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. 2022

Respondent : Submitted: February 10, 2023

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 Dismiss (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: whether the Bureau 

erred by granting SWIF’s Motion to Dismiss. 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 Corporation. 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 dates: April 20, April 28, June 6, July 31, and
2

August 3, 2021. Medical Fee Hearing Officer Derrick Coker (Hearing 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 Workers’ Compensation 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 Torrey’s (Hearing 

Officer Torrey) June 15, 2020 decision (ruling that Harburg “failed to meet the 

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

Act”), Reproduced Record (R.R.) at 16a; this Court’s Unreported Memorandum 

Opinion, Harburg Medical Sales Co.; and the Pennsylvania Supreme Court’s March 

31, 2022 Order (denying Harburg’s appeal in Harburg Medical 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, added 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 were 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 

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

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

2019, and SWIF offered no evidence that Harburg was not a provider 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 Applications were properly dismissed pursuant to

Hearing Officer 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 under 

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

Sales Co., this 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 review 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 that 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 relitigation of a claim would breed.

Wilkes 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.” (Quoting 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 

judicata 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 Safeguard 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 of the same contract the defendant is precluded 
5

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 

same 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 essential to the judgment. See, e.g.,

Off[.] of Disciplinary Couns[.] v. Kiesewetter, . . . 889 

A.2d 47, 50-51 ([Pa.] 2005).

Collateral estoppel is premised on practical considerations 

that overlap substantially with those of resjudicata. 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 final 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. Because 

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, Judge
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. 2022

Respondent :

O R D E R

AND NOW, this 23rd day of May, 2023, the Bureau of Workers’ 

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

_________________________________

ANNE E. COVEY, Judge