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, alleging a February 1996 work injury. We affirm 

and, for the second time, award costs and counsel fees incurred by Respondent to 

defend this appeal against Claimant and his appellate counsel, Mary Ellen 

Chajkowski, jointly and severally, for obdurate and vexatious prosecution of a 

frivolous appeal.

As an initial matter, we emphasize that the instant 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 way 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, 1996. 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 expenses

allegedly related to the February 1996 incident, 

concluding that his complaints were caused by a nonwork-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 

and/or requests for reconsideration.

Smith v. Workers’ Comp. Appeal Bd. (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 the 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 and 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 Claimant nor 

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

compelled, therefore, for a second time, to impose costs and counsel fees against 
3

both Claimant and his counsel for their obdurate and vexatious prosecution of a 

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

submit its fees and costs as this Court directed in our 2015 decision,1see 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 acknowledge their obdurate and vexatious prosecution of an 

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 Claimant 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 represented, 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 

frivolous 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, 2016, 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 (30) days.