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BETTY M. YATES v. COMMONWEALTH PENNSYLVANIA (11/08/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 8, 1978.

BETTY M. YATES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, ABBOTTS DAIRIES AND ITS INSURER, AMERICAN MUTUAL LIABILITY INSURANCE CO., RESPONDENTS

Appeal 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.

COUNSEL

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.

Judges Crumlish, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Blatt. Judge DiSalle concurs in result only.

Author: Blatt

[ 38 Pa. Commw. Page 410]

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. Commonwealth Ct. 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,*fn1 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. Commonwealth Ct. 461, 366 A.2d 963 (1976).

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.

Disposition

Denial of attorney fees affirmed.


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