IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harburg Medical Sales Company

, :

Petitioner :

:

v. :

: State Workers’ Insurance Fund : (Bureau of Workers’ Compensation : Fee Review Hearing Office), : No. 579 C.D. 202 2

Respondent : Submitted: February 10 , 202 3

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 23, 2023

Harburg Medical Sales Company (Harburg) petitions this Court for

review of the Bureau of Workers ’ Compensation, Fee Review Hearing Office ’s

(Bureau) June 1, 2022 order granting the State Workers’ Insurance Fund ’s (SWIF)

Motion to Dis miss (Motion to Dismiss) Harburg’s applications for fee review

(Applications) , and dismissing claim numbers 614953, 617268, 617766

, and

620132

. Harburg presents one issue for this Court’s review: w hether the Bureau

erred by granting SWIF’s Motion to Dismi ss . After review, this Court affirms.

On December 13, 2004, Derrick Curtis (Curtis) was injured in the

course and scope of his employment with Recycle Metals Corp oration

. Harburg

filed the Applications to determine the appropriateness of payments SWIF made for

durable medical equipment supplies it provided to Curtis , specifically

, for its bills

generated for the following service d ates : April 20, April 28, June 6, July 31, and2

August 3, 2021

. Medical Fee Hearing O fficer Derrick Coker (Hea ring Officer

Coker) held hearings on October 14, 2021, and April 11 and May 12

, 2022. On

October 14, 2021, SWIF orally made the Motion to Dismiss

, relying on Harburg

Medical Sales Co. v. PMA Management Corp. (Pa. Cmwlth. No. 635 C.D. 2020,

filed Aug. 30, 2021) , wherein this Court held that Harburg was not a health care

provider within the meaning of Section 109 of the W orkers’ C ompensation Act

(Act)

, 1 and, therefore, lacked standing to invoke the Bureau’s fee review process

.

On May 12, 2022, the parties jointly offered, and Hearing Officer Coker

admitted, into evidence: Medical Fee Hearing Officer David To rr ey ’s (Hearing

O fficer Torrey ) June 15, 2020 decision ( ruling that Harburg “ failed to m eet the

burden of proof required to demonstrate that it is a health care provider under the

Act ”)

, Repro d uced R ecor d (R.R.) at 16a ; this Court’s Unreported Memorandum

Opinion, Harburg Med ical S ale s Co. ; and the Pennsylvania Supreme Court’s March

31, 2022 Order (den ying Harburg’s a ppeal in Harburg Med ical Sales Co. )

. R.R. at

29a. On June 21, 2022, the Bureau granted SWIF’s Motion to Dismiss and dismissed

claim numbers 614953, 617268, 617766

, and 620132

. Harburg appealed to this

Court. 2

1 Act of June 2, 1915, P.L. 736

, as amended

, a dded by Section 3 of the Act of July 2, 1993,
P.L. 190, 77 P.S. § 29. Section 109 of the Act, defines a “health care provider” as:

[A]ny person, corporation, facility or institution licensed or otherwise authorized by the Commonwealth to provide health care services, including, but not limited to, any physicians, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employee or agent of such person acting in the course and scope of employment or agency related to health care services.

77 P.S. § 29

.

2 This Court ’ s scope of review of a decision by the [Bureau] determines whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights wer e violated,3 Harburg argues that Hearing Officer Coker erred by granting the

Motion to Dismiss because SWIF did not offer any evidence that Harburg was not a

p rovider under the Act or the Board’s Regulations. Harburg contends that Harburg

Medical Sales Co. dealt with service dates and circumstances which existed pr ior to

2019

, and SWIF offered no evidence that Harburg was not a p rovider as defined in

the Act or the Board’s Regulations on the dates when the services in question were

provided. 3 SWIF rejoins that the A pplications were properly dismissed pursuant to

Hearing O fficer Torrey ’s June 15, 2020 decision determining that Harburg was not

a health care provider under the Act , which this Court affirmed

. See Harburg Med

.

Sales Co.

Because the issue of whether Harburg is a health care provider unde r

the Act has been previously litigated and decided by this Court, see Harburg Medical

Sales Co.

, th is Court must determine whether res judicata or collateral estoppel

applies herein in order to determine whether the Bureau erred in granting SWIF’s

Motion to Dismiss.

Res judicata

- literally, a thing adjudicated

- is a judicially [ ] created doctrine. See Est [

. ] of Bell

, . . . 343 A.2d 679, 681 ( [Pa.] 1975). It bars actions on a claim, or any part of a claim, which was the subject of a prior action, or could
have been raised in that action. See R/S Fin [

. ] Corp. v.
Kovalchick

, . . . 716 A.2d 1228, 1230 ( [Pa.] 1998); Balent

and whether the hearing officer committed an error of law. 2 Pa.C.S.
§ 704; Walsh v . Bureau of Workers’ Comp [

. ] Fee Rev [

. ] Off [

. ] (Traveler’s Ins [

. ] Co.) , 67 A.3d 117, 120 n.5 (Pa. Cmwlth. 2013). Regarding questions of law, our scope of revie w is plenary and our

standard of review is de novo

.

Armour Pharmacy v. Bureau of Workers’ Comp. Fee Rev. Hearing Off. (Wegman ’ s Food Mkts.,
Inc.)

, 206 A.3d 660 , 664 n.2 (Pa. Cmwlth. 2019).

3 Harburg does not proffer any reason or evidence that the service dates at issue would change the analysis of whether Harburg is a health care provider. Its only claim is that, because the dates of service are different, SWIF should be required to prove t hat it is not a health care provider under the Act.4 v. City of Wilkes

- Barre

, . . . 669 A.2d 309, 313 ( [Pa.] 1995). Th [e Pennsylvania Supreme] Court has explained
that

[ r ] es judicata , or claim preclusion, prohibits parties involved in prior, concluded litigation from subsequently asserting claims in a later action that were raised, or could have been raised, in the previous adjudication. The doctrine of res judicata developed to shield parties from the
burden of re

- litigating a claim with the same parties, or a party in privity with an original litigant, and to protect the judiciary from the corresponding inefficiency and confusion that re

litigation of a claim would breed.

Wi lkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co.

,

. . . 902 A.2d 366, 376 ( [Pa.] 2006) (citation omitted); see also R/S Fin [

. ]

, . . . 716 A.2d at 1230 (“The purposes of the rule are the protection of the litigant from the dual burden of relitigating an issue with the same party or his privy and the promotion of judicial economy through prevention of needless litigation.” ( Q uoting Foster v. Mut. Fire, Marine & Inland Ins. Co.

, . . . 676 A.2d 652, 661 ( [Pa.] 1996))).

Four elements common to both actions, sometimes termed the “four identities,” see, e.g. , Est [

. ] of Tower , . . . 343 A.2d 671, 674 ([Pa.] 1975), must be present for res judicat a to apply: “an identity of issues, an identity of causes of action, identity of persons and parties to the action, and identity of the quality or capacity of the parties suing or being sued.” In re Iulo , . . . 766 A.2d 335, 337 ([Pa.] 2001) (citing Safeg uard Mut. Ins. Co. v.
Williams

, . . . 345 A.2d 664, 668 ([Pa.] 1975)).

In re Coatesville Area Sch. Dist. , 244 A.3d 373, 378

- 79 (Pa. 2021).

Collateral estoppel is similar in that it bars re

- litigation of an issue that was decided in a prior action , although it does not require that the claim as such be the same. For example, if, in a breach of contract action, the defendant asserts that the contract is invalid because of fraud, but the contract is ruled valid and the defendant is found liable, in a future lawsuit against the same party alleging a separate
breach o f the same contract the defendant is precluded5 from asserting the invalidity of the contract based on
fraud. See RESTATEMENT (SECOND) OF JUDGMENTS § 27, cmt. a, illus. 2 ( [Am. Law Inst.] 1982).

Collateral estoppel will only apply where: the issue is the

s ame as in the prior litigation; the prior action resulted in a final judgment on the merits; the party against whom the doctrine is asserted was a party or in privity with a party to the prior action; and the party against whom the doctrine
is asserted had a full and fair opportunity to litigate the issue in the prior action. See Rue v. K

- Mart Corp.

, . . . 713 A.2d 82, 84 ( [Pa.] 1998). In some renditions, courts add a fifth element, namely, that resolution of the issue in the prior proceeding was essentia l to the judgment. See, e.g.

, Off [

. ] of Disciplinary Couns [

. ] v. Kiesewetter

, . . . 889 A.2d 47, 50

- 51 ( [Pa.] 2005).

Collateral estoppe l is premised on practical considerations that overlap substantially with those of res judicata

. These include avoiding the “cost and vexation” of repetitive litigation, conserving judicial resources, “and, by preventing inconsistent decisions, encourag[ing] reliance on adjudication.” Id

. . . . at 51.

Coatesville , 244 A.3d at 379 (italics added)

.

Here

, res judicata cannot apply because SWIF was not a party to the

prior action. However, all five collateral estoppel elements are met : (1) the issue in

both actions was whether Harburg is a health care provider under the Act ; (2) the

prior action resulted in a f inal judgment on the merits; (3) Harburg was a party to the

prior action ; (4) Harburg had a full and fair opportunity to litigate the issue ; and (5)

the resolution of the issue was essential to the judgment in the prior action

. B ecause

collateral estoppel applies

, re

- litigation of whether Harburg is a health care provider

under the Act is barred

. Accordingly, the Bureau properly granted SWIF’s Motion

to Dismiss.6 For all of the above reasons, the Bureau’s order is affirmed.

___________________________ ______ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harburg Medical Sales Company, :

Petitioner :

:

v. :

: State Workers’ Insurance Fund : (Bureau of Workers’ Compensation : Fee Review Hearing Office), : No. 579 C.D. 2022

Respondent :

O R D E R

AND NOW, this 23 rd day of May , 20 2 3

, the Bureau of Workers’

Compensation, Fee Review Hearing Office’s June 1, 2022 order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge