Act and where there is the "opportunity for presentation of evidence with regard to mitigation and/or aggravation of sanction." (N.T. 6/27/96, p. 124). As Alcorn stated: "The responding health care practitioner is provided an opportunity to challenge both the violation of the law as well as to present mitigation evidence with regard to sanction." (N.T. 6/27/96, p. 124).
Once the hearing examiner has issued a decision and a sanction, the physician has 20 days in which to file an application for review to either the State Board of Medicine or the State Board of Osteopathic Medicine or the State Board of Podiatry. At the review hearing, the physician may present new additional evidence. If the physician is unhappy with this review, and with the BPOA's final determination, then the physician may appeal the decision to the Commonwealth Court within 30 days. (N.T. 6/27/96, p. 128-130).
The following additional facts were brought out during the testimony of Alcorn: 1) The prosecuting attorney and the adjudicator (the hearing examiner) are both in the same agency, the BPOA. (N.T. 6/27/96, p. 133); 2) There are no agency guidelines which a prosecutor must follow when deciding whether to prosecute a case once the file has been transferred to the individual prosecutor (N.T. 6/27/96, p. 135); 3) To the extent the hearing examiner or the board find that a health care provider has failed to pay the surcharge, regardless of the reason, a violation of the Act exists and, according to Mr. Alcorn, "1301. § 701(f) calls for suspension or revocation of licenses." (N.T. 6/27/96, p. 141); 4) If the board determines that a physician's failure to pay was due to inability to pay, such evidence could mitigate the punishment and decrease the suspension's severity. (N.T. 6/27/96, p. 144-45).
Plaintiffs concede that suspensions are only effective after a hearing examiner makes a decision, and that if a physician appeals his suspension, he can freely practice until the board has held its hearing and rendered a decision. (N.T. 8/29/96, p.16-20).
III. CONCLUSIONS OF LAW
Considering the procedural history and facts of this case, especially the fact that the plaintiffs' suit was brought in federal court immediately after the plaintiffs were denied the same request in state court, defendants contend that the prior Commonwealth Court decision has a preclusive effect as to the pending motion for a preliminary injunction. Defendants phrase their argument as either res judicata (claim preclusion) or collateral estoppel (issue preclusion). Whichever principle of preclusion applies,
because the judgment under consideration was of a state court, Pennsylvania's law of preclusion must govern. See, e.g., Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir. 1988) ("A federal court applying preclusion principles is bound by the Full Faith and Credit statute, 28 U.S.C. § 1738, and must give a prior state judgment the same effect as would the adjudicating state." (footnote omitted)).
For issue preclusion, Pennsylvania requires that "1) the issue decided in the prior case must be identical to the issue in the present case, 2) there was a final judgment on the merits; 3) the issue must be essential to the judgment; 4) the party against whom estoppel is asserted must have had a full and fair chance to litigate on the merits; and 5) the party against whom estoppel is asserted must be a party or in privity with a party in the prior case." Farley v. Zoning Hearing Bd., 161 Pa. Commw. 229, 636 A.2d 1232, 1237 (Pa. Commw. 1992) (quoting City of Pittsburgh v. Zoning Bd. of Adjustment, 522 Pa. 44, 559 A.2d 896 (Pa. 1989)), appeal denied, 651 A.2d 554 (Pa. 1994).
The only disputed issue regards the nature of a preliminary injunction ruling. As the plaintiffs note, a preliminary injunction ruling is typically of no preclusive effect because it is not a judgment on the merits and "by definition it is a temporary remedy granted until that time when the party's [sic] dispute can be completely resolved." In re Appeal of Little Britain, 651 A.2d 606, 611 (Pa. Commw. 1994), appeal denied, 663 A.2d 696 (Pa. 1995). The cases cited by plaintiffs, and most of the cases on the subject of the preclusive effect of preliminary injunction rulings, involve an attempt to use a prior preliminary injunction ruling to determine a final substantive point in either the same case or in another case. Here, however, defendants argue only that the prior preliminary injunction ruling should have preclusive effect as to a subsequent preliminary injunction proceeding. Defendants are not arguing that the prior preliminary injunction ruling should have any preclusive effect on consideration of the merits of the case at the final hearing.
Very few cases, from either federal or Pennsylvania courts, have even mentioned this issue. Defendants point to Farley, 636 A.2d at 1237, in which the Commonwealth Court held that a federal court decision denying a motion for preliminary injunction collaterally estopped plaintiffs from pursuing similar claims in state court. The Farley decision is less helpful than it appears, because the federal court, in the same ruling denying the motion for a preliminary injunction, granted defendants' motion for summary judgment. Id. at 1235. The Farley court specifically noted that the plaintiffs in the federal action "had full and fair opportunity to litigate the [precluded] issues on the merits; and their disposition was essential to the district court's final judgment that [the plaintiffs] were not entitled to a preliminary injunction or a temporary restraining order." Id. at 1237. The court then held that "the doctrine of collateral estoppel bars the challenges [of the unsuccessful federal plaintiffs]." Id. at 1237. The court found plaintiffs' claims barred completely, not just as they related to a motion for preliminary injunction. Given the limited nature of a preliminary injunction ruling, the state court's decision probably hinges upon the fact that the earlier federal ruling also involved consideration and granting of a motion for summary judgment.
Three federal cases--useful because the standard for collateral estoppel appears universal--support the proposition that a preliminary injunction ruling has preclusive effect with regard to subsequent motions for preliminary injunction. First, in Lyon Ford, Inc. v. Ford Marketing Corp., 337 F. Supp. 691 (E.D.N.Y. 1971), the court faced a motion for preliminary injunction based on the same facts as a prior preliminary injunction motion that had been denied. The court noted:
In considering the right to a preliminary injunction, the plaintiff would have the court disregard all the proceedings in 71-C-347 [a companion case] where a preliminary injunction was denied. This contention disregards the present New York rule of collateral estoppel, which forbids a party from litigating an issue a second time if it has been decided in a prior action where there was a full and fair opportunity to contest the matter. . . . Plaintiff had a full and fair opportunity to present the facts in the hearings on a preliminary injunction in 71-C-347. No new facts have been shown here.