Appeal from the Order of the Workmen's Compensation Appeal Board in case of E. Marie Shultz v. Leroy Roofing Company, No. A-67298.
John F. McElvenny, with him John Havas and Shearer, Mette, Hoerner & Woodside, for appellants.
William H. Nast, Jr., with him L. V. Jackson and James N. Diefenderfer, for appellees.
Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 15 Pa. Commw. Page 397]
On June 26, 1972, while in the course of his employment for the Leroy Roofing Company (employer), John Franklin Shultz (decedent) fell to his death from a two and one-half story building. His alleged wife, E. Marie Shultz (claimant), survived him along with their four children, three of whom were under the age of eighteen at the time of his death. The claimant filed for death benefits on behalf of herself and the three minor children, and both the referee and the Workmen's Compensation Appeal Board (Board), on review, granted such benefits. The employer appealed to this Court for a review of the Board's decision.
[ 15 Pa. Commw. Page 398]
In a workmen's compensation case review, we are limited to a determination of whether constitutional rights were violated, an error of law was committed, or a necessary finding of fact was unsupported by substantial evidence. Foster Wheeler Corp. v. Workmen's Compensation Appeal Board, 13 Pa. Commonwealth Ct. 45, 317 A.2d 922 (1974).
The company first contends that the claimant was not lawfully married to the decedent and therefore was not entitled to widow's death benefits under the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. The record reveals that, on February 9, 1952, after apparently complying with all legal prerequisites, the claimant in good faith engaged in a traditional marriage ceremony with the decedent. Unknown to her, however, the decedent was already married to another woman, Catherine Gabriel. His marriage to the claimant, therefore, was void ab initio. Johnson v. J. H. Terry & Co., 182 Pa. Superior Ct. 258, 126 A.2d 793 (1956). On September 8, 1953, the decedent's earlier marriage terminated in divorce, and the impediment to the creation of a valid marital union between the claimant and the decedent was then removed. The claimant and the decedent, however, did not enter into a second marriage ceremony. The record reveals testimony sufficient to support cohabitation and reputation as conclusive that the claimant and decedent held themselves out as husband and wife, one of the necessary incidents to the creation of a common law marriage. Brown v. Atlantic and Gulf Stevedores, Inc., 2 Pa. Commonwealth Ct. 481, 279 A.2d 372 (1971). On the other hand, the testimony appears to negate the utterance, subsequent to the divorce, of words evidencing present intent to enter the marriage agreement, another incident necessary to the creation of a common law marriage. David v. Bellevue Locust Garage, 12 Pa. Commonwealth Ct. 602, 317 A.
[ 15 Pa. Commw. Page 3992]
d 341 (1974). Although, therefore, not all of the requisites for a common law marriage between the claimant and the decedent may be found here, Section 17 of The Marriage Law, Act of August 22, 1953, P.L. 1344, as amended, 48 P.S. § 1-17, would seem to apply to validate this relationship. It provides: "If a person, during a life time of a husband or a wife, with whom a marriage is in force, enters into a subsequent marriage pursuant to the requirements of this act, and the parties thereto live together thereafter as husband and wife, and such subsequent marriage was entered into by one or both of the parties in good faith . . . without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by . . . divorce, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and immediately after the removal of such impediment."
The employer argues that this provision may not apply, because it became effective after the impediment to the instant marriage was removed and cannot be retroactively applied.*fn1 Of course, "no statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." Statutory Construction Act of 1972, 1 Pa. S. § 1926. Here, however, it would seem clear that the public policy favoring the validity of good faith ceremonial marriages motivated the legislative adoption of this marriage validating provision. Commonwealth ex rel. Alexander v. Alexander, 445 Pa. 406, 289 A.2d 83 (1971). It would seem equally clear that the claimant's innocent ...