S. Smith v. WCAB (Consolidated Freightways Corp. of DE) ( 2017 )


Menu:
  •           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.
    

Document Info

Docket Number: S. Smith v. WCAB (Consolidated Freightways Corp. of DE) - 2098 C.D. 2016

Judges: PER CURIAM

Filed Date: 6/20/2017

Precedential Status: Precedential

Modified Date: 6/20/2017