Appeal, No. 163, April T., 1961, from order of County Court of Allegheny County, No. A1914 of 1960, in case of Milton E. Wall, administrator of estate of Kenneth C. Paden, deceased, v. Conn Welding & Machine Company et al. Order affirmed.
Henry E. Rea, Jr., with him Brandt, Riester, Brandt & Malone, for appellants.
Paul Em Moses, with him Evans, Ivory & Evans, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 362]
This is a workmen's compensation case where the injury was caused by the negligence of a third party. The question before us is whether the employer is liable for the pro rata share of counsel fees based, not only on the amount of compensation already paid but also on the amount of future compensation the employer is relieved from paying as the result of a settlement obtained by the claimant against a third party tortfeasor.
There is no dispute about the facts in this case. On July 26, 1956, Kenneth C. Paden was an employe of the defendant-appellant, Conn Welding & Machine Company, and on that date was fatally injured by an accident in the course of his employment. He was survived by his widow and three minor children.
On August 27, 1956, an agreement was entered into with the defendant's insurance carrier providing for compensation for the widow and her three minor children in an amount payable as provided by the Workmen's Compensation Law. Since that date, the sum of $7,532.50 was paid or accrued to the claimant by way of legal installments on April 6, 1960, leaving a balance due in future payments under the agreement, of $10,297.04.
A civil action for the wrongful death of the decedent employe was instituted by Milton E. Wall, administrator of his estate, the appellee herein, and was settle on April 6, 1960, for the sum of $77,500. The agreement also include a full settlement of the subrogation interest of the defendant company and its insurance carrier.
[ 197 Pa. Super. Page 363]
The question to be decided by this appeal is whether claimant should be reimbursed for counsel fees on the basis of the proportionate share of the total amount of the compensation awarded, which would include the future compensation payments which the defendant was relieved of paying due to the settlement, or based only on the amount actually paid by the defendant's carrier up to the time of the settlement. The Workmen's Compensation Board held that the claimant was entitled to counsel fees proportionate to benefits received in the settlement of the action while included payment of future compensation in the sum of $10,297.04. The action of the board was affirmed by the County Court of Allegheny County and this appeal followed.
The original Workmen's Compensation Act of 1915, P.L. 736, provided in § 319 that the insurance carrier was entitled to recover by way of subrogation all monies paid by it to the claimant without deduction of any counsel fees paid by claimant in effecting such recovery. This section was amended by the Act of June 4, 1937, P.L. 1552, to provide for the payment of the proportionate share of the claimant's counsel fees. Conrad v. Aero-Mayflower Transit Co., 152 Pa. Superior Ct. 477, 33 A.2d 91 (1943). This was amended by the Act of May 18, 1945, P.L. 671, which required no payment of counsel fees by the employer where the third party ...