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BETHENERGY MINES v. WORKMEN'S COMPENSATION APPEAL BOARD (SADVARY) (07/06/88)

decided: July 6, 1988.

BETHENERGY MINES, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SADVARY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Steve Sadvary, Deceased, Alice Sadvary, Widow v. BethEnergy Mines, Inc., No. Misc. 4365.

COUNSEL

Carl J. Smith, Jr., Ceisler, Richman, Sweet, for petitioner.

C. Jerome Moschetta, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Concurring Opinion by Judge Craig. Dissenting Opinion by Judge Palladino.

Author: Barbieri

[ 117 Pa. Commw. Page 466]

BethEnergy Mines Inc. (Employer) petitions for review of the order of the Workmen's Compensation Appeal Board (Board) dismissing its petition alleging that Alice Sadvary (Claimant) had entered into a meretricious relationship and should therefore have her widow's benefits terminated under Section 307(7) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 562. We reverse.

Claimant's husband, Steven Sadvary, died in a work related accident on August 19, 1980. Pursuant to Section 307 of the Act,*fn1 Claimant was awarded widow's benefits in the amount of $199.00 per week. Beginning in 1984, Employer retained a private investigation firm which established through surveillance that Claimant was living with another man who was at the time separated from his wife. The Claimant admitted that she lived with this man for a period of one year, that she

[ 117 Pa. Commw. Page 467]

    was not married to him, and that the relationship included sexual relations. Section 307(7) of the Act states in pertinent part:

Provided, however, That if, upon investigation and hearing, it shall be ascertained that the widow or widower is living with a man or woman, as the case may be, in meretricious relationship and not married, or the widow living a life of prostitution, the board may order the termination of compensation payable to such widow or widower.

The referee found that such a meretricious relationship existed. The Board accepted this finding, but found that the economic effect of terminating benefits to a forty eight year old widow living in an economically depressed area, who had not worked in fifteen years, and who was now totally dependent upon these benefits for support, would be devastating. The Board further found that, as Claimant had ceased her meretricious relationship with the filing of Employer's termination petition, it would exercise its "discretionary" authority under Section 307(7) and deny Employer's petition. Employer argues on appeal that the Board has no such discretionary authority under Section 307(7) and that once Employer proves its case the Board must grant the petition as a matter of law.

[ 117 Pa. Commw. Page 468]

Section 307(7) is a legislative attempt to regulate morality from an anachronistic era which has repeatedly survived the due process and equal protection attacks which sunk similar minded criminal statutes dealing with adultery and fornication years ago.*fn2 See Nevius v. Page 468} Workmen's Compensation Appeal Board (I. Reindollar and Sons, Inc.), 52 Pa. Commonwealth Ct. 418, 416 A.2d 1134 (1980); Workmen's Compensation Appeal Board v. Worley, 23 Pa. Commonwealth Ct. 357, 352 A.2d 240 (1976). In the past the Board has ameliorated the harsh results of Section 307(7) while attempting to reconcile its legislative purpose by using the phrase "the board may order . . ." to impose a suspension of benefits for the period the claimant engaged in the meretricious relationship. In both Nevius and Worley we sustained such suspensions in the face of attacks by the claimant that the Board's action constituted an abuse of discretion. However, we specifically noted in Nevius that the employer had not raised the issue of whether the board lacked the authority to order a suspension. Nevius at 420, n.1, 416 A.2d at 1136, n.1. When in Jones Motors v. Workmen's Compensation Appeal Board (Moyer), 51 Pa. Commonwealth Ct. 210, 414 A.2d 157 (1980), the employer challenged the Board's authority to issue a suspension under these circumstances, we were quick to point out that Section 307(7) authorized termination only, which is not interchangeable with suspension, and consequently the Board had no discretion or authorization to order a suspension.

The Board is attempting to do indirectly in this case what we ruled it could not do directly in Jones. If the Board does not have the discretion to order a suspension in lieu ...


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