          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


                                        2
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.



                                                3
        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.
