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September 17, 1964

Viola M. STARACE, Plaintiff,
Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare of the United States of America, Defendant

The opinion of the court was delivered by: DUMBAULD

Congress has seen fit to vest in the district court of the plaintiff's residence the power to review final decisions of the Secretary of Health, Education and Welfare under the Social Security system. 42 U.S.C. § 405(g). The Secretary's findings of fact, supported by substantial evidence, are conclusive. In the case at bar there is no controversy as to the facts, but the issue is a question of law, as to which the parties are entitled to this Court's independent judgment on the record made before the administrative agency. Social Security Bd. v. Nierotko, 327 U.S. 358, 368-369, 66 S. Ct. 637, 90 L. Ed. 718 (1946).

Under 42 U.S.C. § 402(g)(1) Congress provided that 'The widow * * * of an individual who died a fully or currently insured individual * * * if such widow * * * has not remarried * * * shall be entitled to a mother's insurance benefit for each month * * * (until) she remarries * * *'

 The question here is whether the widow was 'remarried' during the period of ten months that benefits were withheld by the agency's action.

 The facts of the case are clear: the widow, a resident of Pennsylvania, on September 15, 1960, at Winchester, Virginia, went through a ceremony of marriage to one Hamilton, a resident of Connecticut, and so notified the agency on October 18, 1960, which shut off her benefits beginning with September 1960.

 Hamilton went back to Connecticut. Later the widow joined him there but found he was an alcoholic. At no time did she receive any support from him. In fact she spent about $ 6,000 of her own money by reason of the relationship with him.

 On March 22, 1961, she brought suit for annulment in the Court of Common Pleas of Allegheny County, Pennsylvania, at No. 3377 April Term 1961. On May 26, 1961, the case was heard by Judge Henry X. O'Brien, now a Justice of the Supreme Court of that Commonwealth. On August 16, 1961, Judge O'Brien entered a decree declaring 'that the alleged marriage * * * was and is wholly and absolutely null and void to all intents and purposes whatsoever.'

 Subsequently the agency resumed payment of benefits beginning with the month of August, 1961. The widow contends that payment should have been made nunc pro tunc, and that she is entitled to benefits for the period that she was 'married' to Hamilton. We agree.

 Congress could have regulated the matter specifically, and defined 'remarriage' for the purposes of administration of the Social Security system. It did not, apparently considering that justice to beneficiaries was more important than convenience in administering the act without retroactive burdens on the fund. This meant that State law determines the marital status of beneficiaries. *fn1" DeSylva v. Ballentine, 351 U.S. 570, 580, 76 S. Ct. 974, 100 L. Ed. 1415 (1956). See also 147 A.L.R. 598.

 Validity of this marriage is conceded to be governed by the law of the Commonwealth of Virginia. Jewett v. Jewett, 196 Pa.Super. 305, 306, 175 A.2d 141 (1961). If it was absolutely void by that law, and not merely voidable, the Pennsylvania law, and not merely voidable, the Pennsylvania annulment. The law of that Commonwealth provides that:

 It is an elementary and fundamental distinction between annulment and divorce that an annulment decree does not speak from its date, it merely declares that the marriage was void ab initio from the very beginning. It does not create a new status; it affirms that there has been no change in status. 'Such decree is no more than a declaratory judgment, judicially determining with certainty and finality that there never was a valid marriage.' Com. ex rel Knode v. Knode, 149 Pa.Super. 563, 567, 27 A.2d 536, 538 (1942); Faivre v. Faivre, 182 Pa.Super. 365, 369, 128 A.2d 139 (1956). *fn3"

 That under Virginia law a marriage induced by fraud such as is alleged here would be void (not merely voidable) is contended by plaintiff to be established by the Virginia decision of Pretlow v. Pretlow, 177 Va. 524, 14 S.E.2d 381 (1941).

 We need not independently investigate to determine whether or not this is so, for Judge O'Brien has so decided, and his decision is the law of the case for the parties involved. Whether or not he made a mistake as to the Virginia law, his judgment is equally conclusive. And federal courts, as well as State courts, must give full faith and credit to the judgments of co-ordinate tribunals of competent jurisdiction. Dumbauld, The Constitution of the United States (1964) 388, 398, and cases there cited.

 It is true, as the Government contends, that the Pennsylvania judgment does not bind the Government as a party or privy, under the rule of res judicata. But it does bind the Government by incorporation by ...

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