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DESCAMP ESTATE. (12/05/61)

December 5, 1961

DESCAMP ESTATE.


Appeal, No. 246, March T., 1961, from decree of Orphans' Court of Allegheny County, No. 5270 of 1940, in re estate of Judith Ruth Descamp, a minor. Affirmed.

COUNSEL

Robert W. McWhinney, with him Goehring, McWhinney & Grubbs, for appellant.

Daniel J. Parent, with him Joseph H. Kifer, and Arthur E. Ashton, for Veterans' Administration, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Musmanno

[ 405 Pa. Page 332]

OPINION BY MR. JUSTICE MUSMANNO.

Judith Ruth Descamp is the helpless stepchild of a deceased war veteran of the United States. About a year before the minor's eighteenth birthday, her guardian was notified by the Veterans' Administration and Social Security Administration that all benefits payable in her behalf by those agencies would cease as of her eighteenth birthday. The guardian, Pittsburgh National Bank, appealed from this decision to the agencies involved. Counsel was engaged to press the claims of the ward. The appeals were successful and counsel charged a fee of $1100 for his services. The guardian paid the amount, but at the audit of its account in the Orphans' Court of Allegheny County the Veterans' Administration, as an interested party under the Act of April 24, 1929, P.L. 647, 20 PS § 788, filed exceptions to payment of the $1100 fee, asserting that the maximum amount payable to attorneys in the circumstances indicated was $10, as specified by the Act of Congress of September 2, 1958, P.L. 85-857, 72 Stat. 1238-1239, 38 U.S.C.A. §§ 3404, 3405.

The Court sustained the position of the Veterans' Administration and surcharged the guardian in the amount of $1090, giving the guardian credit for the $10 allowed by the Act of Congress. The guardian appealed.

Section 3404 of the Act of 1958 above referred to provides in part: "(a) The administrator may recognize any individual as an agent or attorney for the preparation, presentation, and prosecution of claims under laws administered by the Veterans' Administration... (c) The Administrator shall determine and pay fees to agents or attorneys recognized under this section in allowed claims for monetary benefits under laws administered by the Veterans' Administration. Such fees (1) shall be determined and paid as prescribed

[ 405 Pa. Page 333]

    by the Administrator; (2) shall not exceed $10 with respect to any one claim; and (3) shall be deducted from monetary benefits claimed and allowed." (Emphasis supplied.)

The appellant contends that this statutory provision was not binding on counsel because he did not apply to be recognized under Section 3404 and that, therefore, not being recognized, the limitation under (c)(2) cannot influence his standing. The interpretation asked for by counsel would lead to the absurdity that attorneys not formally recognized could obtain a greater amount of compensation than those recognized by the Veterans' Administration. This would mean that by remaining without the walls of protection erected for the disabled veteran, one could obtain a larger fee than those who enter by the gate and submit themselves to Congressional regulation and direction. Certainly Congress never intended such stultification.

Nor could the effect of the Congressional Act under consideration be avoided by the fact that counsel employed "the services of the Disabled American Veterans' representative to conduct the ...


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