Appeal from the Order of the Workmen's Compensation Appeal Board in case of Bonita R. Towndrow, Widow of Leonard H., deceased v. Ralph B. Humphreys, No. A-75131.
Joseph P. Olexy, for petitioner.
James P. Harris, Jr., of Harris, Johnston & Maguire, for respondents.
Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig. President Judge Bowman did not participate in the decision in this case.
Ralph B. Humphreys, employer, petitions for review of the decision of the Workmen's Compensation Appeal Board which affirmed the referee's award of workmen's compensation benefits and also the allowance, as costs against employer, of claimant's attorney's fees in the amount of twenty percent of the compensation.
Employer appeals only from that portion of the affirmed decision which relates to the award of counsel fees. The controlling law on this matter is Section 440 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736 (Act), added by the Act of February 8, 1972, P.L. 25, Section 3, as amended, 77 P.S. § 996, which provides that attorney's fees are not due as part of the award where "a reasonable basis" for the contest of the claim is established.
Because we have held that attorney's fees in the amount of twenty percent or less of the benefits are reasonable in amount, Workmen's Compensation Appeal Board v. Leuschen, 21 Pa. Commonwealth Ct. 39, 342 A.2d 810 (1975), the only question before us is whether there was a reasonable basis for the unsuccessful contest of the claim.
The record reveals, as the referee found, that the claimant's husband died in a one-vehicle accident in Lenox Township, Pennsylvania on May 25, 1977, while in the course of his employment as an interstate truck driver. Claimant filed a fatal claim petition with the compensation authorities on August 16, 1977.
Employer's insurer's answer, filed November 18, 1977, admitted the allegations relating to the decedent's employment and circumstances of the accident, but requested proof of dependency of the decedent's widow and three children. Employer's own answer, filed the same day, stated the decedent's weekly wages from April 16, 1977 until his death, and no other matter. On November 23, 1977, employer's insurer filed an amended answer, identical to that filed November 9, adding only, as a matter of further defense, that the case was not within the jurisdiction of the Pennsylvania compensation laws. This latter argument was never pursued beyond its incorporation in that amended answer.
At a January 18, 1978 prehearing conference, employer's attorney admitted decedent's employment, the accident, his weekly wages, his funeral expenses, notice of the claim as set forth in the original petition, and decedent's marriage to claimant, her dependency, and that of their three children. After a second prehearing ...