Pitt v. Workmen's Compensation Appeal Board

636 A.2d 235, 161 Pa. Commw. 60, 1993 Pa. Commw. LEXIS 784
CourtCommonwealth Court of Pennsylvania
DecidedDecember 29, 1993
Docket983 C.D. 1992
StatusPublished
Cited by12 cases

This text of 636 A.2d 235 (Pitt v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pitt v. Workmen's Compensation Appeal Board, 636 A.2d 235, 161 Pa. Commw. 60, 1993 Pa. Commw. LEXIS 784 (Pa. Ct. App. 1993).

Opinions

DOYLE, Judge.

This is an appeal1 by Larry Pitt, Esquire, from an order of the Workmen’s Compensation Appeal Board (Board) affirming a referee’s decision which denied him an award for counsel fees.

The relevant facts are as follows. Pitt represented Arnold McEachin (Claimant) in a workmen’s compensation matter from September 1988 to April 1990. Claimant signed a contingent fee agreement providing that Pitt would receive 20% of all awarded compensation. In April, 1990, Claimant discharged Pitt and chose a new attorney, Anthony Witlin.

In January 1991, the referee granted Claimant’s claim petition and awarded benefits. The referee also awarded counsel fees at Claimant’s direction to Witlin in the amount of 20% of benefits awarded to Claimant. Pitt appealed nunc pro tunc the referee’s decision and also filed a “Petition for Approval of Counsel Fees Pursuant to Section 501 of the Workmen’s [62]*62Compensation Act”2 with the Board. The Board remanded the entire matter to the referee for farther proceedings and ordered him to issue findings of fact and conclusions of law on payment of attorney’s fees and costs. Without taking additional evidence, the referee issued a second opinion affirming his original opinion and stating that “the Worker’s Compensation Act is not designed to involve itself in fee disputes between different attorneys representing the Claimant or the Defendant.” The Board affirmed this judgment. Pitt appealed and contends that the referee, erred as a matter of law in awarding all attorney fees to one attorney without issuing specific findings of fact distinguishing the amount and degree of difficulty of work by participating counsel.

In this appeal, we address for the first time a question never before presented: Where a claimant fires one attorney and hires another and the referee, in addition to granting the claimant’s petition for benefits, awards counsel fees, does the referee also have jurisdiction to decide a fee dispute between the lawyers and may he apportion the counsel fees?

The answer to the question lies in the realization that the only case in controversy that was before the referee to resolve was Claimant’s claim petition for compensation under Section 301(c) of the Act.3 That statutory cause of action carried with it a statutory requirement that the referee approve “all counsel fees, agreed upon by claimant and his attorneys for services performed in matters before any referee or the board ... providing the counsel fees do not exceed twenty per centum of the amount awarded.”4 (Emphasis added.) That independent cause of action is distinct from any claim which a discharged lawyer might assert against his former client, or that client’s subsequent counsel, over his discharge and replacement. Pitt, before this Court, is not representing a party to the worker’s compensation claim and litigation, but himself, litigating in his own interest a cause of action which is either a [63]*63common law claim for breach of contract, or a claim on principles of quantum meruit, or an equitable claim for damages under a theory of unjust enrichment.

Under any theoiy, however, neither the Workmen’s Compensation Appeal Board, nor the referee, is vested with authority to adjudicate such an issue, nor does the Board or referee have any particular expertise in this area of the law. Quite the contrary, if Claimant’s defense here is that his first attorney, Pitt, breached his duty of professional representation, it places the referee and Board in an area completely foreign to their expertise. Moreover, it is possible that Claimant himself might be obligated to the discharged attorney on grounds totally different from, and perhaps even in conflict with, Pitt’s representation of him before the worker’s compensation adjudicative tribunals. A client always has the right to discharge a lawyer at any time, with or without cause, but if the reason for the discharge is because counsel would not pursue an imprudent or repugnant objective, or refuses to engage in reprehensible conduct, there could be liability for counsel fees apart from the ordinary considerations in a worker’s compensation case. See Pennsylvania Rules of Professional Conduct Rule 1.16 (1988). We conclude therefore that Pitt, as a litigant, lacked the direct interest in the subject matter being litigated to confer standing in the resolution of the worker’s compensation claim of Claimant. William Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). We strongly suggest that, if at all possible, Pitt’s claim for counsel fees should voluntarily be submitted to the appropriate committee of the bar association where all three interested parties could be heard and the dispute resolved expeditiously.

There are as well other major impediments that would deny Pitt standing to litigate his claim for counsel fees in this case. First, Pitt’s “appeal nunc pro tunc” was not timely filed. The first opinion of the referee, dated January [64]*6415, 1991, was circulated On January 31, 1991.5 Pitt filed his “appeal nunc pro tunc” on April 19, 1991, well beyond the twenty days within which he had to file his “appeal.” See Section 423 of the Act, 77 P.S. § 853. Such a failure is jurisdictional. Pittsburgh Moose Lodge No. 46 v. Workmen’s Compensation Appeal Board (Grieco, Jr.), 109 Pa.Commonwealth Ct. 53, 530 A.2d 982 (1987).

In his “appeal nunc pro tunc” Pitt asserts that the referee failed to forward a copy of the decision to him and that he filed the appeal nunc pro tunc immediately after he became aware of the decision. On the bottom of the appeal form, where it requires the designation of the “name of [the] party taking [the] appeal (Claimant or Defendant),” Pitt typed in “Claimant,” which was clearly a misnomer. We conclude that the reason Pitt was not sent a copy of the referee’s award or was not otherwise notified of the referee’s decision was because he was not a party in the case, nor did he represent a party in the case. Simply stated, he was not entitled to notice.

At the same time Pitt filed his “appeal nunc pro tunc,” he also filed with the Board a “Petition for Approval of Counsel Fees Pursuant to Section 501 [77 P.S. § 1021] of the Worker’s Compensation Act.” The Board remanded both the matter of the petition for counsel fees and the appeal nunc pro tunc to the referee “for further proceedings and issuing of findings of fact and conclusions of law on payment of attorney’s fees and costs.”6 The referee, without taking additional evidence, concluded all matters before him by a decision and order dated October 22,1991, “circulated” October 23,1991. However, the [65]*65referee made only three findings of fact in that decision, which essentially stated that he “adopted” his previous findings of fact and conclusions of law from his previous decision of August 30, 1991, which decision is nowhere in this record. The referee’s order merely denied the “claim for attorney fees by Larry Pitt, Esquire.” No other reason or explanation was given by the referee regarding the basis upon which the referee awarded 100% of the 20% counsel fee to attorney Witlin, and nothing to attorney Pitt.

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Pitt v. Workmen's Compensation Appeal Board
636 A.2d 235 (Commonwealth Court of Pennsylvania, 1993)

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Bluebook (online)
636 A.2d 235, 161 Pa. Commw. 60, 1993 Pa. Commw. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pitt-v-workmens-compensation-appeal-board-pacommwct-1993.