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DOROTHY BOWDEN v. COMMONWEALTH PENNSYLVANIA (08/22/77)

decided: August 22, 1977.

DOROTHY BOWDEN, WIDOW OF JOSEPH BOWDEN, DECEASED, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND G. & W.H. CORSON COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dorothy Bowden, Widow of Joseph Bowden, deceased, v. G. & W.H. Corson Company, No. A-70961.

COUNSEL

Joseph Lurie, for appellant.

David L. White, with him James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. Judge Kramer did not participate in the decision. Opinion by Judge Blatt. Judge Kramer did not participate in the decision in this case. See Pa. R.a.p. 3102(d).

Author: Blatt

[ 31 Pa. Commw. Page 477]

Dorothy Bowden (claimant) appeals to this Court from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's order which denied her compensation after finding that she was not the surviving widow of Joseph Bowden (Bowden).

The sole issue before us is whether or not the Board committed an error of law when it concluded that claimant had failed to prove a common law marriage to Bowden, who was accidently killed while in the course of his employment. The claimant contends that the Board erred in requiring her to prove that she and Bowden had exchanged words evidencing a present intent to enter into a marriage contract.

The record in this case contains evidence, and the workmen's compensation authorities so found, that the claimant cohabited with Bowden over the course of twelve years during which time they had a daughter. The record also indicates, and a finding was made, that the claimant used Bowden's name, and that he and she held themselves out to be husband and wife. The law is clear, however, that "[c]ohabitation and reputation are not a marriage; they are but circumstances from which a marriage may be presumed, and such presumption may always be rebutted and will wholly disappear in the face of proof that no marriage has occurred." Commonwealth ex rel. McDermott v. McDermott, 236 Pa. Superior Ct. 541, 345 A.2d 914 (1975). The present intent of the parties to form a marriage contract is the crucial element in proving a valid common law marriage relationship. David v. Bellevue Locust Garage, 12 Pa. Commonwealth Ct. 602, 317 A.2d 341 (1974).

The claimant testified that when she and Bowden first started living together she told him "that he was my husband and he told me that I was his wife." This

[ 31 Pa. Commw. Page 478]

    testimony, however, must be viewed in light of the claimant's other statements which tend to negate this present intention to be married and which reveal her intention only to enter into a ceremonial marriage sometime in the future:

Q. Did you ever tell Joseph Bowden specifically that you ...


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