# PNC Bank Corp. v. Workers' Compensation Appeal Board > Commonwealth Court of Pennsylvania · September 17, 2003 · 831 A.2d 1269 URL: https://www.frixlaw.com/law-library/cases/9747615 ## Case - **Full name:** PNC BANK CORPORATION, Petitioner, v. WORKERS’ COMPENSATION APPEAL BOARD (STAMOS), Respondent - **Court:** Commonwealth Court of Pennsylvania - **Decided:** September 17, 2003 - **Citations:** 831 A.2d 1269; 2003 Pa. Commw. LEXIS 678 - **Precedential status:** Published - **Opinion:** Concurring in part by Smith - **Judges:** Colins, Smith-Ribner, Pellegrini, Leadbetter, Cohn, Simpson, Leavitt - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9747615 ## How later opinions describe it (automated extraction) - noting that “evidence of cohabitation and reputation was irrelevant” to determining whether petitioner met his burden of proving common law marriage by exchange of verba in praesenti - explaining the court's view that common law marriage should no longer be recognized - applying the abolition of common-law marriage prospectively ## Opinion text DISSENTING AND CONCURRING OPINION BY Judge SMITH-RIBNER. I respectfully dissent from the majority opinion because of my strong disagreement with a determination by an intermediate court of this Commonwealth that the right granted at common law to individuals to enter into common law marriage henceforth shall no longer exist. The majority usurps the function of the legislature and casts upon the people of this Commonwealth a change in common law that the majority has no authority or power to impose. When the people desire to abolish common law marriages, they should do so through their elected representatives in the legislature. The Supreme Court thought so in a situation involving the court’s power to change the common law duty of a parent for the support of a minor child. The court felt that a “more prudent course” of action was to await guidance from the legislature rather than to create duties or obligations by judicial fiat. Blue v. Blue, 532 Pa. 521 , 616 A.2d 628 (1992). The majority reads dicta from Staudenmayer v. Staudenmayer, 552 Pa. 253 , 714 A.2d 1016 (1998), as evidence that the Supreme Court would act to abolish common law marriages if only it had the right case before it and since the issue is now squarely before this Court that it should act instead. That logic is faulty for various reasons, the least of which is that only two members of the seven-member Supreme Court voted for the court to seize the opportunity in Staudenmayer to abolish common law marriages. A clear majority of the Supreme Court did not do so and perhaps for the very sound reason that it chose not to act in Blue to change duties or obligations established at common law or more recently in Benson v. Patterson, — Pa. -, 830 A.2d 966 (2003) (Newman, J. dissenting). The issue *1287 in Benson was whether the Supreme Court could extend a duty of support for two minor children upon the estate of the deceased father and to require the estate to pay outstanding support orders, as well as increases, to the respective mothers until the minor children reached the age of majority. In rejecting the notion that it could extend a duty of child support beyond the father’s death, the Supreme Court very clearly expressed its position: Under the Common Law, a parent had a duty to support a minor child. In its wisdom, our General Assembly has bestowed adulthood on minor children at age 18. Consequently, the common law duty to support a minor child must by necessity cease at age 18.... Accordingly, since no legal duty has been imposed by our legislature, nor have we developed such a duty by our case law, we decline to do so. Since our legislature has taken an active role in domestic matters through amendments and reenactment of the Divorce Code and the Domestic Relations Act, we feel the more prudent course is to await guidance from that body rather than creating duties and obligations by judicial pronouncement. [Blue, 582 Pa. at 529, 616 A.2d at 632 ], We apply the same reasoning to the case at bar. A child’s needs do not end when a parent dies, but as sympathetic a fact as this may be, there are other considerations in the law, and it is clear we must defer to the legislature, which has taken an active role in developing the domestic relations law of Pennsylvania. Ga rney [v. Estate of Hain, 439 Pa.Super. 42 , 653 A.2d 21 (1995) ] was decided in 1995. The General Assembly could, have responded to the holding in Gamey, (as it did in Blue), by amending the domestic relations and estate statutes; it has not done so, and it is not the role of the judiciary to legislate changes the legislature has declined to adopt. Benson , — Pa. at -, 830 A.2d at 968 (emphasis added). The majority chronicles decisions from other jurisdictions, where common law marriage has been abolished, and it relies in part on a decision from the New Jersey Supreme Court in Dacunzo v. Edgye, 19 N.J. 443 , 117 A.2d 508 (1955). The majority misses the point, however, of Dacunzo : the people of New Jersey abolished common law marriages through legislative action, not by judicial fiat from that state’s Supreme Court or by intermediate court pronouncement. In Staudenmayer the Supreme Court expressly noted that it did not abolish common law marriages in Pennsylvania, and in Brandywine Paperboard Mills v. Workers’ Compensation Appeal Board (Zittle), 751 A.2d 1205 (Pa.Cmwlth.2000), this Court cited Stauden-mayer in recognition of the fact that common law marriage still exists in Pennsylvania. In the matter of Interest of Miller, 301 Pa.Super. 511 , 448 A.2d 25 (1982), the appellant requested the Superior Court to abolish common law marriage in Pennsylvania or to align the age of consent to that required for statutory marriage. The court declined the opportunity, as it had done before, to abolish common law marriage or to modify the doctrine, stating the following: Past efforts in the Legislature to abolish common law marriage have failed. Freedman, 1 Law of Marriage and Divorce in Pennsylvania, § 50a (2d ed.1957). The Marriage Law, Act of August 22, 1953, P.L. 1344, 48 P.S. § 1-23 [repealed by Section 6 of the Act of December 19, 1990, P.L. 1240, see now 23 Pa.C.S. § 1103] explicitly preserves *1288 the right to contract a common law marriage, providing that “[n]othing herein shall be construed to change the existing law with regard to common law marriage.” This remains the legislative intent, as may be seen from the fact that the Divorce Code of 1980 did not repeal this provision of The Marriage Law, although it did expressly repeal another provision. See Perlberger, Pennslyvania Divorce Code § 2.5 (1980). For us to ignore so clear an expression of legislative intent would be an abuse of judicial power. If common law marriage is to be abolished, or the requirements for entering into it changed, it must be done by the Legislature, not the courts. Id. 301 Pa.Super. 526 , 448 A.2d at 32 (footnote omitted) (emphasis added). That the majority of this Court has taken a position which is in complete and total contradiction of case law is pretty obvious. The Supreme Court declined an opportunity to change the common law as it relates to child support duties or obligations as requested in Blue , and in Benson the court declined the opportunity to change common law regarding the imposition of support obligations upon a decedent’s estate because it was up to the legislature to do so rather than the court. The Superior Court in Miller declined a request to abolish common law marriage because that matter too was up to the legislature to determine rather than the court. There is no question that this Court should likewise decline PNC’s request for it to abolish common law marriage, which has long been recognized in this Commonwealth. If the Pennsylvania legislature determines in its wisdom, as have the legislatures in New Jersey or in Florida, see N.J.S. § 37:1-10, Fla. S. § 741.211, and many other jurisdictions, to take up the issue of abolishing common law marriage then at that time it may well consider and debate many of the policy considerations expressed by the majority here for doing what it has no authority or power to do. Otherwise, I concur with the majority’s decision to affirm the grant of the fatal claim petition of John Kretz because he proved a common law marriage with the decedent Janet Stamos. Judge PELLEGRINI joins in this dissenting and concurring opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747615. Public record. Not legal advice.