Common Law Marriage: 
Did Act 144 Resurrect Common Law Marriages
Declared Invalid by PNC BANK V. WCAB?

Written by:  R. Burke McLemore, Esquire
and Scott D. McCarroll, Esquire

The Legislature recently passed Act No. 144 of 2004, abolishing common law marriage.[1]  What the legislation did not specifically address is the question of whether common law marriages entered into after the Commonwealth Court’s decision in PNC Bank v. WCAB, yet prior to the effective date of the new law are to be deemed valid for purposes of workers’ compensation widow’s benefits. Since the question of whether common law marriage is valid or not is the key issue in such cases, this article discusses the effect the new law may have upon that determination.  What follows is an analysis of the current state of common-law marriage in Pennsylvania, and the proposition that a common-law marriage taking place after the date of the PNC decision, even if properly entered into, should nevertheless still be held null and void, thus resulting in a denial of widow’s benefits.  

In PNC v. Workers’ Compensation Appeal Board (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003) the full Commonwealth Court of Pennsylvania held, purely prospectively, that common law marriage was abolished.  The date of the PNC decision was September 17, 2003, effectively ruling that common law marriages entered into after that date were null and void.  Significantly, PNC was a workers’ compensation case.  Although, typically, an intermediate appellate court of Pennsylvania should not overrule a common law rule which the Supreme Court has left in place, the PNC court found that the Supreme Court in its plurality opinion on the issue of common-law marriage, Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998), “raised the overruling axe so high that its falling is just about as certain as the changing of the seasons.”  PNC, 831 A.2d at 1282. 

In Staudenmayer, the Supreme Court of Pennsylvania, in a plurality opinion, implied that the time had come to abolish the doctrine of common-law marriage, but because the parties did not raise the issue, the court did not consider it.  In a concurring opinion, however, Justices Nigro and Castille, advocated the abolishment of common-law marriage in the Commonwealth.  The remaining Justices, absent Justice Saylor, who did not participate, questioned the wisdom of permitting common-law marriage to persist and found that “[c]ommon law marriages are tolerated, but not encouraged.”  Staudenmayer v. Staudenmayer, 552 Pa. 253, 261, 714 A.2d 1016, 1019-20 (1998). 

Recently, the Superior Court of Pennsylvania recognized the validity of common-law marriage.  See  Stackhouse v. Stackhouse, 2004 Pa. Super. 427 ( Pa. Super. 2004); Bellv. Ferraro, 2004 Pa. Super. 144, 849 A.2d 1233 ( Pa. Super. 2004).  Notably, however, the   PNC case was not implicated, since the marriages were entered into prior to the effective date of that decision.  The Superior Court “recognize[d] that the Commonwealth Court has purported to prospectively abolish common law marriage in the context of workers’ compensation claims.  We point out, however, that (1) we are not bound by decisions of the Commonwealth Court , and (2) both this Court and our Supreme Court have declined the invitation to abolish common law marriage, deferring such action to the legislature.”  Bell, 849 A.2d at 1234 (citations omitted).

On November 23, 2004 , Governor Rendell signed into law Act 144 of 2004, formerly HB2719.  This newly enacted legislation, found in relevant part at 23 Pa. C.S. §1103, provides that, “[n]o common-law marriage, contracted after January 1, 2005 , shall be valid.”  The statute goes on to state, however, that “Nothing in this part shall be deemed or taken to render any common-law marriage, otherwise lawful and contracted on or before January 1, 2005, invalid.” (italics added).  It is the effect of this last sentence that makes for intriguing legal mischief.

When construing statutes, the rules of statutory construction must be applied.  When construing amendatory statutes, “the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective.”  1 Pa. C.S. §1953.   “No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.”  1 Pa. C.S. §1926; see also Bahl v. Lambert Farms, Inc. 572 Pa. 675, 819 A.2d 534 (2003); Commonwealth v. Shaffer, 557 Pa. 453, 734 A.2d 840 (1999); Cole v. Czegan, 722 A.2d 686, 690 (Pa. Super. 1998)  (explaining that amendatory statutes are not to be given retroactive application unless such a construction is so clear as to preclude all question as to the intent of the legislature, especially where such amendment interferes with existing contractual obligations or substantive rights).  The legislature has not adopted, per the rules of statutory construction,   1 Pa. C.S. §1901 et. seq., the interpretive principle of “negative implication”.  See Insurance Federation of Pennsylvania, Inc. v. Foster, 138 Pa. Commw. 229, 587 A.2d 865 ( Pa. Cmwlth. 1991).  

When these rules of statutory construction are applied, it is the contention of the writers that a common-law marriage entered into after September 17, 2003 , the decision date of PNC v. Workers’ Compensation Appeal board (Stamos), and prior to the effective date of Act 144 of 2004, would likely be deemed invalid for workers’ compensation purposes for the following reasons: 

First, if Act 144 had not been enacted, there is little doubt that the PNC decision would be applicable to a purported spouse’s workers’ compensation claim.  Thus, any common-law marriage entered into after September 17, 2003 , would be deemed null and void per the PNC decision.  It is noteworthy that because the PNC decision was purely prospective in application, and the marriage at issue was therefore deemed valid, the claimant in that case had no incentive to appeal the Commonwealth Court ’s decision to the Supreme Court.  We are therefore left to speculate what the Supreme Court would have done had it been presented with the question. 

Second, Act 144 begins by stating that no common law marriage contracted after January 1, 2005 shall be valid, period. The intriguing question, however, arises from that provision of Act 144 of 2004 which states: “[n]othing in this part shall be deemed or taken to render any common-law marriage, otherwise lawful and contracted on or before January 1, 2005 , invalid.”  Therefore, although marriages entered into after January 1, 2005 will certainly not be valid, this modifying provision does not state that a common-law marriage entered into before January 2, 2005 is lawful under all circumstances.  The phrase, “nothing in this part,” of the second sentence of 23 Pa. C.S. §1103 limits the first sentence of 23 Pa. C.S. §1103.  The second sentence of the new enactment, however, does not state the negative implication of the first sentence of Act 144 of 2004, it merely states that, “nothing in this act” shall render invalid any common-law marriage, otherwise lawful.  The point to be made, therefore, is that the decision of the PNC court had already rendered certain common law marriages unlawful unions for workers’ compensation purposes.  Clearly, the legislature must have been aware of the PNC decision at the time Act 144 was passed and signed into law.

Third, Act 144 of 2004 does not appear to have retroactive application as there is no clear and express statement of retroactive application in the enactment.  If Act 144 of 2004 were to be retroactive, the only relevant retroactive part of the legislation would be the second sentence of 23 Pa. C.S. §1103.  Importantly, however, if Act 144 is to be considered to have retroactive application, then one must conclude that its final sentence is either superfluous verbiage or it must be deemed nonsensical:  thus, if the argument is made that common-law marriage was lawful in all respects prior to Act 144 of 2004, the second sentence of 23 Pa. C.S. §1103 would be  superfluous because it would validate all common-law marriages entered into prior to January 2, 2005, which, absent the PNC decision would already have been valid. [2]).  Therefore, some other meaning must be given to the second sentence of Act 144 of 2004.

If “nothing in this part” is given the above ascribed meaning and the phrase, “otherwise lawful,” is given meaning  in the context of the PNC decision, then Act 144’s language is given full meaning, without superfluous verbiage.  The second sentence of Act 144 limits the first by pronouncing that the first sentence shall not be construed to limit, otherwise lawful common-law marriages, pre-January 2, 2005; however, as noted above, a common-law marriage in the workers’ compensation context is not “otherwise lawful,” for spousal dependency benefits purposes.

In Commonwealth v. Shaffer, the Supreme Court held that when the legislature clarifies or amends a statute, and the statute does not clearly express retroactive application, such a clarification or amendment does not overrule prior judicial decisions.  Commonwealth v. Shaffer, 557 Pa. 453, 734 A.2d 840 (1999) citing Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780, 784 (1977) citing Greenough v. Greenough, 11 Pa. 489 (1849) (the legislature cannot, by an act of assembly, overrule judicial decisions).  In Shaffer, a criminal defendant was charged with violating the Pa. C.O.A. (Pennsylvania Corrupt Organizations Act), 18 Pa.C.S. §911 et. seq.  The defendant claimed that because the government changed him with operating a wholly illegitimate enterprise, the defendant should not have been convicted because of the Supreme Courts holding in Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655 (1996) (holding that the Pa. C.O.A. applies solely to legitimate enterprises).  Within two months, the legislature took action and amended the PA. C.O.A. to include legitimate and illegitimate enterprises.  The legislative history regarding the amendment includes, “[b]ut most importantly, Mr. President, the House of Representatives, in the action which they took on April 30, added amendments to that bill in an attempt to overrule the decision of the majority, the four person majority of the Pennsylvania Supreme court on April 17 [referring to the Besch case].”  See Shaffer, 557 Pa. at 456, 734 A.2d at 842 (emphasis as expressed in Shaffer). 

After the legislature took action, the Superior Court of Pennsylvania reviewed the criminal defendant’s argument in Shaffer and held that, 

if Besch were the last relevant pronouncement concerning the scope of the corrupt organizations statue, we would be constrained to reverse appellant’s conviction.  It is not…the Pennsylvania legislature amended the statute, and in so doing expressed its disagreement with the supreme court’s [sic] ruling.  The legislature stated that it never intended to exempt illegal or illegitimate business from the reach of the Act.  

Shaffer, 557 Pa. at 455-456, 734 A.2d at 841-42 (1999).  The Superior Court determined that because the legislature stated its intent, the Besch decision had no effect.

The Supreme Court in Shaffer reversed the Superior Court explaining that judicial construction of a statute becomes part of the legislation from the time of its enactment.[3]  The Supreme Court noted that the legislature failed to clearly indicate in the amendatory act that the amendment of the Pa. C.O.A. should be applied retroactively.  “Although the legislative history accompanying the amendment indicated that certain legislators desired to overrule our decision in Besch, the legislature lacked authority to do so.”  Shaffer, 557 Pa. at 459, 734 A.2d at 843 (1999).

Shaffer provides guidance for the present inquiry because the law applicable to the criminal defendant in Shaffer, i.e. the law of Besch, was in effect at the time he committed his alleged crime, just as the law of PNC was in effect for post-September 17, 2003 common law unions.  In each case, there was subsequent legislation that purported to clarify or amend prior decisions.

Applying the reasoning of Shaffer to the present inquiry, it is submitted that, at least for workers’ compensation purposes, Act 144 of 2004 would not be found to ratify or validate common law marriages entered into after September 17, 2003 .  The PNC decision established the applicable law for common-law marriages entered into after that date, and since as previously noted, Act 144 should not be given retroactive effect, this should not alter the holding of the PNC decision.  Interestingly, if the instant matter were to eventually be appealed to the Supreme Court, the Supreme Court would have the Commonwealth Court ’s PNC decision, its own decision in Staudenmayer, and the last word from the legislature in the form of Act 144, establishing a clear intent to abolish common-law marriage.   

It is submitted that a solid legal argument can, and should, be made that, for workers’ compensation death benefit purposes, any common-law marriage entered into after September 17, 2003, continues to be considered null and void, thereby precluding a claim for widow’s or widower’s benefits.