On Petition for Review of a Final Order of the Benefits Review Board, United States Department of Labor, BRB Docket No. 87-129 BLA.
Higginbotham, Stapleton, and Rosenn, Circuit Judges.
This appeal strikingly illustrates the necessity for lawyers to be familiar with applicable legal procedural rules and to comply with them. Counsel for petitioner presented a petition for review to this court in the name of Anna Kowaleski, as widow of the original claimant, Peter Kowaleski, challenging the Benefits Review Board's denial of black lung benefits under 20 C.F.R. § 727.203 (1988). We have subsequently raised, sua sponte, the threshold issue of whether we have jurisdiction over the appeal. Because the real party in interest has not appealed, we conclude that we do not have jurisdiction and must dismiss this case with prejudice.
This appeal presents us with a bizarre and somewhat incomprehensible procedural history, primarily because of the lack of assiduousness of counsel for the petitioner. On March 6, 1978, Peter Kowaleski, a miner for twelve years, filed a claim with the Department of Labor seeking black lung benefits available under 20 C.F.R. § 727.203. In his initial application, Peter Kowaleski listed his wife, Anna Kowaleski, as his sole dependent. Anna Kowaleski subsequently died on June 10, 1979, while her husband's claim was still pending administratively.
After an administrative denial of benefits in 1983, Peter Kowaleski was granted a formal hearing on May 9, 1984, the contested issues being length of employment, causal relation, and total disability.
Kowaleski died on March 1, 1985, prior to the formal hearing and his son, Charles Kowaleski, was appointed as executor of the estate (executor). The executor authorized James T. Lesho, Kowaleski's counsel for the black lung claim, to continue representation in behalf of the estate. Although Lesho failed to formally substitute the executor on the record as the claimant, the administrative law judge (ALJ) noted at the hearing that Kowaleski had died and that the claim would be pursued in behalf of the estate.
On December 11, 1986, the ALJ filed his decision and entered an order denying the "claim of Peter Kowaleski." The caption of the order inexplicably listed as claimant, "Anna Kowaleski, widow of Peter Kowaleski." Anna Kowaleski, however, having predeceased Peter Kowaleski, was not and could not have been, his widow. No explanation appears of record for the decision to substitute Anna Kowaleski, and counsel for the parties failed to bring to the court's attention the error or attempt to rectify the record.
Counsel, instead, exacerbated the problem by pursuing the claim in the name of Anna Kowaleski. On May 15, 1987, he filed a petition for review with the Benefits Review Board as counsel for the claimant, Anna Kowaleski, widow of Peter Kowaleski. Lesho specifically represented that the petitioner is "Anna Kowaleski, widow of Peter Kowaleski, who resides at R. 182 Mason Street, Exeter, Pennsylvania 18643." Although there is no evidence that Anna Kowaleski or the executor of her estate ever authorized Lesho to represent her interests in any matter, Lesho executed the petition as "representative for the claimant, Anna Kowaleski, widow of Peter Kowaleski." Lesho did not inform the Board that Mrs. Kowaleski had died almost eight years prior to the appeal and almost five years before her husband.
After the Benefits Review Board denied the claim on its merits, Lesho, as "Co-Counsel for Petitioner," filed a petition for review in this court on October 5, 1988, again in behalf of "Anna Kowaleski, Widow of Peter Kowaleski." Following oral argument, this court became aware of the possibility that the purported claim was not properly before this court.
By letter dated June 7, 1989, the Clerk of the Court highlighted these foregoing facts to petitioner's counsel and requested a response as to why the case should not be dismissed for want of an appealable order. Counsel, without directly responding to that request filed a motion on June 12, 1989, to substitute the executor of Peter Kowaleski's estate as party-appellant. Counsel cited no legal or statutory authority in support of his motion at this stage of the proceedings and at this time. Counsel for the Director also failed to make any direct response, though petitioner's motion claims that the opponent has no objection to the substitution.
We now turn to the interrelated threshold issues of whether we have jurisdiction over the appeal, and, if not, whether the executor may now be substituted by amendment to the petition in this court so ...