines, Inc. v. Weiner, 335 F.2d 379 (9th Cir.) .................................................9

iv

United States v. United Air Lines, Inc.,

216 F. Supp. 709 (E. D. Wash. and D. Nev. 1962) .................................................. 9

United States v. Rias, 605 F.3d 194 (3d Cir. 2010)........................................................10

Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292 (2016) ........................................10

Statutes and Rules

28 U.S.C. § 1254(1)..............................................................................................................1

42 U.S.C. § 1981 ......................................................................................................... Passim.

42 U.S.C. § 1981(b) ...................................................................................................Passim

Fed. R. App. P. 36(a) .........................................................................................................12

S. CT. Rule 44.2 ................................................................................................................... 7

210 Pa. Code Rule 1123 ...................................................................................................1,7

Pennsylvania Rule 1028 (c)(1) ............................................................................................4

Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"),

73 P.S. § 201-2(4) ............................................................................................ Passim.

V

PETITION FOR A WRIT OF CERTIORARI

Petitioner Lei Ke ("Ke") respectfully petitions for a writ of certiorari to review the

"order" of the Superior Court of Pennsylvania of June 15, 2017 that affirmed the

Philadelphia Court of Common Pleas' dismissal of his case under the doctrine of collateral

estoppel. Ke's petition for allowance of appeal was denied by the Pennsylvania Supreme

Court on March 27, 2018. The language of Pennsylvania law did not allow him to petition

for a reconsideration as he lacked "grounds which are confined to intervening

circumstances of substantial or controlling effect." 210 Pa. Code Rule 1123.

OPINIONS BELOW

On September 4, 2017, the Philadelphia Court of Common Pleas sustained

respondents John Fry et als preliminary objections to Ke's complaint, which focused only

on claims of their violations of the Pennsylvania Unfair Trade Practices and Consumer

Protection Law ("UTPCPL"),' under the doctrine of collateral estoppel and dismissed his

entire state case. It also ruled that the UTPCPL would have nothing to do with

educational goods and services although caselaw in both federal court and Pennsylvania

appellate courts had proven otherwise. The trial court's opinion is attached as 12a-23a.

On appeal, the Superior Court of Pennsylvania endorsed the trial court's opinion

under collateral estoppel without discussing other issues and affirmed the dismissal of

Ke's case. Its opinion is attached as la-10a. Ke timely petitioned for allowance of appeal

with the Pennsylvania Supreme Court, which denied the petition on March 27, 2018.

(24a.) Ke could not move for reconsideration under 210 Pa. Code Rule 1123.

JURISDICTION

1 Which focuses on "unfair or deceptive" business conduct and sounds in tort.

The Pennsylvania Supreme Court denied Ke's petition for allowance of appeal on

March 27, 2018. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTEONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution that gave birth to the

doctrine of collateral estoppel also provides in relevant part: "No person shall

be.. .deprived of life, liberty, or property, without due process of law.. ." This due process

clause makes courts recognize both procedural due process and substantive due process,

with procedural due process aiming at guaranteeing a litigant's right to a fair, impartial

hearing. Given this, erroneously applying collateral estoppel to dismiss a parallel state

suit would be a blatant deprivation of constitutionally protected due process rights.

INTRODUCTION

Courts generally follow a three-part test derived from Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468-69 (1978) to determine whether a case falls under the

collateral order doctrine, as thus interpreted by the Third Circuit Court of Appeals: "[T]he

order must: (1) conclusively determine the disputed question; (2) resolve an important

issue completely separable from the merits of the action; and (3) be effectively

unreviewable on appeal from a final judgment." Bines v. Kulaylat, 215 F.3d 381, 384-85

(3d Cir. 2000) (quoting Transtech Inc/us., Inc. v. A & ZSeptic Clean, 5 F.3d 51, 56 (3d

Cir. 1993)). Under collateral estoppel, a judgment precludes re-litigation by the parties

and their privies of issues actually determined in the first suit. Lawlor v. National Scre en

Serv. Corp., 349 U.S. 322, 326 (1955); Commissioner v. Sunnen, 333 U.S. 591, 597 (1948)

The Superior Court of Pennsylvania erroneously affirmed the Philadelphia Court

of Common Pleas' dismissal of Ke's complaint that asserted only claims on violations of

2

the UTPCPL, 73 P.S. § 2012(4)2, relying on the doctrine of collateral estoppel to

fallaciously argue that the UTPCPL was contract-based and that just because Ke's

federal count "Racially Motivated Breach of Contract in Violation of § 1981(b)" that

contained the phrase "breach of contract" was "rejected" on a technicality all his state

UTPCPL claims about the violations of various contracts—never litigated in federal

court— were estopped. A Third Circuit Court authoring judge deferentially affirmed the

district court's summary judgment and reasoned that Ke could not argue under the 2006

Student Handbook against his dismissal by Drexel University's medical school ("Drexel

Medicine") because "the contract" —referencing only the 2006 Student Handbook—was

"modified" for Ke by the medical school dean (against Ke's protest). The Superior Court

of Pennsylvania was wrong to state that the Third Circuit Court's authoring judge's "legal

reasoning" was a final judgment. 3 Earlier, the federal district court had never issued any

direct judgment on the issue of "breach of contract under Pennsylvania law."4 Ke argued

in his appeal that the 2006 Student Handbook as a contract was never litigated, so the

Third Circuit Court authoring judge responded by offering his legal reasoning with

respect to that student handbook. (30a.)

2 The Superior Court of Pennsylvania baselessly argued that all issues had been litigated in

federal court as it apparently construed all factual allegations as issues of fact.

Ironically, in its opinion, the trial court distinguished between "legal reasoning" and

"judgments" and averred that "Pennsylvania state courts are not bound by the legal reasoning of the

lower federal courts; however, Pennsylvania state courts are bound by judgments of the lower federal

courts," (19a), citing, for authority, In Re Stevenson, 40 A.3d 1212 (Pa. 2012) (There is an essential

difference between a federal court's reasoning and its judgment. The judgments of the federal courts

are owed their due force and full effect in state courts." Id. at 1222). In In Re Stevenson, the

Pennsylvania Supreme Court states that legal reasoning is not a judgment and therefore is not

binding. Thus, they actually concede to petitioner's argument that legal reasoning is not a judgment

and therefore does not have any estoppel effect.

Ke actually discontinued his count "Breach of Contract under Pennsylvania Law" in federal

court. See footnote 8 below for detail.

'

3

The Superior Court of Pennsylvania's use of collateral estoppel is seriously flawed

as a count dismissed on a technicality cannot be a judgment and therefore does not have

any estoppel effect when measured against the three-prong standard in Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978). An appellate court judge's legal

reasoning is by no means a judgment either unless it is thus stated or specifically worded

into the officially issued "Judgment," which in Ke's case with respect to merits contains

only the word "Affirmed.115

STATEMENT OF THE CASE

In November 2011, Ke sued Drexel University ("Drexel") and some individuals

under § 1981 race discrimination and retaliation claims in the United States District

Court for the Eastern District of Pennsylvania. In June 2013, he filed his parallel state

suit under different causes of action6 against Drexel University with a writ of summons

in which he did not include the eleven individual defendants.

Ke added them when he filed his complaint in December 2013. Drexel objected to

the joinder because of a lack of initial service, so Ke re-joined them in his amended

complaint under Pennsylvania Rule 1028 (c)(1) that provides that "[a] party may file an

amended pleading as of course within twenty days after service of a copy of preliminary

The exact language of the judgment issued was: "This cause came to be considered on the

record from the United States District Court for the Eastern District of Pennsylvania and was

submitted pursuant to Third Circuit LAR 34.1(a) on March 16, 2016. On consideration whereof, it is

now hereby ORDERED and ADJUDGED by this Court that the judgment of the District Court

entered September 4, 2015, be and the same is hereby affirmed. Costs taxed against the Appellant.

All of the above in accordance with the opinion of this Court."

6 The preliminary objections to this first state action, not the ones involved in the instant

petition, were ruled by a trial court judge, who stated in her memorandum opinion that "Plaintiffs

First Amended Complaint has seven counts based on Pennsylvania law and none based on federal

law." (33a.)

...

4

objections." But the hearing judge called that ineffective, so he filed a motion to amend

in order to add the indispensable individual defendants. The motion was denied without

prejudice because Ke described individual defendants' liabilities in a separate exhibit

instead of incorporating them into the motion itself. Realizing that they could not have

Ke's entire state case dismissed through preliminary objections in March 2014,

respondents moved to stay the case pending the resolution of Ke's federal suit in which

the judge had an economic interest. A different team leader judge7 granted the motion

immediately.

After the stay was lifted in November 2015, Ke filed a new motion to amend in

order to add the indispensable defendants. The motion was denied by a third different

team leader judge. Determined to add the individual defendants, Ke singled out one

count: "Violation of the UTPCPL" that had been sustained against Drexel's preliminary

objection to it on March 31, 2014 and filed a new lawsuit in January 2016 with the

individual defendants all included and served by a court martial.

In April 2016, respondents filed preliminary objections to dismiss Ke's second

state case, relying on us pendens, res judicata, and collateral estoppel without providing

any factual or legal analysis, although the complaint was derived from a single count

from the previously filed, still pending state suit that had been a dual proceeding with

the federal case from June 2013 through March 2016 when the Third Circuit Court

affirmed the district court's summary judgment. This time, a team leader judge sustained

The Philadelphia Court of Common Pleas uses team leader judges to process all civil cases

before they are assigned to judges at the grassroots level.

'

5

respondents' preliminary objections and dismissed Ke's second state action containing

only violations of the UTPCPL8 without an opinion.

After Ke filed his notice of appeal, the judge was compelled to write an opinion, in

which he stayed away from the respondents' assertion of us pendens and res judicata, as

they were obviously inapplicable, and only embraced the doctrine of collateral estoppel,

arguing that Ke had raised a claim "Racially Motivated Breach of Contract in Violation

of § 198 1(b)" in federal court and that summary judgment was in favor of respondents.9

He further argued that the Third Circuit Court had affirmed the summary judgment and

that the "Third Circuit's decision is final for purposes of collateral estoppel" (18a) without

specifying what judgment was actually reached regarding the count "Racially Motivated

Breach of Contract in Violation of § 1981(b)." He erroneously suggested that the heading

of the count "Racially Motivated Breach of Contract in Violation of § 1981(b)" contained

the phrase "breach of contract" and that since Ke's UTPCPL claims were all "contractbased" they should be dismissed because "Pennsylvania courts are bound by federal

decisions for the purposes of collateral estoppel." (19a) The Superior Court of

Pennsylvania agreed with the county court and affirmed its dismissal order.

8 Initially, Ke did not have the count "Breach of Contract under Pennsylvania Law" in

federal court, but he moved to add it in March 2013. (Federal District Court Docket No. 117), but on

March 20, 2014, he "discontinued" the count in a motion in which he stated: "Because the state suit

contains the same 'Breach of Contract under Pennsylvania Law' count and because the count, after

all, is an issue of the forum state, plaintiff has decided to discontinue the same count in the federal

court to avoid duplication." (Federal District Court Docket No. 450.)

In September 2015, the federal district court dismissed Ke's entire case through summary

judgment, in which it "rejected" his count "Racially Motivated Breach of Contract in Violation of §

1981(b)" without ruling on it because it deemed it a duplication of his count: "Intentional

Discrimination in violation of 42 U.S.C. § 1981 against all Defendants." (26a-28a.)

Ke did not agree that collateral estoppel was applicable and petitioned the

Pennsylvania Supreme Court with such questions as "[w]hether the Superior Court erred

by groundlessly concluding that 'all issues have been litigated [in federal court] and

Appellant cannot relitigate them in this action" and "Whether the Superior Court erred

by improperly applying the doctrine of collateral estoppel without being able to specify

the issue/issues from federal court and the issue/issues in his state action to show they

are identical."

On March 27, 2018, the Pennsylvania Supreme Court denied Ke's petition for

allowance of appeal. He could not file a motion for reconsideration as 210 Pa. Code Rule

1123 would only allow a rehearing on "grounds which are confined to intervening

circumstances of substantial or controlling effect," unlike this Court that also allows a

rehearing on "other substantial grounds not previously presented." Rule 44.2.

REASONS FOR GRANTING THE WRIT

The Superior Court Of Pennsylvania Erred In Assigning Collateral

A.

Estoppel Effect to A Claim "Rejected" In Federal Court Because Of A Technicality And

Also to Legal Reasoning In A Circuit Court's Opinion On Petitioner's Appeal Of The

District Court's Summary Judgment.

1. A Claim "Rejected" In Summary Judgment In Federal Court Because Of A

Technicality Is Not Fairly And Fully Litigated Or Litigated At All And Therefore

Is Not Accorded Any Collateral Effect In State Court.

Ruling on Ke's appeal, the Superior Court of Pennsylvania opined:

Appellant 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. 10 The court rejected Appellant's claim, granting

Appellee summary judgment.

10 Here the Superior Court of Pennsylvania concedes that it only refers to the 2006 Student

Handbook, but the UTPCPL complaint in Ke's state action discusses violations of many other

contracts such as Drexel's Code of Conduct, Drexel's Academic Policies, Drexel Medicine's Family

7

(7a) Here, "a racially motivated breach of contract" refers to the specific statement

earlier in that court's statement of facts: "Appellant filed a complaint in the United States

District Court for the Eastern District of Pennsylvania, alleging a racially motivated

breach of contract in violation of 42 U.S.C. § 1981(b)." (3a.)

What transpired was that among Ke's federal causes of action, one of them was

"Racially Motivated Breach of Contract in Violation of § 1981(b)," which the federal

district court never adjudicated but only "rejected"—as the Superior Court of

Pennsylvania put it—after calling it "simply a repackaging of [Ke's] intentional

discrimination claim under Section 1981" and therefore "a duplicative cause of action.. .by

rebranding it 'racially motivated breach of contract." 11 (27a.)

The actual language used by the district court was:

According to Plaintiff, "racially motivated breach of contract" under

Section 1981 requires a showing that Defendants breached their

contract with Plaintiff because of his race. This is simply a

repackaging of his intentional discrimination claim under Section

1981. As described above, in order to succeed on a claim of

intentional discrimination under 42 U.S.C. § 1981, a plaintiff must

show: (1) that he belongs to a racial minority; (2) an intent to

discriminate on the basis of race by the defendant; and (3)

discrimination concerning one or more of the activities enumerated

in Section 1981, including the right to make and enforce contracts.

Brown, 250 F.3d at 797. Plaintiff here has attempted to create a

duplicative cause of action under Section 1981 by rebranding it

"racially motivated breach of contract." For the same reasons

advanced in the section above, however, Plaintiff has failed to

establish that discrimination influenced Defendants' decision to

dismiss Plaintiff—a breach of contract according to Plaintiff.

Accordingly, he has not raised a genuine issue of material fact that

his Count VII discrimination claim was "racially motivated."

Medicine Clerkship Manual, Drexel Medicine's clinical manuals, Drexel's Disability Policy, and

Drexel's Official Grading Policy, which were never litigated in federal court.

11 Ironically, it was the federal district court that granted Ke's motion to add the count

"Racially Motivated Breach of Contract under 42 U.S.C. § 1981(b)" to "prevent manifest injustice," as

that court put it. See Federal District Court Docket. 325.

(27a.)12 As it is clear from this language that the district court only discussed the

phrase "racially motivated" and likened it to intentional discrimination under § 1981

without passing any judgment on the "breach of contract" component. It never specifically

determined that the 2006 Student Handbook as a contract was breached or not breached.

See 26a-28a. The three-prong standard to determine the applicability of collateral

estoppel, as originated from this Court's case Coopers & Lybrand v. Livesay, 437 U.S.

463, 468-69 (1978) and as rephrased by the Third Circuit Court of Appeals as:

[T]he order must: (1) conclusively determine the disputed question;

(2) resolve an important issue completely separable from the merits

of the action; and (3) be effectively unreviewable on appeal from a

final judgment."

Bines v. Kulaylat, 215 F.3d 381, 384-85 (3d Cir. 2000) (quoting Transtech Indus., Inc. v.

A &ZSeptic Clean, 5 F. 3d 51, 56 (3d Cir. 1993), would never possibly apply. It is obvious

that the dismissed count satisfied none of the aforementioned three prongs and therefore

should never have any collateral estoppel effect to preclude any issues in a parallel

lawsuit. It shoild be noted here though that, as a matter of fact, the Superior Court of

Pennsylvania admitted that the cause of action was not litigated at all but was only

"rejected." Therefore, that would never satisfy the requirements of a "full and fair"

opportunity to litigate the issues in an earlier suit. See, e.g., United States v. United Air

Lines, Inc., 216 F. Supp. 709 (E. D. Wash. and D. Nev. 1962), afI'd sub nom. United Air

Lines, Inc. v. Weiner, 335 F.2d 379 (9th Cir.), cert. dismissed sub noma. UnitedAir Lines,

Inc. v. United States, 379 U.S. 951 (1964); Bruszewski v. United States, 181 F.2d 419 (3d

12 At least, respondents' smoking gun, an open statement put in writing, that

"Caucasian [student]s are smarter than minority students..." would constitute a genuine issue of

material fact.

Cir.), cert. denied, 340 U.S. 865 (1950). Accord, Berner v. British Commonwealth Pac.

Airlines, Ltd., 346 F.2d 532 (2d Cir. 1965), cert. denied, 382 U.S. 983 (1966). By definition,

a rejected cause of action is never litigated—to say nothing of being fairly and fully

litigated—as it does not "conclusively determine the disputed question ["Breach of

Contract under Pennsylvania Law" in Ke's case]." 437 U.S. at 468-69.

Issue preclusion forecloses "successive litigation of an issue of fact or law actually

litigated and resolved in a valid court determination essential to the prior judgment,

whether or not the issue arises on the same or a different claim." New Hampshire v.

Maine, 532 U.S. at 748-49 (2001). In that regard, as the Third Circuit Court puts it:

In a recent en bane opinion, we explained that a defendant who seeks

to avail himself of collateral estoppel bears the "heavy burden" of

"demonstrating that the issue he seeks to foreclose was actually

decided in the first proceeding"

United States v. Rigas, 605 F.3d 194, 217 (3d Cir. 2010) (en bane) (citations

omitted) (emphasis added). Although in practice even an erroneous judgment would have

a collateral estoppel effect as long as it is a judgment, there are exceptions and the

primary one to this general practice is that courts do not give preclusive effect to

judgments rendered in proceedings that fail to comply with the minimum standards of

due process. In other words, the party against whom preclusion is imposed on must have

had a "full and fair opportunity' to litigate his or her claim. See Kremer v. Chemical

Constr. Corp., 456 U.S. 461, 480-82 (1982). See also Whole Woman's Health v.

Hellerstedt, 136 S.Ct. 2292 (2016), wherein this Court holds: "Petitioners' constitutional

claims are not barred by res judicata." In light of this, the "rejected" cause of action

"Racially Motivated Breach of Contract in Violation of § 1981(b)" did not constitute any

part of the earlier summary judgment in the district court, and the Superior Court of

10

Pennsylvania's use of a technically "rejected" count to estop Ke's entire state suit based

solely on the UTPCPL claims was wrong and an abuse of its discretion.13

2. Legal Reasoning In The Third Circuit Court's Opinion On Petitioner's Appeal Of

The District Court's Summary Judgment Is Not Judgement Per Se To Have Any

Collateral Estoppel Effect In State Court.

To retaliate against Ke, conceded,14 Drexel Medicine expelled him in 2011 on a

marginal unsatisfactory grade when his transcript said he was still academically in

"Good Standing." That was against the terms of the 2006 Student Handbook on which

Ke matriculated. To argue against him, the Superior Court of Pennsylvania insisted that

the terms were "modified" by the school dean by quoting the Third Circuit Court

authoring judge:

[Appellant] 's contract with [Drexel Medicine] had been modified,

and the conditions imposed by the Promotion Committee after

receiving a "U" in the Family Medicine clinical [a false grade in light

of footnote 141. [Appellant] accepted those conditions each time by

re-enrolling or continuing his enrollment at [Drexel Medicine].15

Thus, [Appellant] was subject to the more stringent condition that

an "MU" was sufficient for his dismissal...

(30a) Here, petitioner is not arguing that the unilateral "modification" of a contract

by a strong party against a weak party against his protest was illegal under Law v. Siege],

13 Koon V. United States, 518 U.S. 81, 100 (1996) ("A [1 court by definition abuses its

discretion when it makes an error of law.").

14 Respondents conceded to retaliation at least regarding defendant Anthony Sahar

in federal court as they stated: "[Tlhe only allegations that actually constitute retaliation or

infer retaliation are plaintiffs contention that Dr. Sahar negatively evaluated him in

retaliation for his asking a medical question in the presence of a patient." (Federal District

Court Docket No. 634-1 at 19.) Retaliation was also proven by temporal proximity as Ke's first

five-week evaluation was stellar but after Sahar returned from travelling in Europe he wrote a

negative evaluation because of the medical question from petitioner although petitioner had spent

only 2 ½ days with him.

15 The facts here are absolutely wrong according to the documented evidence in Ke's

possession, but this would still pertain to reasoning rather than judgment, which ought be whether

the 2016 Student Handbook as a contract was breached or not breached.

11

Chapter 7 Trustee, 134 S.Ct. 1188, 1194 (2014),16 but he is only arguing that the citation

was nothing but legal reasoning, as the Pennsylvania Supreme Court would call in In Re

Stevenson, 40 A.3d 1212 (Pa. 2012). Such legal reasoning is not a judgment unless a

verdict is provided to specifically state that the 2016 Student Handbook as a contract

was breached or not breached. Even assuming arguendo that such reasoning were a

judgement, it would at best only cover the 2006 Student Handbook without having any

estoppel effect on respondents' 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, which

were never litigated in federal court. Regarding Ke's appeal of the district court's

summary judgment, the specific language of the appellate judgment issued post-opinion

This cause came to be considered on the record from the United

States District Court for the Eastern District of Pennsylvania and

was submitted pursuant to Third Circuit LAR 34.1(a) on March 16,

2016. On consideration whereof, it is now hereby ORDERED and

ADJUDGED by this Court that the judgment of the District Court

entered September 4, 2015, be and the same is hereby affirmed.

Costs taxed against the Appellant. All of the above in accordance

with the opinion of this Court.17

16 In Law v. Siegel, Chapter 7 Trustee, the US Supreme Court rules:

A bankruptcy court has statutory authority to "issue any order, process, or

judgment that is necessary or appropriate to carry out the provisions of' the

Bankruptcy Code. 11 U. S. C. §105(a). And it may also possess "inherent

power to sanction 'abusive litigation practices." Marrama v. Citizens Bank

of Mass., 549 U.S. 365, 375-376 (2007). But in exercising those statutory and

inherent powers, a bankruptcy court may not contravene specific statutory

provisions.

...

134 S.Ct. 1188, 1194 (2014). (Emphasis added).

17Despite the last sentence in the clerk-prepared, judgment, an opinion itself is not a

judgment. In all circuit courts across America, after each opinion, there is a specific judgment issued

pursuant to Fed. R. App. P. 36(a), and the judgment does not contain fact-finding or legal reasoning.

12

Although this indicates that the judgment "affirmed" is based on an opinion,

judgment, a legal conclusion, is not an opinion itself as an opinion is only to help build a

judgment and is not judgment itself. An opinion may consist of fact-finding and comments

pertaining to legal reasoning, but according to the Pennsylvania Supreme Court legal

reasoning is not judgment, as held in In Re Stevenson, 40 A.3d 1212, 1222 (Pa. 2012), in

which the Pennsylvania Supreme Court states: "There is an essential difference between

a federal court's reasoning [part of an opinion] and its judgment" and therefore "that the

pronouncements of the lower federal courts have only persuasive, not binding, effect on

the courts of this Commonwealth." This is because the Pennsylvania Supreme Court

considers opinion—consisting of pronouncements and reasoning—not judgment itself.

This clearly demonstrates that the Superior Court of Pennsylvania was wrong to

rely on a nonbinding Third Circuit Court's "legal reasoning" to estop Ke's state claims

when such reasoning was not a judgment and therefore had no estoppel effect.18

B.

The Superior Court Of Pennsylvania's Determination That A Count

"Rejected" On A Technicality Has Collateral Estoppel Effect Or That Legal Reasoning Is

Judgment Itself To Have Collateral Estoppel Effect In State Court Conflicts With Other

State Or Federal Courts' Holdings And Warrants This Court's Review.

A technically "rejected" claim that yields no judgment or legal reasoning that is

not a judgment itself has no collateral estoppel effect to preclude a state suit as it does

not constitute issues "fully and fairly litigated"—a prerequisite to issue preclusion. As a

result, the Superior Court of Pennsylvania's reliance on such estoppel effect conflicts with

the general guidelines of collateral estoppel from other state courts or federal circuit

18 Recently, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S.

(2018), because Justice Clarence Thomas concurred in part, the judgment of the Court on the

case was 7-2, but the opinion on the rationale was 6-2. That clearly distinguishes between judgement

and legal reasoning.

-

13

courts and warrants this Court's review as the Court is obligated to settle such a question

of law.

Logically, the district court's dismissal of a count in summary judgment because

of a technicality proves, by definition, that the count was never litigated. So there was no

wonder that the "rejected" count in Ke's federal case never yielded any judgment—even

in the opinion itself.19 However, the Superior Court of Pennsylvania still assigned to it

collateral estoppel effect just because the claim had been raised in federal court and its

heading contained the phrase "breach of contract." The Superior Court of Pennsylvania

even applied the effect expansively by using the "rejected" count to estop violations of

other contracts such as 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. Those violations are

detailed in Ke's state suit, but they have never been litigated in federal court. The issue

of "breach of contract" itself was never fairly and fully litigated or litigated at all in

federal court and would therefore have no estoppel effect in light of Bines v. Kulaylat,

215 F.3d 381 (3d Cir. 2000) ("the order must: (1) conclusively determine the disputed

question; (2) resolve an important issue completely separable from the merits of the

action; and (3) be effectively unreviewable on appeal from a final judgment." Id. at 38485.) See the same holding in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978).

Opinions, which nowadays are always uploaded online as scholarly articles, may permit a

legally sharp eye to discern errors of law, but never errors in fact-finding even if it is deliberately

tainted.

19

14

As for the Third Circuit Court's authoring judge's legal reasoning, which even the

Pennsylvania Supreme Court would have rejected as non-binding—see In Re Stevenson,

40 A. 3d 1212, 1222 (Pa. 2012)—it is by no means judgment or part ofajudgment.

The Superior Court of Pennsylvania's application of collateral estoppel effect in

the way it did ran counter to the practice of other states such as Texas, New Jersey,

Illinois, and California—to mention just a few. So far as the elements of collateral estoppel

are concerned, the Texas Supreme Court holds to this guideline: "(1) the facts sought to

be litigated in the second action were fully and fairly litigated in the first action; (2) those

facts were essential to the judgment in the first action; and (3) the parties were cast as

adversaries in the first action." John G. & Marie Stella Kenedy Mem 7 Found. v.

Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d

796, 801 (Tex. 1994).

Then the standard of collateral estoppel promulgated by the New Jersey Supreme

Court is: "(1) the issue to be precluded is identical to the issue decided in the prior

proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in

the prior proceeding issued a final judgment on the merits; (4) the determination of the

issue was essential to the prior judgment; and (5) the party against whom the doctrine is

asserted was a party to or in privity with a party to the earlier proceeding," while the

Illinois Supreme Court holds that "[tihe threshold requirements, as set forth in Illinois

State Chamber of Commerce v. Pollution Control Board (1979), 78111. 2d 1, 7, are: (1) the

issue decided in the prior adjudication is identical with the one presented in the suit in

question, (2) there was a final judgment on the merits in the prior adjudication, and (3)

the party against whom estoppel is asserted was a party or in privity with a party to the

prior adjudication."

15

Swinging westward, California casts light on collateral stopple as follows:

Under California law, collateral estoppel applies only when each of

the following conditions are met: "First, the issue sought to be

precluded from relitigation must be identical to that decided in a

former proceeding. Second, this issue must have been actually

litigated in the former proceeding. Third, it must have been

necessarily decided in the former proceeding. Fourth, the decision in

the former proceeding must be final and on the merits. Finally, the

party against whom preclusion is sought must be the same as, or in

privity with, the party to the former proceeding." [Citation.] The

party asserting collateral estoppel bears the burden of establishing

these requirements.

American Continental Ins. Co. v. American Casualty Co. (2001) 86 Cal.App.4th

929, 943.

The Superior Court of Pennsylvania also conflicts with the federal circuit courts.

Issue preclusion forecloses "successive litigation of an issue of fact or law actually

litigated and resolved in a valid court determination essential to the prior judgment,

whether or not the issue arises on the same or a different claim." New Hampshire, 532

U.S. at 748-49; see also Taylor, 128 S. Ct. at 2171; however, only issues actually litigated

and necessary to the outcome of the first action have preclusive effect. In re Microsoft

Corp. Antitrust Litig., 355 F.3d 322 (4th Cir. 2004) ("To apply collateral estoppel or issue

preclusion to an issue or fact, the proponent must demonstrate that (1) the issue or fact

is identical to the one previously litigated; (2) the issue or fact was actually resolved in

the prior proceeding; (3) the issue or fact was critical and necessary to the judgment in

the prior proceeding; (4) the judgment in the prior proceeding is final and valid; and (5)

the party to be foreclosed by the prior resolution of the issue or fact had a full and fair

opportunity to litigate the issue or fact in the prior proceeding." Id. at 326.)

16

Like other circuits, the Third Circuit Court follows this Court's original

promulgation of the three-prong standard as first held in Coopers & Lybrand v. Livesay,

437 U.S. 463, 468-69 (1978) by holding:

We generally follow a three-part test derived from Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978), to determine

whether a case falls within the collateral order doctrine: "[T] he order

must: (1) conclusively determine the disputed question; (2) resolve

an important issue completely separable from the merits of the

action; and (3) be effectively unreviewable on appeal from a final

judgment." Bines v. Kulaylat, 215 F.3d 381, 384-85 (3d Cir. 2000)

(quoting Transtech Indus., Inc. v. A & ZSeptic Clean, 5 F.3d 51, 56

(3d Cir. 1993)).

In light of these three prongs, Ke's count dismissed in the federal district court

involved the question of "breach of contract," and the count was "rejected" on a

technicality instead of being analyzed to develop into a judgment. Furthermore, legal

reasoning is not a judgment, and in Ke's federal case, the finally issued judgment by the

Third Circuit Court never covered the issue of "Breach of Contract under Pennsylvania

Law." As a result, neither the district court nor the Third Circuit Court resolved the issue

of "breach of contract" to preclude the sweeping issues of "breach of contract" in Ke's

entire state suit that has multiple causes of action under the UTPCPL that involve many

contracts that were never litigated in federal court.

The Sixth Circuit Court also applies a four-part test in determining whether

collateral estoppel effect could be established:

Before collateral estoppel may be applied to bar litigation of an issue,

four specific requirements must be met:

(1) the precise issue raised in the present case must have been raised

and actually litigated in the prior proceeding; (2) determination of

the issue must have been necessary to the outcome of the prior

proceeding; (3) the prior proceeding must have resulted in a final

judgment on the merits; and (4) the party against whom estoppel is

sought must have had a full and fair opportunity to litigate the issue

17

in the prior proceeding.

N.A.A.C.P., Detroit Branch v. Detroit Police OfficersAss'n, 821 F.2d 328, 330 (6th

Cir. 1987) (footnotes omitted). As to this Court, under the doctrine of collateral estoppel,

a judgment would preclude re-litigation by the parties and their privies of facts and

issues actually determined in the first suit. Lawlor v. National Screen Serv. Corp., 349

U.S. 322, 326 (1955); Commissioner v. Sunnen, 333 U.S. 591, 597 (1948). The doctrine of

collateral estoppel that has its origin in the Fifth Amendment to the United States

Constitution is an important question of federal law as it directly impacts procedural due

process and substantive due process. Given this, this Court is obligated to determine

whether a "rejected" claim on a technicality or whether legal reasoning has collateral

estoppel effect as it is of national importance and significance because it would affect

numerous legal actions occurring on a daily basis across America. Apparently these two

questions have not been legally settled yet, but it should be settled by this Court this

time.

CONCLUSION

For the foregoing reasons, petitioner respectfully requests this Court to issue a

writ of certiorari to the Pennsylvania Supreme Court.

Lei Ke

4025 Roosevelt Blvd.

Philadelphia, PA 19124

215-459-8490

18