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About a decade ago, a former Pennsylvania attorney general shocked an audience of judges, appeal board commissioners, and the workers’ compensation bar in an address hosted by my former law firm. He stated that workers’ compensation judges should be more judicious and more even-handed in rendering decisions, and that attorneys should reconsider the fees they charge clients because there is nothing very complicated about the workers’ compensation law. After all, he said, it’s all contained in a small green booklet published by the Bureau of Workers’ Compensation. Since that fateful day, there have been numerous developments in our practice that not only have proven the distinguished gentleman wrong, but have changed the landscape of our law in the area of paternity, common law marriage, and (oh yes) attorney fees, and while American jurisprudence is a fine mix of constitutional, statutory and common law at the federal and state level, our practice is not an orphan child. In reality, for those of us who have devoted our lives to this practice, the “small green booklet” is not as simple or as straightforward as the former attorney general would have people believe. Consider the latest decision by the Commonwealth Court on the issue of common law marriage. In Costello v. WCAB (Kinsley Construction Inc.), decided Feb. 13, the claimant, Lori Newhart Costello, filed a claim for fatal injuries sustained by her common law husband, Joseph Costello on Aug. 31, 2004. The core issue before the WCJ was whether the common law marriage was valid under a prior Commonwealth Court decision in PNC Bank Corp. v. WCAB (Stamos), decided on Sept. 17, 2003. In PNC Bank Corp., the Commonwealth Court in a very scholarly decision traced the origin of common law marriages in Pennsylvania to the present time, and held that the doctrine of such marriages was abolished. The Commonwealth Court held further that their decision would be applied prospectively to any common law marriage entered into after (presumably) the date of their decision. If there had been no further development in the legality of common law marriages after the PNC Bank Corp. decision, Mrs. Costello’s fatal claim may have been straightforward affair as her common law marriage with Joseph Costello took place on Nov. 26, 2003. However, this was not to be because the General Assembly amended the marriage law on Nov. 24, 2004, which provided that “No common-law marriage contracted after Jan. 1, 2005, shall be valid.” The act provided further that “Nothing in this part shall be deemed or taken to render any common law marriage otherwise lawful and contracted on or before Jan. 1, 2005, invalid.” The issue presented to the WCJ, and the appeals that followed, is a textbook example of the interplay between constitutional powers, statutory interpretation, and the effect of legislative amendments on existing common law, which one would never expect to find in a “simple workers’ compensation claim.” After taking evidence, the WCJ found that while the Commonwealth Court’s decision in PNC Bank Corp. prospectively abolished the doctrine of common law marriage on Sept. 17, 2003, the Legislature’s amendment of the Marriage Law invalidating common law marriages after Jan. 1, 2005, extended the validity of such marriages; and, therefore, the WCJ found and concluded that Costello was entitled to fatal claim benefits as the decedent’s widow since the marriage occurred prior to Jan. 1, 2005. In support of his decision, the WCJ relied upon an opinion from the Supreme Court in Staudenmayer v. Staudenmayer, decided in 1998, which declined to abolish common law marriages, deferring such action to the Legislature. In short, the WCJ determined that the Commonwealth Court’s decision did not effectively change the law in Pennsylvania, and if it did, the Legislature’s amendment of the Marriage Law took precedence over appellate court decisions under the powers conferred upon that body by the state constitution. If the Legislature’s amendment merely provided that all common law marriages after Jan. 1, 2005, were invalid, the matter would have been settled, but the legislative amendment also contained an additional clause that clouded the validity of Costello’s common law marriage as it provided in pertinent part that nothing in the amendment shall deem any common law marriage otherwise lawful on or before Jan. 1, 2005, invalid, and on this point, the employer filed an appeal. The employer argued and the appeal board opined that because the Costello’s common law marriage occurred after the Commonwealth Court’s decision in PNC Bank Corp., the marriage could not be considered “otherwise lawful” under the Legislature’s amendment of the Marriage Law. The appeal board, therefore, reversed the WCJ’s award of fatal claim benefits to Costello, but allowed benefits for her minor son through her common law marriage with the decedent. Costello appealed this determination asserting that the appeal board had committed an error of law. The Commonwealth Court, while recognizing their earlier decision in PNC Bank Corp., agreed. The court accepted the employer’s argument that the issue of Costello’s common law marriage was primarily one of statutory construction. In reviewing the language of the legislative amendment, against their holding in PNC Bank Corp., the Commonwealth Court rejected the employer’s assertion that their holding in PNC Bank Corp. rendered Costello’s common law marriage void ab initio, or that the legislative amendment could not be applied retroactively to the date of the PNC Bank Corp. decision absent clear and unambiguous language in the act. In their examination of the Marriage Law, the court considered that the original version of the statute did not change the existing law with respect to common law marriages; and, therefore, the court held that the Legislature’s amendment in 2004 was intended to treat all common law marriages valid prior to Jan. 1, 2005, their decision in PNC Bank Corp., notwithstanding. Accordingly, the majority of the Commonwealth Court held that the legislative amendment to the Marriage Law rendering common law marriages invalid after Jan. 1, 2005, superseded their decision in PNC Bank Corp., which set the prospective invalidation of common law marriages from the date of their decision. The court, therefore, found no error in the WCJ’s decision, and reinstated benefits to Mrs. Costello as the widow of Joseph Costello. The majority’s opinion in this en banc case was not universal. In his dissenting opinion, Judge Robert Simpson opined that the majority overlooked an important principle of statutory construction which holds to the proposition that absent of any clear and explicit language by the legislature, amendments to statutes are to make no presumption of innovation to existing common law. Accordingly, Simpson opined and Judge Bonnie Brigance Leadbetter joined that their holding in PNC Bank Corp., rendered Costello’s common law marriage unlawful and invalid citing several prior precedents. In a concurring opinion, Judge Mary Hannah Leavett agreed with the majority that the effective date for abolishing common law marriages was Jan. 1, 2005, but did not believe the Legislature’s amendment of the Marriage Law superseded or overruled their decision in PNC Bank Corp., because there was no disagreement between their decision or that of the legislative amendment that the time had come to abolish common-law marriages in Pennsylvania. Instead, she opined that because their opinion did not specify an implementation date that would allow judicial review by the state Supreme Court to determine what disruption their holding would have caused by a dramatic change in the law, the Legislature’s amendment to Marriage Law did not alter their holding that common-law marriages were abolished in Pennsylvania, but merely specified the date in which such marriages could no longer be viewed as legal. The Costello case illustrates that our practice often encompasses fields of law that fall outside the “small green booklet.” Ours is a dynamic practice that constantly involves statutory interpretation and its relationship to common law decisions. In the Costello decision, the parties not only had to labor over civil unions, but the meaning of the statutory amendment where its effect was anything but clear and straight forward. The case further illustrates that our WCJs are thoughtful arbiters of the law and judicious in their decisions who are quite capable of deciding various legal concepts requiring first-impression analysis and statutory interpretation, whether they be civil unions, paternity, attorney fees, or virtually any other facet legal system where it affects workers’ compensation claims. This case further illustrates the skill of the bar to raise thoughtful and valid arguments on issues affecting the rights and protections of injured workers and employers alike. In short, our practice is not just contained in a “small green booklet.” Daniel V. DiLoretto practices in the workers’ compensation law practice area with Harvey Pennington in Philadelphia. He has developed extensive experience in the defense of workers’ compensation litigation, as well as related employment issues such as the Americans With Disabilities Act, and the Family and Medical Leave Act. He can be contacted at [email protected].

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