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February 13, 1973

E. W. COSLETT & SONS, INC. and Globe Indemnity Company,
L. S. BOWMAN, Deputy Commissioner, and Josephine Simpson, Intervening Defendant

Gorbey, District Judge.

The opinion of the court was delivered by: GORBEY

On June 8, 1972, the defendant, in his capacity as Deputy Commissioner, entered a compensation award under the Longshoremen's and Harbor Workers' Compensation Act (the Act) in favor of Josephine Simpson, as surviving wife of Charles Simpson, who suffered a fatal accident while in the course of his employment with the plaintiff, E.W. Coslett & Sons, Inc. The plaintiff employer, and its surety, petitioned this court to enjoin the enforcement of the award because the Deputy Commissioner had erred in his determination that Josephine Simpson was the common-law wife of Charles Simpson. Josephine Simpson was granted leave to join as intervening defendant. The plaintiff has moved for summary judgment.

 This action was brought under 33 U.S.C. § 921(b) which reads in part as follows, "If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings . . .". Our review is limited by that statute to the application of law by the defendant.

 In accordance with 33 U.S.C. §§ 909(b), 902(16), the defendant found Josephine Simpson to be entitled to compensation as the surviving wife. Section 909(b) makes provision for the death benefit "if there be a surviving wife". Section 902(16) defines the term "widow" as including "only the decedent's wife living with or dependent for support upon him at the time of his death, . . ."

 Under the Act, the validity of a marriage is determined by the state law of the employee's residence. Gibson v. Hughes, 192 F. Supp. 564 (S.D.N.Y.1961). If a marriage is invalid under state law, the claimant is not entitled to compensation. Bolin v. Marshall, 76 F.2d 668 (9th Cir. 1935), cert. denied, 296 U.S. 573, 56 S. Ct. 116, 80 L. Ed. 404 (1935). But see Burgess Construction Co. v. Lindley, Sup.Ct. Alaska, 1972, 504 P.2d 1023, which holds that the state's domestic relations law is not relevant to determine eligibility for benefits under state workmen's compensation laws.

 The intervening defendant contends the defendant's finding of a common-law marriage is a fact which is not subject to review by the court. It is true that the events which give rise to the conclusion that a common-law marriage exists are facts which must be accepted, if they are supported by sufficient evidence. The existence of a common-law marriage is a question of the legal significance of the events and as such is subject to review. Cf. Kilby v. Folsom, 238 F.2d 699 (3d Cir. 1956); Great American Indemnity Co. v. Belair, 254 F.2d 131 (2d Cir. 1958); Bethlehem Steel Co. v. Parker, 64 F. Supp. 615 (D.C.Md.1946). However, where facts supported by substantial evidence permit alternative rational inferences to be drawn, the courts are bound by the choice of an administrative agency. O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359, 85 S. Ct. 1012, 13 L. Ed. 2d 895 (1965).

 In this case the record shows that the decedent and claimant had not participated in a ceremonial marriage when they began cohabitation in an apartment in 1940. For more than a thirty year period they had a reputation in the community as man and wife. Further, the claimant testified that before the birth of her first child in 1942, the claimant and decedent expressed an intention to effect a marriage.

 The plaintiff argues that the Deputy Commissioner's determination that a common-law marriage was entered into is not in accordance with the law of Pennsylvania *fn1" as expressed in Mainor v. Midvale Co., 192 Pa.Super. 367, 162 A.2d 27 (1960). That case holds that a relationship which is meretricious at its inception is presumed illicit unless and until clear and convincing evidence is produced to show a change in circumstances.

 This case differs considerably from Mainor, which states, "It is clear from the evidence that the commencement of this so-called common-law marriage was meretricious at its inception." The facts of Mainor show that in 1940 when the claimant started living with William Mainor, he had a legal wife then living. Further, the claimant knew of Mainor's wife at the inception of the relationship. In the matter before this court neither party has been shown to have a disability which could have prevented him from entering into a common-law marriage in 1940. Lack of capacity to enter into a matrimonial contract has been present in each of the cases which the plaintiff cites in support of his proposition that a relationship continues to be illicit when it is meretricious at its inception, unless there is clear and convincing evidence of a change in status. *fn2"

 In this case there is no reason to preclude the application of the presumption under Pennsylvania law that a relationship is a common-law marriage rather than concubinage. In re: Wagner's Estate, 398 Pa. 531, 159 A.2d 495 (1960); Cupler v. Secty. HEW, 252 F. Supp. 178 (W.D.Pa.1966). A reasonable inference from the evidence could be that the parties began a common-law marriage with their cohabitation. *fn3"

 The plaintiff also argues that defendant Deputy Commissioner's findings of fact are not supported by substantial evidence. We find this contention to be without merit.

 The plaintiff's motion for summary judgment is ...

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