Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Eugene Ziegler, Deceased, Madeleine T. Ziegler, Widow v. Stuck Leasing Company, No. A-92657.
John C. Mascelli, for petitioner.
Ira H. Weinstock, with him, Gerard M. Mackarevich, Ira H. Weinstock, P.C., for respondents.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 125 Pa. Commw. Page 238]
Before us is an appeal by Stuck Leasing Company (Employer) from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of benefits to Madeleine Ziegler (Claimant) as widow of Eugene Ziegler III (Decedent). For the reasons which follow, we affirm.
Employer is arguing on appeal to this Court that the record fails to support the conclusion of the Board and the referee that Claimant was the widow of Decedent who died in the course of his employment on November 6, 1984. Therefore according to Employer, Claimant is not entitled to benefits pursuant to Section 307 of The Pennsylvania
[ 125 Pa. Commw. Page 239]
Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 562.*fn1
Claimant's testimony before the referee can be summarized as follows. Claimant and Decedent were first married in 1948 and during the course of this marriage six children were born. In 1972, the couple divorced. In 1974, Claimant remarried and lived in California with her new husband. In September 1975, Decedent went to California. As a result of this visit, Claimant returned to Pennsylvania with Decedent and the couple began living together. Decedent was a truck driver and his employment required him to often be away from home. In January 1977, Claimant's divorce from her second husband became final. Claimant testified that she considered her common law marriage to have commenced in September 1977 while visiting Decedent's dying brother in the hospital. Claimant stated that during this visit Decedent's brother "gave her away." In 1979, Claimant received an offer to operate a motel in California. This required Claimant and other family members, including Decedent, to be in California for long periods of time in order to operate the business. Decedent eventually resumed work as a truck driver. Claimant testified that although the motel venture started as a "family" business venture, her family including Decedent lost interest in the business. For this reason she gave it up. Claimant continued to go to California for several months each year in order to operate various businesses. Claimant testified that from time to time Decedent would give her money. When not in California, Claimant resided in the Pennsylvania home she owned jointly with Decedent.
[ 125 Pa. Commw. Page 240]
In May 1984, Claimant filed a cause of action in divorce against Decedent whereby she requested support and alimony. At the time of his death in November 1984, Decedent had not yet responded to the complaint but an attorney had entered an appearance on his behalf. Claimant testified that a few days before he died, Decedent sent her and their daughter $400.00 in order to return home to Pennsylvania.
In further support of her position that she and Decedent had established a common law marriage, Claimant presented the testimony of two friends, Peter Gregas and Martin Beachy. Both witnesses testified to their association with Decedent and Claimant as husband and wife. Claimant also presented the testimony of her two children, John Ziegler ...