IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven Smith, : Petitioner :

:

v. : No. 2303 C.D. 2015

: SUBMITTED: May 13 , 2016 Workers' Compensation Appeal Board : (Consolidated Freightways : Corporation of Delaware ), : Respondent :

OPINION NOT REPORTED

MEMORANDUM OPINION

PER CURIAM FILED: July 5, 2016

Claimant, Steven Smith, petitions for review of a November 2015

order of the Workers’ Compensation Appeal Board that affirmed the April 2014

decision of Workers’ Compensation Judge (WCJ) David Henry denying

Claimant’s claim petition filed against Consolidated Freightways ( Employer or

Respondent) and, once again, alleg ing a February 1996 work injury

. W e affirm

and

, for the second time

, award costs and counsel fees incurred by Respondent to

defend this appeal against Claim a nt and his appellate counsel

, Mary Ellen

Chajkowski

, jointly and severally, for obdurate and vexat ious prosecution of a

frivolous appeal.

As an initial matter, we emphasize that the ins tant petition for review

is approximately the sixth time that Claimant has come before this Court

attempting to re

- litigate an alleged February 1996 work injury. By wa y of

background, we note:2 Claimant

. . . filed a May 1996 claim petition alleging

that he was disabled as a result of brief exposure to a

chemical on February 28, 1 996. After two hearings and a review of expert medical reports, WCJ Kathleen Vallely dismissed the claim petition. She also denied Claimant’s October 1997 petition to review medical treatment, wherein he sought to recover certain medical expense s alleged ly related to the February 1996 incident, concluding that his complaints were caused by a non

work

- related hiatal hernia. The Board affirmed both of WCJ Vallely’s orders and Claimant took no further appeals . Subsequently, [he] filed additional petitions involving the same February 1996 incident, all of which

amounted to an effort to re

- litigate the same alleged injury. Both the Pennsylvania and United States Supreme Courts have declined to consider his appeals

an d /or reque s ts for reconsideration

.

Smith v . Workers’ Comp

. Appeal B d. (Consol

. Freight) , 111 A.3d 235 , 236 (Pa.

Cmwlth.), appeal denied , 128 A.3d 1208 (Pa. 2015) (emphasis added).

Accordingly, in our March 2015 decision involving these same parties and the

same incident , we (1) determined that th e petitions therein at issue were barred by

the doctrines of collateral estoppel and res judicata ; and (2) awarded costs and

counsel fees pursuant to Pa. R.A.P. 2744 , jointly and severally, against both

Claimant and his appellate counsel for the obdurate a nd vexatious prosecution of a

frivolous appeal

. Id . at 238.

Mindful of the passage of twenty years since the initial May 1996

claim petition and the filing of yet another petition for review to this Court

regarding the same incident

, we are extremely troubled by the persistence of both

Claimant and his counsel to pursue this matter. As evidenced by counsel’s April

2016 application for oral argument, which this Court denied, neither Claim a nt nor

his counsel seem willing or able to accept clo sure in this matter. We are

co mpelled

, therefore, for a second time, to impose costs and counsel fees against3

both Claimant and his counsel for the ir obdurate and vexatious prosecution of a

frivolous appeal. Although Respondent did not avail itself of th e opportunity to

submit its fees and costs as this Court directed in our 2015 decision, 1 see id . at 238,

it has made a request in the present case for such fees and costs and,

unquestionably , they are once again warranted. Accordingly , we affirm the

Board ’s order and enter the attached order imposing costs and fees against

Claimant and his counsel, jointly and severally , for a persistent and somewhat

troubling refusal to ackno wledge their obdurate and vexatious prosecution of a n

appeal that has become exponentially frivolous

.

1 Respondent represented that it chose not to submit fees and costs pursuant to our March
2015 opinion because it did “not want to continue litigating this matter and hoped this Honorable
Court’s most recent Opinion would finally persuade Claim ant and Attorney Chajkowski to stop
filing petitions and appeals for the alleged February 28, 1996 work injury.” March 21, 2016,

Brief of Respondent at 6

- 7. Respondent further represent ed , however, that, “[s]adly, it is

apparent that Petitioner will not stop, as multiple petitions and appeals have been filed since the

March 9

, 2015 Opinion.” Id . at 7. Accordingly, Respondent made the request in the present
case, opining that “it is unfair for [it] to continue having to pay to defend itself from such

fri volous and outrageous petitions and appeals.” Id

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven Smith, : Petitioner :

:

v. : No. 2303 C.D. 2015

: Workers' Compensation Appeal Board : (Consolidated Freightways : Corporation of Delaware ), : Respondent :

PER CURIAM O R D E R

AND NOW, this 5th day of July, 201 6

, the order of the Workers ’

Compensation Appeal Board is hereby AFFIRMED. Further, we AWARD costs

and counsel fees incurred by Respondent to defend this appeal, jointly and

severally, against Petitioner/Claimant , Steven Smith, and his appellate counsel,

Mary Ellen Chajkowski, for the obdurate and vexatious prosecution of a frivolous

appeal . Respondent is ordered to file a detailed statement of those costs and fees

with this Court within thirty (3 0 ) days.