          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


TERESA HOLBEN                                    :          K18A-05-003 JJC
                                                 :          In and for Kent County
                        Claimant-Below,          :
                        Appellant,               :
                                                 :
                        v.                       :
                                                 :
PEPSI BOTTLING VENTURES, LLC,                    :
                                                 :
                        Employer-Below,          :
                        Appellee.                :

                                            ORDER

                                Submitted: January 22, 2019
                                Decided: February 11, 2019

              Upon Appellant’s Application for Attorney’s Fees: DEFERRED

         On this 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
appears that:
         1.      Ms. 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.1 Thereafter, Pepsi
appealed that Order to the Delaware Supreme Court. The Supreme Court dismissed




1
    Holben v. Pepsi Bottling Ventures, LLC, 2018 WL 6603792, at *1 (Del. Super. Dec. 13, 2018).
Pepsi’s appeal finding it to be interlocutory because the matter had been remanded to
the IAB.2
       2.        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.” 3 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. 4
    3. 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. 5 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.”6 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
application. 7


2
  Pepsi Bottling Ventures, LLC v. Holben, No. 16, 2019, at *4 (Del. Feb. 1, 2019).
3
  19 Del. C. § 2350(f).
4
  Elliot v. State, 2012 WL 7760033, at *1 (Del. Super. Dec. 24, 2012).
5
  See Murtha v. Continental Opticians, Inc., 729 A.2d 312, 320 (1997) (explaining that claimant
in that case should have waited until after the Board issued its decision on remand to file a fee
application).
6
  Pollard v. The Placers, Inc., 692 A.2d 879, 880-81 (Del. 1997).
7
  See Black v. Staffieri, 2013 WL 1045221, at *1 (Del. Mar. 13, 2013) (explaining that “[a]n order
is deemed final and appealable if the trial court has declared its intention that the order be the
court's “final act” in disposing of all justiciable matters within its jurisdiction”); and Pollard, 692
A.2d at 880 (explaining that “[a]n order is deemed final when the trial court has declared its
intention that the order is the court’s final act in that case.”).
                                                  2
       4.     The workers’ compensation statutory scheme supports this approach. It
requires the IAB to first consider attorneys’ fee applications. 8 It then requires the
Superior Court to later address applications for fees accrued in the Superior Court.9
Then, if appropriate, the Superior Court must also consider fee applications triggered
by a successful appeal before the Supreme Court.10 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.
       WHEREFORE, 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.
       IT IS SO ORDERED.
                                                         /s/Jeffrey J Clark
                                                               Judge




8
  See 19 Del. C. § 2320(10)(a)(granting a reasonable attorney’s fee in an amount not exceeding
30% of the award or 10 times the average weekly wage in Delaware to any employee awarded
compensation by the Board with certain exceptions).
9
  19 Del. C. § 2350(f).
10
   19 Del. C. § 2350(f).
                                              3
