The opinion of the court was delivered by: LORD
The cross motions to dismiss which are before this Court are principally concerned with a compensation order filed by the defendant deputy commissioner on August 9, 1961 pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq., hereinafter to be called The Act.
While unloading the S.S. Marine Courier on March 29, 1956, George Smith, a longshoreman then employed by the plaintiff Lavino Shipping Company (hereinafter to be referred to as Lavino) was struck by a falling grab bucket. Those injuries resulted in his death on the same day. It has been conceded throughout that his fatal injuries were sustained in the course of his employment.
In Lavino Shipping Company v. Donovan, 166 F.Supp. 909, (E.D.Pa.1958) the defendant deputy commissioner's first award of death benefits to Anna was set aside. Judgment for the employer was granted on the ground that, although George and Anna had been married in 1928, and decedent had left Anna in 1938
'* * * there is absolutely no evidence to support the finding that she was living apart from him at the time of death for justifiable cause.'
Appeal was taken from that decision in Lavino Shipping Company v. Donovan, 267 F.2d 59, 62 (3rd Cir. 1959). The conclusion of the latter opinion reads as follows:
'In order that the parties may have an opportunity to fully present all the relevant evidence on the issue of reconciliation and the deputy commissioner may have an opportunity to make appropriate findings of fact on this issue, the judgment of the district court will be vacated and the cause remanded to the deputy commissioner for further proceedings.'
Pursuant to the quoted order, a further hearing before the Deputy Commissioner took place on December 9, 1960. The record of this 1960 proceeding consists of Notes of Testimony, pages 127 to 215, inclusive, and a total of 9 exhibits. The Notes of Testimony of the prior hearing, September 17, 1957 consist of pages 1 to 126, inclusive of Exhibits. These notes have been read and examined by this Court, in conjunction with the compensation order filed by the defendant deputy commissioner on August 9, 1961. The Court has also had the benefit of seven briefs filed by the several interested parties.
The matters at hand for disposition are:
1. Plaintiff's complaint to review, set aside, and enjoin enforcement of the compensation order of August 9, 1961. The order in question was made by defendant P. J. Donovan, Deputy Commissioner, Bureau of Employees' Compensation (hereinafter to be called simply the deputy commissioner), and a copy of that order was attached to the complaint.
2. The defendant deputy commissioner's motion for summary judgment based on a certified copy of the transcript of the deputy commissioner's proceedings of 1960.
3. Plaintiff Lavino's motion for summary judgment on the ground that the deputy commissioner
'* * * erred as a matter of law in his Findings, Compensation Order and Award filed August 9, 1961 * * * wherein he directed Plaintiff to make payments of benefits under said Act to Anna T. Lou Smith * * *.'
The motion of plaintiff Lavino will be denied; the motion of the defendant deputy commissioner, in which Intervenor Anna T. Lou Smith (hereafter to be called simply Anna) has joined, will be granted, and the complaint ...