Much Ado About I Do: Viability Of Common Law Marriage In Pennsylvania, DD 06/07

Defense Digest

Much Ado About "I Do": Viability Of Common Law Marriage In Pennsylvania And Its Effect On Workers' Compensation Law

I. Introduction

The Commonwealth Court recently examined, yet again, the viability of common law marriages, an issue which has caused a flurry of judicial and legislative activity in recent years. Interestingly, matrimonial law plays a significant role in workers’ compensation, particularly in the area of awarding benefits for a fatal claim. It is in this context that the Commonwealth Court stormed back into the center of this controversial issue in an attempt to clarify the law regarding the existence and validity of common law marriages in Pennsylvania. However, as discussed below, the court in Costello v. Workers’ Compensation Appeal Board (Kinsley Construction, Inc.) (Pa. Cmwlth. 2007), has likely provided us with an answer that may only be temporary.

II. Facts

The claimant’s putative husband ("decedent") died June 28, 2004, from a crush injury he sustained in the course of his employment with the defendant-employer, Kinsley Construction, Inc. The claimant, Lori Newhart Costello, timely filed a fatal claim petition alleging that she was the decedent’s widow by common law marriage. Ms. Costello alleged a date of marriage of November 26, 2003 and presented evidence that she and the decedent entered into a notarized confirmation of common law marriage indicating an intent to have a marital relationship. In 2002, the claimant and the decedent had a son, Tanner Joseph Costello, whom the claimant claimed, along with herself, as the decedent’s dependents in her petition for benefits. The employer responded by asserting that common law marriage no longer exists in Pennsylvania.

At trial, the claimant testified that she and the decedent met in 1997 and began living together in 1998. They resided in a house with a mortgage in the claimant’s name only, but the decedent paid the monthly expenses. In 1998, the decedent asked the claimant to marry him and gave her a ring. Because they did not have insurance, they shared the cost of Tanner’s birth and subsequent medical treatment. The claimant had a credit card in her name, although the decedent maintained one in his name as well. Together, they had a joint checking account and a joint cell phone account. Both of their cars were titled in the name of the decedent’s parents, who carried the insurance on the vehicles. The decedent’s obituary referred to him as the claimant’s husband and explained that they were married on November 27, 2003.

On November 26, 2003, the claimant and the decedent notarized a document entitled "Confirmation of Common Law Marriage," which confirmed their intent to comply with Pennsylvania law creating a common law marriage. After execution of the document, the claimant began using "Costello" as her and her son's last name, and the couple filed their 2003 tax return as "married filing jointly." In November 2003, the claimant became covered by the decedent’s life insurance through his employer; his November 17, 2003, application form listed Lori L. Newhart as "fiancée."

Based on the evidence, the Workers' Compensation Judge determined that the decedent and the claimant did not attempt to contract the common law marriage until November 26, 2003. The Judge determined that under current law, the claimant was entitled, as a widow with one child, to sixty percent of the decedent’s average weekly wage. The employer filed an appeal to the Workers’ Compensation Appeal Board ("Board"), which reversed the Judge's decision. The claimant subsequently filed an appeal of the Board’s decision to the Commonwealth Court.

III. Commonwealth Court’s Analysis

On September 17, 2003, the Commonwealth Court ruled, en banc, in PNC Bank v. WCAB (Stamos), 831 A.2d 1269, (Pa. Cmwlth. 2003), that the doctrine of common law marriage was abolished and that the decision would be applied prospectively to any common law marriages entered into after that date. The Pennsylvania Legislature responded to PNC Bank in 2004 by amending the Pennsylvania Marriage Law to provide: "No common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid."

Because the claimant’s marriage did not become effective until November 26, 2003, the issue became whether common law marriages were valid between September 17, 2003, and January 1, 2005. Essentially, the Commonwealth Court had to determine whether their decision in PNC Bank controlled the period between September 17, 2003, and January 1, 2005, or whether the Legislature’s amendment should retroactively control that time period.

The Judge and the Board reached different conclusions in this debate. Even though PNC Bank was not appealed, the Judge concluded that it did not effectively change the law of the Commonwealth and, even if it did have the effect of abolishing common law marriage after September 17, 2003, the change was implicitly overruled when the Legislature enacted the amendments to the marriage law, thereby rendering the Costellos’ "Confirmation of Marriage" valid.

In reversing the Judge, the Board reasoned that the PNC Bank decision abolished common law marriage prospectively as of September 17, 2003, which meant that the Costellos’ marriage agreement of November 26, 2003, was invalid. The Board further held that the Judge erred in deciding that the amendment to the Marriage Law made valid any common law marriages deemed invalid under PNC Bank because the amendment simply codified the holding of PNC Bank. The Board reversed the Judge but did allow benefits on behalf of the minor son at the rate of 32 percent of the decedent’s average weekly wage.

The Commonwealth Court agreed that PNC Bank had abolished common law marriages in Pennsylvania as of September 17, 2003. However, the court held that the Legislature had altered the landscape in this case. It noted that the Legislature’s authority to address the subject of common law marriage has never been questioned, citing to Interest of Miller, 301 Pa. Super. 511, 448 A.2d 25 (Pa. Super 1982).

In order to resolve this issue, the Commonwealth Court examined the intent of the Legislature in their enactment of the amendments to the marriage law. As is frequently stated, the object of all statutory construction is to ascertain and to give effect to the intent of the Legislature. The court pointed out that the original version of the amendments to the marriage law stated, "[t]his part shall not be construed to change the existing law with respect to common-law marriage." Yet, the court stated that in the course of making the amendments official, the Legislature deleted this language when it decided to make a change specifying that no common law marriage contracted after January 1, 2005, would be valid, but providing that nothing in "this part" shall render any common law marriage otherwise lawful and contracted before that date invalid. The Legislature did not include any language stating that all common law marriages entered into prior to January 1, 2005, are valid.

The court reasoned that the Legislature’s action of making a change in the language of the statute to read "that no common law marriage contracted after January 1, 2005, would be valid" meant that the Legislature had considered the issue. The court considered the questions of retroactive application of the amendments to be unwarranted as the statute expressly addressed and provided for times in the past when common law marriages were contracted. The court, therefore, held that the Legislature’s amendments superseded the PNC Bank decision and, thus, common law marriages were valid until January 1, 2005.

IV. Conclusion

Applying Costello, and according to the Commonwealth Court, marriages under common law entered into after September 17, 2003, and before January 1, 2005, are valid despite PNC Bank. This may increase exposure regarding fatal claim petitions as common law marriages entered into between September 17, 2003, and January 1, 2005, have been deemed valid. If you were previously successful in denying a fatal claim petition brought by a common law spouse for a marriage entered into during this time period, these claims can once again be raised in light of the Commonwealth Court's decision.

*Mark is an associate in our Bethlehem, Pennsylvania, office. He can be reached at (484) 895-2302 or msroyster@mdwcg.com.