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DONALD S. FLORIS T/D/B/A ALLEGHENY MOBIL HOME TRANSPORTATING & WEST PENN TRAILER SUPPLY AND AETNA LIFE & CASUALTY COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (SALIM) (10/25/89)

decided: October 25, 1989.

DONALD S. FLORIS T/D/B/A ALLEGHENY MOBIL HOME TRANSPORTATING & WEST PENN TRAILER SUPPLY AND AETNA LIFE & CASUALTY COMPANY, PETITIONERS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SALIM), RESPONDENTS



Appeal from PETITION FOR REVIEW, (WORKMEN'S COMPENSATION).

COUNSEL

Joseph F. Grochmal, with him, Dale A. Cable, Fried, Kane, Walters & Zuschlag, Pittsburgh, for petitioners.

Ronald M. Buick, McKeesport, for respondents.

Craig and Barry, JJ., and Blatt, Senior Judge.

Author: Barry

[ 129 Pa. Commw. Page 248]

OPINION

Donald Floris, t/d/b/a Allegheny Mobil Home Transportating and West Penn Trailer Supply (employer) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of the referee dismissing the employer's termination petition with regard to widow's benefits being paid to Joanne Salim, the respondent.

[ 129 Pa. Commw. Page 249]

Louis Salim was married to the respondent when he was killed in a work related accident while working for the employer. Respondent began collecting widow's benefits pursuant to an agreement for compensation for death. In October of 1985, the employer filed the present termination petition, alleging that respondent had either entered into a common law marriage or was engaged in a meretricious relationship with James Ober. A hearing was held at which the employer presented the following evidence. James Ober had been married to respondent from 1952 until 1965. Shortly after their divorce, respondent married Louis Salim and remained married until her second husband's demise. In a responsive answer to the employer's petition, respondent admitted that Ober had moved into her residence and was living there in exchange for his performance of maintenance work and repairs of the residence. The employer offered a number of exhibits to meet its burden of proof. The employer introduced a document from the Department of Motor Vehicles which showed that respondent and Ober had jointly purchased a motor home using the name Joanne Ober. Also introduced was the title to the motor home in the name of Joanne Ober. Respondent admitted that she had paid one-half of the purchase price.

The employer also introduced documents concerning a recent hospitalization of respondent, when she was admitted to the hospital as Mrs. Joanne Ober. Furthermore, one document submitted to Blue Cross by James Ober indicated that he and respondent had married. Respondent had also indicated in connection with other hospitalizations that she was married to Ober. The employer also offered exhibits concerning the financial affairs of respondent and Ober. A MasterCard/Visa statement which had been sent to the residence of respondent was sent to James A. and Joanne Ober. Furthermore, in January of 1985, at the request of both respondent and Ober, she received a MasterCard/Visa card embossed with the name Joanne Ober. Furthermore, a receipt of purchase on this credit card showed that the purchaser was Joanne Ober. The employer also introduced

[ 129 Pa. Commw. Page 250]

    information concerning a joint checking account in the names of James A. and Joanne Ober along with checks drawn on that account by Joanne Ober. The application for that joint account also indicated that the couple was married.

Respondent testified in her own behalf. She testified that her home was in a high crime area and that she permitted Ober to move into the house for safety reasons. She stated that she lived on the first floor of the house while Ober resided on the second floor and that she and Ober had not engaged in sexual relations since he moved into the house. Respondent explained the existence of the MasterCard/Visa account was to permit her to do periodic shopping for Ober. She also testified that she had over twenty credit cards in the name of Joanne Salim. Similarly, she testified that Ober did not know how to make out checks so that the joint checking account was established for his convenience. Further, she introduced a checking account in the name of Joanne Salim along with a myriad of checks ...


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