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LEIGHTON HILL v. WORKMEN'S COMPENSATION APPEAL BOARD (J. F. JUDSKI ASSOCIATES) (07/11/88)

decided: July 11, 1988.

LEIGHTON HILL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (J. F. JUDSKI ASSOCIATES), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Leighton Hill v. J. F. Judski Associates, No. A-90039.

COUNSEL

Richard H. Roesgen, Roesgen, Larrabee & Brown, for petitioner.

Gregory D. Geiss, Dougherty, Mundy and Leventhal, for respondent, J. F. Judski Associates.

Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 117 Pa. Commw. Page 541]

Before the Court is the appeal of Leighton Hill, Claimant, seeking review of an order of the Workmen's Compensation Appeal Board (Board), which sustained a decision of a referee granting subrogation in favor of J. F. Judski Associates, Employer, out of a fund realized by Claimant by the settlement of Claimant's third party lawsuit against certain parties named as defendants. We affirm.

Claimant was injured in the course of his employment with Employer on November 10, 1978, and brought two third party lawsuits, one of these against several named defendants was settled without trial for $96,000.00, with costs and counsel fees amounting to $43,725.71, the Claimant realizing the net amount of $52,274.29. In the second lawsuit, in which the United States was the sole defendant, was decided by a Federal Trial Judge in favor of the defendant, the Trial Judge having found that the sole cause of the Claimant's injuries was the negligence of Judski, Employer.

Employer's subrogation rights, of course, are based upon provisions of Section 319 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671, the relevant provisions of which are as follows:

[ 117 Pa. Commw. Page 542]

Section 319. 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. (Emphasis added.)

Claimant, relying upon Appellate Court cases which are not authoritative, either having been over-ruled, or do not represent the present state of the law on the subject involved herein, contends that, although he did receive the settlement as indicated in one of his suits, the compensation authorities and this Court should recognize, as the basis for disallowing subrogation, the finding of the Federal Judge in the other suit to which no one was a party except Claimant and the United States. Of course, we find no merit whatsoever in this contention of Claimant's, the present controlling authorities here being the Supreme Court case of Heckendorn v. Consolidated Rail Corporation, 502 Pa. 101, 465 A.2d 609 (1983), and Heiser v. Workmen's Compensation Appeal Board (Westmoreland Casualty Co.), 95 Pa. Commonwealth Ct. 350, 505 A.2d 1060 (1986). In Heckendorn, relied upon by the referee*fn1 and by the Board,*fn2 Claimant's

[ 117 Pa. Commw. Page 543]

    view that there must be negligence somehow established on the part of the third party and that the employer may not qualify for subrogation if it is found in a collateral matter that he was solely negligent, was ...


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