          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven Smith,                            :
                      Petitioner         :
                                         :
             v.                          :   No. 2098 C.D. 2016
                                         :   SUBMITTED: April 13, 2017
Workers' Compensation Appeal             :
Board (Consolidated Freightways          :
Corporation of Delaware),                :
                  Respondent             :


OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                 FILED: June 20, 2017

             Claimant, Steven Smith, petitions for review of a December 2016
order of the Workers’ Compensation Appeal Board that affirmed the September
2015 decision of Workers’ Compensation Judge (WCJ) Cheryl Ignasiak denying
Claimant’s July 2015 review petition filed against Consolidated Freightways
(Employer or Respondent) and, once again, alleging a February 1996 work injury.
We affirm and, for the third 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 seventh 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. Freightways Corp. of Delaware),
111 A.3d 235, 236 (Pa. Cmwlth.), appeal denied, 128 A.3d 1208 (Pa. 2015)
(emphasis added).
            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. In July 2016, this Court determined, once again, that Claimant
and his counsel were attempting to relitigate an alleged February 1996 work injury
and, for a second time, awarded costs and counsel fees incurred by Respondent to
defend that appeal against Claimant and his appellate counsel, Mary Ellen
Chajkowski, jointly and severally, for obdurate and vexatious prosecution of a
frivolous appeal.   Smith v. Workers’ Comp. Appeal Bd. (Consol. Freightways
Corp. of Delaware), (Pa. Cmwlth., No. 2303 C.D. 2015, filed July 5, 2016), appeal
denied, (Pa., No. 331 WAL 2016, filed January 23, 2017).




                                         2
               As this Court observed in July 2016: “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.”
Id., slip op. at 2. In this regard, the Board in its December 2016 decision stated:
               It is clear that Claimant and his attorney continue to
               pursue an aggressive and litigious approach to the alleged
               work injury. . . . No work injury has ever been
               recognized by [Respondent] nor granted by a WCJ or any
               appellate level court. Claimant has simply re-filed a
               Review Petition for an incident that has already been
               decided to have not caused disability or injury.
Board’s December 2, 2016, Decision at 4.
               Mindful of the foregoing, we address Respondent’s request for costs
and counsel fees. Although it did not avail itself of the opportunity to submit its
fees and costs as this Court directed in both our 2015 or 2016 decisions,1
Respondent has made a request in the present case for such fees and costs and,
unquestionably, they are once again warranted. In light of the problematic conduct
of both Claimant and his counsel, we are compelled for a third time to impose
costs and counsel fees against both of them for their obdurate and vexatious
prosecution of a frivolous appeal. Accordingly, just as we did in July 2016, we


    1
       Respondent represented that it chose not to submit fees and costs pursuant to either our
March 2015 or July 2016 opinions because it “did not want to continue litigating this matter and
hoped that the Commonwealth 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, 2017, Brief of Respondent at 8. Respondent further represented, however,
that, “[s]adly, it appears that Claimant will not stop, as appeals have been filed since the
Commonwealth Court’s [July 5, 2016] opinion.” Id. 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
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
troubling refusal to acknowledge their obdurate and vexatious prosecution of an
appeal that continues to be exponentially frivolous.




                                         4
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Smith,                            :
                   Petitioner            :
                                         :
            v.                           :   No. 2098 C.D. 2016
                                         :
Workers' Compensation Appeal             :
Board (Consolidated Freightways          :
Corporation of Delaware),                :
                  Respondent             :



PER CURIAM                            ORDER


            AND NOW, this 20th day of June, 2017, 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 fourteen (14) days.
