J.E01003-17
                              2017 PA Super 340
CAROLYN RICKARD, ADMINISTRATRIX                   IN THE SUPERIOR COURT OF
OF THE ESTATE OF WILLIAM RICKARD,                       PENNSYLVANIA
DECEASED,

                         Appellant

                    v.

AMERICAN NATIONAL PROPERTY AND
CASUALTY COMPANY,

                         Appellee                      No. 774 WDA 2015


                 Appeal from the Order Entered April 28, 2015
              In the Court of Common Pleas of Allegheny County
                     Orphans’ Court at No(s): 6805-2014


BEFORE: BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON,
        DUBOW, MOULTON, and SOLANO, JJ.

DISSENTING OPINION BY BENDER, P.J.E.:              FILED OCTOBER 25, 2017

      I respectfully disagree with the Majority’s decision to reverse the order

denying Appellant’s Distribution Petition and its conclusion that collateral

estoppel does not apply to the instant matter.

      As the Majority indicates, because the Deceased’s accident was work-

related, the Welfare Fund paid $279,498.03 in related medical bills and

disability   payments.    Appellant   and   the    Deceased   had   commenced

bankruptcy proceedings prior to the accident; thus, the bankruptcy court

appointed counsel to prosecute the litigation regarding the accident and

retained the right to approve or disapprove any settlement reached during

the course of the Rickards’ bankruptcy.           In January of 2014, counsel

secured settlement for the full amount of the ANPAC underinsurance



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coverage, $250,000.00, and filed a motion with the bankruptcy court to

approve the settlement.1

      The Welfare Fund intervened and objected to any distribution of funds

to the Rickards.    According to the Welfare Fund’s plan (“the Plan”), its

subrogated interest in any settlement was superior to the interests of the

Rickards or their counsel. The bases for its argument rested on excerpts of

the terms governing the Plan:

      Any sums recovered by the Covered Individual … or their
      representative either by judgment, settlement, or any other
      means, and regardless of whether such sums are designated as
      reimbursement for medical expenses incurred or anticipated,
      past or future wage loss, pain and suffering, or any other form of
      damages, shall be applied first to reimburse the [Welfare
      Fund] in full and therefore shall be deducted first from
      any recovery by or on behalf of the Covered Individual.
Appellant’s Brief, 3/21/17, App. 2 (In re: William J. Rickard and Carolyn

M.   Rickard,   Bankr.   No.    10-24821-JAD    (Bankr.   W.D.Pa.   10/20/14),

Memorandum Opinion (“Bankruptcy Memorandum Opinion”), 10/20/14, at 4

(quoting from an audio recording of a hearing held in the matter) (emphasis

added in memorandum)). Further, the terms of the Plan indicate that the

Welfare Fund “will not be responsible for the Covered Individual’s attorney’s

fees or other costs unless the Welfare Fund has agreed in writing to pay

such fees or costs.” Id. at 7 (citation to record omitted).




1 The Rickards agreed to pay appointed counsel a contingency fee of up to
40% of any settlement secured on Mr. Rickard’s behalf. Thus, the proposed
distribution included payment of $100,000.00 to counsel; $1,000.00 to
bankruptcy counsel; and the remaining balance of $149,000.00 to Mr.
Rickard.


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        After litigation of the matter, the bankruptcy court concluded that the

Welfare Fund’s interest was superior to the interest of the Rickards and their

counsel. See id. at 5, 9. Accordingly, the court denied the Rickards’ motion

to approve settlement.      No appeal was taken from the bankruptcy court’s

decision.

        Shortly after the passing of her husband and dismissal of their

bankruptcy     case,   Appellant   commenced   a   wrongful   death   claim   for

underinsured benefits, pursuant to the Pennsylvania Wrongful Death Act, 42

Pa.C.S. § 8301,2 on behalf of herself and the Rickards’ minor daughter,

Sarah Rickard.    See Appellant’s Brief in Support of Wrongful Death Claim,

3/2/15, Exhibit “E”. Appellant’s counsel again secured a settlement

agreement with ANPAC, which re-issued a check for $250,000.00, payable to

Appellant, as administratrix of the Deceased’s estate. See Orphans’ Court

Opinion (“OCO”), 4/28/15, at 2 (unpaginated).          Appellant petitioned the

orphans’ court for distribution of these settlement funds 3 and, again, the



2
    Pursuant to the Pennsylvania Wrongful Death Act:

        An action may be brought, under procedures prescribed by
        general rules, to recover damages for the death of an individual
        caused by the wrongful act or neglect or unlawful violence or
        negligence of another if no recovery for the same damages
        claimed in the wrongful death action was obtained by the injured
        individual during his lifetime and any prior actions for the same
        injuries are consolidated with the wrongful death claim so as to
        avoid a duplicate recovery.
42 Pa.C.S. § 8301(a).
3 The Distribution Petition, filed on November 18, 2014, sought “distribution
of the funds under the Wrongful Death Act, with approximately $75,000
going to counsel, approximately $100,000 to [Appellant] (as the Widow),
and approximately $72,000 to the [Deceased’s] minor child.” Id.
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Welfare Fund intervened.       According to the Welfare Fund, by virtue of the

bankruptcy court’s prior decision, Appellant was collaterally estopped from

seeking distribution of the funds.      Moreover, the Welfare Fund re-asserted

its first priority lien on the funds.

      Following a hearing on the Distribution Petition, the orphans’ court

determined that the bankruptcy court’s decision controlled and, thus,

Appellant was estopped from seeking distribution of the settlement funds.

See id.    I agree with the orphans’ court that the doctrine of collateral

estoppel applies here and precludes our further consideration of Appellant’s

arguments.

      As held by the Pennsylvania Supreme Court:

             The doctrine of collateral estoppel precludes relitigation of
      an issue determined in a previous action if: (1) the issue
      decided in the prior case is identical to the one presented in the
      later action; (2) there was a final adjudication on the merits; (3)
      the party against whom the plea is asserted was a party or in
      privity with a party in the prior case; (4) the party or person
      privy to the party against whom the doctrine is asserted had a
      full and fair opportunity to litigate the issue in the prior
      proceeding; and (5) the determination in the prior proceeding
      was essential to the judgment. Collateral estoppel relieves
      parties of the cost and vexation of multiple lawsuits, conserves
      judicial resources, and, by preventing inconsistent decision,
      encourages reliance on adjudication.
Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47, 50-51 (Pa.

2005) (internal citations omitted).

      I respectfully    disagree    with the   Majority’s   conclusion that the

requirements for collateral estoppel have not been met. First, the Majority

asserts that the issue before us is whether the Welfare Fund’s subrogation

claim attaches to a wrongful death beneficiary’s recovery under the


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Pennsylvania Wrongful Death Act, and that this issue was not before the

bankruptcy court.        Accordingly, the Majority concludes that the first two

prongs of the test for collateral estoppel have not been met.           To the

contrary, the dispositive issue before this Court, as it was before the

bankruptcy court, is whether the Welfare Fund’s subrogated interest in any

settlement, as defined by the Plan’s governing terms, is superior to the

interests of the Rickards or their counsel.          Following a full and fair

opportunity to litigate this issue, the bankruptcy court ruled in favor of the

Welfare Fund. Its ruling is final. Accordingly, Appellant is estopped from re-

litigating this issue.

      The Majority further states that the third prong has not been met

because Appellant’s claim involves different parties than were involved in the

bankruptcy proceedings.        This is simply inaccurate.   The relevant party

involved in the prior proceedings was the Deceased, the named insured and

designated recipient of the ANPAC settlement funds, as well as the

beneficiary of the Welfare Fund’s medical benefits. Here, the only relevant

party of record is Mrs. Rickard, solely in her capacity as administratrix of her

deceased husband’s estate.4        Thus, the parties involved are the same or

sufficiently in privity as to satisfy the requirements of the doctrine.    See

Ammon v. McCloskey, 655 A.2d 549, 554 (Pa. Super. 1995) (noting “[i]n

its broadest sense, ‘privity’ is defined as mutual or successive relationships

to the same right of property, or such an identification of interest of one

person with another as to represent the same legal right”) (citation omitted).



4 Neither Mrs. Rickard, on her own behalf, nor Ms. Sarah Rickard are parties
to this appeal.
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                              2017 PA Super 340
      Finally, the last element of collateral estoppel has clearly been met,

since the determination of the issue regarding the Welfare Fund’s lien

priority was essential to the bankruptcy court’s ruling.

      For these reasons, I would affirm the April 18, 2015 order denying

Appellant’s Distribution Petition.

      Judge Panella and Judge Lazarus join this dissenting opinion.




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