*1 interlocutory 2004 Order is appeal- and not
able to this Court.
Having concluded that the
appeal-
Order
See also
ed is quash appeal.
ORDER
NOW, above-captioned hereby matter is
quashed. HEATH,
Kim Petitioner
PENNSYLVANIA BOARD
OF PROBATION AND
PAROLE, Respondent.
Commonwealth Pennsylvania. Court of
Submitted on April Briefs
Decided Feb. 435(d), safeguard against A.2d at depart- 221. The "[t]he WCJ. Under Section ment, board, companies requesting unqualified may insurance or court which hear any proceedings brought vocational counselors and of an inundation of shall [the Act] challenges qualifications power penalties provid- impose of interview- have the availability provisions ers of redress found in Sec- ed herein for violations of the 435(d) 991(d), regulations 77 P.S. this act or such rules and or rules 991(d). pre-attendance approval requirement by procedure.” 77 P.S. *2 at invited Claimant to a concert which
he performing. brother would be Newton’s Shortly there- Again, Claimant declined. in- telephoned Newton Claimant to after show; again vite her to another Claimant to proceeded Newton declined. then dis- personal problems, and at cuss his issues call. In point Claimant ended the which 1998, found an envel- January of Claimant ticket for another ope on her desk with a Claimant show of Newton’s brother. brother, who also spoke Newton’s Graterford, explained at and he worked give that Newton asked him to Bouvier, pe- Joseph Philadelphia, F. attend the show. ticket. Claimant did not titioner. Patterson, for re- Harrisburg, Tara L. Once, conduct did not abate. Newton’s spondent. 1998, January song also in a love came work, prompting on the radio at Newton to PELLEGRINI, Judge, BEFORE: up express close to his move Claimant JUBELIRER, Judge, and COHN “sexy, song. that it sweet” opinion was FLAHERTY, Judge. Senior 27a. Newton also Reproduced Record de- standing behind veloped such habits as BY Senior OPINION making sucking at her desk FLAHERTY. sitting sounds and near Claimant’s desk (Claimant) for re- petitions Kim Heath staring at her. Claimant asked When Pennsylvania of a decision of the view wanted, something he Newton if there was (Board) Parole Board of Probation and a personal start conversation. would which denied him that would then advise Act”.1 affirm for the “Heart We busy with work in an effort to was end the set forth below. reasons occasion, On one Newton conversation. as employed by the Board her home address and asked Claimant for (Gra- agent at Graterford Prison parole 29a). (R.R. at Claim- telephone number. terford). supervisor Claimant’s immediate supervisor, Ogle- responded ant that her Ogletree, Jr. Graterford Calvin tree, if it were had this information ever supervisor whose immediate (Ogletree), needed. (Newton). Claimant Newton was James Following Claimant’s continued rebuffs following occurred: testified overtures, began bur- of these Newton Newton asked Claimant October assign- with additional den Claimant Oprah him at a call for an join casting ments, required put her to aside her movie, Winfrey beginning thus a course to fall behind. normal caseloads and subjected whereby Newton conduct informed, expressed sur- Ogletree When to attention she did not seek ant was giving to learn that Newton prise declined discourage. sought without his invitation, assignments the week Newton’s but within amended, P.S.§§ 637-638 Act of June P.L. knowledge and stated that Ingram he would talk to informed Newton. (R.R. 29a-80a).
Newton about it. not to he was contact with Claim- Despite warning, ant. Newton called Newton asked Claimant’s direct line at work on at least office, meeting Claimant to attend a in his *3 (R.R. 49a). separate two occasions. at which was not prison, located at the on Friday, February 1998. He refused to presenting Soon after her sexual harass- respond inquiry to Claimant’s about the complaint, ment Claimant testified meeting’s objected purpose; Claimant and warning received a written from an inmate stated that she might bring repre- union danger. that her life was in Claimant sentation to meeting. Newton re- evidence, attempted admit this note into sponded by telling her that repre- union objec- but the registered hearsay a sentation was not necessary. When tion. The requested some founda- persisted Claimant inquiry, with her New- testimony objec- ruling before on the (R.R. 30a-31a). ton became irate. at tion, and Claimant testified that the note Claimant complained Ogletree, who mail, through came interagency which in- agreed to speak to Newton. mates can use to send mad to parole offi- cers. receiving Claimant stated that after Thursday, February 12, 1998, near the warning the end she asked the inmate how day, of the gave her, a memo another inmate could hurt and the ordering her to attend the meet- ing responded at inmate his office the that it was the correc- following day and that representation union tions get officers that were out to her. permit- would not be ted. Newton hearsay did not WCJ sustained the Board’s Ogletree advise meeting, objection point but Claimant and noted that “at this I did. On Febru- ary 13,1998, enough don’t go Claimant went to to have this meeting accompanied by employee’s Ogletree may conduct. You have to her union president, who not take the at was allowed into inmate this New- (R.R. 48a). point ton’s get office. At the in.” at meeting, Newton told Claimant that attorney he wanted Claimant’s stated that he meeting so he going could tell her to attempt that she was to obtain more evidence. doing great a job. However, When brought present any Claimant did not up the sub- ject her, further regard. Newton’s evidence harassment of New- Some later, ton respond sought job refused to time a transfer abruptly ended (R.R. 33a-36a). location, meeting. to a April at and on a report Claimant was told to On or about did, Philadelphia District Office. She but grievance ant filed a with her union re- month, for the next she lacked a desk and garding Newton’s harassment. Within Further, had almost no work. not she was week, Newton tried to lure Claimant into weapon, required issued a Ogletree’s empty office on the pre- stated (R.R. 54a-55a). policy. Board’s text that photo she needed a second identi- card; fication there was no such need. began experiencing anxiety, (R.R. 39a-40a). day, That Claimant which was pains, manifested chest heart spoke to the Board’s palpitations anxiety Affirmative Action attacks. Claimant Officer, Ingram (Ingram), LaDelle Employee and contacted a State Assistance thereafter, shortly Program psycholo- March and was referred to a (Baxter) presented Baxter, Ingram gist, with a written M.A. Suzanne complaint of against sexual harassment treatment. Baxter the next saw Claimant to work
day put testified her out of termination. Claimant returned that she disorder, assigned to acute caused to her reported work due stress as instructed feeling support (Ferguson) of lack of from her Ferguson Bonnie supervisor, failure employer protect no knowl- informed Claimant she had who unwanted advances. Within Newton’s edge reporting that Claimant would be Watson, week, Claimant also saw Richard giv- work. Claimant testified that she (Dr. Watson), employer approved D.O. very After assignments. en few re- “panel” physician. agreed Dr. Watson sheets, activity viewing Claimant’s diagnosis Baxter’s acute stress dis- work, Ferguson indicated that she had no and her direction that Claimant order to make such en- instructed Claimant not due amount of return to work to an undue *4 they jeopardize tries would her (R.R. 138a-139a). stress. at (R.R. ability paycheck. to receive her at 892a). agent, Stanley Another parole Board The refused Claimant workers’ (Webb), verbally assaulted rea- Webb compensation benefits for the stated ant, screaming at that if she did a work- her not son Claimant did not suffer job, to give not notice of like her then she needed leave. related 878a). (R.R. injury to one alleged employer her within at twenty days.2 or about hundred On 5, February By anxiety 1999 Claimant’s 1998, 24, peti- a claim June Claimant filed to again position forced her leave her new 1, 1998, that as alleging May of she 1999, February the Board. On 8} disabling a sustained Baxter, treating psychologist, Claimant’s in the anxiety the form stress to and in- supervisor wrote Claimant’s parole her a employment course of as her that was unable formed Claimant from the sexual agent, resulted due medical continue work to her condi- retaliatory harassment and the 3, 1999, By tion. letter dated March the 10, 1998, employer. August acts of her (1) directed Claimant to: return to Board denying filed an the Board answer (2) 1999; 15, apply March allegations petition. contained in the claim (3) retirement; disability resign from or 6, 1998, Board offered On November Claimant, employment. through coun- her position facility Claimant at a new sel, response the Board a on March sent parole as one two institutional Chester 11, stating on-going 1999 that due to her 1998, 11, agents. On December unwillingness medical condition and her a condi- sign sent Claimant release to as resign employment, or retire her she to work. being tion to allowed to return returning not be to work on March would up required give This release Claimant 1999, 15, 16, April 1999. On Claimant’s Board, including her against all claims employment terminated. workers’ claim and pending re- harassment sexual claims. filed (R.R. 410a- sign fused release. Compensation under the Workers’ 413a). hearings before the Workers’ a series (WCJ) on 1998 Compensation By January letter dated petition, Claimant testified had to claim Board informed Claimant 11, deposition or risk by January 1999 own behalf submitted return work give employer within ployee notice to an 120 2. Section 311 of Workers’ 736, (Act), Act of P.L. days injury. June of a work-related amended, § requires that an em- P.S. transcripts of Baxter and Dr. tion.” Board’s Decision 10. Claimant Watson. this order. testimony appealed seeking reversal of Claimant also submitted the 25, 2002, we McCrey, By three factual witnesses: Rennin decision dated November denying Ogletree. Gloria Hamilton and affirmed the decision of benefits, although affirmed response, presented of Claimant we Newton, Webb; grounds. Specifi- the Board on different Ferguson and also sub- deposition Bjornson, cally, co-employ- concluded that when a mitted the of Jon (Dr. ee, sexually Bjornson), psychiatrist. party, M.D. or third harasses any injury is employee, resulting mental On March found that compensable under the Act because had sustained a in- work-related 301(c)(1),- commonly which is Section jury as a result of abnormal con- “personal exception, known as the animus” ditions. On the Board inju- operates to remove claim for that reversed. It reasoned that: ry purview from the of the Workers’ Com- provided no corroborative tes- pensation timony that these occurrences were ac- appealed our decision to the pre- tual incidents of harassment. She In a Supreme Court. decision dated Octo- *5 testify they sented no witnesses to that Supreme ber the Court vacated they witnessed the incidents and that our decision and remanded this case to us. too believed being Claimant was ha- Specifically, Supreme the Court stated by Although rassed Mr. Newton. she that: present did testimony the from Mr.
Ogletree, found that Mr. ... “personal exception As the animus” Ogletree stated that he never observed jurisdictional, not is is not issue any interaction between Mr. Newton ... sponte a court to raise sua Rather and the Claimant that was less than party defending against ... professional, although Mr. Ogletree did compensation claim for workers is to indicate that given assign- Claimant was exception raise the ... In this ments however, ie., from Mr. Newton which was not party, Employer, that in processes accordance with the of the not do so. Rox Coal Co. v. Workers’ parole ... presented (Snizaski), unit Claimant also Compensation Appeal Board (2002), of Ms. McCrae and Ms. Ham- 570 Pa. we held ilton, again, only but both witnessed Mr. principles applied that will be in waiver talking to and compensation setting Ms. a workers’ Hamilton “did not anything notice un- statutory exception ruled that another to ... usual” compensable injury definition 301(c) party’s Section was waived (Board’s 9). regard Decision at With Thus, Employer’s to raise it. failure alleges the other that conditions “personal failure to raise the animus” injury, contributed to her mental that exception means the issue Board stated that the “also conclud- necessarily It waived. Id. at 911-14. placed ed that because into a Claimant was exception follows that should have job requested after she a transfer played part no in the Commonwealth given assignments where she was few present review the case. Court’s office, no desk or this was also an abnor- reasons, vacate the working mal condition. As this For these we we believe occasion, order and re- happens in the work Commonwealth’s Court’s place this case for the court to reconsid- too was not an abnormal condi- mand ingly er the from appeal merits of Claimant’s denied Claimant benefits under the The Board’s decision. court is to Heart appeal Claimant’s proved reconsider whether Claimant this Court followed.3 regard claim with to Newton’s actions. appeal, argues that Likewise, as the insofar Commonwealth denying erred benefits “personal application Court’s ani- under the Heart may exception mus” its affected been denied under the had review of claim the Claimant’s that she Compensation Act. Workers’ was entitled to argues is that Claimant barred from re- Act for certain actions that were taken ceiving Heart and Act benefits by Employer reported after she New- principle estoppel. conduct, ton’s is to the Court’s reconsid- Initially, pur we note that er claim. pose the Heart and Act is to Heath v. Appeal salary, provide compensation, a full not (Pennsylvania Bd. Probation employees occupa in certain dangerous — Parole), --, Pa. 860 A.2d injured job tions who have been on the (2004). who expected are recover and return Therefore, in accordance with the Su- work in foreseeable future. This order, preme proceeded we Court’s to ad- however, replacement not a for workers’ dress the merits of Claimant’s employee’s benefits. If an the Board’s By decision. decision dated “permanent” is found to be rather again affirmed the than employee temporary, should denying decision the Board *6 to receive the continue benefits under benefits. Heart Act but Lung properly should Earlier, 1998, in the May of Board had receive workers’ benefits. determined that did not sustain Cunningham See v. Pennsylvania State any injury compensable that was under the Police, 80, 74, 40, Pa. 510 507 A.2d 43 Heart and Act. Lung appealed (1986) v. Nether Township and Sidlow of 22, However, this decision on June Providence, 390, 153 621 A.2d Pa.Cmwlth. hearing a was not conducted until March (1993) 1105, 1110 opinion). (concurring 24, hearing examiner The concluded With of collateral regard principle that, pursuant to the doctrine of collateral estoppel, Compen- in Kohut v. Workmen’s estoppel, Claimant must be denied benefits sation For- Appeal (Township Lung Act of Heart ward), 1101 153 Pa.Cmwlth. 621 A.2d already she had denied un- been benefits (1993), petition appeal allowance der the Ac- of denied, (1993), Pa. 633 535 A.2d 154 cordingly, hearing the examiner recom- that: Court stated mended that be Heart denied By principle estop- Act of collateral benefits. order dated Under the September pel preclusion ques- adopted or issue “[w]here fact and tion is proposed findings judgment of conclusions of fact essential by a hearing actually litigated of law of the examiner accord- and determined or 3. Pursuant to Section 704 of Administra- whether it committed an error of law Law, Agency scope tive of review limit- our appellant's it violated the constitu- whether determining agency’s ed to whether the deci- § rights. tional 2 Pa.C.S. 704. evidence, supported by sion is substantial
45
nized that when a claimant’s benefits
judgment,
valid and final
the determina-
parties
tion is conclusive between the
terminated under the Workers’ Com-
been
cause
subsequent
action on a different
principle
of collateral
pensation
McCarthy
Township
of
v.
action.”
that claimant from re-
estoppel precludes
McCandless, 7
Ct.
Pa.Commonwealth
under the Heart and
ceiving benefits
(1973)
(quot-
300 A.2d
In that
a workers’
§
ing
Judgments
Restatement of
benefits,
claimant’s
judge terminated the
(1942))
judgment
prior
.._.
that
appealed.
and the claimant
While
operates
estoppel
action
the second
hearing
con-
appeal
pending,
was
action, however, only as to those issues
to determine
employer
ducted
(1)
(2)
actually
that
are identical
were
the claimant’s Heart and
whether
(3)
litigated
judg-
were essential to the
Act
should also be terminated.
(4)
adju-
ment and
were material
Employer determined that the WCJ’s deci-
dication.
was conclusive as to the claimant’s
sion
Id. at 1103.
that
claimant
disability and determined
Rodgers
Pennsylvania
State Po-
able to return to work. The claimant
lice,
(Pa.Cmwlth.2000),
Workers’ injuries alleges ical she she sustained NOW, or- AND working for the Board. That decision is Pennsylvania Board of Proba- der of the binding. is now seek final and September Parole dated 2003 is tion and Lung Act ing benefits under the Heart and hereby AFFIRMED. However, injuries. alleged
for those same
PELLEGRINI,
by
J.
Dissenting opinion
proof regarding
standard of
whether
is entitled to benefits for those
PELLEGRINI, Judge, dissenting.
injuries
is identical under
majority
respectfully
I
dissent from the
Act
Compensation
both the
directly contrary
decision because
Rodgers.
the Heart and
Be
opinions
other
of this Court. We
regarding
cause the issue
whether Claim
that collateral
consistently held
subjected
proved
ant
that she was
to ab
apply, even when the issue is
does not
working
normal
conditions and whether
agencies,
identical between administrative
to corroborate
presented
evidence
enforces different
agency
because each
ac
whether those conditions existed were
policy
consider-
laws that have
tually litigated during the workers’ com
end,
ations.
In the
“who” decides matters.
pensation proceedings, were essential
(Claimant)
In
Kim Heath
judgment
and were material
by
Pennsylvania
Board of
employed
adjudication, we must conclude that
(Parole Board)
Parole
as a
Probation and
principle
estoppel precludes
Prison. She
parole agent
Graterford
re-litigating whether she is enti
compen-
for
injuries
petition
filed a claim
workers’
tled to benefits
those
Therefore,
sation under the Workers’
Heart
Act.4
repeatedly sexu-
alleging
that she was
by denying
Board did not err
ally
supervisor
harassed
her immediate
under the Heart and
working
in a
Department
conditions.
In dicta and
Cantarella v.
Correc-
normal
footnote,
(Pa.Cmwlth.
also states that collateral
Waymart,
Cantarella
47
un-
benefits
to workers’
anxiety
tled
experience
her to
which caused
injuries she
pal-
psychological
Act for
pains,
into chest
heart
der the
that manifested
working for
anxiety attacks. She
sustained
alleged
pitations
ultimate-
collaterally
es-
by
psychologists
treated
two
she was
Parole
position.
forced to leave
the Pa-
ly was
from
seeking
from
benefits
topped
(WCJ)
Compensation
Workers’
Act
the Heart and
Board under
role
a work-re-
sustained
found
injuries, especially
alleged
for those same
of
work-
injury as a result
abnormal
lated
proof regarding
of
standard
when the
conditions,
appeal,
the Workers’
ing
but
entitled to benefits
whether Claimant
(WCAB) re-
Appeal Board
Compensation
injuries was identi-
for those
versed,
was no corrobo-
finding that there
disagree
I
those acts.
cal under both of
occurrences
alleged
rative
the doctrine of collateral
also found
The WCAB
of harassment.
seeking
a claimant
preclude
does not
had been
though Claimant
that even
Parole Board under
from the
benefits
re-
job after she
placed into a different
denied
even when
Heart
transfer,
no desk
and there was
quested
by the WCAB
benefits
assignments, this also
or office with few
can
no collateral
The reason there
be
an abnormal
did not constitute
agencies
administrative
estoppel between
Court,
to this
condition. On
agency
every administrative
is because
grounds.
but on different
affirmed
must be allowed
the Commonwealth
appealed
Supreme
ant
to the
Court
has to
agency
own acts. Each
enforce its
our decision and remanded
vacated
based
to make its own decisions
be able
matter to us to reconsider whether Claim-
estop-
If collateral
expertise.
upon its own
regard
claim
proved
ant
allowed,
agency’s hands would
one
pel was
claim.
sexual harassment
of
findings and conclusions
tied
be
remand,
majority
affirmed
make
being allowed to
another’s without
WCAB,
May
that in
of
it had
noting
findings and conclusions and
independent
by the administrative
been determined
to the facts.
expertise
its own
applying
process of the Parole Board that Claimant
Therefore,
granting
if it
bene-
even
means
com-
had not sustained
that was
agency under one
to a claimant
one
fits
under the Heart and
pensable
denied to that
they have been
act when
appeal-
had
It further noted that Claimant
agency under
by another
same claimant
22, 1998, but a
ed that decision on June
act,
have two differ-
it is better to
another
24, 2003.
not held until March
hearing was
rights
forego
than to
ent outcomes
time,
hearing examiner deter-
At that
finding by
fact
administra-
independent
already
had
that because Claimant
mined
acts.
one of its own
See
agency under
tive
under the Workers’
been denied benefits
Corrections,
Department
v.
Cantarella
(Act),
the doctrine
(Pa.Cmwlth.2003); Bortz v.
and he recom-
estoppel applied
collateral
Compensation Appeal
that she be denied benefits
mended
Industries),
(Reznor
Florida
Division of
Act. The Parole
the Heart
(Pa.Cmwlth.1995), affirmed,
A.2d 554
finding and denied
adopted
(1996);
A.2d 259
Schanz
546 Pa.
under the Heart
Correction,
Pa.Cmwlth.
Bureau
denial
appealed that
Lung Act. Claimant
*9
(Pa.Cmwlth.1980).
leging psychiatric She also filed
a claim for workers’ Department of Labor. While her pending
claim was before the Parole granted claim petition WCJ psychic injury.
for a The Parole Board
ultimately psychic denied her claim for a filed and denied her benefits. She arguing
an to this Court that the estoppel precluded
doctrine of collateral making contrary
the Parole Board from
findings Relying to those of the WCJ.
Cantarella, facts, also a case with similar held that the “doctrine
estoppel preclude does not the [Parole making findings contrary
Board] by a in a
those made collateral work- Scierka, compensation proceeding.”
ers’
Even two different on the same findings
make different based
information, estoppel pre- collateral cannot acting independently
vent them from conclusions. Because
come apply
collateral does not
case, I would remand the matter to the
Board to make a decision on the merits. any injury compensation for
1. Act of December P.L. and workers’ amended, (Act 632) § P.S. This sec- employment the course of sustained employee a correctional tion allows due an inmate. to the actions of paid salary, expenses institution to be medical