The opinion of the court was delivered by: FOLLMER
This matter is before the Court on motions of both plaintiffs and defendant for summary judgment. The case is predicated on petition of plaintiffs to reverse and set aside decision of the Appeals Council of the Social Security Administration, Federal Security Agency, on the claim of plaintiffs for mother's insurance benefits and child's insurance benefits under the Social Security Act, 42 U.S.C.A. § 301 et seq., based on the wage record of Charles Vernon Warrenberger, deceased wage earner. The Bureau of Old Age and Survivors Insurance of the Social Security Administration determined that the claimant was not entitled to said benefits for the reason that the claimant, Marjorie L. Warrenberger, and the child, Ellen M. Warrenberger, did not have the status of 'widow' and 'child', respectively, of the wage earner, Charles Vernon Warrenberger, at the time of his death, within the meaning of the Social Security Act. Claimants' application was disallowed on March 25, 1954. Claimants, being dissatisfied with the determination of the Bureau, requested a hearing which was held before a Referee on October 2, 1954. Claimants appeared at the hearing and were represented by counsel.
The Referee's statement
as follows is a correct recital of the underlying facts:
'* * * Mrs. Warrenberger was originally married to a man by the name of Gallew, Arthur Gallew. While that marriage was in full force and effect the claimant began to live with Charles Vernon Warrenberger. As a result of that relationship, a child, Ellen, was born on May 7, 1940, and that was the child of Mrs. Warrenberger and Charles Vernon Warrenberger. Subsequently, Mr. Arthur W. Gallew, the claimant's husband, brought suit for divorce against her in the Court of Common Pleas, Allegheny County, and the ground for divorce was adultery. Vernon Warrenberger was named as co-respondent in the divorce action. According to one of the exhibits here, Vernon Warrenberger was served with a notice of the divorce action by Mr. Gallew against Marjorie, and that service was made on November 11, 1941. Thereafter on December 22, 1941 a decree was entered in the case of Arthur W. Gallew against Marjorie L. Gallew, Case No. 2246, and the decree is as follows: 'December 22, 1941, the Court, having heard this case, finds that the above respondent has committed adultery and it is decreed that the libellant, Arthur W. Gallew is divorced and separated from the bonds of matrimony contracted between him and the Respondent Marjorie L. Gallew.'
'Thereafter, on October 27, 1944, there was a marriage ceremony between Charles V. Warrenberger and Marjorie L. Gallew in Williamsport. Now sometime after that, probably around 1948, the claimant and Mr. Warrenberger separated because of domestic difficulties.'
The testimony before the Referee further developed that Charles Vernon Warrenberger died January 28, 1954, and that Arthur Gallew, claimant's first husband, was still alive at the time Warrenberger died and, as a matter of fact, was still alive at the time of the hearing before the Referee, October 2, 1954.
On November 19, 1954, the Referee filed his decision in which, inter alia, he stated:
'The claimant was not the wife of the wage earner during his lifetime and under Pennsylvania law she could not inherit intestate personal property as his widow. Ellen was an illegitimate child of the wage earner and she, also, could not inherit such property from his under Pennsylvania law.
'Based on the foregoing the referee finds that the claimant and Ellen M. Warrenberger did not have the status of 'widow' and 'child', respectively, of the wage earner under the Social Security Act. Accordingly, it is the decision of the referee that the claimant is not entitled to the benefits for which she has applied on her own behalf and on behalf of Ellen M. Warrenberger.'
On December 3, 1954, claimant filed her request for review of Referee's decision by the Appeals Council, which was acknowledged. On January 10, 1955, the Appeals Council refused the request for review. Hence the instant action.
Plaintiffs agree that there is no dispute as to the facts, that they are binding on the Court and are amply supported by the evidence, but take the naive position that the Warrenberger marriage must be valid because its validity has never been questioned.
Section 202(d) of the Act, 42 U.S.C.A. § 402(d), provides in pertinent part that a child of an individual who died and was fully or currently insured shall, under certain conditions, be entitled to child's insurance benefits.
Section 202(g) of the Act, 42 U.S.C.A. § 402(g), provides in pertinent part that:
'The widow * * * of an individual who died a fully or currently insured individual * * ...