IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pablo Munoz, :

:

Petitioner :

:

 v. : No. 58 C.D. 2022

: Submitted: July 15, 2022

Jermacans Style, Inc. (Workers’ :

Compensation Appeal Board), :

:

Respondent :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: May 19, 2023

Pablo Munoz (Claimant) petitions for review of the order of the 

Workers’ Compensation Appeal Board (Board) affirming the decision of a workers’

compensation judge (WCJ), which denied and dismissed Claimant’s Petition to 

Reinstate Compensation Benefits (Reinstatement Petition) and a Petition for 

Penalties (Penalty Petition) (collectively, Instant Petitions) filed against Jermacans 

Style, Inc. (Employer). Claimant argues that the WCJ erred in dismissing the Instant 

Petitions on the basis of res judicata where Employer’s underlying Petition to 

Terminate Compensation Benefits (Termination Petition) was improperly granted. 

Employer asks this Court not only to affirm the Board’s order, but also to award it

counsel fees based on Claimant’s advancement of what Employer believes is a 
2

frivolous appeal. For the reasons that follow, we affirm the Board’s order, but 

decline to award counsel fees to Employer.

I. Background

The facts are not in dispute, and this appeal only involves a question of 

law. On September 12, 2018, Claimant sustained a work-related injury in the nature 

of a left shoulder rotator cuff strain, which Employer accepted. Employer filed a 

Termination Petition seeking to terminate benefits following an independent medical 

examination (IME) of Claimant. WCJ James Stapleton (WCJ Stapleton) held a 

hearing on the Termination Petition. WCJ Stapleton noted that, although Claimant 

was served with both the Termination Petition and the hearing notice, Claimant did 

not file an answer in opposition and did not appear either in person or via counsel to 

the hearing or otherwise defend against the allegations. At the hearing, WCJ

Stapleton accepted Employer’s medical report of the IME doctor, which reflected 

the doctor’s opinion that Claimant was fully recovered from his work injury as of 

March 20, 2019, without objection. Based on this evidence alone, WCJ Stapleton 

determined that Claimant had fully recovered from his work injury effective March 

20, 2019. Thus, by decision dated May 17, 2019, the WCJ granted the Termination 

Petition. Claimant did not file an appeal. 

Thereafter, on November 14, 2019, Claimant filed a counseled 

reinstatement petition and a penalty petition (Prior Petitions) alleging that his 

benefits should be reinstated on the grounds that the Termination Petition was

improperly granted and that the finding of termination was not supported by 

substantial, competent evidence. Claimant further averred that Employer violated 
3

the Pennsylvania Workers’ Compensation Act (Act)1 based on the stoppage of

benefits. The Prior Petitions were assigned to WCJ Terry Knox (WCJ Knox) for 

consideration. By decision dated January 17, 2020, WCJ Knox denied the Prior

Petitions upon concluding that WCJ Stapleton’s order terminating Claimant’s 

benefits was final and binding on Claimant because it was not appealed.

2

 WCJ Knox 

concluded that Claimant was barred by res judicata from asserting that the 

Termination Petition was improperly granted based on the evidence presented.

3

 

Claimant appealed to the Board, which affirmed. On further appeal to this Court, 

we quashed the appeal as untimely filed. See Munoz v. Jermacans Style, Inc. 

(Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 35 C.D. 2021, filed 

March 1, 2021) (Munoz I).

Thereafter, on March 2, 2021, Claimant filed the Instant Petitions, 

alleging:

On May 17, 2019, [] [C]laimant’s workers’ compensation 

benefits were terminated by order of the [WCJ]. The 

termination order was not supported by substantial 

evidence and is void ab initio on the basis of hearsay. The 

attorney for [Employer] never took the deposition of the 

IME doctor . . ., and instead just submitted a report. A

decision to terminate benefits cannot be based on hearsay 

evidence alone. . . . Claimant requests that the order

terminating his benefits be considered void ab initio and 

his benefits be reinstated as of May 17, 2019, along with 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.

2 WCJ Knox advised Claimant that he could file an appeal nunc pro tunc with the Board. 

See WCJ Knox Opinion, 1/17/2020, Finding of Fact (F.F.) No. 6. There is no indication in the 

record that Claimant ever filed a nunc pro tunc appeal. 

3 WCJ Knox further advised Claimant that he could file a reinstatement petition based on 

worsening of his condition subsequent to the termination. See WCJ Knox Opinion, 1/17/2020, 

F.F. No. 6. 
4

penalties of fifty percent (50%), statutory interest[,] and 

attorney fees. 

Though [] [C]laimant filed a prior petition seeking 

reinstatement of his workers’ compensation benefits with 

penalties raising the issue of uncorroborated hearsay as 

insufficient to support a termination, both the [WCJ] and 

the [Board] ignored the issue raised. Therefore, there is no 

res judicata as the issue raised was never addressed by the 

Court. The [WCJ] lacked jurisdiction to terminate [] 

[C]laimant’s benefits. Issues of jurisdiction can be raised 

at any time.

Certified Record (C.R.) at 6-7.

4

 

WCJ Jeffrey Mills (WCJ Mills) held a hearing on the Instant Petitions 

on March 23, 2021, wherein Employer interposed a motion to dismiss the Instant 

Petitions asserting res judicata. C.R. at 59. By order circulated on April 12, 2021, 

WCJ Mills denied and dismissed the Instant Petitions based on res judicata. WCJ 

Mills explained that WCJ Stapleton’s order was a final judgment, which was not 

appealed, and that the principles of technical res judicata precluded Claimant from 

attempting to relitigate the termination of his benefits. Claimant appealed to the 

Board, which affirmed. Claimant now petitions this Court for review.5 

II. Issues

Claimant contends that the WCJ erred by dismissing the Instant 

Petitions based on technical res judicata because the underlying Termination Petition 

4 Because the Certified Record was filed electronically and was not paginated, the page 

numbers referenced in this opinion reflect electronic pagination. 

5 Our review is limited to determining whether the WCJ’s findings of fact were supported 

by substantial evidence, whether an error of law was committed, or whether constitutional rights 

were violated. Department of Transportation v. Workers’ Compensation Appeal Board 

(Clippinger), 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011). 
5

was improperly granted. Employer counters that res judicata precludes Claimant’s 

attempt to relitigate matters finally adjudicated. Employer seeks counsel fees 

pursuant to Pennsylvania Rule of Appellate Procedure 2744, Pa. R.A.P. 2744 (Rule 

2744). 

III. Discussion

A. Res Judicata

First, Claimant contends that the Instant Petitions are not barred by res 

judicata. Claimant maintains that the underlying Termination Petition was 

improperly granted because it was based solely on hearsay evidence and was not 

supported by competent medical testimony. Claimant argues that WCJ Stapleton’s 

order granting the Termination Petition is not final or unassailable because it 

implicates the issue of whether the WCJ had jurisdiction to terminate benefits in the 

first place absent competent medical testimony. 

In Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler 

Systems, Inc.), 960 A.2d 949, 954 (Pa. Cmwlth. 2008), this Court recounted the 

criteria necessary to establish res judicata and collateral estoppel. We opined:

Initially, we note that technical res judicata and collateral 

estoppel are both encompassed within the parent doctrine 

of res judicata, which prevents the relitigation of claims 

and issues in subsequent proceedings.

Under the doctrine of technical res judicata, often referred 

to as claim preclusion, when a final judgment on the merits 

exists, a future suit between the parties on the same cause 

of action is precluded. In order for technical res judicata 

to apply, there must be: (1) identity of the thing sued upon 

or for; (2) identity of the cause of action; (3) identity of the 

persons and parties to the action; and (4) identity of the 

quality or capacity of the parties suing or sued. Technical 

res judicata may be applied to bar claims that were actually 

litigated as well as those matters that should have been
6

litigated. Generally, causes of action are identical when 

the subject matter and the ultimate issues are the same in 

both the old and the new proceedings.

The doctrine of collateral estoppel, often referred to as 

issue preclusion, is designed to prevent litigation of an 

issue in a later action, despite the fact that the later action 

is based on a cause of action different from the one

previously litigated. Collateral estoppel applies where:

(1) the issue decided in the prior case is 

identical to the one presented in the later case; 

(2) there was a final judgment on the merits; 

(3) the party against whom the doctrine is 

asserted was a party or in privity with the 

party in the prior case and had a full and fair 

opportunity to litigate the issue; and (4) the 

determination in the prior proceeding was 

essential to the judgment. 

Id. at 954. (internal citations and quotations omitted; emphasis in original).

Here, the reinstatement of Claimant’s benefits was addressed on two 

prior occasions by the WCJ and Board. Claimant filed the Prior Petitions seeking 

reinstatement of benefits and penalties on the basis that WCJ Stapleton’s order

terminating his benefits was not supported by substantial competent evidence. WCJ 

Knox denied the Prior Petitions, and the Board affirmed. Although Claimant

appealed to this Court, the appeal was quashed as untimely. See Munoz I. Claimant 

then filed the Instant Petitions seeking the same relief on the same exact grounds. 

WCJ Mills denied the Instant Petitions based on technical res judicata and the Board 

affirmed. 

Claimant argues that the doctrine of res judicata does not apply because 

he did not have a full and fair opportunity to actually litigate termination of benefits

or challenge the hearsay nature of the medical report in the Termination Petition 

proceeding. Contrary to Claimant’s assertions, Claimant had the opportunity to 
7

litigate these issues. However, by failing to answer the Termination Petition, appear 

at the hearing on the Termination Petition, or appeal WCJ Stapleton’s order, 

Claimant did not avail himself of this opportunity. Res judicata applies not only to 

claims that have already been litigated but also to claims that “should have been 

litigated.” Weney, 960 A.2d at 954 (emphasis added). Claimant also fails to 

recognize that the Instant Petitions seek the same relief on the same grounds as the 

Prior Petitions, which were fully and finally adjudicated. Upon review, WCJ Mills

did not err by dismissing the appeal based on the doctrine of res judicata. 

B. Counsel Fees

Turning to Employer’s request for counsel fees, Employer asserts it is 

entitled to such fees because Claimant’s appeal is wholly frivolous and Claimant’s 

continued pursuit to challenge the termination of benefits despite final adjudications 

is vexatious. In support, Employer relies solely on Patel v. Workmen’s 

Compensation Appeal Board (Saquoit Fibers Company), 520 A.2d 525 (Pa. 

Cmwlth. 1987). 

Rule 2744 provides that an appellate court may award attorneys’ fees 

“if it determines that an appeal is frivolous or taken solely for delay or that the 

conduct of the participant against whom costs are to be imposed is dilatory, obdurate 

or vexatious.” Pa. R.A.P. 2744. 

In Patel, the claimant filed three separate claim petitions on the same 

claim and appealed each one to this Court. This Court opined that “[t]his appeal, the 

third dealing with [the c]laimant’s [] injury and the second to be dismissed due to 

collateral estoppel and res judicata, is clearly wholly frivolous and constitutes patent 

abuse of Claimant’s constitutional right to avail himself of the courts of this 
8

Commonwealth.” Patel, 520 A.2d at 526 (emphasis added). Accordingly, we

awarded the employer costs under Pa. R.A.P. 2741. Patel, 520 A.2d at 526. In dicta, 

we referenced Rule 2744 and suggested that an award of counsel fees to the 

employer would also be appropriate based on the claimant’s “abuse of this Court’s 

appeals process,” but the Court declined to award such fees sua sponte. Patel, 

520 A.2d at 526. 

Later, in Callahan v. Workmen’s Compensation Appeal Board 

(Bethlehem Steel Corp.), 571 A.2d 1108 (Pa. Cmwlth. 1990), we revisited Patel and 

limited its application. In Callahan, the employer sought reimbursement of 

attorneys’ fees pursuant to Rule 2744 and Patel on the basis that the appeal was 

frivolous. 571 A.2d at 1111 n.10. We emphasized that the discussion of Rule 2744

in Patel was premised upon a “patent abuse of the appellate process and not simply 

on the basis of one frivolous petition for review.” Id. We opined that “[t]he holding 

in Patel is an extremely narrow one and is limited to the particular facts of that case.”

Id. Noting the Act’s remedial nature and humanitarian objectives, as well as the rule 

of liberal construction, we declined to award counsel fees to the employer. Id. at 

1111-12.

In Phillips v. Workmen’s Compensation Appeal Board (Century Steel), 

721 A.2d 1091 (Pa. 1999), the employer therein invoked Section 440 of the Act6 and 

Rule 2744 for reimbursement of counsel fees. A divided Supreme Court foreclosed 

the ability to assess counsel fees against the claimant under the Act.7 It also declined 

6 Added by the act of February 8, 1972, P.L. 25, as amended, 77 P.S. §996.

7 Section 440 of the Act provides for an award of counsel fees to a claimant where an 

employer contests its liability without “a reasonable basis for the contest.” 77 P.S. §996. The 

Supreme Court held that Section 440 of the Act does not allow the award of counsel fees to an 

employer upon a finding that a claimant’s appeal was frivolous. Phillips, 721 A.2d at 1093. 

(Footnote continued on next page...)
9

to assess any counsel fees against the claimant under Rule 2744, but it discussed the 

possibility of such an award under Rule 2744 by comparing Callahan and Patel.

Phillips, 721 A.2d at 1094. Although the Court signaled its preference for Callahan

over Patel, it did not foreclose the possibility of sanctions under Rule 2744. Id.; see 

Smith v. Workers’ Compensation Appeal Board (Consolidated Freightways, Inc.), 

111 A.3d 235, 238 (Pa. Cmwlth. 2015). 

Thereafter, this Court interpreted Phillips as leaving the door open for 

appellate courts to impose sanctions under Rule 2744 in appropriate cases. Smith, 

111 A.3d at 238. In Smith, the claimant had filed over 15 claim petitions regarding 

the same injury, and again attempted to litigate the same claim that had been rejected 

repeatedly for over a decade, and already had been deemed barred by res judicata 

and collateral estoppel. Id. at 236. The case had been before this Court five times. 

Id. Quoting from our earlier rejection of the claimant’s same frivolous appeal, this 

Court noted that “[p]ublic funds have been extensively expended as [the] [c]laimant 

repeatedly attempts to re-litigate a case that was decided many years ago. Moreover, 

[the] [c]laimant’s actions are, at the very least, unfair and unduly burdensome to 

[the] [e]mployer, [which] has been forced to defend against each of these 

unreasonable petitions.” Id. In short, Claimant’s actions amounted to a flagrant 

abuse of process. Id. Thus, we awarded costs and counsel fees incurred by employer 

to defend against the “obdurate and vexatious prosecution of a frivolous appeal.” Id.

at 238. Without such a sanction, there would be “no way for our courts to curb the 

sort of flagrant abuse of the system engaged in here.” Id.

Rather, the “clear intent of Section 440 of the Act is to protect claimants from the costs of litigation, 

but not to provide comparable protection for employers.” Phillips, 721 A.2d at 1094. Thus, the 

Supreme Court found no basis upon which to award counsel fees to an employer. Id.
10

Here, Claimant’s conduct does not rise to the patent abuse of appellate 

process involved in Smith or even Patel. Although Claimant filed two sets of 

reinstatement and penalty petitions in which he impermissibly attacked the 

underlying grant of the Termination Petition, this appeal is the first time in which 

this Court has addressed the merits of Claimant’s case. See Munoz I. Although we 

agree that Claimant’s petition for review is frivolous, it falls short of a patent abuse 

of process to warrant sanctions under Rule 2744. See Phillips; Smith. Thus, we 

decline to assess counsel fees against Claimant. 

IV. Conclusion

Accordingly, we affirm the Board’s order affirming the WCJ’s order 

denying Claimant’s Instant Petitions8 but deny Employer’s request for counsel fees. 

MICHAEL H. WOJCIK, Judge

Judge Wallace concurs in result only.

8 As the Board aptly noted in its opinion, res judicata does not preclude Claimant from 

filing a reinstatement petition that alleges a change in condition since the Termination Petition was 

granted. See National Fiberstock Corp. (Greater New York Mutual Insurance Co. v. Workers’

Compensation Appeal Board (Grahl), 955 A.2d 1057, 1062 (Pa. Cmwlth. 2008) (holding that a 

claimant may be entitled to reinstatement of benefits after a termination if the claimant proves that 

his disability has increased or recurred since the prior decision and that his physical condition has 

changed in some manner). Claimant made no such allegation nor submitted any evidence 

regarding a change in condition. Rather, Claimant merely sought to relitigate the underlying

termination of benefits. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pablo Munoz, :

:

Petitioner :

:

 v. : No. 58 C.D. 2022

: 

Jermacans Style, Inc. (Workers’ :

Compensation Appeal Board), :

:

Respondent :

O R D E R

AND NOW, this 19th day of May, 2023, the order of the Workers’

Compensation Appeal Board, dated December 22, 2021, is AFFIRMED, and 

Respondent Jermacans Style, Inc.’s request for counsel fees pursuant to 

Pennsylvania Rule of Appellate Procedure 2744, Pa. R.A.P. 2744, is DENIED. 

__________________________________

MICHAEL H. WOJCIK, Judge