March 21, 1962
JOHN S. MARVIN BUILDING CO. ET AL.
Appeal, No. 275, Oct. T., 1961, from order of Court of Common Pleas of Tioga County, April T., 1961, No. 8, in the case of Lydia Christine Zuchowski, v. John S. Marvin Building Co. et al. Order reversed.
Thomas A. Walrath, for appellant.
Laurence H. Eldredge, with him John I. Christ and Alvan Baird, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 521]
OPINION BY WATKINS, J.
The facts in this case are almost identical to those contained in the case of wall v. Conn Welding & Machine Company, 197 Pa. Superior Ct. 360, 179 A.2d 235 (1962). The questions involved are the same and are disposed of by our opinion in that case.
Floyed Zuchowski was fatally injured by an accident in the course of his employment with the John S. Marvin Building Co. on June 1, 1959. A compensation agreement was executed with the insurance carrier providing for compensation for the widow and her three minor children, in the amount of $18,886.29.
An amicable action in trespass was filed against a third party tortfeasor and settled in the amount of $30,000. The sum of $1950 had already been paid to the claimant and the question raised was whether the claimant should be reimbursed for counsel fees on the proportionate share in the total amount of compensation, or on the amount accrued at the time of settlement, pursuant to Section 319 of the Workmen's Compensation Law, 77 PS § 671. The Workmen's Compensation Board held that the claimant was entitled to counsel fees proportionate to benefits received based on the total compensation provided for in the agreement. The court below reversed the Workmen's Compensation Board and directed that its order be modified to prorate counsel fees on the basis of the amount paid at the time of the agreement.
[ 197 Pa. Super. Page 522]
WRIGHT and WOODSIDE, JJ., would affirm upon the opinion of President Judge WEBB for the court below.
The order of the court below in modifying the order of the Workmen's Compensation Board as to counsel fees is reversed and the court below is directed to reinstate the order of the Workmen's Compensation Board.
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