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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND SALLY MCDONOUGH v. JOHN DEL VECCHIO AND BOROUGH CLARKS GREEN AND WILLIAM P. HEALEY AND JOHN DEL VECCHIO (02/09/76)

decided: February 9, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND SALLY MCDONOUGH, WIFE OF DANIEL J.
v.
JOHN DEL VECCHIO AND THE BOROUGH OF CLARKS GREEN AND WILLIAM P. HEALEY AND JOHN DEL VECCHIO, PARTNERS, T/A H & H SERVICE. JOHN DEL VECCHIO, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Sally McDonough, w/o Daniel J. v. John Del Vecchio, The Borough of Clarks Green, and William P. Healey & John Del Vecchio, Partners, t/a H & H Service, No. A-69743.

COUNSEL

Joseph A. Murphy, with him John R. Lenahan, Anthony J. Piazza and Lenahan, Dempsey & Murphy, for appellant.

Paul A. Barrett, with him James N. Diefenderfer, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 23 Pa. Commw. Page 246]

This is the appeal of an employer and its insurance carrier from the decision of the Workmen's Compensation Appeal Board directing them to reimburse a claimant for costs and attorney fees spent in obtaining a recovery against a third party of money to which the appellants were subrogated. We affirm the decision of the Board.

Daniel J. McDonough was killed in a motor vehicle accident while in the course of his work for the employer. A referee awarded workmen's compensation death benefits to his widow in the amount of $94.00 per week. The award was not appealed.

Mr. McDonough's widow brought a wrongful death and survival action against the third party, which, after trial was commenced, was settled for $53,250.00. Ms. McDonough had agreed with her counsel in the trespass suit to pay him one-third of the amount recovered before or after suit. Pursuant to an agreement between the widow-claimant and the appellants, the former filed a petition with the Workmen's Compensation Appeal Board that it determine the amount in which the claimant should be reimbursed by the defendant's carrier for the attorney fees and costs incident to the third party litigation.

The Board decided (1) that the appellants were entitled to subrogation in the full amount of the third party settlement, (2) that the fee agreed to by the claimant and her counsel was reasonable, (3) that the appellants should reimburse the widow for counsel fees at the rate of $31.33 per week for 558 weeks, and (4) that if the appellants persisted in their objection to certain trial costs amounting to $1,627.55 (which would require an additional reimbursement of $2.92 weekly for 558 weeks) the matter should be remanded to a referee for a determination of whether the costs were proper disbursements in the third party suit. The appellants persisted in their objections. After hearing, the referee found that the trial

[ 23 Pa. Commw. Page 247]

    costs were proper disbursements. The Board affirmed the referee and this appeal followed.

The defendant has taken this appeal, principally contending that the reimbursement provisions of Section 319 of the Workmen's Compensation Act*fn1 are unconstitutional. Section 319 provides:

"Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; 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, his personal representative, his estate or his dependents. The employer shall pay that proportion of the attorney's fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess of the compensation theretofore paid by the ...


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