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Docket Number

No. CIV.A. 02-CV-8312.

Attorney(S)

Jennifer B. Liebman, Jennings Sigmond, Philadelphia, PA, for Plaintiffs. Michael J. Dougherty, David L. Rohde Law Offices, Havertown, PA, Murray B. Dolfman, Law Offices of Murray B. Dolfman, Philadelphia, PA, for Defendants.

Judges

J. Curtis Joyner

Acts

Labor — Regulatory Provisions — Employee Retirement Income Security Program — Protection Of Employee Benefit Rights — Administration And Enforcement — Civil Enforcement
Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — Interpleader
Judiciary And Judicial Procedure — District Courts; Venue — Jurisdiction And Venue — Interpleader
Judiciary And Judicial Procedure — Interpleader — Particular Proceedings — Process And Procedure
Labor — Labor-Management Relations — Liabilities Of And Restrictions On Labor And Management — Restrictions On Financial Transactions
Labor — General Provisions — Employee Retirement Income Security Program — Protection Of Employee Benefit Rights — Definitions
Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — Federal Question

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Smart Summary

Case Summary — International Painters and Allied Trades Industry Pension Fund v. Calabro & Busha

Factual and Procedural Background

Plaintiffs are the International Painters and Allied Trades Pension Fund (the "Fund") and Gary Meyers (a fiduciary authorized to represent the Fund's Board of Trustees). The Fund administers death benefits under a multiemployer pension plan governed by ERISA.

Victor M. Calabro, a participant in the Pension Fund, died on May 26, 2001. Death benefits were payable from the Fund by reason of his death. Plaintiffs brought an interpleader action to determine which of two claimants was entitled to the death benefits: Defendant Theresa (Theresa) Calabro (Victor's daughter and administratrix of his estate) and Defendant Dorothy Busha (who asserted she was Victor's common law wife).

Plaintiffs initially attempted to invoke the Federal Interpleader Act (28 U.S.C. § 1335), but both adverse claimants were residents of Philadelphia, Pennsylvania, so diversity as required by § 1335 was not present. The Court accordingly treated the action as an interpleader under Rule 22 of the Federal Rules of Civil Procedure and exercised jurisdiction under ERISA, 29 U.S.C. § 1132(a)(3), and 28 U.S.C. § 1331. A non-jury trial was held on March 18, 2004; the Decision and Order resolving entitlement to the death benefits is dated March 30, 2004.

The Fund's records were disputed as to whether Victor had submitted a Beneficiary Designation Form prior to his death. Plaintiffs alleged no form was submitted; Theresa admitted that allegation; Dorothy denied it and alleged such a form was in the Plaintiffs' possession. No testimony or evidence was presented at trial resolving that factual dispute, and the Court found, based on the pleadings and admissions, that Victor did not submit a Beneficiary Designation Form prior to his death.

Legal Issues Presented

Whether Defendant Dorothy Busha and Victor Calabro ever entered into a valid marriage (specifically a valid common law marriage) that would make Dorothy a "surviving spouse" entitled to pre-retirement surviving spouse benefits under the Pension Plan.
By consequence of the first issue, whether the death benefits payable under the Plan must be paid to Dorothy Busha as a surviving spouse, or to Theresa Calabro as administratrix of Victor Calabro's estate (or to a designated beneficiary/estate if one existed).

Arguments of the Parties

Plaintiffs' Position

Plaintiffs (the Fund and Gary Meyers) brought this interpleader action to resolve competing claims to the death benefits and to enforce the terms of the Plan under ERISA, 29 U.S.C. § 1132(a)(3).
Plaintiffs averred in their Complaint that Victor did not submit a Beneficiary Designation Form prior to his death.
Because the adverse claimants were not citizens of different states, Plaintiffs' attempt to invoke the Federal Interpleader Act failed; Plaintiffs sought relief under Rule 22 and ERISA.

Defendant Theresa Calabro's Position

Theresa Calabro is Victor's daughter and the administratrix of his estate. She asserted entitlement to the death benefits as administratrix of the estate (i.e., in the absence of a qualifying surviving spouse or designated beneficiary).
Theresa admitted the Plaintiffs' allegation that Victor did not submit a Beneficiary Designation Form prior to his death.

Defendant Dorothy Busha's Position

Dorothy Busha contended she was Victor's common law wife at the time of his death and therefore the "surviving spouse" entitled to the Plan's pre-retirement surviving spouse pension (an annuity) rather than a lump-sum to the estate.
Dorothy denied Plaintiffs' allegation that no Beneficiary Designation Form existed and alleged that such a form was in the Plaintiffs' possession; however, at trial she proceeded on the theory of entitlement by virtue of common law marriage rather than as a designated beneficiary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
U.S. Fire Ins. Co. v. Asbestospray, Inc., 182 F.3d 201, 208 (3d Cir. 1999)	Describes interpleader as an equitable proceeding.	The Court cited this characterization to support treating the Fund's action as an equitable interpleader under ERISA and federal-question jurisdiction (28 U.S.C. § 1331).
Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998)	Establishes that marriage in Pennsylvania is a civil contract; explains common law marriage is created by exchange of verba in praesenti (words in the present tense) and places burden on party alleging common law marriage to prove it.	The Court applied Staudenmayer to define the legal standard for establishing a common law marriage (requiring verba in praesenti proven by clear and convincing evidence) and to conclude Dorothy failed to meet that burden.
In re Estate of Manfredi, 399 Pa. 285, 159 A.2d 697 (1960)	Holds that proof of constant cohabitation and a general reputation of marriage can raise a rebuttable presumption of marriage in some instances.	The Court noted that while cohabitation and reputation may raise a presumption, that presumption is inapplicable where the putative spouse can testify regarding the alleged verbal exchange (verba in praesenti) and must prove it by clear and convincing evidence.
Estate of Gavula, 490 Pa. 535, 417 A.2d 168 (1980)	States the party alleging common law marriage bears a "heavy" burden and must produce clear and convincing evidence.	The Court relied on Gavula to emphasize the heightened evidentiary standard Dorothy had to meet and found her evidence insufficient under that standard.
In Re Estate of Garges, 474 Pa. 239, 378 A.2d 307 (1977)	Indicates that one whose previous marriage has not been dissolved is incapable of contracting to marry another; when relationship began while a party was married to a third person, presumption of marriage from cohabitation does not apply and court will presume parties continued unmarried absent clear and convincing evidence of change of status.	The Court applied Garges to hold that because Dorothy and Victor's relationship began while both were married to others, the presumption from cohabitation and reputation is inapplicable and there must be clear and convincing evidence of a change of status — which Dorothy did not provide.
Dowd v. Dowd, 275 Pa.Super. 472, 418 A.2d 1387 (1980)	Interprets 23 Pa.C.S. § 1702(a): an otherwise invalid marriage may be cured after the impediment is removed only if entered into in good faith without knowledge of the impediment.	The Court referenced Dowd in explaining that an attempt to cure a marriage contracted while an impediment existed would require good faith without knowledge of the impediment, and found no evidence Dorothy could credibly make such a claim regarding the 1977 vow exchange.
PNC Bank Corp. v. Workers' Compensation Appeal Board (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003)	Noted by the Court (in a footnote) for the proposition that the doctrine of common law marriage has apparently since been abolished in Pennsylvania.	The Court mentioned this authority in a footnote to acknowledge the later statutory/administrative development concerning common law marriage, but applied the common law standards in effect for the relevant period when analyzing the parties' 1966–2001 conduct.

Court's Reasoning and Analysis

Jurisdiction and procedural posture: The Court first addressed the procedural basis for the action. Plaintiffs had attempted to proceed under the Federal Interpleader Act (28 U.S.C. § 1335), but because both adverse claimants were residents of Pennsylvania the diversity requirement of § 1335 was not satisfied. The Court therefore treated the case as an interpleader action under Rule 22 and as an action arising under federal law (ERISA § 1132(a)(3)), giving rise to subject matter jurisdiction under 28 U.S.C. § 1331.

Plan terms and consequences: The Pension Plan distinguishes between benefits payable to a surviving spouse (a Pre-Retirement Surviving Spouse Pension in annuity form) and benefits payable as a lump sum to a designated beneficiary or the participant's estate if the participant was not married at death and had no designated beneficiary. The Plan thus directs different forms of payment depending on whether a surviving qualified spouse exists.

Standard for common law marriage: The Court explained Pennsylvania law (as applied to the relevant time frame) treats marriage as a civil contract; common law marriage requires the exchange of verba in praesenti (words in the present tense evidencing present intent to be husband and wife). The party asserting a common law marriage bears a heavy burden: clear and convincing evidence of verba in praesenti is required. While cohabitation and general reputation of marriage may raise a rebuttable presumption of marriage in some circumstances, that presumption does not apply where the putative spouse can testify about the alleged verbal exchange and the relationship began while one or both parties were married to third persons. Where the relationship began while an impediment to marriage existed, the court presumes continued unmarried status after the impediment is removed unless there is clear and convincing evidence of a change of status.

Application to the facts: Dorothy and Victor began living together in 1966 while each was married to someone else. Dorothy's divorce was not final until April 14, 1977; Victor's divorce was final in 1975. Dorothy and Victor exchanged vows during Dorothy's sister's wedding on January 8, 1977, and Victor had earlier proposed on December 24, 1969. The Court found the December 1969 proposal insufficient because it was not verba in praesenti (it was a proposal for the future), and the January 8, 1977 ceremony could not create a valid common law marriage because Dorothy remained married to a third person at that time (an impediment existed). The Court further found that Dorothy produced no evidence of any verba in praesenti after her divorce became final on April 14, 1977, and that evidence of continuous cohabitation and general reputation of marriage after that date was insufficient to satisfy the clear-and-convincing standard when the presumption of marriage from cohabitation is inapplicable due to the relationship's origins while married to others.

Evidence concerning beneficiary designation: Plaintiffs alleged Victor did not submit a Beneficiary Designation Form prior to his death; Theresa admitted that allegation, Dorothy denied it but did not present evidence proving a designation at trial. The Court therefore found that no beneficiary designation had been submitted prior to Victor's death.

Ultimate legal analysis: Given Dorothy's failure to satisfy the clear-and-convincing standard to prove a common law marriage (verba in praesenti) and the inapplicability of the presumption from cohabitation due to the existence of an initial impediment, the Court concluded Dorothy was not a "surviving spouse" within the meaning of the Plan. With no valid surviving spouse and no proven beneficiary designation, the Plan's death benefits were payable to Victor's estate; Theresa, as administratrix, was entitled to those benefits.

Holding and Implications

Holding: The Court held that Defendant Dorothy Busha did not enter into a valid common law marriage with Victor M. Calabro and is therefore not a "Surviving Qualified Spouse" under the Pension Plan. The Court ordered that the death benefits payable by the Pension Fund as a result of Victor M. Calabro's death be paid to Defendant Theresa Calabro, administratrix of Victor M. Calabro's estate.

Implications and effect:

The direct operational consequence is that the Pension Fund was ordered to pay the death benefits to Theresa Calabro in her capacity as administratrix of the estate.
The Court applied then-governing Pennsylvania common law standards regarding common law marriage (requiring verba in praesenti proven by clear and convincing evidence) to the relationship facts presented and found the proof insufficient.
The opinion does not purport to establish a new legal rule; it applies established Pennsylvania law and ERISA-plan interpretation to resolve entitlement in this specific factual context. The Court noted in a footnote that the doctrine of common law marriage has apparently since been abolished in Pennsylvania, but the Decision analyzed the parties' conduct under the common law standards applicable to the relevant time period.

Disposition: An Order dated March 30, 2004 directs Plaintiff (the Pension Fund) to pay the death benefits to Defendant Theresa Calabro, administratrix of Victor M. Calabro's estate.

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INTERNATIONAL PAINTERS AND ALLIED TRADES INDUSTRY PENSION FUND and Gary Meyers, Fund Administrator Plaintiffs, v. Theresa CALABRO and Dorothy Busha, Defendants.

DECISION

J. JOYNER, District Judge

This interpleader action has been brought before this Court under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a), for determination of which Defendant is entitled to the death benefits payable by Plaintiff International Painters and Allied Trades Pension Fund. Following a non-jury trial in this matter on March 18, 2004, we make the following:

Plaintiffs attempted to bring this suit pursuant to the Federal Interpleader Act, 28 U.S.C. § 1335, 1397 and 2361. In pertinent part, the Federal Interpleader Act reads as follows:

(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more . . . if (1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation . . .

28 U.S.C. § 1335(a).
By way of answer to Plaintiff's complaint, Defendant Theresa Calabro averred that she resides at 2727 Rhawn Street, Apartment 32B, Philadelphia, Pennsylvania. Defendant Dorothy Busha, by way of answer to Plaintiff's Complaint, averred that she resides at 1413 E. Lycoming Avenue, Philadelphia, Pennsylvania. As such, the two adverse claimants in this action are not of diverse citizenship as required for this Court's jurisdiction under 28 U.S.C. § 1335. As will be discussed infra, this Court's subject matter jurisdiction is proper on another basis and we will therefore treat this interpleader action as one under Rule 22 of the Federal Rules of Civil Procedure.

Findings of Fact

1. Plaintiffs are International Painters and Allied Trades Pension Fund ("Fund") and Gary Meyers. Plaintiff Fund is a trust fund established under 29 U.S.C. § 186(c)(5) and a "multiemployer plan" and "employee benefit plan" within the meaning of 29 U.S.C. § 1002(37), (1), (2) and (3). The Fund is administered from offices located in Washington, D.C. Plaintiff Gary Meyers is an individual fiduciary of the Funds within the meaning of 29 U.S.C. § 1002(21) and is authorized to represent the full Board of Trustees of the Fund in this action.

2. Victor M. Calabro was a participant in the Pension Fund. He died on May 26, 2001 and death benefits are payable from the Fund by reason of his death.

3. The International Painters Allied Trades Industry Pension Plan contains the following provisions:

3.18(a)Death Benefit

(a) General Rule

Except as provided in Section 3.20(b), in the event the Participant died before pension benefits became effective and after he or she had accrued 60 units of pension credit during the Contribution Period but before he or she was eligible for a pension either through vesting or by reduced eligibility rules, a Death Benefit equal to 50% of the contributions made on the Participant's behalf shall be paid to his or her designated Beneficiary. However, if the Beneficiary under this Section is the Participant's surviving spouse who is entitled to a Preretirement Surviving Spouse Pension under Section 5.03, no Death Benefits shall be payable under this Section unless the surviving spouse so elects in accordance with Section 5.03(g)(3). Also, no benefits shall be payable under this Section if a Husband-and-Wife Pension is payable to the Spouse of the Participant under Section 5.02.

5.03(g)(3) Pre-retirement Surviving Spouse Pension

(a) If a Participant who has a Qualified Spouse dies before the Annuity Starting Date but at a time when the Participant had earned a vested right to a pension, a Pre-Retirement Surviving Spouse Pension shall be paid to the surviving Spouse.

(b) A Spouse is a Qualified Spouse for the purpose of this subsection if the Participant and Spouse have been married to each other throughout the year immediately before the Participant's death, or if the couple were divorced after being married for at least one year and the former spouse is required to be treated as a Spouse or Surviving Spouse under a Qualified Domestic Relations Order as defined in ERISA § 206(d)(3) and IRC 414(p).

7.13

If no designated Beneficiary survives at the death of a Participant, any Death Benefit provided shall be payable to the estate of the Participant subject to the terms of the third paragraph of this Section.

1.04

The term "Beneficiary" means a person (other than a Pensioner) who is receiving, or who is entitled to receive, benefits under this Plan because of his or her designation for such benefits by a Pensioner or a Participant.

4. Victor Calabro did not submit a Beneficiary Designation Form to the Fund prior to his death.

The Court makes this finding even though there was no evidence presented as to whether or not Victor designated a beneficiary. Plaintiffs averred in their Complaint that Victor did not submit the Beneficiary Designation Form. Defendant Theresa Calabro admitted this fact, but Defendant Dorothy Busha denied its veracity and alleged that such a form was in the possession of the Plaintiffs. Neither side presented any testimony or evidence regarding this matter at trial, and Dorothy Busha, the only party contesting the issue, proceeded on the theory that she was entitled to the death benefits by virtue of being Victor's common law wife, and not as the designated beneficiary of the fund.

5. Defendant Theresa Calabro is the daughter of Victor Calabro and administratrix of his estate. She believes she is entitled, as administratrix of Victor Calabro's estate, to the death benefits payable by the Fund.

6. Defendant Dorothy Busha believes she was the common law wife of Victor Calabro at the time of his death and is therefore entitled to the death benefits payable by the Fund.

7. Dorothy Busha and Victor Calabro met each other and started a relationship in 1966. Victor began living with Dorothy sometime in 1966 and they continued to live together until sometime around 1990. Victor and Dorothy applied for and received a loan together in 1986, held a joint bank account together until at least 1986, and purchased insurance policies together. Dorothy was identified as "Dorothy Calabro" on the loan documents, bank account, insurance policies, and vehicle registrations. In 1986, Victor designated Dorothy Busha as the beneficiary on his life insurance policy and identified her as his common law wife. Dorothy's grandchildren knew Victor as their grandfather and Dorothy's husband

8. Victor was married to Mary Calabro at the time he moved into Dorothy's residence in 1966. A divorce decree was issued as to Victor and Mary Calabro on November 14, 1975.

9. Dorothy was married to Bernice Busha at the time she and Victor began living together in 1966. A divorce decree was issued as to Dorothy and Bernice Busha on April 14, 1977.

10. On December 24, 1969, Victor gave Dorothy a ring and asked her to marry him when both of their divorces were final.

11. On January 8, 1977, Dorothy's sister got married in a wedding ceremony held in Victor and Dorothy's home. During the exchange of vows, Dorothy and Victor also repeated the vows loud enough that others present could hear them.

12. Sometime around 1990, Dorothy Calabro moved out of the home she shared with Victor due to an incident that occurred between Victor and Dorothy's daughter. Though they lived separate and apart, Dorothy and Victor continued to have liaisons together. Up until his death, Victor continued to send holiday cards to Dorothy in which he referred to himself as her husband

13. Upon Dorothy and Victor's separation, Elizabeth Terranova and Victor started living together. Elizabeth and Victor lived together until the time he died, with the exception of a period of approximately one year sometime around 2001 in which Victor lived with his daughter Theresa.

14. Elizabeth Terranova also believes she was the common law wife of Victor Calabro at the time of his death. Victor gave Elizabeth holiday cards similar to those he gave to Dorothy, and signed those cards as Elizabeth's husband On October 5, 1998, Victor transferred the deed to his home to himself and Elizabeth an joint tenants with rights of survivorship. In 1998, Victor identified Elizabeth as his "spouse" on two affidavits of gifts filed with the Department of Transportation, and identified her as his common law wife on a medical life insurance enrollment card.

15. Victor Calabro signed a document titled "LAST WILL AND TESTAMENT OF VICTOR M. CALABRO" on July 31, 1995 in which he recognized Dorothy as his "common-law wife for 21 years." This Will was not probated but was returned to Dorothy by the Register of Wills of Philadelphia without explanation.

16. Victor Calabro is designated as "Divorced" on his Death Certificate.

17. On July 2, 2001, a check was issued to Dorothy Calabro, in reference to "Victor M. Calabro," in the amount of $2500 from the Death Benefit Fund of International Union of Trade Painters and Allied Trades.

Discussion

This suit arises under 29 U.S.C. § 1132(a)(3), which provides that "a participant, beneficiary, or fiduciary, [may bring a civil action] (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3) (emphasis added). Plaintiffs Pension Fund and Gary Meyers, fiduciary of the Funds, filed this action for equitable relief to enforce the terms of the plan at issue. See U.S. Fire Ins. Co. v. Asbestospray Inc., 182 F.3d 201, 208 (3d Cir. 1999) (describing interpleader as equitable proceeding). Because this action arises under federal law, this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

On the death of Victor Calabro, the Pension Fund's plan of benefits provides for the payment of death benefits to a spouse or beneficiary. A Pre-Retirement Surviving Spouse Pension is payable in the form of an annuity to the surviving spouse. A lump sum payment is payable to the designated beneficiary or estate of a participant who was not married at his date of death. Plaintiffs filed this interpleader action for a determination of whether the death benefits payable under the Plan must be paid to Defendant Dorothy Busha, as a "surviving spouse" within the meaning of the Plan, or to Defendant Theresa Calabro, as administratrix of Victor Calabro's estate. Therefore, the issue we must decide is whether Defendant Dorothy Busha and Victor Calabro ever entered into a valid marriage.

Marriage in Pennsylvania is a civil contract by which man and woman take each other for husband and wife. Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016, 1019 (1998) (citing In re Estate of Manfredi, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960)). One whose previous marriage has not been dissolved is incapable of contracting to marry another. In Re Estate of Garges, 474 Pa. 237, 378 A.2d 307, 308 n. 5 (1977). At all times relevant to this case, Pennsylvania law recognized two kinds of marriage: (1) ceremonial; and (2) common law. Staudenmayer, 714 A.2d at 1019. At issue here is the doctrine of common law marriage. A common law marriage is created by the exchange of verba in praesenti, the "exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created." Id. at 1020. The party alleging a common law marriage has the "heavy" burden of proving its existence. Estate of Gavula, 490 Pa. 535, 540, 417 A.2d 168, 171 (1980). He or she must produce clear and convincing evidence of the exchange of verba in praesenti. Staudenmayer, 714 A.2d at 1021.

The doctrine of common law marriage has apparently since been abolished in Pennsylvania. See PNC Bank Corp. v. Workers' Compensation Appeal Board (Stamos), 831 A.2d 1269, 1282 (Pa.Cmwlth. 2003).

Proof of constant cohabitation and a general reputation of marriage can raise a rebuttable presumption of marriage in some instances. See Estate of Manfredi, 159 A.2d at 700. However, this presumption is not applicable where, as here, the putative spouse is able to testify regarding the establishment of the marriage contract through the exchange of verba in praesenti. Staudenmayer, 714 A.2d at 1021.

From the inception of their relationship in 1966, through April 14, 1977, the date of Dorothy's divorce decree, Victor and Dorothy could not enter into either a common law or a traditional marriage. As such, the vows they exchanged during Dorothy's sister's wedding on January 8, 1977, did not create a valid common law marriage. Likewise, Victor's marriage proposal to Dorothy on Christmas eve of 1969 was insufficient to create a common law marriage. Not only were both Dorothy and Victor married to other persons at that time, Victor did not use verba in praesenti, rather, he asked Dorothy to marry him at some future time.

Dorothy has not produced any evidence of verba in praesenti after April 14, 1977, the date upon which she was capable of contracting to marry. The testimony presented by Dorothy indicates that she and Victor lived together continuously until sometime in 1990. There was also some evidence of a general reputation of marriage between Dorothy and Victor. However, evidence of cohabitation and general reputation of marriage is not sufficient to establish a common law marriage where the putative spouse is able to testify and fails to prove by clear and convincing evidence, the establishment of the marriage contract through the exchange of verba in praesenti. See Staudenmayer, 714 A.2d at 1021. Furthermore, the presumption of marriage based on cohabitation and reputation does not apply if the parties' relationship began while at least one party was married to a third person. In Re Garges, 378 A.2d at 309. In this instance, the court will presume that the parties continued to live together unmarried even after the impediment to marriage has been removed, unless there is clear and convincing evidence of a change of status — from "unmarried" to "married." Id. Dorothy has failed to meet this burden. She has provided no evidence that she and Victor changed their status as a couple from unmarried to married after her divorce. Therefore, Dorothy Busha has failed to establish the existence of a valid common law marriage between herself and Victor Calabro that would entitle her, as his "surviving spouse," to the death benefits payable under the Plan.

An otherwise valid marriage can be cured under 23 Pa.C.S. § 1702(a) after the impediment to marriage is removed, only if the marriage is entered into in good faith without knowledge of the impediment. 23 Pa.C.S. § 1702(a) (1990); Dowd v. Dowd, 275 Pa.Super. 472, 418 A.2d 1387 (1980). Dorothy Busha has not alleged, nor do we believe that she could do so in good faith, that she and Victor recited marriage vows on January 8, 1977 in good faith and without knowledge that Dorothy was still married at that time to another man.

Conclusions of Law

1. This Court has jurisdiction over this case pursuant to 29 U.S.C. § 1132(a)(3) and 28 U.S.C. § 1331.

2. Defendant Dorothy Busha never entered a valid common law marriage with Victor Calabro.

3. Defendant Dorothy Calabro is not the "Surviving Qualified Spouse" of Victor Calabro within the meaning of the Pension Plan.

4. Defendant Dorothy Calabro is not entitled to any death benefits payable by the Pension Fund by virtue of Victor Calabro's death.

5. Theresa Calabro, as administratrix of Victor Calabro's estate, is entitled to the death benefits payable by the Pension Fund by virtue of Victor Calabro's death.

An order follows.

ORDER

AND NOW, this 30th day of March 2004, following a non-jury trial and for the reasons set forth in the preceding Decision, Plaintiff is hereby ORDERED to pay to Defendant Theresa Calabro, administratrix of Victor M. Calabro's estate, the death benefits owed and payable by the Plaintiff as a result of the death of Victor M. Calabro.

INTERNATIONAL PAINTERS ALLIED TRADES IND. v. CALABRO