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Elk Mountain Ski Resort, Inc. v. Workers' Compensation Appeal Board

Commonwealth Court of Pennsylvania

April 7, 2015

Elk Mountain Ski Resort, Inc., Petitioner
v.
Workers' Compensation Appeal Board (Tietz, deceased, and Tietz-Morrison), Respondents

Submitted October 3, 2014.

Page 28

[Copyrighted Material Omitted]

Page 29

Appealed from No. A12-1642. State Agency: Workers' Compensation Appeal Board.

Sharolyn L. Murphy, East Norriton, for petitioner.

Halmon L. Banks, III, Philadelphia, for respondent.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE LEADBETTER. CONCURRING OPINION BY SENIOR JUDGE COLINS.

OPINION

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BONNIE BRIGANCE LEADBETTER, JUDGE.

Elk Mountain Ski Resort, Inc. (Employer) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) granting the fatal claim petition filed by Tara Tietz-Morrison (Claimant) as the surviving wife of Wayne Tietz (Decedent) and guardian of their children.

Employer questions (1) whether the WCJ failed to require Claimant to establish a common-law marriage by clear and convincing evidence, (2) whether Claimant was competent to testify to establish a common-law marriage contract with Decedent under Section 5930 of the Judicial Code (Dead Man's Act), as amended, 42 Pa. C.S. § 5930, and (3) whether Claimant's documentary evidence postdating the 2005 abolishment of common-law marriages in Pennsylvania could support the alleged June 12, 2004 common-law marriage of Decedent and Claimant. We reject Employer's argument that the WCJ placed the incorrect burden of proof upon Claimant. We further conclude that Claimant's testimony was not proscribed by the Dead Man's Act, that Claimant established a common-law marriage by clear and convincing evidence, and that her documentary evidence was relevant to the issue of constant cohabitation of Decedent and Claimant and a reputation of their marriage. Accordingly, we affirm.

On November 10, 2011, Claimant filed a fatal claim petition alleging that Decedent died on October 11, 2011 as a result of multiple traumatic injuries sustained in a utility-tractor rollover accident. Claimant listed herself as Decedent's wife and their daughters, Shea and Tarwyn Tietz, as dependents.[1] In a subsequently filed Stipulation, Employer agreed that Decedent's death was caused by work-related injuries, that Decedent's daughters were entitled to weekly death benefits of $180.18 under Section 307(1)(b) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 561(1)(b), and that their benefits should be paid to Claimant who was their legal guardian.[2] The parties did not resolve whether Claimant was legally married to Decedent at the time of his death. They agreed to submit the issue for the WCJ's determination and stipulated that Employer would be entitled to a credit for previously paid death benefits upon the WCJ's determination that Claimant was entitled to death benefits as Decedent's surviving wife.[3]

Before the WCJ, Claimant testified as follows to establish that she and Decedent entered into a common-law marriage contract on June 12, 2004. Claimant is a Native American (Nanticoke and Cherokee). Decedent was also a Native American (Mohawk). As Native Americans, Claimant and Decedent were " very, very much into [their] culture." March 8, 2012 Hearing, Notes of Testimony (N.T.) at 16;

Page 31

Reproduced Record (R.R.) at 43a. Decedent previously asked Claimant's parents " for [Claimant's] hand in marriage." Id. at 12-13; R.R. at 39a-40a. On Saturday, June 12, 2004, Decedent and Claimant, who had been living together, visited Claimant's parents. Decedent told Claimant's parents that he and Claimant would come back as husband and wife. Claimant's parents responded that they were happy for Decedent and Claimant.

Decedent and Claimant then went down to the field by the stream behind the house of Claimant's parents to have a traditional Native American marriage ceremony. The ceremony involved wrapping a Native American blanket around them, which signified their " joining as one," and exchanging vows. Id. at 13 and 16; R.R. at 40a and 43a. Decedent first asked Claimant to be his wife. Claimant then asked Decedent to be her husband. Decedent prayed that " Creator would watch over [them] and keep [them] safe." Id. at 16; R.R. at 43a. Following the Native American tradition, they exchanged wedding gifts. Decedent gave Claimant meat, which signified that he would be the provider for the family. Claimant in turn gave Decedent corn wrapped in red, the Native Americans' favorite color. Although it was not customary for a Native American wedding, they also exchanged silver wedding rings and bands. The marriage ceremony took 30 to 45 minutes.

After the ceremony, Claimant and Decedent went back to Claimant's parents who were outside waiting for them. Claimant's mother took photographs of Claimant and Decedent in the front yard. One photograph (Exhibit C-5) taken on the day of the ceremony showed Decedent wearing the silver wedding ring that Claimant gave him during the marriage ceremony. To celebrate the marriage, Claimant's mother prepared the traditional meal of fried bread and venison. Photographs taken at subsequent events showed Decedent wearing the silver wedding ring and band and Claimant wearing the silver wedding ring. Claimant was wearing the silver wedding ring and band at the hearing.

After the marriage ceremony, Claimant and Decedent continued to live together and held themselves out as husband and wife until Decedent's death. They had two daughters born in 2005 and 2011. Claimant also worked for Employer from 2004 until she became pregnant with her second daughter in 2011. She used Morrison-Tietz and Tietz interchangeably as her last name. Decedent and Claimant did not file a joint tax return because they believed that they were required to wait for 7 years before their common law marriage would be recognized by the IRS and other governmental agencies. ...


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