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decided: September 5, 1984.


Appeal from the Order of the Pennsylvania State Employes' Retirement Board in the case of In Re: Petition of Michael McGovern, Executor of Estate of Francis J. McGovern, Social Security No. 171-10-6660.


Richard P. Hunter, Jr., Ominsky, Joseph & Welsh, P.C., for petitioner.

Marsha V. Mills, Assistant Chief Counsel, for respondent.

Judges Williams, Jr., Barry and Blatt, sitting as a panel of three. Opinion by Judge Barry. Judge Williams, Jr. concurs in the result only.

Author: Barry

[ 85 Pa. Commw. Page 51]

This is an appeal from a decision dated March 24, 1982, of the Pennsylvania State Employes' Retirement Board (Board). On December 17, 1980, Francis J. McGovern, who had been employed by the Delaware Joint Toll Bridge Commission since August 6, 1951, selected his wife, Mrs. Loretta McGovern, as beneficiary of his retirement benefits. He chose a joint survivor annuity and signed the appropriate certification to that effect. Petitioner, Michael McGovern, the son of Francis J. McGovern, contended, before the Board, that his father did not have the requisite mental capacity to execute the retirement application on December 17, 1980. The Board rejected this contention and accepted a recommendation dated March 11, 1982, of Raymond Kleiman, Esquire, hearing examiner, denying a request to change or void the annuity contract. The Board found, as a fact*fn1 that "under the

[ 85 Pa. Commw. Page 52]

Options 4 and 3, as chosen by Mr. McGovern, his Estate was due the sum of $27,105 as a lump sum payment, under Option 4, and $499.92 as that portion of the monthly annuity benefit due from January 9 to January 28, 1981, under Option 3."*fn2 The Board's conclusion of law No. 1 was that "Mr. Francis J. McGovern did not lack the requisites or mental capacity to execute his retirement application on December 17, 1980 and did understand the nature of the transaction." If Mr. McGovern had selected a living beneficiary or had not selected any beneficiary at all, the sum of $154,311.45 would have been available to the living beneficiary or his estate. (R. 29a)

Our scope of review where the decision of the Board is against the appellant-claimant is to determine whether the Board's findings of fact are consistent with each other and with its conclusions of law, and can be sustained without a capricious disregard of the evidence. Brayo v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 234, 435 A.2d 1346 (1981).

Michael J. McGovern, the decedent's son, an attorney and the executor of his estate, testified that his father had a history of alcoholism for about twenty years. With the help of his family doctor the condition was stablized so that he was functional and did not miss work. In October, 1979, it was discovered that decedent's wife had Hodgkins Disease. In March of 1980, Dr. Rubin, informed her that she was in the late stages of the disease. At about this time, the decedent, who had been almost exclusively a beer drinker, switched from beer to whiskey and his condition deteriorated rapidly. (R. 32a) He missed work frequently and was sent home because he was drunk on the job.

[ 85 Pa. Commw. Page 53]

(R. 33a) Neighbors called that he had fallen down and bartenders called that he would not leave the bar. (R. 33a) Decedent seemed, at times, to accept his wife's illness but at other times he claimed she was a hypochrondriac, she was faking, she was fine, maybe she had an ulcer. (R. 34a) In September or October of 1980, at the urging of his son, the decedent made a will in which he named his daughter, Loretta, the youngest of his four children and the only one living at home, as his heir. On several occasions, when his son had arranged to pick him up and take him to the Board to sign pension papers, the decedent was "blind drunk" (R. 41a) The decedent told James C. Kendig, Assistant Personnel Manager of the Delaware River Port Authority, who handled pension matters for that body, that he had a lawyer in the family who would accompany him to discuss his options for retirement. (R. 42a) Around Thanksgiving of 1980, the condition of the decedent further deteriorated. He abused his wife and yelled at her, called her a faker and accused her of trying to make him feel guilty. Mrs. McGovern began to contemplate committing the decedent to an institution. (R. 43a) She abandoned these plans because the holiday season approached and hoped that his condition would improve. The decedent was in terrible shape, emaciated, surviving only on peanut butter, cream cheese and crackers and beer and whiskey; he was very high strung. (R. 45a) Because of the condition of his mother, Michael McGovern had completely forgotten about his father's pension plan. (R. 46a) Francis McGovern informed his son that he intended to name his daughter, Loretta, as his beneficiary under Option 1 of the Board. The decedent never informed his son, during his lifetime, that he had, in fact, exercised a different option. (R. 48a) As Mrs. McGovern's condition deteriorated, the decedent

[ 85 Pa. Commw. Page 54]

    drank almost non-stop, did not sleep and hallucinated about seeing his dead father on the street. (R. 49a) He would dress for work even though he had retired. (R. 50a) Mrs. McGovern died on January 23, 1981. She had been in the hospital fifty or sixty days during a year period and yet the decedent had visited her only five minutes in that period. (R. 51a) When told of his wife's death, the decedent called his son a liar and insisted on talking to the doctor personally. (R. 52a) Although he had been drinking continuously day in and day out when his wife died he suddenly stopped drinking altogether, stopped smoking, although he had been a three-pack a day smoker, stopped eating and did not sleep. (R. 52a) He continued to hallucinate and talk to his father. (R. 53a) On January 28, 1981, after the McGovern family had returned from Mrs. McGovern's wake, they heard a thud upstairs and found Mr. McGovern dead. (R. 54a)

James R. Moore, who had known the decedent twenty-eight years and had worked with him for sixteen years, corroborated the change in the decedent's drinking habits after his wife became ill. (R. 89a) He testified that Mr. McGovern told him that he wanted everything to go to his daughter, Loretta. (R. 91a) The decedent said that he intended to bring his son to the office of Mr. Kendig, because his son was a lawyer. (R. 94a) He called the witness and asked him to pick up and take him to work, despite the fact that he had already retired. (R. 82a) He insisted that the only thing wrong with his wife was that she had bleeding ulcers. (R. 99a) The ...

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