IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dave Scavello, :
Petitioner :
:
v. : No. 1499 C.D. 2021
: Submitted: August 19, 2022
Wal-Mart Associates, Inc. :
(Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: June 20, 2023
Dave Scavello (Claimant), proceeding pro se, petitions for review of the
November 5, 2021 Order of the Workers’ Compensation Appeal Board (Board) that
affirmed Workers’ Compensation Judge Eric Pletcher’s (WCJ Pletcher) Decision
denying and dismissing Claimant’s pro se Claim Petition (Petition) against Wal-
Mart Associates, Inc. (Employer) on the basis that it was barred by the doctrine of
res judicata and the statute of limitations.1 The Board agreed with WCJ Pletcher that
1
Claimant filed a pro se letter, followed by an Ancillary Petition for Review, with this
Court, in which he challenged a Board Decision that he received November 12, 2021. The Board
issued two decisions on November 5, 2021, one resolving Claimant’s appeal at docket A20-0861
(related to the denial of pro se reinstatement and review petitions), and one resolving Claimant’s
appeal at docket A20-0459 (relating to the denial of the instant pro se Petition). By order dated
March 31, 2022, this Court indicated it would consider Claimant’s challenge to the Board’s
Decision at A20-0861 at docket number 1447 C.D. 2021, and directed Claimant to file a separate
petition for review if he sought to challenge the Board’s Decision at A20-0459. (Order, March 21,
2022.) Claimant did so, and this challenge was docketed at this docket number, 1499 C.D. 2021.
the Petition sought to relitigate issues already decided in Claimant’s prior workers’
compensation (WC) litigation, particularly Scavello v. Workers’ Compensation
Appeal Board (Wal-Mart Associates, Inc.) (Pa. Cmwlth., No. 742 C.D. 2019, filed
January 17, 2020) (Scavello I), and was filed more than three years after the March
16, 2016 incident making it untimely pursuant to Section 315 of the Workers’
Compensation Act2 (Act), 77 P.S. § 602. Discerning no error in these conclusions,
we affirm.
I. BACKGROUND
Scavello I, this matter, and a separate petition for review filed by Claimant at
docket number 1447 C.D. 2021, all arise out of a March 16, 2016 injury Claimant
sustained while at work.
A. Scavello I
This Court, in Scavello I, set forth the facts of Claimant’s injury, as follows.
On March 16, 2016, Claimant, while working for Employer,
sustained a work-related injury to his right hand/wrist in the nature of a
contusion. Employer accepted liability for Claimant’s work-related
injury by issuing a medical-only notice of compensation payable [(MO-
NCP)], which described the accepted work-related injury as a right [ ]
hand contusion. On August 18, 2016, Employer filed [a t]ermination
[p]etition, alleging that Claimant had fully recovered from his work-
related injury as of July 12, 2016. Thereafter, on September 8, 2016,
Claimant filed [a r]eview [p]etition, seeking to amend the description
of his work-related injury to include a “crush injury of the hand and
wrist[,] including, but not limited to, [complex regional pain syndrome]
[(]CRPS[)].”2
[FN] 2. On March 2, 2017, Claimant filed another petition for
review and a claim petition related to partial disability and the
calculation of his average weekly wage in connection with
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602.
2
concurrent employment. As Claimant withdrew his March 2,
2017 claim and review petitions, we do not discuss either petition
in this opinion.
Scavello I, slip op. at 2 & n.2 (citations omitted) (first through fifth alterations
added). Hearings were held before WCJ Alan Harris (WCJ Harris), at which
Claimant testified and offered the deposition testimony of Gene V. Levinstein, M.D.,
in an attempt to establish that Claimant had suffered a crush injury to his right wrist
and hand, as well as a Reflex Sympathetic Dystrophy Syndrome (RSD) or CRPS, as
a result of the March 16, 2016 work incident. Id., slip op. at 3-4. Dr. Levinstein
agreed with Employer’s expert, Amir Fayyazi, M.D., that Claimant’s right hand
contusion had resolved. Id., slip op. at 4. Employer offered the testimony of Dr.
Fayyazi who, after performing an independent medical examination (IME) on
Claimant, opined Claimant had recovered from his work-related right hand/wrist
injuries and did not suffer from CRPS. Id., slip op. at 6-7. WCJ Harris denied both
the termination petition and the review petition, rejecting Dr. Levinstein’s opinion
that Claimant suffered from RSD/CRPS and accepting Dr. Fayyazi’s contrary
opinion. Id., slip op. at 7. However, WCJ Harris rejected Dr. Fayyazi’s opinion
regarding Claimant being recovered from all work injuries as of the date of the IME
because Claimant could still have been symptomatic as of the date of the IME. Id.
Claimant did not appeal the denial of his review petition to the Board, but
Employer appealed the denial of the termination petition. Id., slip op. at 7 & n.5.
The Board reversed, noting that the credited medical evidence, Dr. Levinstein’s
testimony, did not support a finding that Claimant had not fully recovered from his
right hand contusion by September 9, 2016. Id., slip op. at 7. Claimant appealed to
this Court, arguing the Board erred in reversing the denial of the termination petition
and suggesting WCJ Harris erred in denying the review petition. Id. We disagreed,
3
holding the Board did not err in concluding that WCJ Harris’s finding that Claimant
was not fully recovered from the work-related right hand contusion was not
supported by substantial evidence. We held that substantial evidence was lacking
because both physicians had opined Claimant was fully recovered from that injury,
WCJ Harris did not reject Dr. Levinstein’s testimony on that injury, and WCJ
Harris’s rejection of Dr. Fayyazi’s opinion was based on WCJ Harris’s own beliefs
about Claimant’s condition, which were not supported by the record. Id., slip op. at
8-9. On Claimant’s argument related to the review petition, this Court indicated the
denial of the review petition had not been appealed to the Board and, therefore, that
petition was not before the Court. Id., slip op. at 7 n.5 & 8. Claimant filed a petition
for allowance of appeal to the Pennsylvania Supreme Court, which was
administratively dismissed on April 24, 2020 due to Claimant’s failure to submit a
compliant petition. (WCJ Pletcher’s Decision, Finding of Fact (Pletcher FOF)
¶ 11.3)
3
Specifically, WCJ Pletcher found:
By correspondence dated February 12, 2020, the Supreme Court of Pennsylvania
advised the parties, namely Claimant, that it received a Petition for Allowance of
Appeal but that it was found to be defective and listed the corrections that shall be
made by March 3, 2020. By February 28th, the Supreme Court again noted that if
Claimant [did] not submit a fully compliant Petition for Allowance of Appeal by
March 20, 2020, the case w[ould] be closed due to failure to perfect. By
correspondence dated April 24, 2020, the Supreme Court advised that the matter
was closed due to Claimant’s failure to perfect.
(Pletcher FOF ¶ 11; see also Correspondence between Supreme Court and Claimant, Ex. D-01,
Item 15 of the Certified Record.)
4
B. Current Petition
On April 3, 2020, Employer submitted a Petition to seek approval of a
Compromise and Release Agreement (Compromise and Release Petition), a hearing
on which was scheduled for May 4, 2020. (Id. ¶ 1.) Claimant’s then-counsel (prior
counsel) sought to withdraw as counsel on April 6, 2020, which WCJ Pletcher
granted on the same date. (Id.) A second attorney (new counsel) entered his
appearance on Claimant’s behalf on April 13, 2020.
Claimant, without the knowledge of new counsel, filed the Petition on April
16, 2020, asserting he sustained an injury in the nature of “Sensory Nerve Damage,
Contusion, Stiffness and CRPS” while working for Employer on March 16, 2016.
(Petition at 1.4) Claimant avers he stopped working on September 27, 2017, and
sought wage loss benefits, including from concurrent employment. (Id. at 2-3.)
Employer filed an Answer, admitting that Claimant had sustained a right hand/wrist
contusion at work on March 16, 2016, denying that any other injuries occurred that
are causally related to his work, and asserting that Claimant had been adjudicated
fully recovered from the contusion. (Answer at 1.5) Employer further denied the
Petition’s other material allegations, including that Claimant was entitled to any
wage loss (or other) benefits related to the March 16, 2016 incident. (Id. at 2-4.)
Employer maintained the Petition was an “effort[] to re[]litigate issues that have
already been fully litigated and decidedly unfavorably for Claimant. The [] Petition
should be barred on the basis of res judicata.” (Id. at 3.) The Petition was assigned
to WCJ Pletcher for disposition.
Thereafter, Employer requested that the Compromise and Release Petition be
marked withdrawn as the parties no longer had a settlement, which WCJ Pletcher
4
The Petition is found at Item 2 of the Certified Record.
5
The Answer is found at Item 4 of the Certified Record.
5
granted on April 29, 2020. (Pletcher’s FOF ¶ 4.) New counsel requested to
withdraw, as he had been representing Claimant pro bono only as to the Compromise
and Release, not the Petition, which Claimant confirmed at a May 4, 2020 hearing.
(Id. ¶¶ 5-6.) WCJ Pletcher granted new counsel’s request to withdraw. (Id. ¶ 6;
Conclusion of Law (Pletcher COL) ¶ 2.)
C. WCJ Pletcher’s Decision
At a May 4, 2020 hearing, WCJ Pletcher reviewed the prior litigation of
Claimant’s March 16, 2016 work-related injury and stated he was bound by WCJ
Harris’s Decision as to whether Claimant suffered CRPS as part of that injury or
suffered a wage loss, neither of which were appealed or otherwise reversed by any
court. (Hr’g Tr. at 7-10.6) Claimant responded that he could not accept a settlement
that was based on a contusion when he had suffered more serious injuries, for which
he had medical support. (Id. at 11-12, 15.) Claimant further stated prior counsel
misrepresented him and was supposed to appeal those determinations but had not.
(Id. at 11.) WCJ Pletcher explained again he was bound by the prior determinations,
which found that Claimant had not sustained a nerve injury and limited the work
injury to a right hand/wrist contusion and Claimant’s complaints related to prior
counsel were not for WCJ Pletcher to hear. (Id. at 12.) Claimant stated, “I know
that you can’t change anything,” but Claimant could not agree to the injury being
described as a contusion. (Id. at 15-16.) Employer moved for WCJ Pletcher to deny
and dismiss the Petition on the basis of res judicata and collateral estoppel. (Id. at
13.)
6
The hearing transcript for the May 4, 2020 hearing is found at Item 13 of the Certified
Record.
6
On May 6, 2020, WCJ Pletcher issued a decision that, after reviewing the prior
litigation of Claimant’s March 16, 2016 work injury, i.e., Scavello I, and the
Petition’s allegation, denied the Petition on the basis that it was barred by res
judicata. In doing so, WCJ Pletcher noted that Claimant had previously filed, in
Scavello I, a review petition alleging an incorrect description of his work injury and
seeking to amend the description to include CRPS, the same injury Claimant sought
to add in the current Petition. (Pletcher FOF ¶¶ 7-8.) WCJ Pletcher also indicated
Claimant had filed, and then withdrew, claim and review petitions, alleging wage
loss from concurrent employment in that prior litigation before WCJ Harris in
Scavello I.7 (Id. ¶ 8.) WCJ Pletcher found that WCJ Harris had rejected Claimant’s
7
Relevant to Claimant’s claims of wage loss, WCJ Harris found:
FINDINGS OF FACT
....
4. On March 2, 2017, [] Claimant filed a Petition to Review which alleged an
incorrect Average Weekly Wage based on concurrent employment. This petition
has now been withdrawn.
5. Also on March 2, 2017, [] Claimant filed a Claim Petition which alleged he was
suffering wage loss because he had partial disability due to his concurrent
employment. As the concurrent employment petition[] has been withdrawn, this
petition shall also be marked withdrawn.
....
CONCLUSIONS OF LAW
....
4. [] Claimant has failed to prove by sufficient, competent, and credible evidence
that he suffers any wage loss as a result of his injury.
5. The Claim Petition and Review Petitions concerning wage loss and concurrent
employment are dismissed.
(Footnote continued on next page…)
7
attempt to expand the description of his work-related injury to include RSD or CRPS
and Employer’s attempt to terminate Claimant’s benefits, and that only the latter
finding was reversed by the Board, which noted that the claim and review petitions
had been withdrawn. (Id. ¶¶ 8-9.) The Board’s determination thereafter was
affirmed by this Court in Scavello I, and Claimant’s petition for allowance of appeal
was dismissed by the Supreme Court on April 24, 2020. (Id. ¶¶ 10-11.)
Based on this history, WCJ Pletcher found Employer had
[a]cknowledged a medical[-]only injury and while there was litigation
alleging wage loss, [WCJ] Harris specifically found that Claimant
failed to prove he suffered any wage loss as a result of his injury and
this was never appealed. Furthermore, Claimant’s allegation of nerve
injury/CRPS was previously litigated before [WCJ] Harris which was
also denied. Finally, the appeal process established that Claimant was
fully recovered from his work injury as of September 9, 2016.
(Id. ¶ 12.) WCJ Pletcher also concluded that the Petition, filed in April 2020 alleging
an injury date of March 16, 2016, also was barred by the statute of limitations set
forth in Section 315 of the Act. (Id.) Accordingly, WCJ Pletcher denied and
dismissed the Petition. (Id. ¶ 13; Pletcher COL ¶ 3.)
D. Board’s Decision
Claimant appealed WCJ Pletcher’s Decision, arguing he was still receiving
treatment for his right hand, which he related to the March 16, 2016 work injury,
and his prior counsel misrepresented Claimant in the prior litigation. (Claimant’s
Appeal to the Board at 1.8) Claimant indicated he could not accept Employer’s
(WCJ Harris’s Decision, Findings of Fact ¶¶ 4-5, and Conclusions of Law ¶¶ 4-5, Ex. J-01, Item
16 of the Certified Record.)
8
Claimant’s Appeal to the Board is found at Item 6 of the Certified Record.
8
settlement offer “because the injury description is wrong. [He does not] have a
Contusion. [He has] sensory nerve damage,” and WCJ Pletcher should have fully
reviewed the case. (Id.) Attached to his appeal were additional medical records,
which Claimant asserted supported his claim of a work injury beyond a right hand
contusion. Employer filed a Motion to Quash Claimant’s appeal because it
represented Claimant’s “attempt to relitigate issues that have been thoroughly
resolved in multiple rounds of litigation before” WCJs, the Board, and the
Commonwealth Court. (Employer’s Motion to Quash Appeal at 1.9) Employer
further argued the appeal did not comply with the Board’s regulation at 34 Pa. Code
§ 111.11(a) for a number of reasons.
Upon its review, the Board found no error in WCJ Pletcher’s conclusion that
the Petition was barred by res judicata because “the issues raised in [the] instant []
Petition were previously litigated and resolved before WCJ Harris,” including
findings that Claimant failed to prove that he suffered a wage loss due to the work
injury or that he sustained CRPS, neither of which Claimant appealed. (Board
Opinion (Op.) at 4-5.10) In contrast, the Board observed, Employer appealed WCJ
Harris’s denial of its termination petition, which was reversed by the Board and
affirmed by this Court. (Id. at 5.) The Board reasoned that, at that time, it was finally
“established that Claimant fully recovered from his March 16, 2016[] work injury,
limited to a right hand contusion, as of September 9, 2016.” (Id. at 5.) Because the
current “Petition alleg[es] a March 16, 2016[] nerve injury/CRPS involv[ing] an
issue already litigated and resolved” to final judgment in a matter involving the same
parties, the Board upheld the application of res judicata and collateral estoppel to
deny and dismiss the Petition. (Id. at 5-6.) The Board further held claim petitions
9
Employer’s Motion to Quash Appeal is found at Item 8 of the Certified Record.
10
The Board’s Decision is found at Item 9 of the Certified Record.
9
are required to be filed within three years of the date of the injury under Section 315
of the Act, and the April 16, 2020 Petition was untimely having been filed more than
three years after the alleged date of injury, March 16, 2016.11 (Id. at 4.) Claimant
now petitions this Court for review.12
II. DISCUSSION
A. Parties’ Arguments
Claimant relevantly argues13 on appeal that WCJ Harris’s finding that
Employer did not establish Claimant’s full recovery renders Employer liable for
Claimant’s work injuries, for which Claimant still receives treatment. (Claimant’s
Brief (Br.) at 3-4, 7.) Claimant asserts WCJ Harris’s Decision on that point is
binding and acts as res judicata. (Id. at 7.) As at the May 4, 2020 hearing, Claimant
asserts he could not sign the Compromise and Release Agreement because it was
11
It is unclear where Employer raised this issue; however, Claimant did not, and does not,
argue that it was not properly raised.
12
This Court’s scope of review “is limited to determining whether necessary findings of
fact are supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated.” Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936
A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).
13
Claimant’s brief focuses on the initial litigation of the March 16, 2016 injury, including
the evidence presented therein, WCJ Harris’s Decision, and this Court’s opinion in Scavello I. He
cites medical records he claims support his claim of an expanded injury from which he is not fully
recovered. Claimant also alleges Employer has been negligent and treated him improperly, as well
as his desire to settle his claims. As this Court is reviewing only the Board’s Decision upholding
WCJ Pletcher’s Decision, we consider only those arguments that could possibly relate to the
present petition for review challenging the Board’s Decision in this matter. Further, to the extent
Claimant cites extra-record evidence, the Court will not consider anything beyond that is contained
the record certified to it by the Board. See Pennsylvania Rule of Appellate Procedure 1951(a),
Pa.R.A.P. 1951(a) (The record below in proceedings on petition for review “shall consist of . . .
(1) [t]he order or other determination of the government unit sought to be reviewed[;] (2) [t]he
findings or report on which such order or other determination is based[; and] (3) [t]he pleadings,
evidence and proceedings before the government unit.”); see also Brown v. Unemployment Comp.
Bd. of Rev., 276 A.3d 322, 331 n.13 (Pa. 2022) (“It is well settled that this Court may not consider
extra-record evidence that is not part of the certified record on appeal.”) (citation omitted).
10
based on his work injury being a contusion, which it is not, and was not a fair
settlement offer for the nerve injury that he had sustained. (Id. at 5.) Claimant
requests, among other relief, that his case be remanded to WCJ “Harris for a full
review.” (Id. at 10.)
Employer argues the Board did not err in affirming WCJ Pletcher’s denial and
dismissal of the Petition on the bases of res judicata and collateral estoppel, as well
as for being untimely. On the issue of res judicata and collateral estoppel, Employer
asserts the Petition reflects Claimant’s attempt to relitigate issues that were already
decided before WCJ Harris and this Court in Scavello I. (Employer’s Br. at 5-7.)
On the issue of the Petition’s timeliness, Employer contends there is no dispute the
Petition was not filed within three years of March 16, 2016, and, therefore, is not
timely under Section 315 of the Act. (Id. at 5.) Employer maintains there is no basis
to reverse the Board where Claimant’s constitutional rights were not violated
because he received all the process he is due, the Board’s Decision was in accordance
with both Section 315 of the Act and precedent applying the doctrine of res judicata,
and there has been no allegation that the findings of fact were not supported by
substantial evidence. (Id. at 4-5.) Finally, Employer requests the Court to sanction
Claimant for filing a frivolous appeal and repeatedly attempting to litigate his now-
final WC claim, which reflects “dilatory, obdurate, and vexatious conduct,” by
ordering Claimant to pay Employer’s attorney’s fees and costs pursuant to
Pennsylvania Rule of Appellate Procedure 2744, Pa.R.A.P. 2744 (Rule 2744).
(Employer’s Br. at 7-10.)
B. Analysis
We begin with whether the Board erred in affirming WCJ Pletcher’s
conclusion that res judicata barred the Petition or whether, as Claimant contends,
11
WCJ Harris’s conclusion that Employer did not establish that Claimant was fully
recovered and his ongoing treatment for CRPS requires reversal. This Court has
described the doctrine of res judicata as follows:
The doctrine of res judicata encompasses both technical res judicata and
collateral estoppel. Maranc v. Workers’ Comp[.] Appeal B[d.]
(Bienenfeld), 751 A.2d 1196, 1199 (Pa. Cmwlth. 2000). Collateral
estoppel forecloses litigation of specific issues of law or fact that have
been litigated and were necessary to a previous final judgment. Id.
Technical res judicata forecloses litigation between the same parties on
a cause of action that has already been resolved in a final judgment. Id.
Generally, causes of action are identical when “the subject matter and
ultimate issues are the same in both the old and new proceedings.” Id.
The doctrine of res judicata applies both to matters that were actually
litigated and to matters that could have been litigated. Id.
Cytemp Specialty Steel v. Workers’ Comp. Appeal Bd. (Crisman), 39 A.3d 1028,
1034 (Pa. Cmwlth. 2012). Upon review of the Petition, the certified record, and the
Scavello I litigation, we discern no error in the Board and WCJ Pletcher’s
determinations.
The Petition asserts that, on March 16, 2016, Claimant sustained work-related
injuries to his hand and wrist in the nature of “Sensory Nerve Damage, Contusion,
Stiffness and CRPS,” which caused him a loss of earnings as of September 27, 2017.
(Petition at 1-2.) As in the current Petition, Claimant averred in the review petition
filed in the Scavello I litigation that his work-related injury included CRPS. (WCJ
Harris’s Decision, Finding of Fact ¶ 3.) Similarly, in the prior litigation, Claimant
filed, and then withdrew, claims that he suffered a wage loss due to the work injury,
albeit related only to his concurrent employment. (Id. ¶¶ 4-5.) WCJ Harris
concluded Claimant had not established that he suffered a wage loss. (WCJ Harris’s
Decision, Conclusion of Law (Harris COL) ¶ 4.) The doctrine of res judicata bars
12
not only claims that were litigated but claims that could have been litigated. Cytemp
Specialty Steel, 39 A.3d at 1034 (citing Maranc, 751 A.2d at 1199).
Accordingly, “the subject matter and ultimate issues,” which are the nature
and extent of Claimant’s March 16, 2016 work injury and whether Claimant suffered
a wage loss due to his work injury, were “the same in both the old and new
proceedings.” Id. (citing Maranc, 751 A.2d at 1199). Further, the resolution of these
issues was necessary to the final judgment in the Scavello I litigation because they
resulted in WCJ Harris denying Claimant’s review petition (seeking to expand the
injury) and dismissing the review and claim petitions (seeking to recover wage loss
benefits from his concurrent employment). (Harris COL ¶ 5.)
This leaves the question of “final judgment” in the previous litigation.
Claimant appears to assert that WCJ Harris’s finding that Claimant was not fully
recovered was the final, binding judgment, while simultaneously disregarding WCJ
Harris’s findings that Claimant did not establish an injury beyond the accepted right
hand contusion or that he suffered a wage loss. (Id. ¶¶ 2-4.) However, because
Claimant did not appeal WCJ Harris’s Decision, WCJ Harris’s rejection of
Claimant’s attempt to expand his work injuries to include CRPS and assert a wage
loss became final on those issues. See Section 423 of the Act, 77 P.S. § 853
(providing 20 days to file an appeal to the Board from a WCJ’s adjudication); Pa.
Tpk. Comm’n v. Workers’ Comp. Appeal Bd. (Collins), 709 A.2d 460, 463-64 (Pa.
Cmwlth. 1998) (holding issues not raised before the Board are waived). See also
Scavello I, slip op. at 2 n.2, 7 n.5 (noting that Claimant’s withdrawn claim and review
petitions related to his concurrent employment were not before the Court, nor was
the denial of the review petition seeking to expand the work injury due to Claimant’s
failure to appeal WCJ Harris’s Decision).
13
Finally, Claimant continues to rely on WCJ Harris’s finding that Employer
had not established Claimant’s full recovery from his work injury as if it was the
final judgment on the status of Claimant’s recovery. However, WCJ Harris’s finding
was reversed by the Board, and this reversal was upheld by this Court in Scavello
I. Although Claimant attempted to file a petition for allowance of appeal with the
Supreme Court, he never perfected that petition, and it was dismissed. Accordingly,
this Court’s affirmance of the Board’s order in Scavello I is the final judgment on
the issue of whether Claimant was fully recovered, which occurred as of September
9, 2016. Thus, the final judgments on the extent and nature of Claimant’s March 16,
2016 work injury, whether he had recovered from that injury, and whether he
sustained a loss of wages due to that injury, were all made against Claimant. Those
final judgments are binding and cannot be relitigated or challenged even though
Claimant disagrees with them. “Finality of litigation is essential so that parties may
rely on judgments in ordering their private affairs and so that the moral force of court
judgments will not be undermined.” Clark v. Troutman, 502 A.2d 137, 139 (Pa.
1985). We acknowledge Claimant asserts a wage loss beginning September 27,
2017, but this alleged wage loss occurred more than a year after he was found to
have fully recovered from the work-related injury, which was found, finally, to have
not caused any wage loss. For these reasons, the Board did not err in affirming
WCJ Pletcher’s dismissal of Claimant’s attempts to relitigate these same issues
through the Petition on the basis of res judicata.
Even if res judicata did not bar the Petition, we discern no error in the
conclusion that the Petition was untimely pursuant to Section 315 of the Act. Section
315 states, in pertinent part: “In cases of personal injury all claims for compensation
shall be forever barred, unless . . . within three years after the injury, one of the
14
parties shall have filed a petition as provided” by the Act. 77 P.S. § 602 (emphasis
added). Section 315 further provides: “Where, however, payments of
compensation have been made in any case, said limitations shall not take effect
until the expiration of three years from the time of the making of the most
recent payment prior to date of filing such petition.” Id. (emphasis added). Under
the first provision, to be timely, the Petition had to have been filed by March 16,
2019, and it was not. Further, even if the second provision was to apply, to have
been timely, the Petition had to have been filed by September 9, 2019, three years
after the last date benefits arguably could have been paid because Claimant was
found to have been fully recovered as of September 9, 2016, and it was not.
Accordingly, there was no error in finding the Petition was untimely.
Having concluded there was no error in finding that the Petition is barred by
res judicata and Section 315 of the Act, we turn to Employer’s request for attorney’s
fees and costs pursuant to Rule 2744. That rule provides:
In addition to other costs allowable by general rule or Act of Assembly,
an appellate court may award as further costs damages as may be just,
including
(1) a reasonable counsel fee and
(2) damages for delay at the rate of 6% per annum in addition to
legal interest,
if it determines that an appeal is frivolous or taken solely for delay or
that the conduct of the participant against whom costs are to be imposed
is dilatory, obdurate or vexatious. The appellate court may remand the
case to the trial court to determine the amount of damages authorized
by this rule.
Pa.R.A.P. 2744. A frivolous appeal is “one in which ‘no justifiable question has
been presented and . . . [that] is readily recognizable as devoid of merit in that there
15
is little prospect of success.’” Pa. Dep’t of Transp. v. Workmen’s Comp. Appeal Bd.
(Tanner), 654 A.2d 3, 5 (Pa. Cmwlth. 1994) (quoting Hewitt v. Commonwealth, 541
A.2d 1183, 1184-85 (Pa. Cmwlth. 1988)). An appeal asking this Court to reassess
credibility determinations and reweigh the evidence, which this Court lacks the
authority to do, may be a frivolous appeal. Bryn Mawr Landscaping Co. v. Workers’
Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1256-57 (Pa. Cmwlth. 2019).
“[V]exatious conduct” is conduct that is “without reasonable or probable cause or
excuse; harassing; annoying.” MFW Wine Co., LLC v. Pa. Liquor Control Bd., 276
A.3d 1225, 1240 (Pa. Cmwlth. 2022) (internal citations and emphasis omitted).
“[O]bdurate conduct” is that which is “stubbornly persistent in wrongdoing,” and
“[c]onduct is dilatory where the record demonstrates . . . a lack of diligence that
delayed proceedings unnecessarily and caused additional legal work.” Id. (internal
citations and emphasis omitted).
While Employer’s frustration with Claimant’s filings is understandable, we
are not persuaded that awarding attorney’s fees and costs under Rule 2744 is
warranted at this time. This appeal, and the corresponding appeal docketed at 1447
C.D. 2021, are the first instances where this Court is addressing Claimant’s attempts
to relitigate the claims raised, and rejected, in the Scavello I litigation. Under these
circumstances, the Court declines to impose a sanction against Claimant and denies
Employer’s request. However, having now advised Claimant that claims relating to
the nature and extent of his March 16, 2016 work injury and whether he suffered a
wage loss related to that work injury have been finally resolved and cannot be
16
relitigated and are time barred, Claimant is cautioned that future attempts to do so
may result in the imposition of the above-referenced fees and damages.14
III. CONCLUSION
In summary, because the Petition attempts to relitigate issues against
Employer that were finally decided in Employer’s favor in the Scavello I litigation
and was untimely under Section 315 of the Act, the Board did not err in affirming
WCJ Pletcher’s denial and dismissal of the Petition. Accordingly, we affirm the
Board’s Order.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
14
While the Supreme Court, in Phillips v. Workmen’s Compensation Appeal Board
(Century Steel), 721 A.2d 1091, 1094 (Pa. 1999), held that attorney’s fees under Rule 2744 may
generally not be imposed against a claimant, Phillips left the door open for an award of attorney’s
fees under certain circumstances. In Phillips, an employer sought attorney’s fees under Rule 2744,
arguing the claimant’s appeal challenging the credibility determinations made by the WCJ was
frivolous. Although this Court granted the request, the Supreme Court reversed, holding that
public policy provided claimants protection from the costs from litigation, but did not provide an
employer similar protection. Phillips, 721 A.2d at 1094. As part of its reasoning, however, the
Supreme Court acknowledged the employer’s argument that attorney’s fees could be awarded
under Rule 2744 and Patel v. Workmen’s Compensation Appeal Board (Saquoit Fibers Company),
520 A.2d 525 (Pa. Cmwlth. 1990). Phillips, 721 A.2d at 1094 & n.3. The Supreme Court indicated
the exception in Patel, which involved the award of attorney’s fees against a claimant who had
patently abused the appellate process by filing multiple claim petitions relating to the same injury
and appealing each after the claims were rejected on the basis of res judicata, was a narrow one
not implicated in Phillips. Id. (citing Callahan v. Workmen’s Comp. Appeal Bd. (Bethlehem Steel
Corp.), 571 A.2d 1108, 1111 n.3 (Pa. Cmwlth. 1990). Subsequently, in Smith v. Workers’
Compensation Appeal Board (Consolidated Freightways), we explained the Supreme Court’s
discussion of Patel in Phillips recognized the availability of attorney’s fees in circumstances like
those in Patel. Smith, 111 A.3d 235, 238 (Pa. Cmwlth.) (per curiam) (citing Phillips, 721 A.2d at
1094 n.3), petition for allowance of appeal denied, 128 A.3d 730 (Pa. 2015). As the situation in
Smith involved a claimant who repeatedly litigated and appealed the same claim over five times
thereby implicating the defenses of res judicata and collateral estoppel, this Court held the
imposition of attorney’s fees under Rule 2744 was warranted pursuant to Patel. Smith, 111 A.3d
at 238.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dave Scavello, :
Petitioner :
:
v. : No. 1499 C.D. 2021
:
Wal-Mart Associates, Inc. :
(Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
NOW, June 20, 2023, the Order of the Workers’ Compensation Appeal Board
entered in the above-captioned matter is AFFIRMED. Wal-Mart Associates, Inc.’s
request for attorney’s fees and costs pursuant to Pennsylvania Rule of Appellate
Procedure 2744, Pa.R.A.P. 2744, is DENIED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge