35 Pa. Commw. 300 | Pa. Commw. Ct. | 1978
Opinion by
This case, an appeal of an order of the Workmen’s Compensation Appeal Board (Board) awarding counsel fees to respondent, arises out of workmen’s compensation proceedings wherein the employer sought to terminate benefits to Samuel Lerner (claimant).
Respondent, an attorney, was hired by claimant to represent him at these proceedings on September 26, 1971; claimant died on December 21,1971. Respondent continued to represent the estate (of which petitioner, the brother of the claimant, was appointed administrator) in the workmen’s compensation action. On November 14, 1972 respondent and the employer’s insurance company agreed to a stipulation of facts and a proposed payment of |4,800. The petitioner orally agreed to accept the agreement that same day and the following day the agreement was presented to the referee. However, when the written agreement (with the amount of payment increased to $5,000) was presented to petitioner for his signature he delayed signing it for a period of five months. Finally on April 19, 1973 petitioner informed respondent that he would not sign the agreement and instead requested the re
Petitioner throughout has regrettably misread The Pennsylvania Workmen’s Compensation Act
Petitioner first argues that this award was improper because there was no prior approval of the agreement between claimant and counsel by the Board or referee. He relies on a decision of the Board dated October 2, 1975 which dismissed the respondent’s petition on the ground there had been no prior approval of counsel fees. However, that decision did nothing more than state the proper procedure under Section 501 required respondent to file his claim with the Department of Labor and Industry (which was subsequently done). See Richman v. Workmen’s Compen
Alternatively, petitioner argues that respondent, having breached his contract by withdrawing from the case, should not be permitted to share in the award of compensation made after his withdrawal. This argument, however, misstates allegations in respondent’s petition which were not denied by petitioner, and the legal basis to support respondent’s award of counsel fees. These factual allegations show that respondent had negotiated and petitioner had agreed to a settlement on November 14, 1972 and that respondent’s petition for counsel fees was based on the amount of work actually performed by respondent on behalf of his client up to January 1,1973. While petitioner could and in fact did repudiate his initial agreement to the settlement, he could not by so doing deprive counsel of a reasonable fee for the amount of services he did render. See Sundheim v. Beaver County Building & Loan Association, 140 Pa. Superior Ct. 529, 14 A.2d 349 (1940) (allocatur refused). For this reason we also find petitioner’s assertion that Section 442 of the Act, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §998,
Similarly we are not persuaded by petitioner’s assertion that the Board is without authority under Section 501 to award counsel fees plus interest in the proper ease. Moreover, we believe, sufficient facts are in the record, undisputed by petitioner to conclude the award of interest in this case was “reasonable” and
Accordingly, we will enter the following
Order
And Now, May 16, 1978, the order of the Workmen’s Compensation Appeal Board, dated November 5, 1976 at Docket No. C.F. 2384, is affirmed and it is directed that judgment be entered in favor of Herald J. Haas, Esquire and against the Estate of Samuel Lerner, Deceased and/or Sidney S. Lerner, M.D;, in the sum of $1,460 plus interest at the rate of six per cent per year from January 1, 1973 until the date of payment.
And Now, June 21, 1978 upon petition of Sidney S. Lerner, M.D., the order of this Court in the above captioned matter, dated May 16,1978, is hereby amended to state that reference in such order to Sidney S. Lerner, M.D., is to him solely in his capacity as Administrator of the Estate of Samuel Lerner, deceased, and not to Sidney S. Lerner, M.D., personally.
Act óf June 2, 1915, P.L. 736, as amended, 77 P.S. |1 et seq. (Hereinafter referred to as Act.)
Respondent has not argued, nor do we find it necessary to decide, the issue of the retroactivity of Section 442 to injuries occurring prior to the effective date of the 1972 amendments.