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SIDNEY S. LERNER v. COMMONWEALTH PENNSYLVANIA (05/16/78)

decided: May 16, 1978.

SIDNEY S. LERNER, M.D., ADMINISTRATOR OF THE ESTATE OF SAMUEL LERNER, DECEASED, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, PHILADELPHIA PSYCHIATRIC CENTER, PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY AND GERALD J. HAAS, ESQ., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Samuel L. Lerner v. Philadelphia Psychiatric Hospital, No. A-69972.

COUNSEL

Sidney S. Lerner, M.D., petitioner, for himself.

Gerald J. Haas, with him James N. Diefenderfer, for respondents.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 35 Pa. Commw. Page 301]

This case, an appeal of an order of the Workmen's Compensation Appeal Board (Board) awarding counsel fees to respondent, arises out of workmen's compensation proceedings wherein the employer sought to terminate benefits to Samuel Lerner (claimant).

Respondent, an attorney, was hired by claimant to represent him at these proceedings on September 26, 1971; claimant died on December 21, 1971. Respondent continued to represent the estate (of which petitioner, the brother of the claimant, was appointed administrator) in the workmen's compensation action. On November 14, 1972 respondent and the employer's insurance company agreed to a stipulation of facts and a proposed payment of $4,800. The petitioner orally agreed to accept the agreement that same day and the following day the agreement was presented to the referee. However, when the written agreement (with the amount of payment increased to $5,000) was presented to petitioner for his signature he delayed signing it for a period of five months. Finally on April 19, 1973 petitioner informed respondent that he would not sign the agreement and instead requested the respondent

[ 35 Pa. Commw. Page 302]

    to secure an agreement from the insurance company to pay an additional $160 for certain medical bills. Respondent refused to seek this additional sum and withdrew from the case. Hearings were held with the petitioner appearing pro se and following a series of appeals an award was made of $6,271.10 representing compensation of $4,911.43 and the balance in interest. Respondent filed a petition with the Department of Labor and Industry asking for payment for approximately 20 hours of legal work on the claim. This petition was granted by the Board in the amount of $1,460 plus interest at the rate of 6 per cent per annum from January 1, 1973 until the date of payment. From this award petitioner appeals.

Petitioner throughout has regrettably misread The Pennsylvania Workmen's Compensation Act*fn1 which makes it difficult for us to sift the wheat from the chaff in determining and properly disposing of the issues he has raised. As we apprehend the matter, the only real issue in this case is whether the Board had the authority under Section 501 of the Act, 77 P.S. ยง 1021, to approve the fee.

[ 35 Pa. Commw. Page 303]

Petitioner first argues that this award was improper because there was no prior approval of the agreement between claimant and counsel by the Board or referee. He relies on a decision of the Board dated October 2, 1975 which dismissed the respondent's petition on the ground there had been no prior approval of counsel fees. However, that decision did nothing more than state the proper procedure under Section 501 required respondent to file his claim with the Department of Labor and Industry (which was subsequently done). See Richman v. Workmen's Compensation Page 303} Appeal Board, 16 Pa. Commonwealth Ct. 594, 329 A.2d 920 (1973).

Alternatively, petitioner argues that respondent, having breached his contract by withdrawing from the case, should not be permitted to share in the award of compensation made after his withdrawal. This argument, however, misstates allegations in respondent's petition which were not denied by petitioner, and the legal basis to support respondent's award of counsel fees. These factual allegations show that respondent had negotiated and petitioner had agreed to a settlement on November 14, 1972 and that respondent's petition for counsel fees was based on the amount of work actually performed by respondent on behalf of his client up to January 1, 1973. While petitioner could and in fact did repudiate his initial agreement to the settlement, he could not by so doing deprive counsel of a reasonable fee for the amount of services he did render. See Sundheim v. Beaver County Building & Loan Association, 140 Pa. Superior Ct. 529, 14 A.2d 349 (1940) (allocatur refused). For this reason we also find petitioner's assertion that ...


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