S. Smith v. WCAB (Consolidated Freightways Corp. of DE)

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:

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 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 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

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,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 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 ORDER

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.