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FRANK MCDEVITT v. TERMINAL WAREHOUSE COMPANY AND SCOTT BROTHERS (08/09/85)

filed: August 9, 1985.

FRANK MCDEVITT, APPELLANT,
v.
TERMINAL WAREHOUSE COMPANY AND SCOTT BROTHERS, DIVISION OF PENNSYLVANIA TRUCK LINES, INC., APPELLEES



Appeal from Orders of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1841 October, 1968.

COUNSEL

George J. O'Neill, Philadelphia, for appellant.

Richard A. Kolb, Philadelphia, for Terminal Warehouse, appellee.

Roger B. Wood, Philadelphia, for Pennsylvania Truck Lines, appellee.

Wieand, Montemuro and Cercone, JJ.

Author: Wieand

[ 346 Pa. Super. Page 188]

If, in an action filed against a third party tortfeasor prior to February 5, 1975,*fn1 an employee obtains a verdict allowing

[ 346 Pa. Super. Page 189]

    a joint recovery against the third party tortfeasor and the employer, who was joined as an additional defendant, may the employee recover any part of his counsel fees from the employer or from the third party tortfeasor? We conclude, in keeping with the general rule, that the employee must pay his own counsel fees.

Frank McDevitt, an employee of Scott Brothers, was injured on November 1, 1966 while working in a warehouse complex owned by Terminal Warehouse Co. (Terminal) in Philadelphia. He filed a third party action against Terminal who, in turn, joined Scott Brothers as an additional defendant. In 1978, a jury verdict was returned in the amount of $200,000.00 against Terminal and Scott Brothers. The trial court granted a new trial, but the Superior Court, on appeal, reversed the trial court and reinstated the verdict of the jury. McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 450 A.2d 991 (1982) (reargument denied October 12, 1982; allocatur denied October 29, 1982). Judgment was entered on the verdict on November 12, 1982.*fn2 Terminal then filed a petition to modify the judgment, requesting that it be reduced by workmen's compensation benefits previously paid by Scott Brothers in the amount of $39,012.26. The trial court refused to modify the judgment and dismissed Terminal's petition. After an appeal had been filed, the trial court prepared a written opinion in which it conceded that under existing law it was required to satisfy the judgment to the extent that workmen's compensation benefits had been paid by the employer. The Superior Court remanded, and a partial satisfaction of the judgment was entered. McDevitt then appealed from the order directing partial satisfaction of the judgment.

While this appeal was pending in the Superior Court, McDevitt caused a writ of execution to issue against the

[ 346 Pa. Super. Page 190]

    employer's compensation carrier for $20,437.60. This was alleged to be a proportionate part of McDevitt's counsel fees and expenses for which Scott Brothers was liable in addition to benefits previously paid. The trial court, in response to preliminary objections, ordered that the execution be dismissed and that the judgment against Scott Brothers, which had been entered on the verdict of the jury, be marked satisfied. McDevitt filed a second appeal from this order. Both appeals were consolidated for argument.

Appellant argues that the satisfaction orders were improper because they failed to reflect an alleged right of the employee to be reimbursed in part for counsel fees and expenses incurred in prosecuting his third party action. The amount of $20,437.60, according to McDevitt's computations, represents the proportionate part of counsel fees and expenses attributable to the workmen's compensation benefits paid by Scott Brothers and "credited" to Terminal in determining the amount of Terminal's liability. Unless this portion of McDevitt's counsel fees and expenses can be collected from Scott Brothers or Terminal, McDevitt will be required to pay this amount. This, it is argued, is contrary to the provisions of Section 319 of the Workmen's Compensation Act. We disagree and, therefore, affirm the satisfaction orders of the trial court.

As a general rule, each party must pay his own counsel fees. Hankin v. Hankin, 338 Pa. Super. 442, 457, 487 A.2d 1363, 1371 (1985). In the absence of a statute allowing counsel fees, recovery of such fees will be permitted only in exceptional circumstances. Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 300-301, 344 A.2d 837, 842 (1975); Estate of Wanamaker, 314 Pa. Super. 177, 179, 460 A.2d 824, 825 (1983). One of the exceptional situations in which an apportionment of counsel fees will be made is where the work of counsel has created a fund for the benefit of others. Estate of Wanamaker, supra, 314 Pa. Superior ...


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