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CONNIE L. LANDIS v. COMMONWEALTH PENNSYLVANIA (06/22/79)

decided: June 22, 1979.

CONNIE L. LANDIS, WIDOW OF JOHNATHAN LANDIS, DECEASED, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ZIMMERMAN MOTORS, INC., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Connie Landis, Widow of Johnathan Landis, Deceased v. Zimmerman Motors, Inc., No. A-70162.

COUNSEL

Lester H. Zimmerman, Jr., with him Barron & Zimmerman, for appellant.

Joseph P. Green, with him Litke, Lee, Martin, Grine & Green, for appellees.

Judges Crumlish, Jr., DiSalle and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 43 Pa. Commw. Page 492]

Connie L. Landis (Claimant) appeals a determination by our Workmen's Compensation Appeal Board that her late husband's employer, Zimmerman Motors, Inc., is not liable for the payment of her attorney fees, contending that Zimmerman's petition for review of compensation agreement was unreasonable.

We affirm.

The pertinent facts follow: Claimant, the widow of Johnathan Landis who was killed in January, 1973, in a vehicular accident during the course of his employment, filed a fatal claim petition which resulted in a compensation agreement whereby she received weekly benefits in the amount of $85.17. Zimmerman sought review of the agreement in September, 1974, alleging that it had mistaken Claimant's eligibility under Section 307 of The Pennsylvania Workmen's Compensation

[ 43 Pa. Commw. Page 493]

Act,*fn1 77 P.S. ยง 562, which provides that a widow is not eligible for benefits if she is not living with and dependent upon decedent for a substantial portion of her support at the time of his death.

Her eligibility for compensation was favorably determined by a referee after a hearing but the referee failed to provide for payment of her attorney fees because she did not request them. These fees were put in issue before the Board on cross appeals but Claimant withdrew her petition for counsel fees prior to any Board action on the appeals. The Board subsequently affirmed the referee's determination of Claimant's eligibility for compensation.

Claimant then appealed to our Court. After hearing her appeal, we affirmed the Board's denial of fees because Claimant had failed to first petition either the Board or the referee for allowance of counsel fees. Landis v. Zimmerman Motors, Inc., 27 Pa. Commonwealth Ct. 99, 365 A.2d 190 (1976).

Claimant then filed a petition for allowance of fees with the Board, which in turn referred the petition to a referee. The referee made several findings of fact, only one ...


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