concurring and dissenting.
I would hold the appellee is correct in his argument that the questions of: (1) whether the appellants are entitled to subrogation for the sum waived by the illegal agreement between appellants and Maas and (2) the proper computation of that amount, were not preserved for our review.
In his decision of July 29, 1977, the referee found, inter alia, “That [Maas was] entitled to restoration of his workmen’s compensation benefits subject to subrogation credits by [appellants] for prior payments.” The appellants appealed the ordered restoration of compensation rights to the Workmen’s Compensation Appeal Board. On May 1, 1978, *606the Board remanded the case to the referee for “clarification of the precise dimensions of the compensation rights and the subrogation interest.” On January 9, 1981, the referee circulated a decision on the remanded petition wherein he found, inter alia, that: “The [appellants], having accepted $10,000 on account of [their] subrogation for compensation paid to January 29, 1974 [are] entitled only to credits on account of future payments of compensation after [January 29, 1974].” The appellants appealed from that January 9, 1981 decision challenging the referee’s conclusions concerning counsel fees and interest on those fees.
In their appeals to the Workmen’s Compensation Appeal Board and then to Commonwealth Court, the appellants failed to raise the subrogation questions now presented to this court and decided in parts I and II of the majority opinion. Neither the Appeal Board1 nor the Commonwealth Court2 had these issues before them.
“It is a fundamental doctrine in this jurisdiction that where an issue is cognizable in a given proceeding and is not raised it is waived and will not be considered on a review of that proceeding.” (citations omitted).
Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977). This even applies where the issue is of constitutional dimensions. Id. 474 Pa. at 197, 378 A.2d at 286. The appellants have waived any issue of subrogation for compensation paid up to January 29, 1974, and the proper *607computation of such sum. I dissent to parts I and II of the majority opinion.
I concur in parts III and IV of majority’s opinion with the understanding that the figures used are for illustrative purpose only.
PAPADAKOS, J., joins in this concurring and dissenting opinion.. The Workmen’s Compensation Appeal Board, in its opinion, stated:
“This Board in May of 1978 remanded [this] case to the referee for an exact determination as to the [appellants'] subrogation rights. Referee Stander circulated a new decision on January 9, 1981. The [appellants have] taken an appeal from that decision limited to two issues as far as we can tell. The credit to be given the [appellants] as it relates to attorney fees (both incurred as a result of the third party settlement and in defending the instant petition), and whether interest is due because the [appellants allege] attorneys fees the [appellee] pays are not 'compensation.' ”
. The Commonwealth Court said the issue before it was as follows:
"This case presents us with a question of first impression: Did the board legally err when it formulated, the compensation attorney's fees?”