Opinion
Argued June 9, 1978
November 8, 1978.
Workmen's compensation — Attorney fees — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Award of compensation.
1. No attorney fees can be awarded one seeking benefits under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, when no compensation is awarded the claimant. [410]
Judge DiSALLE concurs in the result only.
Argued June 9, 1978, before Judges CRUMLISH, JR., BLATT and DiSALLE, sitting as a panel of three.
Appeal, No. 1207 C.D. 1977, from the Order of the Workmen's Compensation Appeal Board in case of Betty M. Yates v. Abbotts Dairies and its insurer, American Mutual Liability Co., No. A-71882.
Petition to the Department of Labor and Industry for workmen's compensation death benefits. Petition dismissed. Petitioner appealed to the Workmen's Compensation Appeal Board. Appeal sustained. Benefits awarded. Attorney fees denied. Petitioner appealed denial of attorney fees to the Commonwealth Court of Pennsylvania. Held: Denial of attorney fees affirmed. Application for reargument filed and denied.
Charles W. Craven, with him, of counsel, John J. Coffey and Marshall, Dennehey Warner, for Abbotts Dairies and its insurer American Mutual Liability Ins. Co.
John H. Clark, Jr., for Betty M. Yates.
In view of the fact that we have reversed the Workmen's Compensation Appeal Board and sustained the employer's appeal in Abbott Dairies v. Workmen's Compensation Appeal Board, 38 Pa. Commw. 423, 393 A.2d 517 (1978), we must now affirm the Board's refusal to award attorney's fees. Under Section 440 of The Pennsylvania Workmen's Compensation Act, an award of attorney's fees can be made only when the employe is awarded compensation. Because we reversed the Board's compensation award, an award of attorney's fees is impossible. Shannon v. Southwark Metal Mfg. Co., 27 Pa. Commw. 461, 366 A.2d 963 (1976).
Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P. S. § 996.
Judge DiSALLE concurs in result only.
ORDER
AND NOW, this 8th day of November, 1978, the order of the Workmen's Compensation Appeal Board denying counsel fees to this claimant is hereby affirmed.