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THOMAS P. HARRINGTON v. WORKMEN'S COMPENSATION APPEAL BOARD AND CITY PHILADELPHIA (09/03/74)

decided: September 3, 1974.

THOMAS P. HARRINGTON, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND THE CITY OF PHILADELPHIA, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas P. Harrington v. City of Philadelphia, No. A-66739.

COUNSEL

Kirk T. Karaszkiewicz, with him Gerald A. Gleeson, Jr. and Montgomery, McCracken, Walker & Rhoads, for appellant.

Nicholas Panarella, Jr., Assistant City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee, of the City of Philadelphia.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 15 Pa. Commw. Page 120]

Thomas P. Harrington, a Lieutenant of the Philadelphia Fire Department, was seriously injured in an automobile accident while driving his car home from work on January 20, 1970. He had been ordered to report to a new fire station assignment on that date. Because his so-called running gear, consisting of a coat, boots, helmet, uniforms and toilet articles, was at home, he used his personal car to get to work. He testified that his running gear was too bulky to transport by public transportation.

Mr. Harrington filed claim for compensation under Regulation 32 of the Philadelphia Civil Service Commission,

[ 15 Pa. Commw. Page 121]

    subsection 32-022 of which provides compensation for injuries "caused by accident . . . which is service connected." In Harrington v. Civil Service Commission, 4 Pa. Commonwealth Ct. 580, 287 A.2d 912 (1972), we held that Mr. Harrington's injuries were not sustained while he was within the scope of his employment and, hence, were not service connected as Regulation 32 requires. Our Supreme Court denied Mr. Harrington's petition for allowance of appeal.

The case is now before us upon Mr. Harrington's claim for compensation pursuant to The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, 77 P.S. § 411, which provides compensation for injuries sustained "while the employee is actually engaged in the furtherance of the business or affairs of the employer." Section 301(c) of the Act, 77 P.S. § 411. The referee, without mention of this court's decision in the Regulation 32 case, concluded that Mr. Harrington was in the course of his employment and awarded compensation. The Workmen's Compensation Appeal Board reversed the referee and dismissed Mr. Harrington's petition on the ground that our prior decision was binding by reason either of res judicata or collateral estoppel. Mr. Harrington has appealed.

The claim under Regulation 32 is a different cause of action from a claim under The Pennsylvania Workmen's Compensation Act, although the law relating to both, as we shall point out, is the same. The claimant is not therefore barred by res judicata.

It seems to us, however, that he is precluded by collateral estoppel. Section 70 of the Restatement Judgments reads: " Where a question of law essential to the judgment is actually litigated and determined by a valid and final personal judgment, the determination is not conclusive between ...


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