Submitted: January 22, 2019
Appellant's Application for Attorney's Fees:
11th day of February, 2019, upon consideration of
Appellant, Teresa Holben's ("Ms. Holben's")
application for Attorney's Fees pursuant to 19 Del.
C. § 2350(f), and Appellee, Pepsi Bottling
Ventures, LLC's ("Pepsi's") opposition, it
Holben applies for an attorney's fee award following a
partially successful Superior Court appeal from an Industrial
Accident Board ("IAB") decision. In that appeal,
the Court affirmed the IAB's decision in part, reversed
it in part, and remanded the matter to the IAB for an award
of attorneys' fees. Thereafter, Pepsi appealed that Order
to the Delaware Supreme Court. The Supreme Court dismissed
Pepsi's appeal finding it to be interlocutory because the
matter had been remanded to the IAB.
Pursuant to 19 Del. C. § 2350(f), the Superior
Court, in its discretion, may award reasonable attorneys'
fees for an appeal from an IAB decision "where
claimant's position in the hearing before the Board is
affirmed on appeal." The legislative intent behind the
statute is to create a right for a successful claimant to
obtain attorneys' fees for the time spent preparing for
the appeal from an unfavorable Board decision.
Here, the Court will not consider Ms. Holben's petition
for fees because the matter has been remanded to the IAB for
it to consider the appropriate amount of fees that it must
award pursuant to 19 Del C. § 2320(10). This
Court cannot properly award attorneys' fees pursuant to
19 Del. C. § 2350(f) where there has not yet
been a final decision of the IAB. As the Delaware Supreme
Court recognized, "Superior Court orders of remand
directed to decisions of administrative agencies, including
the Industrial Accident Board, except remand's for purely
ministerial functions, are interlocutory, not final,
orders." Based upon the same reasoning that the
Supreme Court dismissed Pepsi's appeal of this
Court's remand order, the IAB must conclude its findings
on remand before the Superior Court addresses the pending fee
workers' compensation statutory scheme supports this
approach. It requires the IAB to first consider
attorneys' fee applications. It then requires the
Superior Court to later address applications for fees accrued
in the Superior Court.Then, if appropriate, the Superior Court
must also consider fee applications triggered by a successful
appeal before the Supreme Court. Judicial economy and the
statute's structure require the IAB to first issue its
final decision. At that point, the Superior Court will
consider the pending application and issue a final order. To
ensure the parties' appeal rights are appropriately
preserved, the Court will modify its December 13, 2018, Order
to clarify that the Superior Court also retains jurisdiction
of the matter pending the remand. After receiving the
IAB's decision on remand, the Superior Court will
consider the pending application and issue its final order.
Appellant Teresa Holben's application for attorneys'
fees in this Court is DEFERRED until the IAB
performs its function on Remand. The Court's December 13,
2018, Order is hereby modified to clarify that the Superior
Court retains jurisdiction over the matter so that it may
then issue a final order. All other aspects of the December
13, 2018, Order remain in effect.
IS SO ORDERED.
 Holben v. Pepsi Bottling Ventures,
LLC, 2018 WL 6603792, at *1 (Del. Super. Dec. 13,
Pepsi Bottling Ventures, LLC v.
Holben, No. 16, 2019, at *4 (Del. Feb. 1, ...