BethEnergy Mines, Inc. v. Workmen's Compensation Appeal Board

543 A.2d 1268, 117 Pa. Commw. 465, 1988 Pa. Commw. LEXIS 543

• Court: Commonwealth Court of Pennsylvania
• Decided: July 6, 1988
• Docket: Appeal 1826 C.D. 1987
• Status: Published

Opinions

Opinion by

Senior Judge Barbieri,

BethEnergy Mines Inc. (Employer) petitions for review of the order of the Workmen’s Compensation Appeal Board (Board) dismissing its petition alleging that Alice Sadvary (Claimant) had entered into a meretricious relationship and should therefore have her widow’s benefits terminated under Section 307(7) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §562. We reverse.

Claimant’s husband, Steven Sadvary, died in a work related accident on August 19, 1980. Pursuant to Section 307 of the Act¹, Claimant was awarded widows benefits in the amount of $199.00 per week. Beginning in 1984, Employer retained a private investigation firm which established through surveillance that Claimant was living with another man who was at the time separated from his wife. The Claimant admitted that she lived with this man for a period of one year, that she was not married to him, and that the relationship included sexual relations. Section 307(7) of the Act states in pertinent part:

Provided, however, That if, upon investigation and hearing, it shall be ascertained that the widow or widower is living with a man or woman, as the case may be, in meretricious relationship and not married, or the widow living a life of prostitution, the board may order the termination of compensation payable to such widow or widower.

The referee found that such a meretricious relationship existed. The Board accepted this finding, but found that the economic effect of terminating benefits to a forty eight year old widow living in an economically depressed area, who had not worked in fifteen years, and who was now totally dependent upon these benefits for support, would be devastating. The Board further found that, as Claimant had ceased her meretricious relationship with the filing of Employers termination petition, it would exercise its “discretionary” authority under Section 307(7) and deny Employers petition. Employer argues on appeal that the Board has no such discretionary authority under Section 307(7) and that once Employer proves its case the Board must grant the petition as a matter of law.

Section 307(7) is a legislative attempt to regulate morality from an anachronistic era which has repeatedly survived the due process and equal protection attacks which sunk similar minded criminal statutes dealing with adultery and fornication years ago.² See Nevius v. Workmen's Compensation Appeal Board (I. Reindollar and Sons, Inc.), 52 Pa. Commonwealth Ct. 418, 416 A.2d 1134 (1980); Workmen's Compensation Appeal Board v. Worley, 23 Pa. Commonwealth Ct. 357, 352 A.2d 240 (1976). In the past the Board has ameliorated the harsh results of Section 307(7) while attempting to reconcile its legislative purpose by using the phrase “the board may order . . .” to impose a suspension of benefits for the period the claimant engaged in the meretricious relationship. In both Nevius and Worley we sustained such suspensions in the face of attacks by the claimant that the Boards action constituted an abuse of discretion. However, we specifically noted in Nevius that the employer had not raised the issue of whether the board lacked the authority to order a suspension. Nevius at 420, n. 1, 416 A.2d at 1136, n.1. When in Jones Motors v. Workmen's Compensation Appeal Board (Moyer), 51 Pa. Commonwealth Ct. 210, 414 A.2d 157 (1980), the employer challenged the Boards authority to issue a suspension under these circumstances, we were quick to point out that Section 307(7) authorized termination only, which is not interchangeable with suspension, and consequently the Board had no discretion or authorization to order a suspension.

The Board is attempting to do indirectly in this case what we ruled it could not do directly in Jones. If the Board does not have the discretion to order a suspension in lieu of termination, it does not have the discretion to simply not order a termination at all. As we noted in both Jones and Nevius:

It seems apparent that the legislature, by the wording of Section 307, provided, as a requirement for the continuation of compensation benefits to a widow, that she forego any meretricious relationship and not live a life of prostitution. A contrary reading of Section 307 would tend to encourage behavior which would not likely be acceptable or countenanced by the legislature.

Jones at 213, 414 A.2d at 159; Nevius at 422, n.3, 416 A.2d at 1137, n.3.

Giving the Board discretionary authority under Section 307(7), “clothes the Board with a cloak of discretion that may be used arbitrarily.” Nevius at 425-426, 416 A.2d 1139. We do not believe the legislature intended to give the Board the right to pick and choose which widows or widowers living in meretricious relationships should have their benefits terminated and which should not based on economic and social factors of the Boards own choosing. It is not up to the Board to make determinations that the Claimant lives in an economically depressed area, that substantial employment prospects are unlikely, and that Claimant cannot compete for minimum wage fast-food type employment with teenagers and younger people more adaptable for such work (Board opinion at 4, R.R. 82a).

We recognize the good intentions of the Board, but such intentions are just as likely to create arbitrary chaos in an attempt to achieve social justice as to achieve such justice. Far better for the legislature to rectify the harsh results of Section 307(7) by bringing the statute into conformity with the modem age than to permit the Board to substitute itself for the legislature as the arbitrator of morality on a case by case basis according to its own views.

Order

Now, July 6, 1988, the order of the Workmen's Compensation Appeal Board at No. Misc. 4365, dated July 20, 1987, is hereby reversed. Jurisdiction relinquished.

1 77 P.S. §561.

2 However, there has not yet been a challenge to Section 307(7) under the provisions of Article 3, §18 of the Pennsylvania Constitution which provides in pertinent part that:

The General Assembly may enact laws requiring the payment by employers, or employers and employes jointly, of reasonable compensation for injuries to employes arising in the course of their employment, and for occupational diseases of employes, whether or not such injuries or diseases result in death, and regardless of fault of employer or employe. . . . but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death. . . .

(Emphasis added.) The constitutionality of Section 307(7) has not been raised by either party in this case and we will not do so sua sponte.