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CONNIE L. LANDIS v. ZIMMERMAN MOTORS (10/26/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 26, 1976.

CONNIE L. LANDIS, APPELLANT
v.
ZIMMERMAN MOTORS, INC. AND WORKMEN'S COMPENSATION APPEAL BOARD, APPELLEES

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Connie Landis, Widow of Johnathan Landis v. Zimmerman Motors, Inc., No. A-70162.

COUNSEL

Richard M. Serbin, with him Barron & Zimmerman, for appellant.

Joseph P. Green, with him Litke, Gettig, Flood, Lee & Martin, and James N. Diefenderfer, for appellees.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 27 Pa. Commw. Page 100]

This appeal from a decision of the Workmen's Compensation Appeal Board (Board) which, inter alia, dismissed a withdrawn petition for allowance of counsel fees filed by Connie L. Landis (claimant) concerns Sections 501*fn1 and 442*fn2 of The Pennsylvania Workmen's Compensation Act (Act). We affirm.

After the death of her husband on January 4, 1973, claimant entered into a compensation agreement with Zimmerman Motors, Inc. (Zimmerman) which purported to determine her rights to compensation. Subsequently, Zimmerman filed a petition for review of compensation agreement, alleging a mistake as to claimant's eligibility for compensation. In particular, Zimmerman asserted that claimant had not been living with her husband at the time of his death.*fn3 Claimant filed an answer denying any mistake and averring that her separation from her husband was well known to Zimmerman prior to the execution of the compensation agreement. At the hearing before the referee, claimant's attorney developed a record which tended to support this position; however, he did not place any claim for counsel fees in the record.

The referee decided that compensation should continue, but he made no provision for fees. Thereafter, both parties appealed, the claimant petitioning the Board for the allowance of counsel fees and Zimmerman appealing from the denial of its petition for review.

[ 27 Pa. Commw. Page 101]

A hearing was held by the Board, but before it could act on the appeals a letter was filed by claimant's attorney withdrawing the petition for fees.*fn4 In its opinion, the Board dismissed Zimmerman's appeal and without discussion dismissed claimant's petition for fees. This appeal followed.*fn5

This Court has previously held that the right to receive the fees in question is controlled by Sections 442 and 501 of the Act and that such claims must be presented in accordance with those sections for approval by the referee or the Board. Workmen's Compensation Appeal Board v. Leuschen, 21 Pa. Commonwealth Ct. 39, 342 A.2d 810 (1975); Richman v. Workmen's Compensation Appeal Board, 16 Pa. Commonwealth Ct. 594, 329 A.2d 920 (1975). Section 442 provides:

All counsel fees, agreed upon by claimant and his attorneys, for services performed in matters before any referee or the board, whether or not allowed as part of a judgment, shall be approved by the referee or board as the case may be, providing the counsel fees do not exceed twenty per centum of the amount awarded. The official conducting any hearing, upon cause shown, may allow a reasonable attorney fee exceeding twenty per centum of the amount awarded at the discretion of the hearing official.

In cases where the efforts of claimant's counsel to produce a result favorable to the claimant but where no immediate award of compensation is made such as in cases of termination or suspension

[ 27 Pa. Commw. Page 102]

    the hearing official shall allow or award reasonable counsel fees, as agreed upon by claimant and his attorneys, without regard to any per centum. (Emphasis added.)

Section 501 similarly states, inter alia, that "[n]o claim or agreement for legal services or disbursements in support of any claim for compensation, or in preparing any agreement for compensation . . . shall be an enforceable lien against the amount to be paid as compensation, or be valid or binding in any other respect, unless the same be approved by the board." (Emphasis added.)

These sections provide that claims for fees for legal services performed in matters before any referee or the Board or in preparing any compensation agreement or in support of any claim for compensation must be presented to either the referee or the Board for approval, regardless of the party against whom collection is sought. See Leuschen, supra, 21 Pa. Commonwealth Ct. at 45, 342 A.2d at 815; Richman, supra, 16 Pa. Commonwealth Ct. at 597, 329 A.2d at 922. In the instant case, neither procedure was followed; claimant made no request for attorney's fees to the referee and withdrew her petition before the Board had acted on it. It is therefore patent that the claim for fees cannot be allowed on this record.

Accordingly, we enter our

Order

Now, this 26th day of October, 1976, that portion of the order of the Workmen's Compensation Appeal Board denying counsel fees to Connie L. Landis, claimant in the above captioned matter, is affirmed.

Disposition

Affirmed.


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