H. Ray Pope, Jr., Clarion, for appellant.
Chester H. Byerly, New Bethlehem, for appellee.
Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 176 Pa. Super. Page 277]
On December 13, 1950, Doyle L. Judson and Floyd Judson, employes of Central Electric Cooperative, Inc., in the course of employment, were injured in an automobile accident. They received compensation under the provisions of the Workmen's Compensation Act from the insurance carrier for their employer company. On November 21, 1951, and after the Act of May 29, 1951, P.L. 507, 77 P.S. § 671 was in effect, suits were instituted by Attorney H. Ray Pope, Jr., on behalf of Doyle L. Judson and Floyd Judson in the Court of Common Pleas of Clarion County at Nos. 142 and 143, November Term, 1951, against Nancy R. Kester. At the time when the cases came up for trial, settlements were agreed upon totaling $15,500.
Since the injured men had previously received workmen's compensation, the insurance company, defendant here, was subrogated in the amount of $4,000, of which 25% was waived in order to secure settlements. The plaintiff received a percentage fee of the sums recovered for and paid to the injured men, but received no share of the $3,000 reimbursed to the insurance company. He now seeks a 25% fee from that sum. The court below entered judgment for the defendant.
The Act of May 29, 1951, P.L. 507, 77 P.S. § 671, provides that '* * * reasonable attorney's fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe * * *.' Concededly
[ 176 Pa. Super. Page 278]
this Act would permit recovery by the plaintiff were it not for the fact that the accident occurred before the passage of the law. The settlements, however, were agreed upon after the effective date of the Act, and plaintiff contends that the Act applies in this case.
Prior to this Act of 1951, the Act of 1945, 77 P.S. § 671, was in effect, which provided for the right of subrogation for the balance of any sum recovered in litigation or paid in compromise settlement 'after subtraction of reasonable attorney's fees and other proper disbursements'. This was construed by this Court in Kratsas v. Guest, 166 Pa. Super. 233, 70 A.2d 672, to exclude the right which plaintiff now seeks. The defendant maintains that the prior law is applicable here, on the theory that to apply the amended law would impair its vested contractual rights.
A statute is normally construed to operate prospectively only, especially where vested rights are affected. Martin v. Danko, 143 Pa. Super. 106, 18 A.2d 324; Malicks' Petition, 137 Pa. Super. 139, 8 A.2d 494. However, if a statute is curative, remedial or procedural only, it may be applicable to litigation instituted prior thereto but not completed. Bell Telephone Co. v. Pennsylvania Public Utility Commission, 130 Pa. Super. 514, 197 A. 783; Malicks' Petition, supra. If 'no vested right or contractual obligation is involved, an act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events which occurred prior to that date.' Burger Unemployment Compensation Case, 168 Pa. Super. 89 at page 94, 77 A.2d 737, at page 739.
The defendant had a vested right to be subrogated to whatever fund the employee might recover. That right was not altered in the slightest by the statutory amendment in question, which actually does nothing more ...